Legal Review: High Court in India Rules in Favor of Illinois Parent

By Family Law Attorney Brian W. Reidy, founder of Reidy Law Office LLC.

The Dehli High Court — the rough equivalent of US Court of Appeals — has ruled that a woman and her toddler child must return to Illinois for final adjudication of child custody and divorce proceedings following her husband’s filing of a petition with the court for an order removing the child from the woman’s custody and returning her to the United States.

The woman, who was originally born in India but lived in the United States, was seeking to avail herself of India’s courts in an attempt to use that country’s laws in manner that would have dissolved her marriage and provided her custody of the couple’s three-year-old daughter.

The couple had traveled to India to visit the woman’s parents, but just before flying back to the United States, the woman and her daughter had disappeared.

The Hindu Marriage Act governs marriages where one or both of the individuals are of the Hindu religion. Divorce is generally frowned upon in the Hindu religion; however, the Act allows for divorce in certain situations, including allowing the wife to petition for dissolution of the marriage in the instance of rape, which is what the wife alleged.

However, the Circuit Court of Cook County, Illinois, had already exercised jurisdiction over the custody of the child, having ruled in the matter prior to the wife’s petition in India, wherein sole interim custody had been vested in the father.

“The father asked the Delhi High Court to remove his daughter from his wife’s custody and return her to the United States, arguing that the courts in India had no jurisdiction over the matter,” said Brian W. Reidy, an Illinois Child Custody Attorney with Reidy Law Office, LLC.

The Delhi High Court agreed, holding that the United States was the “Karam Bhumi” (the place with proper jurisdiction) of the couple and as such, the wife could not avail herself of the laws of her home country at the expense of the best interests of her child, a United States citizen who had only ever known life in Illinois.

This “best interests of the child” concept may be in an order from an Indian court, but the concept itself is not foreign to divorce and custody proceedings in the United States. The best interests of the child standard has long been the “polar star” for courts in child custody proceedings, the goal being to put the needs of the child ahead of the wants and wishes of the parents.

In this scenario, the mother was seeking to move to India with her child to be closer to her family and those that she knew. Though this would be good for the mother, removing the child from her life, school, friends and other family solely for the ease of the mother represented a violation of that child’s best interests for the Dehli court.

Child custody proceedings are inherently challenging and filled with conflict. An experienced child custody attorney in Illinois will help you understand the laws governing custody and work to negotiate an outcome that is favorable to you as a parent while keeping your child in mind.