CASES OF INTEREST click here to go back to the Cases of Interest       FAMILY LAW: JURISDICTIONAL ISSUES   Issue: Prosecution of Bigamy / Principle of territorial jurisdiction   Issue: Requirement of bona fide residency and domicile.   Issue: Wrongful removal/ International Child Abduction Remedies Act, 42 U.S.C. §§ 11601   Issue: Modification of existing foreign child custody order       Issue: Prosecution of Bigamy / Principle of territorial jurisdiction under NJS 2C:1-3 and NJS 2B:12-16 State of New Jersey, Plaintiff, v.Abdul Razzak Ishaque, Defendant. (312 N.J.Super. 207, Law Division, 1997). Q. Can the complainant second wife seek prosecution of the defendant for bigamy under NJS 2C:24-1 in a place other than where the second marriage took place? A. No. The principles of territorial applicability and territorial jurisdiction dictate which court has authority to prosecute the defendant. The municipal court dismissed the charge and the Superior Court of New Jersey, Union County, Law Division upheld the dismissal on appeal because: (a) The married defendant contracted the second marriage in Pakistan (b) The offense of bigamy occurred the moment the second marriage took place. It is not a continuing offense. (c )Territorial jurisdiction is an element of the offense and its prosecution must be brought in Pakistan, the jurisdiction where the offense took place. back to the top   Issue: Requirement of bona fide residency and domicile. Praveen Verma v. Vinita Verma CH-2005-4827 CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA 2006 Va. Cir. August 30, 2006. Q. Is intent to ultimately remain in and reside in Virginia enough to meet the residence and domicile requirement to file a Complaint for Divorce? A. No. Residence and domicile, as used in Va. Code § 20-97 (2006) are distinct concepts. Residence is permanent abode and requires six months of actual residence in Virginia preceding the institution of suit, as contradistinguished from a sojourn, or transitory abode, in Virginia or elsewhere. There must be some evidence of concurring acts or forbearances to act which tend to show the actual continued maintenance in good faith of some place or locality in Virginia as and for permanent abode. In 2005, the Complainant husband and the respondent wife traveled from Fairfax, where they had been living, to India. The Complainant filed for custody of the parties' minor children in Delhi Court of Guardianship, asserting that both he and respondent wife resided in Delhi, India. He amended the petition on July 12, 2005 to add that the parties' children had been admitted to attend school. On July 17, 2005 the Defendant filed a criminal complaint against Complainant , who remained in India through September 2005, when he returned to Fairfax. On October 21, 2005 Complainant filed the Complaint for divorce which the Court dismissed for lack of jurisdiction citing Complainant's sworn statements to the Delhi Court of Guardianship, in 2005, designed to specifically invoke the jurisdiction and power of that court, together with his extended physical presence in India. back to the top       Issue: Wrongful removal/ International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 AGNIESZKA KIJOWSKA, Plaintiff-Appellee, v. TROY L. HAINES, Defendant-Appellant. UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 463 F.3d 583; 2006 U.S. App. Q. Which law governs in cases of wrongful removal, under the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq.? Q What is "habitual residence"? A. ICARA, implementing the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 1 343 U.N.T.S. 89 (Oct. 25, 1980) requires that the determination of whether the removal of the child was wrongful be made under the law of the country in which the child has his or her "habitual residence." Hague Convention, Preamble; International Child Abduction Remedies Act, 42 U.S.C. § 11603(f)(1); Under Polish law an unwed mother has custody of her child. The determination of "habitual residence" is to be made on the basis of the everyday meaning of these words rather than the legal meaning that a particular jurisdiction attaches to them. Appellee, an illegal alien, returned with her two-month-old US -born child to Poland. Appellant father disavowed seeking custody of the infant. Upon appellee's subsequent visit to the US appellant retained the child through an ex parte from an Illinois state court. Appellee was forced to return to Poland alone. She then filed this suit. Poland is the child's "habitual residence": 1. Appellee who was the child's primary caretaker, was merely a temporary sojourner in the United States. She could not reside legally in the United States. Her link to this country was particularly tenuous. 2. Appellant had disavowed custody. 3. The US-born child had lived for six months uninterruptedly with appellee and her Polish half-sister and had developed a close relationship with her sibling. Appellant was removing her from the family and social environment in which her life had developed. 4. The US trip was intended to be a brief visit rather than a relocation. Appellant will have to proceed under the laws of Poland. back to the top       Issue: Modification of existing foreign child custody order JOOHI Q. HOSAIN (FKA MALIK) v. ANWAR MALIK 108 Md. App. 284; 671 A.2d 988; 1996 COURT OF SPECIAL APPEALS OF MARYLAND Q. Did the Maryland Circuit Court correctly (a) decline jurisdiction to modify Pakistani custody order under the Uniform Child Custody Jurisdiction Act and (b) grant comity to custody order? A. Yes. There was no nexus between the parties and the Maryland Court until appellant fled from Pakistan and defied a court order to produce the minor child. The Pakistani courts have retained jurisdiction under the principle akin to Maryland's change in circumstances modification standard, i.e., "in case any subsequent events are created." Since appellant may petition the Pakistani court for a modification of the Pakistani decree, under § 9-214, Maryland court "shall not modify that decree" until the Pakistani court thereafter declines to assume jurisdiction for this purpose. B. Yes. The applicable Pakistani law(whether substantive, evidentiary, or procedural) was not so contrary to Maryland public policy as to undermine confidence in the outcome of the trial. As a general principle, Pakistan follows the best interest of the child test in making child custody decisions, pursuant to The Guardians & Wards Act of 1890. Pakistani law requires courts to give paramount consideration to the welfare of the child where the parties are present and available to testify. Father sued for custody in Pakistan court. When mother learned of father's lawsuit, she fled the country, taking the child with her. Mother was represented by counsel in the Pakistani custody proceeding. She refused to appear in person or obey the judge's order that the child be produced. The Pakistani court awarded custody to the father. back to the top