Case Update (26 March 2024): In re JSN; a Father’s wrongful retention of a child in India did not establish India as the child’s home state
The parties are parents to one child, who was age 2 when they started litigating the child’s custody. The parents were divorced in Michigan in 2016, and Michigan issued the initial child-custody order. The Father lived in Michigan and the Mother lived in Texas. The child spent 3-months with each parent on a rotation until June 2017. Michigan would, under the Uniform Child-Custody Jurisdiction and Enforcement Act, as enacted in Michigan, have continuing exclusive jurisdiction to modify this child-custody order under these facts.
In June 2017, the Father took the child to India, with Mother’s permission. After the 3 months, the Father asked to spend additional time in India with the child because his father was ill. The Mother gave her consent for an additional 3 months. She arrived to India in September 2017 on a pre-scheduled trip, and attempted to visit the child, but was all but refused access. Mother, concerned about the situation, began working with the U.S. Department of State to have an Interpol yellow notice issued indicating the child had been abducted to India. She was also able to secure a one-time use passport for the child.
Around these events, the Father filed a lawsuit in the Indian family court, asserting that India now had exclusive jurisdiction over the child, with Michigan losing its continuing exclusive jurisdiction (presumably since everyone had now left Michigan). The Mother counter-sued, arguing abduction and a violation of the existing Michigan custody order. On November 15, 2018, the Indian court scheduled a hearing on the parents’ petitions, and the Father left the child with his parents to attend that hearing. That same day, the Mother dismissed her counter-petition, retrieved the child from her in-laws with the help of two men, and, when unable to fly out of Delhi, traveled 24 hours by land to Nepal to travel by air to China and then Texas.
On April 17, 2019, the Indian court found the father was guilty of parental kidnapping and, in December 2019, dismissed his custody petition. The Indian Supreme Court reversed, maintaining the Indian courts had jurisdiction. While the Mother was fighting the Father in India, in August 2018, she sought and obtained an ex parte order from a Michigan court to immediately return the child from India, but, in October 2018, a month-and-a-half before the child’s return to Michigan, the Michigan court declined jurisdiction over the custody proceedings.
In November 2018, upon returning home to Texas, the Mother sought to modify the Michigan custody order in Texas. The Father specially appeared, arguing that Texas had no jurisdiction (claiming Michigan lost continuing exclusive jurisdiction and India had become the child’s new home state). The Father noted that the Mother had abducted the child from his home in India. Mother responded that the Father could not establish jurisdiction in India through wrongful acts - an abduction and violation of the Michigan custody order. In the hearing over jurisdiction in Texas, the parents debated the circumstances that lead to the child being in India, with the Father arguing that the trip was actually a permanent agreed relocation.
The trial court in Texas denied the Father’s request to dismiss the case for lack of jurisdiction, and then ultimately granted the Mother sole custody (in Texas, called conservatorship). Under the UCCJEA (the uniform statute in place in both Michigan and Texas), Texas could assume jurisdiction if Michigan had lost its continuing exclusive jurisdiction or declined to further exercise jurisdiction and Texas now had initial child-custody jurisdiction. Initial custody jurisdiction under the UCCJEA follows a prioritized list of bases. First, if there is a home state, then that state (or country) would have jurisdiction. The Texas court found that the child had no home state - Michigan had now declined to exercise its jurisdiction, India could not be the home state because the child was only there because of a parent’s wrongful acts, and Texas had not been the child’s home for six consecutive months, yet. If there is no home state, then the next basis for jurisdiction is where the child and a parent has significant connections. Texas concluded this was Texas based on the Mother’s job in Texas, and the child having spent half his time in Texas for years prior to the child’s abduction to India.
