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].”
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.”