Jeremy D. Morley
Interesting and difficult
jurisdictional questions frequently arise when a parent unilaterally removes a
child from another country into the United States. How long has the child been
absent from the jurisdiction in which the left-behind parent seeks to have the
case heard? Was the child "kidnapped" or was the parent within his or
her rights in moving the child to another jurisdiction? And what efforts has
the left-behind parent made to remedy the situation? These and other questions
can become part of the decision maker’s analysis when deciding if a parent’s
conduct in taking a child out of country was unjustifiable, and whether this
warrants hearing the case in the left-behind parent’s country of residence even
though the child is absent from the jurisdiction.
Sec. 208(a) of the Uniform Child Custody
Jurisdiction & Enforcement Act provides that, “if a court … has
jurisdiction … because a person seeking to invoke its jurisdiction has engaged
in unjustifiable conduct, the court
shall decline to exercise its jurisdiction unless:
(a)
the parents and all persons acting as
parents have acquiesced in the exercise of jurisdiction;
(b)
a court of the state otherwise having
jurisdiction under [the UCCJEA] has determined that this state is a more
appropriate forum …; or
(c)
no court of any other state would have
jurisdiction under [the UCCJEA].”
(emphasis added)
In Sanjuan v. Sanjuan, 68 A.D.3d1093, 892 N.Y.S.2d 146 (2d Dept.2009), the
child was born in the Philippines, but then lived in New York for nearly two
years after which the father took the child to live in the Philippines, while
the mother remained in New York. Thirteen months later the father filed for
custody in the Philippines and the mother then started a custody case in New
York.
The fundamental issue
was whether, by unilaterally talking the child to the Philippines, the father
had engaged in “unjustifiable conduct” that created jurisdiction in the
Philippines. The New York court determined that the father’s alleged
“unjustifiable conduct” was refuted by the following determining factors:
(a)
No
custody order was in place at the time that the father had taken the child to
the Philippines;
(b)
The
mother had learned of the child’s location in the Philippines several days
after the child was taken there; and
(c)
Her
family had visited the child in the Philippines on several occasions.
For these reasons, the
Court concluded that, “Since the mother knew of the child’s whereabouts, and
there was no custody order in place preventing the father from taking the child
to the Philippines, the father’s conduct was not unjustifiable.”
This was followed in Valji v. Valji, 130 A.D.3d 404, 12 N.Y.S.3d 95 (2d Dept. 2015). There,
the family lived in Tanzania but the wife and child then went to Dubai and
subsequently moved to New York, while the husband remained in Tanzania. The New
York appellate court ruled that, “Plaintiff wife's relocation to New York with
the child in March 2014 without obtaining defendant's consent did not
constitute “unjustifiable” conduct since there was no custody order preventing
her from doing so. We note that
defendant, who communicated with the child daily via Skype and was aware of her
precise location, did not take any legal action to secure the child's return
prior to the commencement of this action. Accordingly, his challenge to
plaintiff's assertion of jurisdiction based on the child's home state is
unpersuasive.” The author, with team member Anne Glatz, represented the wife.
A California case, In re Marriage of Nurie, 176
Cal.App.4th 478, 98 Cal.Rptr.3d 200 (Cal.App. 1st Dist., 2009), also
sheds light on the issue. In that case
a mother allegedly abducted her child from her home in California to Pakistan.
The father initiated a custody
case in California within six months thereafter. The mother brought a custody
case in Pakistan and the father participated in those proceedings. Some years
later he allegedly re-abducted the child to California, apparently with the
assistance of armed gunmen who perhaps acted with Pakistani government
approval. The litigation in California was then resumed.
The mother claimed that
the father’s misconduct in kidnapping the child from Pakistan back to
California constituted “unjustifiable conduct” that barred the California court
from asserting jurisdiction over the child. The California appeal court disagreed. It held that the UCCJEA
does not require it to relinquish jurisdiction properly acquired, but only to
decline to accept jurisdiction that was invoked as a result of wrongful
conduct. California’s jurisdiction had originated with the residency of the
child in California prior to the child’s removal to Pakistan. Even if the
father had later engaged in wrongful, even criminal, behavior in getting the
child back from Pakistan, California had continuing exclusive jurisdiction
which could not be terminated by virtue of the father’s subsequent purported
misconduct. The Court expressly stated that: “’Unjustifiable conduct’
requires a court to decline jurisdiction only when the court's jurisdiction is
invoked as a result of unclean hands, not when one of the party's hands get
dirty after jurisdiction has been properly asserted. This interpretation is not
only consistent with the plain language of the statute, but with the intent of
the drafters.”