MALIK v. MALIK
638 A.2d 1184

FACTS
The parties were married in Pakistan in 1982 and had a daughter. In 1990, the parties separated and the wife moved in with her parents, taking their daughter with her. Subsequently, the wife moved to the U.S. with their child. The husband filed a lawsuit against the wife for custody of their daughter. The wife was represented by counsel in the Pakistani custody hearing, although she refused to appear in person. The Pakistani judge awarded custody to the husband

While living in Baltimore, Maryland, the wife filed for custody of the child and a restraining order against the husband with the Circuit Court of Baltimore County. The circuit court determined that the Pakistani court did not have comity over the custody case and therefore, the circuit court had jurisdiction over the case. The circuit court awarded temporary custody to the wife and issued a restraining order against the husband. The husband appealed the decision on the basis that the Pakistani court had already made a ruling on custody.

ISSUE
Whether “the chancellor err[ed] in exercising jurisdiction when custody proceedings were pending in a foreign country?”

RULING
The appellate court remanded the case back to the circuit court because more evidence was needed to determine whether the Pakistani court had comity over this case. The appellate court noted that both the Pakistani court and the Maryland circuit court had home jurisdiction over the case, since the couple’s daughter lived her whole life in Pakistan until moving to Maryland and she lived in Maryland for the requisite six months. However, the court also stated that it would be rare for the second home state, in this case Maryland, to assume jurisdiction where a party disobeyed a custody order imposed by the first home state. The exceptions would be if the Pakistani court did not apply the best interest of the child standard when reaching its decision or if the law applied by the Pakistani court was against Maryland’s public policy.

Thus, the appellate court instructed the circuit court that it “should decline to exercise jurisdiction unless persuaded that the Pakistani court either (1) did not apply the best interest of the child standard when it awarded custody to appellant, or (2) arrived at its decision by applying a law (whether substantive, evidentiary or procedural) so contrary to Maryland public policy as to undermine confidence in the outcome of the trial.”

The appellate court noted that Pakistan’s preference toward paternal custody, which is similar to Maryland’s now outdated preference toward maternal custody, would be considered on par with Maryland’s public policy. However, to be granted comity, the husband would need to prove that the Pakistani court exercised the best interest of the child standard when reaching its decision.

Advertisements