The parties married, had two children, and were living in Nigeria when they separated in April 2021. In September 2022, the Magistrate Court of Lagos State awarded them joint custody and prohibited either parent from traveling with the children outside Nigeria without the other parent’s written consent. In April 2023, the Mother left Nigeria with the children and moved to the United States. Two months later, she filed for sole custody in Queens County Family Court. In January 2024, the Father petitioned to enforce the Nigerian order under Domestic Relations Law § 77-g, and the order was registered in Queens County under § 77-d(1). After the Mother’s first petition was dismissed without prejudice, she filed a petition in March 2024 to modify the Nigerian order. The Family Court held a conference with the Nigerian court, which had the parties’ own modification petitions pending before it, and after a hearing, granted the Father’s enforcement petition. The Mother appealed.
The Appellate Division, Second Department, affirmed. New York treats a foreign country as if it were a U.S. state, and the Nigerian order was made under factual circumstances in substantial conformity with the UCCJEA’s jurisdictional standards. The order itself showed that Nigerian law makes the children’s best interests the paramount consideration, so it did not violate fundamental principles of human rights. The order was in full effect and had not been vacated, stayed, or modified. Because the Father still lived in Nigeria and the Nigerian court had not declined jurisdiction, Nigeria retained exclusive, continuing jurisdiction. The Mother argued that New York was the children’s home state. It could not have been when she filed in June 2023, only two months after arriving. It was also not the home state by March 2024, because she had removed the children without the Father’s knowledge or consent, in violation of the Nigerian order, and concealed their whereabouts. The court treated the time after the wrongful removal as a temporary absence from Nigeria, not as time counting toward New York’s six months.
This case is also an example of how each state can modify the language of a uniform act when it enacts it. Section 105(c) of the UCCJEA, as approved by the Uniform Law Commission in 1997, lets a court decline to apply the Act if a foreign country’s child custody law violates fundamental principles of human rights. New York’s version, Domestic Relations Law § 75-d(3), adds the words “as written or as applied.” I don’t know that this made any difference in the outcome here, or that it would make a difference in the outcome of virtually any case, but it shows that a state’s enacted text can depart from the uniform statute.
