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India to Decide Whether It Will Exercise Child Custody Jurisdiction over an American Child of Indian Heritage Who Very Recently Moved to India with His Mother to Study for a Time

By Janet Langjahr

Husband and Wife, are both natives of India who immigrate to the US and become US citizens.

Husband and Wife have Son, who is also a US citizen.

The family lives in the US, specifically California, for Son’s whole life.

Wife is unhappy and now claims to be a victim of abuse.

While on vacation visiting family in India, Wife decides to stay in India to see how she enjoys the work there and to have Son in India while she is doing so.

Husband arguably consents to the seemingly temporary arrangement.

Two months after arriving in India and after Husband files for divorce and custody of Son in the US, Wife seeks an Indian court order awarding her custody and guardianship of Son.

Husband intervenes in the Indian action, arguing that India does not have jurisdiction over Son.

The Indian trial court nonetheless proceeds and find for the Wife.

But the intermediate level appellate court reverses, concluding that Son is a permanent resident of the US and merely a temporary resident of India and therefore defers to the California court’s jurisdiction over Son.

The case is now on appeal to the Supreme Court of India.

Its forthcoming ruling will impact many families in similar situations.

India is not currently a party to the Hague Convention on the Civil Aspects of International Child Abduction.

Read more in this [Indian] Daily News & Analysis article: Can Indian judiciary interfere with orders of courts abroad? SC to decide.

Full post as published by Florida Divorce - Child Custody - Domestic Abuse Law on April 11, 2010 (boomark / email).