A divorce case automatically becomes more complicated when the couple has children. Not only will the parties be expected to address and resolve issues of property division and spousal support, but also they will need to address the emotional and practical issues associated with parenting time and a child custody arrangement. The two most important matters to consider are legal and physical custody. In some unique cases, parents dispute the particular jurisdiction within which to resolve the dispute. In any divorce case, but especially one that involves children, the parties are encouraged to consult with an experienced Maryland family law attorney to be sure their family’s rights are adequately protected.
A recent Maryland divorce case illustrates how tricky a child custody matter can become once the parents begin disputing the jurisdiction of the court. The question centers on the court’s authority to entertain the issue of custody in the first instance. Here, while both parents are United States citizens, the mother is a native of Niger, and the father is a native of Senegal. The couple was living in Maryland when they got married in Niger while on vacation. Soon thereafter, the mother began working for the United Nations. The family moved to New York for her first assignment but maintained residences in Maryland to which they would travel every weekend.
The mother’s work required her to take yearlong assignments in various locations, including Guinea-Bissau and Ethiopia, where she lived alone. The father remained in Maryland. In 2011, she gave birth to the couple’s child while in Maryland. In the following few years, the mother brought the child with her to her work assignment locations. She filed for voluntary separation in 2012, and in 2014, she filed for an absolute divorce in Maryland, citing the State of Maryland as her domicile for the 12 months leading up to the divorce filing (a legal residency requirement). The father moved to dismiss for the mother’s failure to file financial documents, and he sought custody of their son.
The court dismissed the complaint but allowed the father’s counterclaim for divorce and custody to proceed. On September 16, 2014, the mother sought a divorce and custody from a Nigerian court, which granted her relief. However, in December of that year, a Maryland court granted the father temporary sole physical and legal custody. Despite the order, the mother took the child to Niger. She returned to Maryland a short time later, and the father took custody of the child. In May 2015, a Maryland circuit court found that Maryland was the boy’s “home state” and ordered sole physical and legal custody for the father. The court pointed out that the mother owns a house in Maryland, pays taxes here, and her assignment and missions in Africa are temporary.
The mother appealed, challenging the court’s decision that Maryland is the child’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA” or “Act”). She argued that Ethiopia is his home state under the Act. The court of appeals applied a “totality of the circumstances” test to determine the child’s home state. This required the court to look at all of the circumstances surrounding the parties’ absence. The court concluded that the mother’s (and child’s) absences during the period before filing were temporary. Therefore, it decided that Maryland was his home state for the purposes of the UCCJEA.
The Maryland court was determined to have jurisdiction over the matter. Now, the parties can address the substantive issues of legal and physical custody. It is important to be sure that your legal and financial rights are sufficiently protected in any divorce-related proceeding. Parties anticipating a divorce are encouraged to contact Anthony A. Fatemi, an experienced Maryland family law attorney, for representation and legal guidance. Mr. Fatemi can be reached at (888) 519-2801 or (301) 519-2801.
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