A new international child custody case under New York’s UCCJEA law involves a couple from Yemen who lived in New York with the children. They traveled back to Yemen to celebrate Ramadan and Eid. The mom was expecting to return with the children, but the father decided to stay in Yemen, marry another woman, and divorce the mother.
When Life Gives You Yemen . . .
Upon learning the Father married another woman, the mother traveled back to the United States to be with her parents in New York, but left the Children behind in Yemen. The children have resided in Yemen with the Father since 2016.
This year, the Mother filed a child custody case in New York to order the Father to bring the children to New York; surrender his and the children’s passport and other travel documents, and force the Father to remain in New York.
Why New York? The Mother claimed the Father worked at a deli in New York, frequently travels for business to New York, and has other business ventures in there.
The Mother’s choice to file under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and not the Hague Convention on the Civil Aspects of International Child Abduction is easy to explain: Yemen is not a signatory to the Hague Convention, so the Hague Convention doesn’t apply.
Florida International Child Custody
I’ve written and spoken about international child custody cases under the Hague Convention and the UCCJEA before. The Hague Convention seeks to deter abducting parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”
When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”
The removal or the retention of a child is to be considered wrongful where:
- it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
However, many countries, like Yemen, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when the country holding the abducted children is not a signatory country, the UCCJEA may provide relief.
Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.
That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say New York. The ultimate determining factor in a New York case then, is what is the “home state” of the child.
Alternatively, New York could possibly hear the case if New York was the Home State of the child within 6-months before filing or the children are in New York and the court has emergency jurisdiction.
The home state seems to be one of the many obstacles for the Yemeni mother in New York.
. . . you may be stuck with Yemen-ade
The Mother – who appeared in court fully-covered in a burqa – also filed domestic violence petition against the Father seeking an order of protection on behalf of herself and the children, reporting that she had fled Yemen due to domestic violence and repeated acts of sexual and physical abuse committed against her by Father.
The Father moved to dismiss all of the Mother’s petitions on the basis that the New York court lacks subject matter jurisdiction under UCCJEA, because the children have undisputedly resided with him in Yemen for the last three years with the Mother’s consent.
They also were divorced in Yemen before the case was filed in New York. The Yemen divorce specifically refers to a settlement between the parties in which the Father got custody of the two older Children, the Mother got custody of the children.
In opposition to the Father’s Motions, the Mother argued that she and the children only stayed in Yemen out of fear of the Father’s retaliation and political connections with the Houthi government.
She also argued Yemen can’t be considered the children’s home state because Yemen is war-torn country, lawless and because of the human rights abuses in there.
The appellate court had to grant the Father’s motion to dismiss because Yemen is definitely not the children’s home state. It was undisputed that the children had been living in Yemen with Father for several years before she filed her UCCJEA case in New York.
Even if the court conceded that Yemen is in a civil war, and that Yemeni laws regarding domestic violence, child custody, and basic human rights do not conform to American law, home state jurisdiction is paramount under the UCCJEA.
The New York appellate decision is here.