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Garba v. Ndiaye

Court of Special Appeals of Maryland

February 26, 2016

NAFISSATOU GARBA
v.
ALIOUNE NDIAYE

         Appeal from the Circuit Court for Montgomery City, Terrence J. McGann, JUDGE.

         ARGUED BY Anthony F. King (Tiana A. Bey, King Branson, LLC on the brief) all of Rockville, MD FOR APPELLANT.

         ARGUED BY John J. Condliffe (Levin & Gann, PA on the brief) all of Towson, MD FOR APPELLEE.

         Panel: Krauser, C.J., Nazarian, Reed, JJ. Opinion by Nazarian, J.

          OPINION

          [227 Md.App. 163] Nazarian, J.

          The Uniform Child Custody Jurisdiction and Enforcement Act (" UCCJEA" ) eliminates jurisdictional wrangling and forum shopping in custody cases by defining, for each child, a " home state" that has exclusive jurisdiction to make initial custody decisions. The young boy at the heart of this case has had a peripatetic life--his parents, both native to foreign countries, lived in Maryland, then New York, and he traveled for extended periods with his mother to her job assignments in several African countries while his father remained here. The Circuit Court for Montgomery County found that Maryland is the boy's home state and, after an evidentiary hearing, granted sole legal and physical custody to his father. His mother, who filed the case in Montgomery County in the first place, disputes the court's threshold finding and asks us to [227 Md.App. 164] hold that Ethiopia is his home state (foreign countries can be home states too). This case presents a trickier-than-usual application of the UCCJEA's process for assigning a home state, but we agree with the circuit court's decision and affirm.

Page 909

         I. BACKGROUND

         The facts underlying the parents' marriage, divorce, and custody dispute are colorful and hotly disputed, but the only facts relevant to the issues before us relate to the whereabouts of their son, B.[1]

         The appellee, Alioune Ndiaye (the " Father" ), is a native of Senegal, and the appellant, Nafissatou Garba (the " Mother" ) a native of Niger, and both are United States citizens.[2] They lived first in an apartment, then a home they owned, and worked in Montgomery County.[3] They vacationed to Niger to marry in 2008, and shortly thereafter Mother accepted a job with the United Nations. Her first assignment was in New York City; she, Father, and her son, M.,[4] relocated to New York City, but maintained their Maryland residences and returned to Maryland every weekend.

         From there, Mother took a year-long field assignment in Guinea-Bissau, and she moved there alone in April 2010. Father remained in Maryland, living with Mother's mother and M., but visited Mother in Guinea-Bissau, where they conceived B., their first and only child together. To receive [227 Md.App. 165] the favorable maternity leave offered to United Nations employees, the parents agreed that Mother should renew her annual contract to remain at her job in Guinea-Bissau, but return to Maryland at the conclusion of that second year. From there, however, the parents' relationship began to decline.

         B. was born in Maryland in 2011, and has lived in many places during his young life:[5]

o September 9, 2011 : Mother left Guinea-Bissau to give birth to B. in Maryland.
o January 2012 : Mother and B., then four months old, left Maryland for Guinea-Bissau. In September, Mother filed for voluntary separation.
o April 6, 2013 : Mother and B. moved to Ethiopia for Mother's new field assignment.
o August 2013 : Mother sent B. to Maryland to celebrate his second birthday with Father. Father, though, was in Senegal, and did not see B. Instead, B. stayed with Mother's mother (at Mother's house in Maryland) until Mother could join B. in the United States.
o November 24, 2013 : Mother and B. returned to Ethiopia.
o January 11, 2014 : Mother and B. returned to Maryland to visit M. for M.'s 15th birthday.
o February 7, 2014 : Mother and B. returned to Ethiopia.

Page 910

That same day, Mother filed a verified complaint[6] in the circuit court, seeking an absolute divorce from Father and sole physical and legal custody of B. She stated that she was " domiciled in the State of Maryland and ha[d] been living in the State of Maryland for more than 12 months [227 Md.App. 166] prior to the filing of this Complaint." She listed a Montgomery County address as her address. Father answered and filed counterclaims, including a motion to dismiss based on Mother's failure to file financial statements. The court dismissed the complaint, but Father's counterclaim for divorce and custody proceeded. In August, and in parallel, Mother sought an ex parte divorce and custody in Niger, and on September 16, 2014, the Nigerien court granted divorce and sole physical and legal custody to Mother.
o October 5, 2014 : Mother and B. traveled to Maryland. On October 13, Mother applied for a visa for Sudan so she could undertake a new United Nations assignment. Her initial Sudanese assignment would be in Darfur, but since it was a non-family mission, B. could not go with her. Mother enrolled B. in a Maryland preschool on October 14, 2014,[7] and he started school on October 21. On October 26, Mother returned to Ethiopia, while B. remained in Maryland with Mother's mother. Mother came back to Maryland on November 14, 2014, then went back to Ethiopia in November.
On December 2, 2014, the Circuit Court for Montgomery County held a pendente lite hearing and subsequently ordered temporary sole physical and legal custody to Father.
o December 12, 2014 : Mother's mother took B. to Niger. There is conflicting testimony as to which day B. left school,[8] but it is undisputed that Mother called the school on December 15 stating that B. was out of the country due to an emergency. On December 16, Mother relocated to Darfur, Sudan.
[227 Md.App. 167] Also on December 16, Father filed a report with the Montgomery County Police Department alleging that Mother had illegally removed B. from the United States. Detective Kevin Conroy investigated the complaint and maintained email contact with Mother throughout the investigation. During the email conversations, Detective Conroy explained to Mother that the circuit court had granted temporary custody to Father. Mother initially complained that she wasn't served with the order, then claimed the court order didn't apply to her because B. had often lived outside of the United ...

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