This is a fascinating case, because a New York court concluded that, despite the child, F, having never resided in NY, the NY court had vacuum jurisdiction over the child. The child’s two parents and 3 siblings all reside in the United States. They moved to the U.S. from Nigeria, but, due to a visa problem for F, the child could not come with them. They left the child in the temporary care of a relative in Nigeria. The mother filed this suit because she claims the father, from whom she separated, was not taking the necessary steps to bring the child to the United States, and she was prohibited from exiting the U.S. while her asylum application was pending, so she could not go and retrieve the child. In September 2022, the court concluded that no other state can assume jurisdiction, and that Nigeria cannot have jurisdiction when both parents, who have a superior right to custody (over the relatives), reside in NY. The court also concluded that the relatives caring for F in Nigeria were not “persons acting as a parent” and that it was the intention of both parents to bring the child to the U.S.

In October 2022, the mother filed a subsequent motion for sole physical and legal custody and requested that the father execute necessary travel documents for F, among other things. During a court hearing on this motion, Mr. O, for the first time, stated that there was a Nigerian custody action pending, filed by the person with whom the child was residing, and therefore the NY court lacked jurisdiction.

The court re-examined jurisdiction, and concluded again that the rotating family members with whom F resided in Nigeria were not persons acting as a parent. Under the UCCJEA, the child’s home state has priority over determining that child’s custody, and a home state, in its definition, is a place where the child has lived for a period of time, with a parent or a person acting as a parent. “A person acting as a parent is an individual who has physical custody of a child for six consecutive months within one year immediately preceding the commencement of a custody proceeding; or an individual who has been awarded legal custody or claims a right to legal custody under the law of this state.” The child’s mother never consented for the relative to have custody of the child or to act as a parent. Furthermore, the Nigerian lawsuit was filed after the NY court assumed custody jurisdiction in September 2022. It was filed over a year after the child’s mother filed the NY custody lawsuit. Finally, the mother has no notice of the suit, and no due process. The NY suit can proceed.