Ms. Garba and Mr. Ndiaye's reported case this week in the
Maryland Court of Special Appeals, Garba v. Ndiaye, 2016
Md. App. LEXIS 25, is a classic example of how you can never really
be sure which court has control over custody decisions involving
your children. In a nutshell, these parents led a peripatetic life.
Ms. Garba works for the United Nations and travels extensively
overseas; Mr. Ndiaye less so. Therefore, when these parents decided
to litigate the custody of their children, the first question was
which court had the right to make that decision.
In 49 of the 50 States (not Massachusetts, yet) courts in the USA
are controlled by the Uniform Child Custody Jurisdiction and
Enforcement Act ("UCCJEA"). The UCCJEA prioritizes which
court gets the first shot at making a custody decision. Under the
UCCJEA, the place that has been the child's residence for six
months prior to the commencement of the litigation becomes the
"home state" and controls the custody decisions. But,
what happens if during those six months the children are constantly
shuttling between different places because one of the parents
travels with the children? Such "temporary absences" have
proved to be a huge problem for courts--and the 49 States take
different approaches to determining if the "temporary
absence" was a change in residence or just a temporary
sojourn. Unfortunately for Ms. Garba, the Maryland appeal court
decided that her sojourns with the children were indeed temporary,
and Maryland never lost "home state" jurisdiction.
So what is one to take away from all this legal machination? First,
jurisdictional battles just get you to the place where the custody
is going to be litigated. You have then alreadly fought a huge
battle but not won any war, as the custody battle has not yet even
started. Second, it is all clear as mud-so be very wary about going
down this litigation route unless it is crystal-clear that one
parent is forum shopping a more sympathetic court, and there is no
doubt which State is the "home state." Third, if you are
going to try to assert a new "home state," then you must
have overwhelming evidence to establish that the children have
taken up a new residence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
