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Coulibaly v. Stevance

Court of Appeals of Indiana

October 25, 2017

Maimouna Coulibaly, Appellant-Petitioner,
Eric Stevance, Appellee-Respondent

         Appeal from the Marion Superior Court Trial Court Cause No. 49D05-1602-DR-7130 The Honorable John M.T. Chavis, II, Judge, The Honorable Victoria Ransberger, Magistrate

          Attorneys for Appellant Katherine A. Harmon Jared S. Sunday Indianapolis, Indiana

          Attorneys for Appellee Michael A. Wilkins Nissa M. Ricafort Erin M. Durnell Indianapolis, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Maimouna Coulibaly (Mother) appeals from the trial court's finding that it lacked jurisdiction to modify a child custody order issued in the west-African nation of Mali in favor of Eric Stevance (Father). On appeal, Mother argues that the trial court erred in concluding that it was required to enforce the Malian court's order under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as codified in Indiana. Specifically, Mother argues that the trial court erred in concluding that the Malian order was not the product of laws that violate fundamental human rights.

         [¶2] We affirm.[1]

         Facts & Procedural History

         [¶3] Mother and Father are both dual citizens of France and Mali. They were married in Mali in 2001 and had two children, a daughter born in 2002 and a son born in 2004, who are also dual citizens of Mali and France. Father is a computer science engineer, and throughout the marriage and thereafter, he has operated a company that provides internet service in Mali. Mother is a physician, and she and the children lived in France with Father's consent from 2005 until 2007 while pursuing her Master's degree in epidemiology. Father remained in Mali during this time but visited Mother and the children regularly. Mother returned to Mali in 2007, where she practiced as an OB/GYN. Mother wished to immigrate to Canada, and she and Father both filed the necessary paperwork to do so. At some point, however, Father made it clear that he did not want to leave Mali or the business he ran there.

         [¶4] The marriage subsequently deteriorated, and Father filed a petition for divorce in Mali on March 14, 2008. Mother and Father appeared before a conciliatory magistrate and were ordered to participate in a six-month reconciliation period. A few months later, Mother retained counsel and asked the Malian court to waive the reconciliation period and rule on the divorce petition. Both parties appeared at the final hearing with counsel and presented evidence. At the hearing, Mother indicated that she wished to live outside of Mali and she alleged that Father had been physically abusive to her. Father denied Mother's abuse accusation and asserted that Mother was determined to move to Canada or Europe and he feared she would kidnap the children and cease contact with him. Both parties asked for custody of the children. Following the hearing, but prior to the issuance of the Malian court's custody order, Mother took the children and moved to France.

         [¶5] On October 6, 2008, the Malian court issued its decree awarding Father custody of the children. Despite this order, Mother has not returned the children to Father, and she unsuccessfully sought relief from the order in both Mali and France before moving to the United States and seeking such relief in Indiana. In her current challenge to the Malian custody order, Mother argues that the order is unenforceable under the UCCJEA because Mali's child custody laws violate fundamental human rights.

         [¶6] At the five-day evidentiary hearing, Mother presented evidence regarding Mali's laws, culture, and customs. Mother also presented testimony concerning allegedly widespread judicial corruption in Mali, difficulties noncustodial mothers in Mali reportedly face in securing visitation with their children, and a number of cultural practices oppressive to women and children. Much of Mother's evidence focused on the prevalence of female genital mutilation (FGM)[2] in Mali and the absence of a law specifically prohibiting the procedure.[3]Although neither Mother nor her sisters underwent FGM, Mother's evidence indicated that as many as ninety percent of women and girls in Mali are subjected to the procedure, which has been condemned by human rights groups worldwide. Mother also presented testimony suggesting that spousal and child abuse was widely accepted and rarely prosecuted in Mali.

         [¶7] The trial court rejected Mother's arguments, finding that although government corruption may have been a problem in Mali at the time of the parties' divorce, there was no evidence of bribery, corruption, or influence in the divorce proceedings at issue here. With respect to the issue of FGM, the trial court noted that Father described the practice as "horrible." Appellant's Appendix at 25. The court found no evidence that the parties' daughter was in danger of being subjected to FGM if she returned to Mali, and noted further that there was no indication that Mother had raised the issue of FGM in the Malian court proceedings. The trial court also found that although there might have been some cultural acceptance of domestic violence and child abuse in Mali at the time of the divorce, there were laws on the books prohibiting such abuse and agencies charged with investigating allegations thereof. The trial court rejected Mother's claim that the Malian court had applied a presumption that Father should have custody of the children, finding instead that the Malian court's order reflected its consideration of several factors relating to the best interests of the children. Accordingly, the trial court found no violation of fundamental human rights and concluded that the Malian court's order was entitled to enforcement and that the Indiana court lacked jurisdiction to modify it. The trial court ordered the children immediately returned to Father, but subsequently approved the parties' agreement to stay enforcement of the order pending appeal.

         Discussion & Decision

         [¶8] The trial court in this case entered special findings of fact and conclusions thereon pursuant to Trial Rule 52(A). Our review of such findings and conclusions is two-tiered. In re Paternity of D.T., 6 N.E.3d 471, 474 (Ind.Ct.App. 2014). First, we consider whether the evidence supports the findings, and second, whether the findings support the judgment. Id. The trial court's findings and conclusions will be set aside only if they are clearly erroneous- that is, where a review of the record leaves us with a firm conviction that a mistake has been made. Id. In conducting our review, we will neither reweigh the evidence nor judge the credibility of witnesses. Id. Instead, we will consider only the evidence favorable to the trial court's judgment. Id.

         [¶9] The ultimate issue presented on appeal is whether the trial court properly recognized and enforced the Malian court's custody order. Our court discussed the history and purposes of the predecessor to the UCCJEA (known as the ...

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