Jeremy
D. Morley
The Indiana Court of
Appeals has rendered a detailed analysis of the “escape clause” in the UCCJEA
concerning the enforceability of foreign countries’ custody orders. Coulibaly v. Stevance, 85 N.E. 3d 911
(Ind. Ct. App. 2017).
After a hearing, a court
in Mali, West Africa, had awarded custody of the parties’ children to the
father. Prior to the issuance of the
order the mother had unilaterally removed the children from their home in Mali,
where the French-Malian family had long resided. The mother subsequently moved with the
children from France to Indiana, and initiated a custody proceeding in Indiana
to modify the Malian custody order in her favor. She conceded that the UCCJEA normally
required an Indiana court to recognize and enforce a foreign custody order
issued by a court that had jurisdiction under UCCJEA principles. But she
asserted that the statutory exception to that rule—when the child custody laws
of the foreign country violate “fundamental principles of human rights”—should
apply in the case of Mali.
At first instance, the
Indiana court rejected the mother’s claims. On appeal, her fundamental argument
was that Mali’s child custody law violates fundamental human rights because it
favors men over women. The Malian statute provides that, “[t]he children will
be in custody of the spouse who obtained the divorce unless the court . . .
orders for the best interests of the children, that all or some of them will be
cared for by the other spouse or a third person.” The mother argued that,
although this provision is not gender-based on its face, Mali’s marital laws
evince a preference for men such that women will more often be found at fault
for a divorce, resulting in a de facto paternal preference in child custody
decisions. Thus, she asserted that statutory law in Mali expressly provides
that “[t]he husband owes protection to his wife, the wife obedience to her
husband,” that the husband is the head of the household, that the household
expenses “fall principally on him,” that he has the right to choose the family
residence, that the wife must live with him and he must receive her, and that a
woman is prohibited from running a business without her husband’s permission.
The court in Mali had
granted the divorce to the husband on the basis that the mother was the party
at fault in ending the marriage. Since under Malian law the husband is entitled
to choose the family residence, the fact that the mother had disputed the
father’s decision to remain living in Mali was a ground for divorce. The Malian
court further found that the mother had admitted that she had “a habit of
uttering insulting and offensive remarks toward” the father, which constituted
“serious abuse,” and that her persistence in her plan to emigrate with the children
without her husband’s knowledge or consent was a violation of her duty of
loyalty, a mutual duty imposed by Malian marital law upon both spouses
irrespective of gender.
However, when considering
the issue of child custody, the Malian court did not actually apply the
statutory presumption in favor of the father as the party who had obtained the
divorce. Instead, it expressly stated that custody could be awarded to either
parent, and that only the best interests of the children controlled its
decision. It based its decision awarding custody to the father primarily on the
fact that the mother planned to emigrate overseas with the children which would
deprive the children of the affection of their father, whereas the father
wished the mother to have extensive visitation with the children. The Indiana
trial court had then found that Mali’s child custody law as applied in this
case did not violate fundamental principles of human rights and was in fact in
substantial conformity with Indiana’s child custody law.
The mother argued that
the UCCJEA did not allow an Indiana court to consider the basis of the actual
ruling of the Malian court, that it was limited to considering the foreign law
as written, and that it therefore erred in considering whether a custody presumption
was in fact applied in this case. That position was supported by the official
comment to the relevant section of the UCCJEA, which states that “the court’s
scrutiny should be on the child custody law of the foreign country and not on
other aspects of the other legal system.” Indeed, in Matter of Yaman, 105 A.3d 600, 611 (N.H. 2014), the Supreme Court
of New Hampshire held that “[t]he comments to the UCCJEA . . . clarify that the
analysis is meant to focus on the foreign jurisdiction’s substantive law, and
not its legal system or how the law is implemented.” 105 A.3d at 611.
The Indiana Court of
Appeals distinguished Yaman, stating
that, “We believe that the import of the court’s statement in this regard is
that claims of mere legal error are insufficient to establish a violation of
fundamental human rights, a proposition with which we readily agree. The UCCJEA
does not require Indiana courts to reevaluate the merits of every foreign
custody decree that comes before it, and we will not presume to understand the
law of a foreign nation better than that nation’s own judicial officers.”
The Court of Appeals then
insisted that, “Nevertheless, we do not believe that the UCCJEA limits the
courts of this state to considering the foreign jurisdiction’s law only on its
face, without regard to whether that law was applied in a manner violative of
fundamental human rights. One can imagine multiple circumstances in which a
foreign jurisdiction’s custody law is unobjectionable as written, but applied
in a manner that clearly violates a parent’s or child’s fundamental human
rights. For example, the relevant law might provide that the custody decision
is to be based upon the best interests of the child, but what if a foreign
court nevertheless places a child with one parent or another based solely on
that parent’s race, ethnicity, nationality, religion, or gender? We see nothing
in the comments to the UCCJEA that would require a court to turn a blind eye to
the realities of the custody order before it in such a situation, and we are
unwilling to take an approach that would require the courts of this state to
become a party to a violation of human rights by enforcing such an order.”
However, in the pending
case, the Court of Appeals determined that, although the mother was determined
to be at fault for the divorce based in part on the Malian court’s finding that
she had violated the gender-based statutory duty of obedience to her husband,
the Malian court’s order made it clear that the child custody decision was based
solely on the best interests of the children, not on the relative fault of the
parties. Accordingly, the Court of Appeals held that, “when considering Mali’s
child custody law as applied in this case, we cannot conclude that Mother has
established a violation of fundamental human rights.”
The Court of Appeals then
considered whether, even if it were confined to a consideration of Mali’s child
custody law as written, rather than as applied, there was a violation of
fundamental human rights. The mother’s primary claim in this regard was that
any presumption of custody is a violation of the fundamental right for a parent
to the care, custody, and control of the child.
The Court of Appeals
refused to apply that logic. It explained that custodial preferences are not
foreign to American jurisprudence. Indeed, gender-based custody preferences
were the norm in the United States in the not-so-distant past. It cited a
Maryland case, Hosain v. Malik, 671
A.2d 988 (Md. Ct. Spec. App. 1996), which affirmed a decision to enforce a
Pakistani custody decree despite evidence that the order was based in part on
the Islamic doctrine of Hazanit, which the court described as “embod[ying]
complex Islamic rules of maternal and paternal preference, depending on the age
and sex of the child.” This was “similar to the traditional maternal preference
in that they both are based on very old notions and assumptions (which are
widely considered outdated, discriminatory, and outright false in today’s
modern society) concerning which parent is best able to care for a young child
and with which parent that child best belongs. Viewed in this regard, standing
as a factor to be weighed in the best interest of the child examination,
Hazanit is no more objectionable than any other type of preference.” The Hosain court also concluded that the
Pakistani court’s consideration of the mother’s adultery as a factor in the
custody decision was not repugnant to Maryland public policy, noting that
Maryland courts are permitted to consider parental adultery in determining
custody, at least to the extent that it affects the child’s welfare.
The Court of Appeals
stated that the simple fact that a doctrine or policy was once prevalent in the
United States does not conclusively demonstrate its compatibility with
principles of fundamental human rights. Nevertheless, as in Hosain, the parental preference at issue
in the pending case was not conclusive. Rather, Malian law provides that
“children will be in custody of the spouse who obtained the divorce unless the
court . . . orders for the best interests of the children, that all or some of
them will be cared for by the other spouse or a third person.” Thus, the law
does not permit Malian courts to blindly apply a parental presumption or ignore
the best interests of the children. Rather, the law appears to do nothing more
than allocate the initial burden of rebutting the custodial presumption in favor
of the innocent spouse to the at-fault spouse. Further, although Mali’s
marriage laws impose different duties on husbands and wives based on gender,
either spouse may be granted a divorce based on the other spouse’s failure to
fulfill his or her respective duties. It concluded by finding that, “Whatever
we might think about the wisdom of Mali’s marital and custody laws in this
regard, we simply cannot say that they are so utterly shocking to the
conscience or egregious as to rise to the level of a violation of fundamental
principles of human rights.”
Finally, the Court of
Appeals considered the mother’s claim that Mali’s legal system and culture are
so oppressive to women that no custody order issued in that country could be
enforceable in the United States. She presented evidence concerning alleged
widespread judicial corruption in Mali, difficulties that noncustodial mothers
in Mali reportedly faced in securing visitation with their children, and a
number of cultural practices oppressive to women and children, with special
reference to the prevalence of female genital mutilation in Mali and the
absence of a law specifically prohibiting the procedure. The Indiana trial
court had rejected the evidence, which was apparently not supported by expert
evidence.
The Court of Appeals held
that the comments to the UCCJEA make it clear that its scrutiny was limited to
Mali’s child custody law and not on other aspects of its legal system,
including the law (or absence of law) concerning female genital mutilation. “[c]onsideration
of every law likely to affect children would throw the doors wide open—laws
regarding civil rights, education, health care, housing, and inheritance, to
name just a few, would all be fair game in evaluating a foreign custody decree.
Such an approach would put the courts of this state in the untenable position
of passing judgment on the entire legal system of a foreign country, a result
plainly at odds with the clearly stated intent of the drafters of UCCJEA.”
Conclusion
Coulibaly
v. Stevance sheds light on an important and
relatively undeveloped area of UCCJEA jurisprudence. The opinion opens the
door, in cases concerning the enforcement of foreign country custody orders, to
a consideration of the basis upon which the foreign court based its custody
determination, but disapproves of a more general consideration of the state of
human rights in the country. Left fairly uncertain is the critical issue of the
enormous disparity in many countries between custody theory and custody practice.
In many cases, the foreign law itself is quite harmless on its face, but it is
the application of the law that creates discrimination. It may well be naive
and unfair to limit the human rights clause to a review of the literal meaning
of a foreign custody law and to preclude inquiry - by means of reliable expert
evidence - as to the operation of the foreign law in the foreign country in practice.
Whether such issues should be considered under the rubric of public policy or otherwise,
they often do need to be heard.