Ann Parks

Faced with a tricky international child custody dispute, it was proper and reasonable for a circuit court to defer the decision on appointing counsel for the child until it determined whether Baltimore County or India had jurisdiction, the Court of Appeals held yesterday.

The opinion reverses the Court of Special Appeals, which concluded last September that the Baltimore County Circuit Court was in fact required to appoint an attorney for the child caught in the middle of the dispute between husband Ajay Garg and wife Deepa Garg before addressing the jurisdictional question. The intermediate appellate court, as a result, never properly addressed the primary issue raised by Deepa Garg in her appeal - namely, whether the circuit court correctly concluded that it had no jurisdiction to hear the case under the Uniform Child Custody Jurisdiction Act.

Because the Court of Special Appeals erred in vacating the Circuit Court judgment upon its determination that the trial court was obliged to appoint counsel for Chaitanya, its judgment must be reversed and the case remanded (to the intermediate appellate court) for it to resolve the issues actually raised by Ms. Garg, Judge Alan M. Wilner wrote for the court.

The Court of Special Appeals also erred, the top court held, in concluding that the newer Uniform Child Custody Jurisdiction and Enforcement Act would apply to the case on remand. The act, a model for states to follow when determining which state or country can hear a case, went into effect in Maryland in 2004, superseding the older version, the Uniform Child Custody Jurisdiction Act.

By the plain terms of the statute, therefore, it does not apply to cases to establish custody filed before October 1, 2004, which Ms. Garg's action clearly was, Wilner wrote.

Attorney Stephen J. Cullen, who represented Mr. Garg, called the decision vindication - because the case with respect to custody has been put back to where it was following his victory in the circuit court. Cullen asserts that India, not Maryland, has jurisdiction in the case.

I didn't want this going back to circuit court, Cullen said, adding that there was absolutely no requirement that a lawyer be appointed to represent a minor child.

Here (Mr. Garg) is thousands of miles away, and he can say that Maryland courts do care about these issues, Cullen said.

Counsel for Ms. Garg did not return a phone call for comment.

According to yesterday's opinion, the Gargs, married in India in 1991, would frequently move back and forth between India and the United States. Ms. Garg became a U.S. citizen in 1997 or 1998.

In 2002, when the parties were living in Indore, India, Ms. Garg allegedly took the child and moved 400 miles away from her husband. As a result, Mr. Garg filed a custody action in Indore that April.

One month later, Ms. Garg took the child to live in Baltimore County. In February 2003, she filed an action for divorce, custody and support in the circuit court here.

After the circuit court dismissed the entire action - concluding that India already had jurisdiction in the case - Ms. Garg appealed.

The Court of Special Appeals held that the circuit court erred in dismissing the divorce portions of Ms. Garg's case and in failing to appoint an attorney for the child. To aid the lower court on remand, it also concluded that the Uniform Child Custody Jurisdiction Act and the Uniform Child Custody Jurisdiction and Enforcement Act applied to custody disputes involving a citizen of a state and a foreign country; and that the newer act should apply on remand.

Cullen was especially pleased by a footnote in the top court's opinion indicating that a best interests of the child standard has no place in a jurisdictional analysis. The Court of Special Appeals had determined that the appointment of a guardian ad litem was proper, in part, to determine what was in the child's best interest.

You have to decide whether Court A or Court B can hear the jurisdictional issue, and not apply a best interest analysis, Cullen said.

(This article originally appeared in The Daily Record, Baltimore, MD, another Dolan Media publication).

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