U.S. courts and child custody judgments from foreign countries that have sex-discriminatory custody rules

Coulibaly v. Stevance, decided Wednesday by the Indiana Court of Appeals, considers whether Indiana courts should honor a Malian child custody decree (involving Malian citizens). Indiana has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), under which state courts must enforce out-of-state and out-of-country custody decrees if

1. the decree was issued by the jurisdiction that was the children's home jurisdiction at the time of the order,
2. the objecting spouse was given notice and opportunity to be heard when the decree was issued, and
3. "the child custody law of [the] foreign country [does not] violate[] the fundamental principles of human rights."

There was no dispute that the first two elements were satisfied, and the question was whether Malian child custody law violates human rights principles as Indiana courts understand them; the Indiana court of appeals said no, even though aspects of the law involved sex discrimination, and even though Malian law more generally doesn't ban Female Genital Mutilation. (One of the couple's children is a 15-year-old daughter.) First, the facts:

Mother and Father are both dual citizens of France and Mali. They were married in Mali in 2001 and had two children, a daughter born in 2002 and a son born in 2004, who are also dual citizens of Mali and France. Father is a computer science engineer, and throughout the marriage and thereafter, he has operated a company that provides internet service in Mali. Mother is a physician, and she and the children lived in France with Father's consent from 2005 until 2007 while pursuing her Master's degree in epidemiology.

Father remained in Mali during this time but visited Mother and the children regularly. Mother returned to Mali in 2007, where she practiced as an OB/GYN. Mother wished to immigrate to Canada, and she and Father both filed the necessary paperwork to do so. At some point, however, Father made it clear that he did not want to leave Mali or the business he ran there.

The marriage subsequently deteriorated, and Father filed a petition for divorce in Mali on March 14, 2008…. At the hearing, Mother indicated that she wished to live outside of Mali and she alleged that Father had been physically abusive to her. Father denied Mother's abuse accusation and asserted that Mother was determined to move to Canada or Europe and he feared she would kidnap the children and cease contact with him. Both parties asked for custody of the children. Following the hearing, but prior to the issuance of the Malian court's custody order, Mother took the children and moved to France.

On October 6, 2008, the Malian court issued its decree awarding Father custody of the children. Despite this order, Mother has not returned the children to Father, and she unsuccessfully sought relief from the order in both Mali and France before moving to the United States and seeking such relief in Indiana.

The court notes that the UCCJEA was aimed at preventing "self-help and the rule of 'seize-and-run'" in cross-jurisdictional custody disputes, and that the UCCJEA and related laws provide that (1) the violates-fundamental-human-rights exception should be "invoked only in the most egregious cases," and (2) "the court's scrutiny should be on the child custody law of the foreign country and not on other aspects of the other legal system."

[T]hat a foreign jurisdiction's law differs from our own or strikes us as outdated is insufficient to establish a violation of fundamental principles of human rights…. "The commentary to [the UCCJEA] reflects the drafters' concern that the provision not become the basis for magnifying every difference between the U.S. legal system and that of a foreign nation to virtually stymie effective application of the UCCJEA in international cases."

Given this, the court rejected mother's argument that the custody law "violates fundamental human rights because it favors men over women":

Mother notes that Mali's divorce law is fault-based, and … argues that Mali's marital laws evince a preference for men such that women will more often be found at fault for a divorce, resulting in a de facto paternal preference in child custody decisions. Specifically, Mother notes that statutory law in Mali expressly provides that "[t]he husband owes protection to his wife, the wife obedience to her husband." The law provides further that the husband is the head of the household, that the household expenses "fall principally on him," that he has the right to choose the family residence, and that the wife must live with him and he must receive her.. Additionally, a woman is prohibited from running a business without her husband's permission.

In light of the prevailing fault-based divorce system, it is unsurprising that the Malian court made a number of findings with respect to the parties' conduct during the marriage. The court expressly found Mother's physical abuse allegation to be unsupported. The court also noted that under Malian law, a husband is entitled to choose the family residence and that Mother's dispute regarding Father's decision to live in Mali was therefore grounds for divorce. The Malian court further found that Mother admitted that she had "a habit of uttering insulting and offensive remarks toward" Father, which constituted "serious abuse", and also that Mother's persistence in her plan to emigrate with the children without Father's knowledge or consent was a violation of her duty of loyalty, a mutual duty imposed by Malian marital law upon both spouses irrespective of gender. In light of these findings, the trial court granted Father's petition for divorce and dismissed Mother's counter petition.

However, the Malian court did not actually apply the statutory custody presumption in favor of Father as the party who obtained the divorce. Instead, the Malian court expressly indicated that custody could be awarded to Father or Mother, and that only the best interests of the children controlled this decision. The court found that Mother's emigration plans "could bring important risks and unknowns to the lives of the children" and that "she offers no promises of stability or safety for the children." The court further found that Mother's decision in this regard "results in necessarily depriving the children from the affection of one of their parents," i.e., Father. The court noted further that Father wished for Mother to have extensive visitation with the children, and that he had sufficient and stable resources to provide for their education and care. In light of its findings, the Malian court awarded custody to Father and visitation rights to Mother.

In reviewing the Malian court's order, the Indiana trial court found that Mali's child custody law as applied in this case did not violate fundamental principles of human rights and was in fact in substantial conformity with Indiana's child custody law…. Thus, when considering Mali's child custody law as applied in this case, we cannot conclude that Mother has established a violation of fundamental human rights….

Moreover, even if we confine our analysis to Mali's child custody law as written, we find no violation of fundamental human rights. Mother essentially argues that any "presumption of custody is a violation of the fundamental right for a parent to the care, custody, and control of the child." But custodial preferences are not foreign to American jurisprudence. Indeed, gender-based custody preferences were the norm in the United States in the not-so-distant past.

Although not directly on point, we find Malik v. Malik (Md. Ct. Spec. App. 1994), instructive. The court in that case did not consider the UCCJEA's escape clause, but it did consider whether enforcement of a Pakistani custody decree was required under general principles of comity, which provide that a foreign judgment will be given no effect if it is repugnant to the forum state's strong public policy. In relevant part, the court reasoned that:

If the only difference between the custody laws of Maryland and Pakistan is that Pakistani courts apply a paternal preference the way Maryland courts once applied the maternal preference, the Pakistani order is entitled to comity. A custody decree of a sister state whose custody law contains a preference for one parent over another would be entitled to comity, provided, of course, that the sister state's custody law applies the best interest of the child standard.

… [T]he case again came before the Maryland appellate court in Hosain v. Malik 988 (Md. Ct. Spec. App. 1996). The Hosain court affirmed the trial court's decision to enforce the Pakistani custody decree despite evidence that the order was based in part on the Islamic doctrine of Hazanit, which the court described as "embod[ying] complex Islamic rules of maternal and paternal preference, depending on the age and sex of the child." In reaching its conclusion, the Hosain court noted that the evidence presented supported a finding that Hazanit was merely one factor considered by the Pakistani court in determining the best interests of the child. In concluding that consideration of this factor was not repugnant to Maryland public policy, the court reasoned as follows:

We recognize that Hazanit is different in many respects from the traditional maternal preference once followed in this State. We recognize, however, that Hazanit is nonetheless similar to the traditional maternal preference in that they both are based on very old notions and assumptions (which are widely considered outdated, discriminatory, and outright false in today's modern society) concerning which parent is best able to care for a young child and with which parent that child best belongs. Viewed in this regard, standing as a factor to be weighed in the best interest of the child examination, Hazanit is no more objectionable than any other type of preference. As we noted in Malik, the courts of this State will not refuse to enforce child custody awards of those states still recognizing the maternal preference as a factor.

The Hosain court also concluded that the Pakistani court's consideration of the mother's adultery as a factor in the custody decision was not repugnant to Maryland public policy, noting that Maryland courts are permitted to consider parental adultery in determining custody, at least to the extent that it affects the child's welfare.

We acknowledge that the comity standard applied in Hosain and Malik differs from the human rights standard at issue here, and we do not intend to suggest that the simple fact that a doctrine or policy was once prevalent in the United States conclusively demonstrates its compatibility with principles of fundamental human rights. Nevertheless, we note that like in Hosain, the parental preference at issue in this case is not conclusive. Rather, Malian law provides that "children will be in custody of the spouse who obtained the divorce unless the court … orders for the best interests of the children, that all or some of them will be cared for by the other spouse or a third person." Thus, the law does not permit Malian courts to blindly apply a parental presumption or ignore the bestinterests of the children. Rather, the law appears to do nothing more than allocate the initial burden of rebutting the custodial presumption in favor of the innocent spouse to the at-fault spouse.

Further, although Mali's marriage laws impose different duties on husbands and wives based on gender, either spouse may be granted a divorce based on the other spouse's failure to fulfill his or her respective duties. Whatever we might think about the wisdom of Mali's marital and custody laws in this regard, we simply cannot say that they are so utterly shocking to the conscience or egregious as to rise to the level of a violation of fundamental principles of human rights.

The court noted that some forms of discrimination by the foreign country's courts might be seen as violating fundamental human rights, for instance "if a foreign court nevertheless places a child with one parent or another based solely on that parent's race, ethnicity, nationality, religion, or gender." (I assume the "solely" was meant to distinguish the situation in the Maryland cases that the court approvingly cited.) But the court concluded that there was no evidence that this happened here.

The court also rejected the mother's argument about Mali's failure to outlaw female genital mutilation (in part because it noted that the father had condemned the practice as "horrible," which presumably suggests that it would not likely be performed on the daughter):

According to Mother, Mali has outlawed FGM in government-funded health centers, but not the practice itself. Testimony was presented at the evidentiary hearing that a law specifically prohibiting FGM had not yet been passed but was being worked on. At least one witness testified that FGM was already punishable under existing criminal laws in Mali. Although it is not entirely clear on the record before us whether FGM is illegal in Mali, the parties are in agreement that the practice is very widespread….

While we have little difficulty concluding that FGM is itself a human rights violation, we are not as certain that a country's failure to pass a law specifically prohibiting the practice constitutes a violation of fundamental principles of human rights. In any event, the comments to the UCCJEA make it clear that our scrutiny is limited to Mali's child custody law and not on other aspects of its legal system, including the law (or absence of law) concerning FGM.

At oral argument, Mother suggested we should nevertheless find Mali's failure to outlaw FGM to be relevant because the practice of FGM is, as a general matter, likely to affect children. But consideration of every law likely to affect children would throw the doors wide open - laws regarding civil rights, education, health care, housing, and inheritance, to name just a few, would all be fair game in evaluating a foreign custody decree. Such an approach would put the courts of this state in the untenable position of passing judgment on the entire legal system of a foreign country, a result plainly at odds with the clearly stated intent of the drafters of UCCJEA.

Mother's remaining arguments suffer the same infirmity - she essentially asks us to look beyond Mali's custody law to conclude that Mali's legal system and culture are, on the whole, so oppressive to women that no custody order issued in that country could be enforceable in the United States. [Footnote moved: Mother … notes that men in Mali are permitted to have multiple wives, while women may have only one husband. Mother notes further that the marital laws permit (but do not require) the payment of nominal dowry by the husband upon marriage "where required by custom."] We are in no position to make such a judgment, and the language of the UCCJEA prohibits us from attempting to do so. Mother has not established that Mali's child custody laws violate fundamental principles of human rights, and she is consequently unable to avoid enforcement of the Malian custody decree.