STATE of Missouri, ex rel., Ahalaam Smith RASHID, Relator, v. The Honorable Bernhardt C. DRUMM, Jr., Judge, Division 4, St. Louis County Circuit Court, Respondent.
No. 61142.
Missouri Court of Appeals, Eastern District, Writ Division Two.
Feb. 11, 1992.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 9, 1992.
824 S.W.2d 497
Having found no merit either to Frame‘s appeal or to Boatmen‘s cross-appeal, we affirm the judgment of the trial court.
PUDLOWSKI, P.J., and CRIST, J., concur.
Charles Willis, St. Louis, for respondent.
CRANE, Presiding Judge.
Ahalaam Smith Rashid, mother, a United States citizen and resident of St. Louis County, brought a dissolution of marriage action against Adel Mohammed Zaghdi, father, a citizen and resident of Saudi Arabia, in the Circuit Court of St. Louis County. In the action mother sought custody of the parties’ six year old daughter, Amirah Adel Zaghdi, a dual citizen whose home was in Saudi Arabia but was physically present in St. Louis County at the commencement of the proceedings. Mother was given temporary custody of the child ex parte. Father filed a motion to set aside the temporary custody order on the grounds of fraud. The trial court treated the motion as a challenge to the jurisdiction of the court to determine child custody. After a two day hearing, the trial court, applying the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) as enacted in Missouri,
FACTUAL BACKGROUND
The facts relevant to the issues presented by this writ are undisputed. Mother and father were married on July 28, 1984, in St. Louis County, Missouri, and lived for a short time after the marriage in Belleville, Illinois. Father, a Saudi Arabian citizen, was in this country as a student. In August, 1984, they moved to Lansing, Michigan for two years while father continued his studies. Their daughter Amirah was born in Michigan on September 15, 1985. The family continued to reside in Lansing, Michigan until August, 1986, when father graduated from Lansing Community College and returned to Saudi Arabia. Mother and Amirah returned to St. Louis, Missouri in August, 1986. They remained in St. Louis, Missouri, until December 5, 1986, when they left to join father in Saudi Arabia. The family lived together in Saudi Arabia until March 25, 1987, when mother returned to the United States alone for a seven month visit with her family. Mother returned to Saudi Arabia in October, 1987, and lived with father and Amirah until the beginning of 1988.
Mother left Saudi Arabia through the assistance of the American Embassy on February 13, 1988, and returned to the St. Louis area. Amirah remained in Saudi Arabia with father. Subsequently, father took another wife in Saudi Arabia. On September 19, 1991, father and Amirah came to the United States to visit mother. Upon their arrival in St. Louis, father and Amirah went with mother to the hotel where father was registered. While father was getting his room key, mother left the hotel with Amirah without father‘s knowledge or consent and kept Amirah with her until she was ordered to produce Amirah in court on November 4, 1991.
PROCEDURAL HISTORY
According to the pleadings there have been no custody or dissolution proceedings relating to this child or to this marriage except those that have been filed in St. Louis County. No proceedings have been instituted in Saudi Arabia nor has any prior decree relating to the custody of the child been entered by any court of any state or foreign country.
On October 31, 1990, mother filed a Petition for Dissolution of Marriage in the Circuit Court of St. Louis County in Cause Number 616940, seeking a dissolution of the marriage and the award of custody of Amirah to father. Mother filed an Amended Petition on August 26, 1991, seeking custody of Amirah for herself. Mother moved to dismiss Cause Number 616940 on
On November 1, 1991, father moved to set aside the temporary custody order on the grounds that it had been obtained by fraud. The trial court treated this as a motion to dismiss the custody determination for lack of jurisdiction. It heard evidence on this issue on November 13 and November 18, 1991, and entered its order sustaining the motion to dismiss. It delayed the effective date of its order to give the parties time to file an application for a writ.
In its order the trial court made the following conclusions:
- This state is not the home state of the child and was not the home state of the child when this proceeding commenced on September 20, 1991.
- This state had not been the child‘s home state within six months prior to the commencement of this proceeding.
- The child does not have a significant connection with this state.
- There is not available in this state substantial evidence concerning the child‘s present or future care, protection, training, and personal relationships.
- The child has not been abandoned.
- The child has not been mistreated or abused.
- The child has not been threatened with mistreatment or abuse.
- The child is not being neglected and has not been neglected.
- Although no other state has child custody jurisdiction and no other state has declined to exercise child custody jurisdiction, the Courts in Saudi Arabia have jurisdiction. Although not enacted in this State, Section 23 of the Uniform Child Custody Jurisdiction Act provides that “the general policies of (the) Act extend to the international area.”
- It is just and proper under the circumstances for the Courts of this state to decline to exercise jurisdiction.
The court further concluded, “[p]ursuant to
AVAILABILITY OF UCCJA IN MISSOURI TO DETERMINE JURISDICTION IN AN INTERNATIONAL CUSTODY CASE
Mother first claims the trial court exceeded its jurisdiction in deciding this matter under the UCCJA because the UCCJA, as adopted in Missouri, does not include Section 23 of the uniform act. This section extends the general policies of the act to the international area and provides for recognition and enforcement of custody decrees of other nations under certain circumstances.1 The Comment to that section provides that the first sentence makes the general policies of the Act applicable to international cases. “This means that the substance of section 1 (not adopted in Missouri) and the principles underlying provisions like sections 6, 7, 8 and 14(a) are to be
The failure of a state legislature to adopt § 23 has been held to express an intent not to require the enforcement of foreign custody decrees. Minton v. McManus, 9 Ohio App.3d 165, 458 N.E.2d 1292, 1294 (1983). However, we have not been referred to, nor have we found, any case which addresses what a state legislature, by omitting § 23, intends with respect to the application of the other provisions of the UCCJA to an original custody dispute involving a resident of a foreign country.
The trial court used the jurisdictional provisions of the UCCJA (
1. Availability of § 452.450 to determine jurisdiction
We will first consider whether the trial court could use
The statute provides four possible bases for jurisdiction, commonly referred to as the (1) home state (2) significant connection (3) emergency and (4) default or vacuum bases. It recognizes parens patriae jurisdiction under restricted conditions and incorporates the longstanding Missouri public policy supporting jurisdiction where the best interests of the child are served. See Kennedy v. Carman, 471 S.W.2d 275, 281-87 (Mo.App.1971).2 This jurisdictional provision is sufficiently comprehensive that it may be used to determine jurisdiction irrespective of whether a resident of a foreign country is involved. Moreover, custody decrees made pursuant to the UCCJA are recognized and enforced in other states which have adopted the UCCJA.
2. Availability of § 452.475 to determine jurisdiction
We next consider the trial court‘s use of the “clean hands” provision of
If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct, the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
3. Declination of Jurisdiction under § 452.475
Father argues that the trial court declined jurisdiction under In any event, even if the trial court was inartfully attempting to decline jurisdiction under the clean hands provision, its attempt failed. In order for the court to decline under this section, it would have to have found that petitioner had wrongfully taken the child from another state or have engaged in similar reprehensible conduct. Although there was evidence in the record that mother had secreted the child from the father, the court made no finding in its otherwise detailed order that this or any other conduct constituted “reprehensible conduct” or even if this was the basis for the court‘s finding that it would be proper to decline jurisdiction. More importantly, however, the court did not consider whether declination would be in the best interests of the child. The “clean hands” provision is a discretionary ground for denying jurisdiction and does not supersede the best interests of the child. Snow v. Snow, 369 N.W.2d 581, 583 (Minn.Ct.App.1985); O‘Neal v. O‘Neal, 329 N.W.2d 666, 669 (Iowa 1983). The paramount issue is the welfare of the child rather than the tactics of the parents. It is error to decline jurisdiction on the basis of a parent‘s conduct without considering the best interests of the child. Nehra v. Uhlar, 168 N.J.Super. 187, 402 A.2d 264, 268-69 (N.J.Super.Ct.App.Div.1979). See also Van Houten v. Van Houten, 156 A.D.2d 694, 549 N.Y.S.2d 452, 454 (1989). If Alternatively, mother argues that if Subsection (4) of It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction. In its finding number 9, the trial court found that although no other state has child custody jurisdiction, “the Courts in Saudi Arabia do have jurisdiction” and “the policies of (the) act extend to the international area” under § 23 of the UCCJA. The term “state” as used in the UCCJA has been held not to include foreign nations where the legislature has not adopted § 23 of the UCCJA. Minton, 458 N.E.2d at 1294.4 Since Missouri has not adopted § 23 of the UCCJA, it is clear that the legislature did not intend the word “state” as used in Two elements of jurisdiction under The determination of the best interests of the child under Although relevant factors will vary on a case by case basis, in this case the primary inquiry is whether there is an available foreign forum which would have jurisdiction substantially in accord with the principles in the UCCJA. Suarez Ortega, 465 So.2d at 609; Klont, 342 N.W.2d at 550-51. In determining whether a foreign forum is available, consideration must be given to whether the foreign forum could and would adjudicate the controversy. See, e.g. The trial court did hear evidence relating to the child‘s ties to and home in Saudi Arabia, but there was no evidence relating to child custody laws in Saudi Arabia, whether courts there could and would adjudicate the controversy, if minimum due process would be accorded all parties to the proceedings, or if the best interests of the child would guide the custody determination. It did not make any findings on the best interests of the child with respect to a forum. Without considering these factors and making a determination of the best interests of the child, the court exceeded its authority in finding that it had no jurisdiction under Although the trial court exceeded its authority in determining it had no jurisdiction on the record before it, the trial court is not prohibited from reexamining the question of jurisdiction on a proper record. Such a record would include evidence on whether there is another available forum. Such an inquiry would encompass consideration of the following factors: If there is another available forum then the court should consider which of the available forums has the strongest basis for jurisdiction in accordance with the principles in In determining the best interests of the child with respect to forum, evidence relating to the best interests of the child with respect to custody is irrelevant. Such evidence is only appropriate in a hearing to determine custody. Furthermore the jurisdictional issue is limited to determining whether another forum is available with jurisdiction which will determine the child custody issue in accord with minimum due process and award custody on the basis of the best interests of the child. Collateral matters relating to the culture, mores, customs, religion, or social practices in that other forum are not only irrelevant to the question of jurisdiction but also such cultural comparisons have no place in the ultimate custody award. See e.g. Waites v. Waites, 567 S.W.2d 326, 333 (Mo. banc 1978). The provisional writ of prohibition is made absolute. SATZ, J., concurs. SMITH, J., dissents in separate attached opinion. SMITH, Judge, dissenting. I respectfully dissent. Some additional exposition of the facts which were either not disputed or which were supported by evidence and supportive of the trial court‘s order is warranted. While the parties were married in St. Louis County they never resided in Missouri during the marriage. The return of mother and daughter to St. Louis for three or four months in 1986 was to enable father to obtain the necessary visas and other documentation for the movement of mother and daughter to Saudi Arabia. St. Louis was not intended to be the domicile for either. During the marriage mother converted to the Islamic faith. In preparation for that conversion she studied the religious documents and tenets of that faith including its doctrines concerning the status and treatment of women. During the time the daughter lived in Saudi Arabia, nearly five years, mother lived with her for approximately six months, and did not reside with the child after the child was 2 and ½ years old. The circumstances under which the mother left Saudi Arabia were sharply contested. Her testimony placed the cause upon physical and/or mental abuse by the father. His testimony indicated marital problems and her dissatisfaction with social conditions involving women in that country. The court was free to credit the father‘s testimony. The daughter speaks only Arabic and is Islamic by religion. She attends school in Saudi After mother‘s final return to this country, father visited her on several occasions while she was hospitalized for mental problems. He did not bring the daughter with him on those visits. There is evidence in the record that these hospitalizations followed suicide attempts. There is also evidence that husband attempted to reconcile on several occasions. These attempts were unsuccessful. Father‘s marriage to a second wife is permissible under the laws of his country and that was known to mother prior to her marriage to father. Father came to St. Louis with the daughter in order to allow a visitation with the mother and for the family to return to Saudi Arabia. Mother arranged for this flight after representing her intention to reconcile. At the time of the return a petition for dissolution of marriage, filed by the mother, was pending in St. Louis county. The original petition sought custody to be placed with father with reasonable visitation for the mother. Father had received a copy of that petition. The record does not reflect that father received a copy of the amended petition requesting custody be placed in mother. Mother met father and daughter at the airport. They proceeded to a hotel arranged for by mother. A mix-up occurred with the keys to father‘s room and he returned to the lobby to obtain the correct keys. During his absence mother took the daughter and left in a taxicab leaving no indication of her destination. Father went to the home of mother‘s mother where he was promptly served with the present petition for dissolution seeking custody in the mother, the prior petition having been dismissed by mother shortly prior thereto. Mother then obtained, ex parte, an order of temporary custody and an adult abuse order preventing father from contacting mother or daughter. Mother subsequently refused to produce the child until a body attachment was issued. Father is employed full-time by Saudi Arabia Air Lines. He is, pending resolution of this matter, on “open vacation” from that company. Mother is unemployed. She has in the past been a student at several different educational institutions. Her support comes from Social Security disability benefits arising from her mental problems and includes benefits she obtained for her daughter after she took custody at the hotel. The record does not indicate whether she is entitled to and is receiving the benefits during the pendency of this matter while the child is in foster care. Mother professes that the mental disability no longer exists but that she remains entitled to the benefits so long as she maintains her status as a student. Mother receives continuing medical treatment as a manic depressive. Initially, I am unable to concur in the conclusion that the trial court did not decline jurisdiction under the provisions of Such a finding is fully supported by the evidence. Father was lured into the jurisdiction under a misrepresentation that mother wanted to reconcile and return to Saudi Arabia. The child was brought so mother and child could visit. The only document concerning custody of which the father was apparently aware was mother‘s initial petition for dissolution requesting custody in the father. Within an hour after arrival in St. Louis mother spirited the child away without advice as to the child‘s location. Within a matter of hours the new petition for dissolution seeking custody in the mother was served on the father when he sought to locate the child through mother‘s mother. The trial court could well conclude that the actions of the mother were the product of a predetermined scheme to fraudulently entice the father into the country, abduct the child in his custody, and obtain personal service of her theretofore undisclosed petition seeking custody. The six year old child was removed surreptitiously from the custody of the only person she knew in this country, deprived of the only person with whom she could effectively communicate (mother‘s knowledge of Arabic was, by her own admission, rudimentary), and kept in this incommunicado state from September 20 until November 4 when she was surrendered to the juvenile court pursuant to the body attachment. Such conduct can well be classified as “reprehensible“. Nor am I troubled by the failure of the court to make specific findings of reprehensible conduct. The statute does not require such findings and our usual rules of review of a trial court‘s decision is to determine if the evidence supports the holding the court has made. Here it does. If the absence of findings constitutes a problem, however, the proper recourse is to return the matter to the trial court for the entry of the requisite findings, in this case whether the mother‘s conduct meets the requirements of declination of jurisdiction under Further, I am unable to conclude that the court was in error in determining that it lacked jurisdiction. The court made a very specific set of findings in support of its conclusion that it lacked jurisdiction.2 These holdings closely track the provisions Nowhere in any of the documents filed in the trial court or in this court has the mother asserted any basis for her conclusion that the best interests of the child warrant custody in her or that the courts of this state are in a position to make a determination of the best interests of the child. Nor does the record establish that it is in the “best interest of the child” that this state assume jurisdiction. As stated by the guardian ad litem to this court: “The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the State. State of Missouri ex rel. June Lloyd Laws v. Higgins, 734 S.W.2d 274 (Mo.App.1987).” As the court specifically found “there is not available in this state substantial evidence concerning the child‘s present or future care, protection, training, and personal relationships.” There is nothing in the record to indicate any error in the court‘s findings 1 through 9, and mother makes no challenge to those findings. I am unable to conclude that any basis exists for a determination that it is in the best interest of the child that a court in this state assume jurisdiction nor can I perceive any evidence not heretofore provided which would support such a determination. As to attack (2) I do not believe it provides any basis for exercise of jurisdiction in this state. In the first place the mother offered only hearsay evidence of the social circumstances in Saudi Arabia, which was rejected by the trial court. But more importantly it is not the concern of the courts of this country to evaluate the socio-economic status of persons having dual citizenship living in foreign countries. The child here knows no culture other than that of Saudi Arabia and knows no family other than that of her father. She was taken to Saudi Arabia at a young age by her mother who knew or should have known of that nation‘s culture. In this court the guardian ad litem, an experienced and respected member of the bar, has stated that the child herself is very bright for her age, is well behaved and shows every evidence of good parenting, home training and care. He, further, expresses his support for the court‘s order. Nothing in the mother‘s history indicates that she would provide any better parenting than that provided by the father. To punish the father because of the social environment of his country simply because we disapprove of that environment, and to uproot the child from the only environment and family she has ever known because of that same disapproval, is totally beyond the function of the courts of this state. I find nothing in this record to warrant a finding that the court abused its discretion or erred in its application of the law in the APPLICATION OF § 452.450 OF THE UCCJA TO THIS ACTION