Case Update (2021): In re Saida A; temporary absence from home state under the UCCJEA, temporary emergency jurisdiction, human rights

The Family Court of New York County addressed an interesting UCCJEA case on February 1, 2021.  

The minor child at issue was repatriated by the U.S. Department of State from Pakistan to New York on June 26, 2020 at the age of 16 because of concerns that she had been brutally beaten and coerced into an arranged marriage.  The child, Saida, is a U.S. citizen, and had lived in New York prior to being taken to Pakistan by her father on July 29, 2019.  The father left Saida in her mother's care in Pakistan.  Upon her return to New York, she was placed in the care of New York City Administration for Children's Services, and on September 29, 2020, an abuse petition was filed against her parents.  On November 2, 2020, the parents filed a motion to dismiss the abuse petition under the UCCJEA on the grounds that Pakistan was the child's home state.  The father requested that Saida be transferred to social services in Pakistan.

Children's Services filed an affirmation in opposition to the motion to dismiss, arguing inter alia that the UCCJEA need not apply because Pakistani child custody law as written, or as applied, violates fundamental principles of human rights.  It cited to a 2019 State Department report, and reports from Human Rights Watch and Amnesty International, finding that child abuse is widespread in Pakistan and child marriages occur despite legal prohibitions.  

The trial judge denied the motion to dismiss and considered Pakistan a temporary absence from Saida's home state of New York.  The father admitted to Children's Services that he had brought Saida to Pakistan merely for a "vacation."  He said that the return to NY was delayed because of Saida's medical issues, hospitalization, and COVID-19.  There were un-used return tickets, and Saida was never unenrolled from her NY highschool.  If the forced marriage allegation is true, that is also a wrongful retention, which is a temporary absence from the child's home state.

Alternatively, the court opined that even if it were not the child's home state, the state had, at least, temporary emergency jurisdiction once Saida returned. Given that the parents are both back in New York, and Saida has been in NY for over six months as of the opinion, with no action commenced in Pakistan, any "temporary" order the court issued over Saida would now be permanent. 

The court rejected the human rights argument, because Children's Services did not cite to any Pakistani law that permits the behavior outlined in the reports it cited (beating a child, forcing a child into marriage, honor killings, etc.).