Case Update: UCCJEA home state, temporary absence due to child abduction
The Maryland Court of Special Appeals issued an unreported opinion in the case of Olarinde v. Korede on August 20, 2020. In the opinion, the court examined subject matter jurisdiction and whether Maryland was the "home state" of the parties' children so that Maryland could issue its initial child-custody determination. The trial court concluded Maryland was the home state. The COSA agreed.
The parents have 4 children - 2 born in Nigeria and 2 born in the United States. The family took up residency in Maryland in 1999. The couple are dual Nigerian-U.S. nationals. In 2009 or 2010, the Father returned to Nigeria, traveling to Maryland for months at a time. The parties' two eldest children left Maryland at various points in time, traveled to Nigeria and resided there, but ultimately returned to Maryland. At this time, both are emancipated.
On August 2, 2016, the Father filed for divorce and custody in Maryland, but claimed that the children resided with him in Nigeria since 2015. The mother answered, and alleged that the children were with their father by force in Nigeria. She countered for divorce and custody. The court ultimately granted the mother primary residential custody and the parties joint legal custody. However, it appears that the mother was never able to retrieve the children from Nigeria. Her testimony indicates that the father hid them in Nigeria from her. In 2019, the father sought to vacate the original custody order on the basis that the court never had jurisdiction pursuant to the UCCJEA as it was not the children's home state. The trial judge disagreed, indicating that the children had resided in Maryland for sufficient time, and their actual presence in Nigeria was not by agreement - it was essentially because the father had refused to return them to the mother's care so she could bring them home to Maryland at the end of their trip.
The home state analysis in this case revolves around whether the children's presence in Nigeria is a "temporary absence" from their home state of Maryland. In determining whether the time in Nigeria (albeit lengthy) is a temporary absence, the court examined all circumstances: the duration, the parties' intention as to whether the time is temporary or permanent, and any other relevant factor. In this particular case, the reason for the children's absence from Maryland is more important than the duration. The COSA agreed with the mother's trial testimony that she took the children for a temporary visit to Nigeria, and that when she went to retrieve the children, the father assaulted her, and hid the children, and she has been unable to retrieve them since.
The court clearly had the authority to issue this initial child-custody determination. Of course, with the children in Nigeria, and the father apparently not abiding by the Maryland court order, and there being no treaty or law in place between the United States and Nigeria, the mother's ultimate recourse may be to pursue some type of legal action in Nigeria in an attempt to enroll the Maryland order and enforce it, if possible.