Garba v. Ndiaye

NAZARIAN, J. The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) eliminates jurisdictional wrangling and forum shopping in custody cases by defining, for each child, a “home state” that has exclusive jurisdiction to make initial custody decisions. The young boy at the heart of this case has had a peripatetic life — his parents, both native to foreign countries, lived in Maryland, then New York, and he traveled for extended periods with his mother to her job assignments in several African countries while his father remained here. The Circuit Court for Montgomery County found that Maryland is the boy’s home state and, after an evidentiary hearing, granted sole legal and physical custody to his father. His mother, who filed the case in Montgomery County in the first place, disputes the court’s threshold finding and asks us to ¹⁶⁴ hold that Ethiopia is his home state (foreign countries can be home states too).

This case presents a trickier-than-usual application of the UCCJEA’s process for assigning a home state, but we agree with the circuit court’s decision and affirm. I. BACKGROUND The facts underlying the parents’ marriage, divorce, and custody dispute are colorful and hotly disputed, but the only facts relevant to the issues before us relate to the whereabouts of their son, B. 1 The appellee, Alioune Ndiaye (the “Father”), is a native of Senegal, and the appellant, Nafíssatou Garba (the “Mother”) a native of Niger, and both are United States citizens. 2 They lived first in an apartment, then a home they owned, and worked in Montgomery County. 3 They vacationed to Niger to marry in 2008, and shortly thereafter Mother accepted a job with the United Nations. Her first assignment was in New York City; she, Father, and her son, M., 4 relocated to New York City, but maintained their Maryland residences and returned to Maryland every weekend. From there, Mother took a year-long field assignment in Guinea-Bissau, and she moved there alone in April 2010.

Father remained in Maryland, living with Mother’s mother and M., but visited Mother in Guinea-Bissau, where they conceived B., their first and only child together. To receive ¹⁶⁵ the favorable maternity leave offered to United Nations employees, the parents agreed that Mother should renew her annual contract to remain at her job in Guinea-Bissau, but return to Maryland at the conclusion of that second year. From there, however, the parents’ relationship began to decline. B. was born in Maryland in 2011, and has lived in many places during his young life: 5 • September 9, 2011: Mother left Guinea-Bissau to give birth to B. in Maryland. • January 2012: Mother and B., then four months old, left Maryland for Guinea-Bissau.

In September, Mother filed for voluntary separation. • April 6, 2013: Mother and B. moved to Ethiopia for Mother’s new field assignment. • August 2013: Mother sent B. to Maryland to celebrate his second birthday with Father. Father, though, was in Senegal, and did not see B. Instead, B. stayed with Mother’s mother (at Mother’s house in Maryland) until Mother could join B. in the United States. • November 2k, 2013: Mother and B. returned to Ethiopia. • January 11, 201k: Mother and B. returned to Maryland to visit M. for M.’s 15th birthday. • February 7, 201k: Mother and B. returned to Ethiopia. That same day, Mother filed a verified complaint 6 in the circuit court, seeking an absolute divorce from Father and sole physical and legal custody of B. She stated that she was “domiciled in the State of Maryland and ha[d] been living in the State of Maryland for more than 12 months ¹⁶⁶ prior to the filing of this Complaint.” She listed a Montgomery County address as her address. Father answered and filed counterclaims, including a motion to dismiss based on Mother’s failure to file financial statements.

The court dismissed the complaint, but Father’s counterclaim for divorce and custody proceeded. In August, and in parallel, Mother sought an ex parte divorce and custody in Niger, and on September 16, 2014, the Nigerien court granted divorce and sole physical and legal custody to Mother. • October 5, 201b: Mother and B. traveled to Maryland. On October 13, Mother applied for a visa for Sudan so she could undertake a new United Nations assignment. Her initial Sudanese assignment would be in Darfur, but since it was a non-family mission, B. could not go with her.

Mother enrolled B. in a Maryland preschool on October 14, 2014, 7 and he started school on October 21. On October 26, Mother returned to Ethiopia, while B. remained in Maryland with Mother’s mother. Mother came back to Maryland on November 14, 2014, then went back to Ethiopia in November. On December 2, 2014, the Circuit Court for Montgomery County held a pendente lite hearing and subsequently ordered temporary sole physical and legal custody to Father. • December 12, 201b: Mother’s mother took B. to Niger.

There is conflicting testimony as to which day B. left school, 8 but it is undisputed that Mother called the school on December 15 stating that B. was out of the country due to an emergency. On December 16, Mother relocated to Darfur, Sudan. ¹⁶⁷ Also on December 16, Father filed a report with the Montgomery County Police Department alleging that Mother had illegally removed B. from the United States. Detective Kevin Conroy investigated the complaint and maintained email contact with Mother throughout the investigation. During the email conversations, Detective Conroy explained to Mother that the circuit court had granted temporary custody to Father.

Mother initially complained that she wasn’t served with the order, then claimed the court order didn’t apply to her because B. had often lived outside of the United States. Eventually, Mother disclosed that B. was in Niger with her mother and agreed to bring him to the United States on February 12, 2015. Meanwhile, on December 29, Mother filed for a Sudanese visa for B. using his United States passport. She had recently requested a transfer to Khartoum, Sudan at a family mission site where B. could join her.

Mother responded on January 29, 2015 to Father’s claims for divorce and custody in the circuit court, and moved to vacate the pendente lite custody order. 9 On February 6, 2015, Mother again filed for a Sudanese visa for B., this time using his Nigerois passport because the prior request was taking too long. • February 12, 2015: Mother and B. returned to Maryland. Father immediately took physical custody of B., and B. has since been living with Father. 10 On March 6, 2015, the circuit court held a hearing on Mother’s January 29 motion to vacate the pendente lite order. At that time, Mother was living in Darfur, and the court ¹⁶⁸ denied her motion. A trial on the merits was held on March 23-24 and April 15-16, 11 and on May 4, 2015, the circuit court ordered sole physical and legal custody to Father. 12 The court found, among other things, that Mother listed a Germantown address as her address (a house that she owned and still owns), that she pays taxes in Maryland and the United States, that she has no fixed address when she is on assignment in Africa, and that her missions to Africa were temporary, and in the nature of military deployments.

Mother filed a timely Notice of Appeal.

II

DISCUSSION Mother challenges the circuit court’s decision that Maryland is B.’s “home state” under the UCCJEA. If she’s right, the circuit court lacked jurisdiction to make the initial custody determination at all. See Drexler v. Bornman, 217 Md.App. 355, 360 , 92 A.3d 628 (2014). Instead of Maryland, Mother contends that Ethiopia is B.’s “home state” because he had been living in Ethiopia for almost a year at the time Mother filed for a custody determination. 13 Father frames the issue, correctly, as “whether the court’s determination that Maryland is the home state is clearly erroneous.” From there, though, he points us to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”) and charac ¹⁶⁹ terizes the “threshold issue” as “whether the parents had a shared intention for the child’s Country of Habitual Residence ... [to be] the United States of America or Ethiopia.” 14 He describes the UCCJEA as “a [c]hoice of [f]orum [s]tatute and not an [exclusive [jurisdiction [s]tatute.” And he argues that the Ethiopian courts could not exercise jurisdiction in any event because no proceedings had been initiated there, because Mother’s relocation to Sudan foreclosed the possibility of proceedings in Ethiopia now, and because any Ethiopian court decree would be unenforceable here because “only religious courts following Sharia may hear family law matters.” 15 Because this case turns on the interpretation and application of Maryland constitutional, statutory, or case law, “[this] Court must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review.” See Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006). ¹⁷⁰ A. B. Was Physically Present In Maryland At The Time Of Filing And For Most Of The Preceding Six Months.

Effective October 1, 2004, Maryland adopted the UCCJEA as Title 9.5 of the Maryland Family Law Article (“FL”) (1999, 2006 RepLVol.). This enactment replaced the Uniform Child Custody Jurisdiction Act (“UCCJA”), FL § 9-223 (1984, 1999 RepLVol.). Comment to Section 1 of the UCCJEA borrows language from the UCCJA and delineates the uniform law’s overarching goals: (1) Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; (2) Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child; (3) Discourage the use of the interstate system for continuing controversies over child custody; (4) Deter abductions of children; (5) Avoid relitigation of custody decisions of other States in this State; [and] (6) Facilitate the enforcement of custody decrees of other States. UCCJEA, 9 Part 1A U.L.A. § 101, cmt.

(1999). Under the UCCJA, there was no hierarchy among the potential bases for jurisdiction, so courts in different states could simultaneously exercise jurisdiction and parties could forum-shop. The UCCJEA remedied this problem by providing that the child’s “home state” has exclusive jurisdiction to make initial custody determinations. In so many words, a court of this State has jurisdiction to make an initial child custody determination only if: this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of ¹⁷¹ the child within 6 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.

FL § 9.5-201(a)(l). 16 The UCCJEA defines the child’s “home state” as “the State in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months, including any temporary absence, immediately before the commencement of a child custody proceeding.” FL § 9.5 — 101(h)(1). The Act does not define the term “lived,” although courts generally have construed it to mean the place where the child is “physically present” and distinguished it from the legal concept of domicile. See, e.g., Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005); In re Marriage of Rhoads, 209 S.W.3d 24, 29 (Mo.Ct.App.2006) (“The phrase ‘lived with’ is a commonplace term having no technical meaning, and it means literally what it says. It refers to the child’s physical presence in a state without regard for the child’s legal residence or domicile.” (internal quotations and citations omitted)).

If there is a home state, then no other state may exercise jurisdiction to make an initial custody order. FL § 9.5-201(a); see Toland v. Futagi, 425 Md. 365, 373 , 40 A.3d 1051 (2012) (noting the consistency between the UCCJEA and the Parental Kidnapping Prevention Act, 28 U.S.C. 1738A, which gives “exclusive jurisdiction to the home state, so as to avoid concurrent jurisdiction with another state”). And as we explain below, we agree with the circuit court that Maryland is B.’s home state under these circumstances. Mother filed her complaint on February 7, 2014, the day she and B. returned to Ethiopia after visiting M. for his birthday, so on the day of filing, B. was physically present in Maryland.

During the preceding six months, B. and Mother traveled back and forth twice between Ethiopia and Maryland for birthday celebrations; of those six months, B. spent at least four in ¹⁷² Maryland. 17 At that most fundamental level, then, B. was physically in Maryland for the greatest amount of time during the six months prior to Mother’s filing, whether we measure that in consecutive (three to four months) or cumulative (four to five months) terms. 18 These facts alone, however, don’t necessarily solve the issue. B. was not continuously present in