Case Update (6 March 2024): Bhardwaj v. Sud; Minnesota Court of Appeals remands for further proceedings after Father submits additional information on abduction concerns

In a recent non-precedential opinion, the Court of Appeals of Minnesota remanded a district court order for further proceedings. The parties are parents to a child, over whom they shared joint custody pursuant to a 2017 stipulated judgment and decree. In 2018, the mother and child, with the permission of the father, relocated to India. The father remained in Minnesota. In November 2021, when the child traveled to Minnesota to visit his father, the father filed a request to modify the custody order, requesting sole physical custody and restricting the mother’s parenting time to only time in the United States. Among the father’s concerns were: dental decay, limited contact to the child while with the mother, conflict between the mother and her family, and leaving the child unattended for extended periods of time. At the trial, the court heard testimony from the mother, father, the child’s GAL, and an expert in Indian custody law who testified that “there is a risk that mother could commence a custody action in India, which could take several years to resolve, and that an Indian court would consider a foreign judgment regarding custody but was likely to examine the case ‘anew’ in considering the best interests of the child.” At the conclusion of the trial, the court modified the existing custody arrangement, placing the child in the father’s sole physical custody, and setting a parenting time schedule for the child to spend school years in Minnesota and summer and winter break in India with mother, unsupervised. The court further ordered that the mother provide the father with a copy of the child’s return trip airline ticket one month before the return trip and notify the U.S. Embassy in India of the child’s travel and her intent to return the child to father in the U.S. at the end of the summer. The court further stated that a violation of these requirements would constitute “grounds for a suspension of mother’s parenting time.”

The father sought a new trial, which was denied, and so he appealed the order to the extent it permitted parenting time in India. He moved to stay those parts of the order. When he filed his motion to stay, he submitted additional information to the court on the parental child abduction concerns - things he had not put forth at trial. The additional information included an affidavit from the father and from an attorney “who averred that he was an expert in international family law” (a different person from the Indian custody law expert at trial). The district court also found that the mother had failed to comply with the conditions in its order, but there was no reference as to a contempt filing or the court invoking the terms of its order to suspend her parenting time.

The Minnesota Court of Appeals made note that the additional information on parental child abduction falls outside the scope of the appeal because it was not considered at the trial level. But, then, the court noted that “in the interest of justice” it would remand the case for the trial court to consider “the risk of abduction” because the district court’s order was devoid of any findings on this issue (although the travel notice requirements imposed on the mother seem to indicate, without formal findings, that the trial court did consider the abduction concerns). The remand is to allow the district court to consider the abduction issue “in light of the subsequent information” in the additional affidavits, first filed at the time of the motion to stay, along with the mother’s noncompliance, any further recommendations by the GAL, and any other information deemed appropriate.