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.”
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.