The parents are Indian nationals that lived in Cleveland, Ohio. Their child was born in Cleveland, and is a U.S. citizen. On or about February 21, 2018, the family traveled to India for a family wedding. While there, the parents separated so they could each visit with their own family members, who lived in cities about 7-hours drive apart. The child, being a U.S. citizen, was in India on a visa. The couple had return airline tickets for March 18, 2018. After several arguments, and complaints to the police, the father returned to Cleveland on March 10, 2018. On March 12, 2018, the Mother emailed Father’s employer, alleging that father abandoned her and the child in India. On March 24, 2018, Mother filed an application with the Indian immigration bureau to convert and extend the child’s visa for 18 years, claiming “father fled to U.S., abandoning mother and child in India.” The visa was extended for 1 year. On March 25, 2018, the parties’ families held a family mediation, without the parents, and agreed that Father would return to India on or before April 20, 2018 to retrieve mother and child and return them to Ohio. But, the father did not return, as agreed by the families. He claimed that he would retrieve them, but could not get time off from work or leave in the middle of a work project.
On November 22, 2018, the mother filed another police complaint against the father, and his parents, and a few other relatives, claiming abuse, threats, abandonment, and dowry harassment. Finally, upon returning to Ohio in February 2019, the mother found that the father had changed their locks. On February 5, 2019, the father filed a complaint for divorce in Cuyahoga County. A temporary restraining order prevented the mother from leaving the state with the child. On February 22, 2019, the mother’s family filed a criminal complaint against the father in India, which resulted in an arrest warrant. On February 28, 2019, the mother filed a motion to dismiss the father’s custody complaint for lack of jurisdiction. The father argued that the trip to India was a mere temporary absence, and the mother was wrongfully retaining the child in India, but because of the criminal actions in India against him, and the lack of India signing the Hague Abduction Convention, he had little recourse to travel to India and seek the child’s return. Alternatively, the father argued that Ohio has a significant connection to the child and the child’s care.
The trial court magistrate concluded that India, where the child had lived approximately 1 year, was the child’s home state, and not Ohio, under the UCCJEA. The court found the mother and her witnesses more credible, and believed that the father abandoned the mother and child in India, with the intent to return to the U.S. and live alone.
This appeal revolves around the definition of “temporary absence.” There are 3 tests. The “duration” test generally considers short absences to be temporary and longer absences to be permanent. The “intent” test considers the parents’ intent as to the child’s home state, but intent can change, be unclear, or be conflicting. The “totality of the circumstances” test allows a court to consider everything. Ohio courts have chosen the “duration” test, which provides a much brighter line. A yearlong absence is not temporary.
In that the child has a home state (India), the court does not explore whether there are significant connections between a child and jurisdiction. Further, the father argued that mother acted “unjustifiably,” but this is only a reason for a home state to decline jurisdiction, not to assume it. The father argues that if India is the home state, it must decline jurisdiction based on the mother’s unjustifiable conduct. The Court, however, concluded that mother did not act unjustifiably. [The court did not highlight this, but also note that India does not have the UCCJEA, and therefore, it should not need to decline jurisdiction unless that is a provision under its domestic law to do so.]