By Jeremy D. Morley
Interesting and difficult jurisdictional questions frequently arise when a parent unilaterally removes a child to an international jurisdiction. 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 home state even though the child is absent from the jurisdiction. A recently decided case illustrates the issue.
A Move to the Philippines
In Sanjuan v. Sanjuan, 2009 NY Slip Op 09644 (Dec. 22, 2009), the particular issues before the Appellate Division, Second Department, were whether, by relocating (or "abducting" or "kidnapping") a child from the child’s home in New York to an overseas location, the parent had engaged in "unjustifiable conduct" within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and, if so, what effect that should have on New York’s custody jurisdiction.
The child’s parents had married in the Philippines, where the child was born. The family 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 Second Department upheld the ruling of Supreme Court, Suffolk County (Garguilo J.), dismissing the mother’s New York action for lack of jurisdiction. Clearly, New York was not the child’s "home state" within the meaning of Domestic Relations Law § 75-a , since New York was not the "state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." Nor did the court have "initial custody jurisdiction" within the meaning of Domestic Relations Law § 76(a), which provides for jurisdiction if New York "is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state."
However, the mother claimed that jurisdiction arose from Domestic Relations Law § 76-g (Sec. 208(a) of the UCCJEA), which 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 …; and
c) No court of any other state would have jurisdiction under [the UCCJEA].
The fundamental issue was whether, by unilaterally taking the child to the Philippines, the father had engaged in "unjustifiable conduct" that created jurisdiction in the Philippines. The Second Department agreed that "unjustifiable conduct" meant that one might not claim home state jurisdiction by hiding a child for six months. However, the court determined that the father’s alleged "unjustifiable conduct" was refuted by the facts of the particular case.
The determining factors were that: 1) No custody order was in place at the time that the father had taken the child to the Philippines; 2) The mother had learned of the child’s location in the Philippines several days after the child was taken there; and 3) Her family had visited the child in the Philippines on several occasions.
For these reasons, the court concluded, "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."
As an alternative basis for its decision, the Second Department then held that the mother had "acquiesced" to the jurisdiction of the Philippines within the meaning of Domestic Relations Law § 76-g(1)(a). Such acquiescence had arisen by virtue of the fact that, although the mother had filed a summons with notice against the father about a month after he removed the child from New York, she had not pursued the case, which had "expired" for lack of service. By waiting, she had acquiesced.
What It Means
There are several lessons to be taken away from the outcome of this case. They are: 1) International child abduction is not necessarily "unjustifiable conduct" within the meaning of the UCCJEA if there is no court order or if the child is not being hidden; 2) When a child is allegedly abducted to another jurisdiction the left-behind parent should file promptly in the child’s home state for an order requiring the child’s return or acquiescence will likely arise from inaction; and 3) The mere filing of a custody action is insufficient; the case should be diligently prosecuted and the order requiring the child’s return should be delivered to the taking parent.
While the outcome in the Sanjuan case may be justified on its particular facts, and while the finding as to acquiescence is clearly correct, the case may well constitute a dangerous precedent as to the meaning of the term "unjustifiable conduct." It seems to hold that as long as there is no court order and the child is not actually hidden there is no "unjustifiable conduct." That is surely contrary to the intention of the UCCJEA and also to the real world of international child abduction.
The lack of a custody order does not authorize one parent to take a child to live in a foreign country. Such a taking is normally a "wrongful taking" within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction. It is also normally a felonious act within the meaning of the International Parental Kidnapping Act, 18 USCA 1204.
Nor does the fact that the location of the abducted child is known to the left-behind parent serve to justify or legitimate the taking of the child. It is the author’s experience that in most such cases the left-behind parent knows where the child is being kept, since typically a parent takes the child to the parent’s country of origin and the parent is taken in by his or her family in that country. This fact alone should not immunize the abducting parent against having to return the child.
The Comment of the National Conference of Commissioners on Uniform State Laws to the Section 208 of the UCCJEA states that:
This section ensures that abducting parents will not receive an advantage for their unjustifiable conduct … For example, if one parent abducts the child pre-decree and establishes a new home State, that jurisdiction will decline to hear the case.
The Second Department cited the Comment with approval in Sanjuan, but then appears to have ignored it.
A recent California case also sheds light on the meaning of "unjustifiable conduct." In re Marriage of Nurie, 176 Cal.App.4th 478, 98 Cal.Rptr.3d 200 (Cal.App. 1st Dist., 2009). In that case, a child’s mother allegedly abducted her from her home in California and took her 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.
Unclean hands alone do not require that a custody case be dismissed. In fact, the defense of "unjustifiable conduct" has a very limited application.