Case Update (16 February 2024): Yiting Wu v. Chun-Hsien Wu; Mother’s ongoing retention of child in Taiwan did not create situation that made Taiwan a more convenient forum for resolving custody
The parties are married parents of a child born in 2018. The parents are originally from Taiwan, but the family had been living in Kentucky since around the time of the child’s birth. In December 2020, the Father and Child traveled to Taiwan, with a typed letter in English, signed by both parents, that the Mother consented to the travel. The letter stated that both parents planned to have the child “stay and visit relatives in Taiwan until the COVID cases drop in U.S. and vaccine of COVID 19 is widely available.” The Mother arrived about a week later in Taiwan. In January 2021, the Father returned to Kentucky, and a few days later, filed for divorce and sole custody of the child. Shortly thereafter, he apparently also filed a divorce action in Taiwan, which he later said was at the suggestion of his lawyer because Taiwan is not a Contracting State to the Hague Abduction Convention. That case required mediation, which didn’t yield any resolution. In the Kentucky suit, the Father sought video access and the return of the child to Kentucky. The Mother filed, arguing that the Father was forum-shopping, and that Taiwan is the most appropriate forum to litigate custody. In June 2021, the Father requested that the Taiwanese suit be dismissed. The Mother ultimately re-filed her own suit in Taiwan. In September 2021, the Kentucky court assumed jurisdiction over the custody suit as the child’s home state. The Kentucky courts issued certain orders of contempt against the mother, and, in response, she argued that the Kentucky court was required to communicate with the Taiwanese court and to stay its proceedings until it has done so. Ultimately, the Kentucky court, which did not stay its proceedings and did not communicate with the Taiwanese court, found that the original conditions under which the child was traveling to Taiwan were met, and awarded the Father sole custody. The Mother appealed.
The Kentucky Court of Appeals disagreed with the Mother that her due process was violated because she was denied a hearing on her requests for a stay and for Kentucky to be declared an inconvenient forum. The Kentucky courts had already resolved jurisdiction when she made these requests again in August 2022. She had already been provided an opportunity to be heard on these matters, and to present evidence. The court had already ruled on these matters. The Court of Appeals then examined the substantive legal argument of whether Kentucky had custody jurisdiction. The UCCJEA, as enacted in Kentucky, requires that Kentucky treat another country (i.e., Taiwan) as if it were a U.S. state when determining custody jurisdiction, and a Taiwanese custody determination, made under factual circumstances in substantial conformity with the jurisdictional standards of the Kentucky enactment of the UCCJEA, must be recognized and enforced. The Kentucky court had previously determined it was the child’s “home state” in September 2021, which is the jurisdictional priority for assuming custody jurisdiction, as the child was only temporarily absent from from Kentucky by agreement of the parties. The Mother cites to a separate provision in the UCCJEA stating that Kentucky shall not exercise its jurisdiction, if, at the time the Kentucky suit was commenced, a proceeding concerning custody of the child had been commenced in another state (or country) that had jurisdiction in substantial conformity with the jurisdictional predicates in the UCCJEA. She further cites to the UCCJEA stating that Kentucky is therefore so required to stay its proceeding and communicate with the court in the other state or country. However, at the time the Father filed in Kentucky/commenced the suit, no other suit had been filed anywhere. Yes - he filed in Taiwan afterwards, but that does not meet the threshold of the UCCJEA for the Kentucky court to stay its proceeding and reach out to the Taiwanese courts. Timing makes a difference.
The Mother also makes an alternative argument - assuming Kentucky has jurisdiction, then it should decline jurisdiction because Taiwan is a more convenient forum. This basis for declining jurisdiction is discretionary, not mandatory. The UCCJEA includes a list of factors that must be considered by the court to determine whether to exercise its discretion and decline its jurisdiction. Among those factors includes domestic violence, which the Mother alleged, but, despite her allegations, she had not “contacted police or sought protective orders.” The court found the Father’s testimony more credible than the Mother’s. The Mother argued that the child had been absent from Kentucky for 18 months, but the court concluded this was only the case because the Mother had violated numerous Kentucky court orders. The fact that there was a second custody petition filed in the foreign country was not persuasive. “‘Mother cannot circumvent the law by simply filing a new petition’ in the other country’s court.” The most recent evidence of the child’s care is in Taiwan, but there was already substantial evidence available in Kentucky about the child’s medical care and family unit. In other words, not only is Taiwan not more convenient, but the Mother’s bad behavior cannot create the argument that Taiwan is more convenient.
