Mali custody case alleges violations of human rights

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A recent ruling by an Indiana appellate court in a transcontinental custody dispute is raising questions in the Hoosier legal community about the authority United States courts have to question the legal practices of other nations.

The Indiana Court of Appeals handed down a decision last month in Maimouna Coulibaly v. Eric Stevance, 49A02-1702-DR-235, a case that traces its origins to the west African nation of Mali. The case began in a Malian court when Eric Stevance filed for divorce from his wife, Maimouna Coulibaly.

mali-mapMali operates under a fault-based divorce system, and the court ultimately found Coulibaly to be at fault for the divorce due to her failure to fulfill her legal duty of loyalty to her husband. Specifically, Malian law allows the husband to choose where the family lives, but Coulibaly was seeking to move to Canada with the couple’s children, who were born in 2002 and 2004.

A custody battle then ensued, and the Malian court once again ruled in favor of Stevance, finding that allowing the children to remain in Mali with their father would be in their best interests. However, Coulibaly eventually moved to Indiana, and the children have remained in her care.

harmon-katherine-mug Harmon

After the Marion Superior Court found it lacked jurisdiction to overturn the Malian custody order, Coulibaly took her case to the Indiana Court of Appeals, where her attorney, Katherine Harmon of Mallor Grodner LLP, argued the order was unenforceable under the Uniform Child Custody Jurisdiction and Enforcement Act. That act allows a local court to enforce an order from a foreign jurisdiction, including other countries, Harmon said.

However, the UCCJEA also contains an “escape clause” that allows Indiana courts to decline to enforce a foreign order “if the child custody law of a foreign country violates the fundamental principles of human rights.” In this case, Harmon said the preference for men over women in Mali’s divorce system and other laws and, more importantly, the prevalence of female genital mutilation in the country presented significant threats to the children’s fundamental human rights.

“That’s quite a big issue because in Mali, for example, it’s not an outlawed procedure,” Harmon said. “The World Health Organization says 90 percent of female children undergo it.”

Because Stevance and Coulibaly share a daughter, Coulibaly’s argument was premised on the fact that her daughter could be subjected to genital mutilation if she is ordered to be returned to her father. But the appellate court, looking specifically at Mali’s custody laws, determined Coulibaly failed to establish those laws violated her children’s fundamental human rights and, thus, declined to overturn the order.

“Mother … essentially asks us to look beyond Mali’s custody law to conclude that Mali’s legal system and culture are, on the whole, so oppressive to women that no custody order issued in that country could be enforceable in the United States,” appellate Judge Robert Altice wrote in the court’s decision. “We are in no position to make such a judgment, and the language of the UCCJEA prohibits us from attempting to do so.”

Noting the court’s opinion narrowly addressed fundamental human rights as they relate to Malian custody laws, not culture, Harmon said her client’s case presented unique issues to the Court of Appeals that have never been addressed before, which is likely why the case was accepted for oral arguments. However, she declined to discuss any specifics of the case or the court’s decision while a potential appeal to the Indiana Supreme Court is pending. Attorneys for Stevance did not respond to messages seeking comment.

madeira-jody-mug Madeira

Jody Madeira, a professor at Indiana University Maurer School of Law and an expert on children and the law, agreed with Harmon that the court ruled on very narrow grounds, but she expressed concerns about whether such a narrow decision was appropriate. Specifically, Madeira said the language of the UCCJEA could be read to include some ambiguous language.

While the act says a child custody “law” that violates human rights is not enforceable, the word “law” could possibly be interpreted in multiple ways, Madeira said. A “decree,” for example, could be considered a “law”, which would mean a court would have to look to the content of the decree to determine if it violates fundamental human rights.

If that were the case, then Madeira said a court could potentially have cause to look beyond expressly written child custody laws.

“I’m no longer sure that under that interpretation, the court is bound to look at the laws on the books,” Madeira said. “There might be other reasons to get to the meat of what might happen in that foreign country.”

The court, however, addressed a similar argument in its opinion, with Altice writing that “consideration of every law likely to affect children would throw the doors wide open” and would put Indiana courts “in the untenable position of passing judgment on the entire legal system of a foreign country.” Such a practice would be “plainly at odds with the clearly stated intent of the drafters of the UCCJEA,” Altice said.

Further, the appellate panel noted the trial court relied partially on Stevance’s assertion that female genital mutilation is “horrible” to determine the couple’s daughter was not in danger of the practice. But conversely, Madeira pointed to Coulibaly’s evidence of the prevalenceof FGM and said she thinks Indiana courts accepted Stevance’s evidence at face value.

With regard to human rights issues related to gender roles, the Court of Appeals found the Malian court had made its decision based on the best interests of the children and not based on the fact that Coulibaly was found to be at fault for not showing loyalty to Stevance. The court also noted “custodial preferences are not foreign to American jurisprudence,” as a maternal preference was common in the United States “in the not-so-distant past.”

Madeira, however, said that just because something has been done in the United States doesn’t mean a similar foreign law must be upheld. Altice, however, reiterated throughout the opinion that the UCCJEA confines the court’s review to an analysis of custody laws, not other legal issues or cultural practices.

“…(T)he Malian court expressly stated that its decision was based solely on the best interests of the children, and it conducted an analysis of those interests not at all unlike the one applied by the courts of this state,” Altice wrote. “Thus, when considering Mali’s child custody laws as applied in this case, we cannot conclude that Mother has established a violation of fundamental human rights.”

Looking at the issue of fundamental human rights as a whole, Madeira went on to say she thinks Indiana courts are uncomfortable applying the “escape clause” without explicit evidence of a violation. Here, that evidence was lacking, which is likely what doomed Coulibaly’s case, she said.

“I think they would need more solid evidence that this (female genital mutilation or gender preferences) was a planned practice,” she said.

At Indiana Lawyer deadline, a petition to transfer had not been filed with the Indiana Supreme Court.•

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