Garba v. Ndiaye
132 A.3d 908
Md. Ct. Spec. App.2016Background
- Parents are U.S. citizens (Father from Senegal; Mother from Niger). Their son B. was born in Maryland in 2011 and has lived intermittently in Maryland and in several African countries due to Mother’s United Nations field assignments.
- Mother owned a home in Montgomery County, Maryland, paid Maryland taxes, and maintained strong Maryland ties (family, bank accounts); she frequently returned to Maryland between assignments.
- Mother filed for divorce and sole custody in Montgomery County on February 7, 2014 (pleading she was domiciled in Maryland). At filing, B. was physically present in Maryland and had spent more time in Maryland than in Ethiopia during the prior six months.
- Father filed counterclaims in Maryland; the court entered temporary custody to Father in December 2014. Mother traveled with B. abroad thereafter (Niger, Sudan), then returned B. to Maryland on February 12, 2015, where Father took custody.
- After an evidentiary trial, the Circuit Court for Montgomery County found Maryland was B.’s “home state” under the UCCJEA and awarded Father sole legal and physical custody; Mother appealed only the home-state jurisdictional ruling.
Issues
| Issue | Plaintiff's Argument (Garba) | Defendant's Argument (Ndiaye) | Held |
|---|---|---|---|
| Whether Maryland was the child’s “home state” under the UCCJEA at the time of filing | Ethiopia was the child’s home state because B had been living there with Mother almost a year before filing | Maryland was the child’s home state: B was physically present in Maryland at filing and spent more time there in the prior six months; Mother’s absences were temporary for UN assignments | Affirmed: Maryland is B.’s home state because B was physically present in Maryland at filing and the pre-filing absences were temporary under a totality-of-circumstances test |
| Whether absences to Africa were “temporary absences” for UCCJEA §9.5‑101(h)(1) purposes | Mother contends her and B’s stays in Ethiopia were residential, not temporary | Father points to Mother’s continued Maryland contacts (owned home, taxes, family) and the work-related, finite nature of overseas postings | Held: Absences were temporary — factors (duration, purpose, ties, work assignments, enrollment in Maryland school, Mother’s use of Maryland address) support Maryland home-state finding |
Key Cases Cited
- Drexler v. Bornman, 217 Md. App. 355 (Md. Ct. Spec. App. 2014) (adopts totality-of-circumstances test for temporary absence under UCCJEA)
- Toland v. Futagi, 425 Md. 365 (Md. 2012) (discusses UCCJEA exclusive jurisdiction of home state and interaction with PKPA)
- Schisler v. State, 394 Md. 519 (Md. 2006) (de novo review for questions of law involving statutory interpretation)
- Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) (construes "lived with" as physical presence, not domicile)
- In re Marriage of Rhoads, 209 S.W.3d 24 (Mo. Ct. App. 2006) (defines "lived with" as literal physical presence)
- Chick v. Chick, 164 N.C. App. 444 (N.C. Ct. App. 2004) (endorses totality-of-circumstances approach for temporary absences)
- In re Marriage of McDermott, 175 Wash. App. 467 (Wash. Ct. App. 2013) (analyzes temporary absence and home-state questions under UCCJEA)