Hosain v. Malik

• Decision Date: 01 September 1995
• Docket Number: No. 228,228
• Parties: Joohi Q. HOSAIN (fka Malik) v. Anwar MALIK. ,
• Court: Court of Special Appeals of Maryland

Page 284

108 Md.App. 284

671 A.2d 988

Joohi Q. HOSAIN (fka Malik) v. Anwar MALIK.

No. 228, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Feb. 21, 1996.

Appeal from the Circuit Court for Baltimore County; Christian M. Kahl, Judge

Natalie H. Rees, Towson, for appellant.

Linda Haspel (Leslie B. Fried and Haspel & Meiselman, Chartered, on the brief) Rockville (Angela R. White of Baltimore, on the brief) for appellee, minor child.

Argued before WILNER, C.J., MOYLAN, BLOOM, FISCHER, DAVIS, MURPHY, HOLLANDER, JJ., and PAUL E. ALPERT, Judge (Retired), specially assigned.

DAVIS, Judge.

Joohi Q. Hosain (formerly Joohi Malik) appeals from an order of the Circuit Court for Baltimore County (Kahl, J.) entered in a custody dispute in which appellant, the mother, and appellee, Anwar Malik, the father, have been battling for sole custody of their minor child. By this order, the circuit court declined to assume jurisdiction in the matter and granted comity to various Pakistani court orders that granted sole unrestricted custody of the child to appellee. Four questions were presented originally on this appeal. Appellee presented the first question, a threshold matter, and appellant presented the next three issues. We restate these issues as follows:

I. Should this Court dismiss appellant's appeal because appellant allegedly included and relied on matters in the appendix of her brief that were extraneous to this appeal?

II. Did the circuit court abuse its discretion by proceeding with a remand hearing in the absence of the child's attorney?

III. Did the circuit court err in determining that appellant failed to prove that Pakistani law was not in substantial conformity with Maryland law?

IV. Did the circuit court err in not assuming jurisdiction under the Uniform Child Custody Jurisdiction Act?

Subsequent to oral argument before a three-judge panel of this Court on October 6, 1995, we issued an Order to counsel to appear before this Court, en banc, on January 10, 1996 to specifically address the query, "In deciding whether the Pakistani Court applied the best interest of the child standard, should the trial court's determination focus on the particular culture, customs and mores of Pakistan and the religion of the parties or, alternatively, is the best interest standard to be determined based on Maryland law, i.e., American cultures and mores?". We answer the four original questions in the negative and we hold that the lower court properly determined the best interest standard by applying relevant Pakistani customs, culture and mores. We, therefore, affirm the order of the circuit court.

FACTS

This is a long and bitter child custody dispute involving orders of courts in both Maryland and Pakistan. Not too long ago, these parties and their dispute were before this Court in Malik v. Malik, 99 Md.App. 521, 638 A.2d 1184 (1994), which we decided on March 30, 1994. Needless to say, with the battle still raging, the parties have returned once again to this Court. Subsequent to oral argument before a three-judge panel of this Court, it was determined that an en banc hearing would be necessary. The Court set the matter in for an en banc hearing. The facts of this appeal arise directly out of the proceedings following Malik.

As a matter of background, we recite the facts of this case as stated in Malik:

The parties to this appeal are battling for custody of their daughter (the child), who was born in Karachi, Pakistan on September 11, 1983.... [T]he child's father ... is a citizen of Pakistan. [T]he child's mother, also a citizen of Pakistan, has obtained a student visa that permits her to remain in this country on a temporary basis. The parties were married on June 20, 1982 and lived together until September of 1990, at which time the child was attending St. Joseph's Convent School in Karachi.

On September 15, 1990, [the mother] left the marital home and moved in with her parents. She took the child with her. [The father] sued for custody. When [the mother] learned of [the father's] lawsuit, she fled the country, taking the child with her. Soon thereafter, [the mother] moved into the home of a man with whom she has continued to live and by whom she conceived a son who was born in 1991. [The mother] was represented by counsel in the Pakistani custody proceeding. She refused, however, to appear in person. She also refused to obey the judge's order that the child be produced. It appears that the judge did consider a written statement submitted by [the mother], but awarded custody to [the father].

Having obtained legal custody of his daughter, [the father] set out to find her. [The mother] hid the child from [the father] for over two years. In 1992, [the father's] private detectives were finally able to locate the child and [the mother] in Baltimore County. Once she realized that she had been discovered and that [the father] was about to seek enforcement of the order granting him custody of his daughter, [the mother] filed a complaint in the Circuit Court for Baltimore County, requesting custody of the child and a restraining order against [the father]. At the conclusion of an emergency hearing, the trial judge decided that the Circuit Court for Baltimore County had jurisdiction to determine custody, that the Pakistani custody order was not entitled to comity, that temporary custody should be granted to [the mother], and that [the father] should be enjoined from going within three hundred feet of the child, [the mother] or their residence.

Id. at 523-24, 638 A.2d 1184. The parties point out to this Court that appellant fled to the U.S. from Pakistan with the child shortly before--not after--appellee filed a petition for custody in Pakistan. In this regard, we stand corrected. Additionally, appellant has since married the man by whom she had a son.

In Malik, the father presented the following question for our review: "Did the chancellor err in exercising jurisdiction Rather, we held that "the circuit court 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 [the father], 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." Id. at 533-34, 638 A.2d 1184. Accordingly, we remanded the case to the circuit court for an evidentiary hearing on these issues. Id. at 536, 638 A.2d 1184. In so doing, we set forth the law for the circuit court to apply in determining whether the evidence that would be introduced demonstrated that the Pakistani court did not apply law in "substantial conformity with Maryland law." Id. at 534-36, 638 A.2d 1184. In addition, we held that the burden was on the mother to prove these matters by a preponderance of the evidence. Id. at 536, 638 A.2d 1184.

                when custody proceedings were pending in a foreign country?"  Id. at 525, 638 A.2d 1184.   Although we held that the circuit court did have "home state" jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) (codified in MD.CODE ANN., FAM.LAW § 9-201 to 9-224 (1991)), we did not affirm the circuit court's refusal to grant comity to the Pakistani custody order.  Id
                

Accordingly, on November 14, 1994, the parties returned to circuit court for the remand hearing. Consistent with our holding in Malik, counsel for both appellant and appellee were present and prepared to introduce evidence and examine witnesses regarding child custody law and its application in Pakistan. Court-appointed counsel for the minor child, however, failed to appear for the hearing. As counsel explained in her brief to this Court, "[c]ounsel for the minor child was aware of the hearing date, but failed to note it in her calendar and was out of the state at the time of the hearing." The hearing continued in the absence of the child's lawyer.

Each party came to the hearing armed with an expert witness to testify concerning the law of Pakistan. Appellant's expert witness was Dr. Hafeez Malik (no relation to the Dr. Malik acknowledged that the Guardians and Wards Act of 1890 (the Act), a British enactment governing child custody matters, is an accepted part of Pakistani law that governs child custody matters and specifically requires a Pakistani court to consider the "welfare of the minor." Dr. Malik recognized that, in application of the welfare of the minor test, the Act directs the court to consider such factors as the child's age, sex, religion, character and capacity of the guardian, nearness of the guardian's kin to the minor, parental wishes, the child's preference, and any existing or previous relationship of the proposed guardian with the minor or his or her property.

parties). Dr. Malik is a professor of political science at Villanova University. Dr. Malik's specialty involves Pakistani foreign policy as it relates to other nations. Dr. Malik testified that he has conducted research on Pakistani political, social, legal, and constitutional issues. The record reveals that Dr. Malik has a great deal of expert knowledge about Pakistan and its policies, through his research, membership in various associations, and publications. Dr. Malik, however, is not a lawyer. Although he did read the Pakistani court orders in this case, Dr. Malik's testimony indicated only a limited knowledge of Pakistani child custody law. Dr. Malik conceded that his area of specialty was not custody matters.

Dr. Malik testified that, although "lip service" was paid to the welfare of the child test, the Pakistani court did not really apply it to his satisfaction in the instant dispute, but rather focused on only one or two factors--fitness of the parent and religion. Throughout his testimony, Dr. Malik characterized the proceedings in Pakistan as "one-sided," because the Pakistani court never considered appellant's...