Monojit Banerjee v. Shalini Banerjee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-245

MONOJIT BANERJEE

VERSUS

SHALINI BANERJEE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2016-1197
HONORABLE DAVID A. BLANCHET, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret,
Judges.

AFFIRMED.

Richard Damian Mere
Attorney at Law
P. O. Box 3301
Lafayette, LA 70502-3301
(337) 269-5555
COUNSEL FOR PLAINTIFF-APPELLANT:
Monojit Banerjee

Shalini Banerjee
2034 Sobha Moonstone Apts.
Kempapura Maid Rd., Hebbae Kem
Bangalore, India, 560024
DEFENDANT-APPELLEE

PERRET, Judge.

Appellant, Monojit Banerjee (“Mr. Banerjee”), a Louisiana resident, is

seeking custody of his children who currently reside with their mother, Shalini

Banerjee (“Mrs. Banerjee”), in India. Both parents became United States citizens

through the naturalization process, and their children are United States citizens by

way of birth. This matter came before the trial court on a petition for divorce and

custody of minor children filed by Mr. Banerjee. The trial court denied the child

custody petition for lack of subject matter jurisdiction after applying the Uniform

Child Custody Jurisdiction and Enforcement Act (UCCJEA). We agree with the

trial court‟s finding of no jurisdiction for the reasons that follow and now affirm.

ISSUE FOR REVIEW

This court must decide whether Louisiana has subject matter jurisdiction

over this child custody matter.

FACTUAL AND PROCEDURAL HISTORY

Mr. and Mrs. Banerjee were married in 1994 in Bangalore, India. The

couple moved to the United States, to Waterloo, Iowa, and had two children, born

in 2005 and 2007. The parties and their children resided in Iowa until 2010. In

2010, the family moved back to Bangalore, India, residing there together until June

14, 2014, when Mr. and Mrs. Banerjee physically separated. Mr. Banerjee

remained in India until March 2015. At that time, it is alleged Mrs. Banerjee

threatened Mr. Banerjee with physical violence, court action, and criminal

penalties. Mr. Banerjee, therefore, fled to the United States, taking up residence

and employment in Lafayette, Louisiana. The children remained in India with

Mrs. Banerjee and have never resided in the state of Louisiana.

Mr. Banerjee filed for divorce on March 4, 2016, under La.Civ.Code article

103(1). Mrs. Banerjee remains in India with the children, and allegedly refuses to

allow Mr. Banerjee to see them. Mr. Banerjee informed the trial court he continues

to pay for rent, school, and living expenses for his children. Mr. Banerjee also

made a trip to India in May of 2016, in the hopes of seeing his children, but alleges

Mrs. Banerjee would not permit it. Mrs. Banerjee allegedly filed a domestic

violence lawsuit in India against Mr. Banerjee in 2014, but, according to Mr.

Banerjee, no resolution has been reached. However, Mr. Banerjee alleges custody

proceedings have never been filed in India.

Counsel for Mr. Banerjee contacted the United States Department of State

and the United States Embassy in India for assistance with visitation, but counsel

was advised neither agency could facilitate visitation unless Mr. Banerjee obtained

a custody judgment from a United States court.

The trial court heard testimony and received evidence at the hearing on Mr.

Banerjee‟s petition for divorce and custody of minor child. Though the trial court

granted the divorce, the trial judge indicated he believed there was an issue with

jurisdiction over the child custody issue. At the conclusion of the hearing, the trial

court left the record open for jurisprudence and statutory law from India to be

submitted. Thereafter, Mr. Banerjee submitted a “Memorandum in Response to

Issues Raised by This [the trial court] Court” on June 7, 2016.1

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Defendant, Mrs. Banerjee, contemporaneously responded to the petition for divorce and
child custody in an e-mail to the court, dated August 2, 2016. The trial court forwarded the
correspondence to Mr. Banerjee‟s counsel on August 19, 2016 and it was filed by the clerk of
court on September 21, 2016. The e-mail addressed several allegations made in Mr. Banerjee‟s
petition as well as made several allegations against him. The e-mail also indicated there may be
filings related to the children in the Indian court system. While this might be considered a pro se
Answer or Opposition, and although the trial court acknowledged receipt of the e-mail in its
Reasons for Ruling, there is nothing in the trial court‟s written reasons or judgment to suggest

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The trial court reviewed the information submitted by Mr. Banerjee and the

review conducted by the hearing officer, and then determined “India‟s

jurisdictional standards are in substantial conformity with the UCCJEA and the

Court does not find that the child custody laws of India violate fundamental

principles of human rights.” Additionally, the trial court concluded India takes

into consideration where the children and the parties have the most substantial

contacts and, specifically, that, in this case, that the children and Mrs. Banerjee

have never been to the State of Louisiana. The trial court also discussed how

India, not Louisiana, would qualify as the children‟s Home State under the

UCCJEA. Mr. Banerjee now appeals the jurisdictional ruling to this court.

STANDARD OF REVIEW

Whether a court has subject matter jurisdiction is reviewed on appeal under

the de novo standard of review. Chamberlin v. Chamberlin, 14-1322 (La.App. 3

Cir. 4/22/15), 176 So.3d 1118, writ denied, 15-0972 (La. 6/19/15), 172 So.3d 1093;

Otwell v. Otwell, 10-1176 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232.

LAW AND DISCUSSION

Louisiana courts have jurisdiction over a minor‟s status in a “proceeding to

obtain the legal custody of a minor if he is domiciled in, or is in, this state.”

La.Code Civ.P. art. 10(A)(5). However, a second tier of inquiry into the

jurisdiction over custody issues exists under the UCCJEA, La.R.S. 13:1801, et seq.

Even if a Louisiana court has subject matter jurisdiction, that jurisdiction must be

declined based on limitations imposed by the UCCJEA. Albitar v. Albitar, 16-167

(La.App. 5 Cir. 6/30/16), 197 So.3d 332. The UCCJEA‟s limitation on jurisdiction

the e-mail was accepted as an official pleading or as evidence by the court. Therefore, we will
not consider the e-mail on appeal.

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was designed to avoid jurisdictional competition among states, to “assur[e] that

custody litigation takes place in the state with which the child and his family have

the „closest connection‟ and where relevant evidence is located, promot[e] a stable

home environment, deter[] abductions, and encourag[e] cooperation among the

courts of different states.” Id. at 345, quoting Stelluto v. Stelluto, 05-74, p. 8 (La.

6/29/05), 914 So.2d 34, 39.

Additionally, the UCCJEA covers custody issues involving foreign courts

and countries. Louisiana Revised Statutes 13:1805 orders Louisiana courts to treat

a foreign country as if it were a state. Therefore, when a foreign country makes a

custody determination “under factual circumstances in substantial conformity with

the jurisdictional standards of this Act,” Louisiana must recognize and enforce that

determination. La.R.S. 13:1805. But, “if the child custody law of [the] foreign

country violates fundamental principles of human rights,” Louisiana is not required

to apply the UCCJEA. La.R.S. 13:1805(C).

Mr. Banerjee suggests this court has jurisdiction for two reasons. First, Mr.

Banerjee argues Louisiana has jurisdiction under the UCCJEA because a foreign

court has refused or failed to take jurisdiction over this custody matter. Second, he

argues Louisiana is not required to apply the UCCJEA because India‟s laws violate

fundamental principles of human rights by effectively denying Mr. Banerjee

contact with his children. We address both arguments below.

Jurisdiction under the UCCJEA.

The UCCJEA provides the grounds for a state to assert jurisdiction in a

custody case:

A. Except as otherwise provided in R.S. 13:1816, a
court of this state has jurisdiction to make an initial child
custody determination only if:

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(1) This state is the home state of the child on the
date of the commencement of the proceeding, or was the
home state of the child within six months before the
commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent
continues to live in this state, or had been the child's
home state within twelve months before commencement
of the proceeding and the child is absent from the state
because he was required to leave or was evacuated due to
an emergency or disaster declared under the provisions
of R.S. 29:721 et seq., or declared by federal authority,
and for an unforeseen reason resulting from the effects of
such emergency or disaster was unable to return to this
state for an extended period of time.

(2) A court of another state does not have
jurisdiction or a court of the home state of the child has
declined to exercise jurisdiction on the ground that this
state is the more appropriate forum under R.S. 13:1819 or
1820; and

(a) The child and the child's parents, or the child
and at least one parent or a person acting as a parent,
have a significant connection with this state other than
mere physical presence.

(b) Substantial evidence is available in this state
concerning the child's care, protection, training, and
personal relationships.

(3) All courts having jurisdiction have declined to
exercise jurisdiction on the ground that a court of this
state is the more appropriate forum to determine the
custody of the child under R.S. 13:1819 or 1820; or

(4) No court of any other state would have
jurisdiction under the criteria specified in Paragraph (1),
(2), or (3) of this Subsection.

B. Subsection A of this Section is the exclusive
jurisdictional basis for making a child custody
determination by a court of this state.

C. Physical presence of, or personal jurisdiction
over, a party or a child is not necessary or sufficient to
make a child custody determination.

La.R.S. 13:1813.

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Section A(1) of La.R.S. 13:1813 affords jurisdiction to the “home state” of

the child. Home State is defined as the “state in which a child lived with a

parent . . . for at least six consecutive months immediately before the

commencement of a child custody proceeding[.]” La.R.S. 13:1802. Mr. Banerjee,

in his Memorandum to the trial court, acknowledged this section does not apply in

this case. We agree. According to the definition of Home State in La.R.S. 13:802,

the children‟s Home State would be India. The family moved to India in 2010 and

the children have continued living there through the present. Moreover, the

Banerjee children have never resided in Louisiana.

Section A(2) of La.R.S. 13:1813 affords jurisdiction to the court of another

state only when another court does not have jurisdiction or the Home State declines

jurisdiction after finding another forum more appropriate, and subsections (a) and

(b) are met. Similarly, section A(3) may afford a court, other than the Home State,

jurisdiction if “all courts having jurisdiction have declined” to exercise that

jurisdiction finding another forum more appropriate. La.R.S. 13:1813(A)(3).

Mr. Banerjee suggests that La.R.S. 13:1813 “does not contemplate a

situation where the foreign court has refused or failed to take jurisdiction over the

child custody matter.” We disagree and consider how other courts, who also

implement the UCCJEA, have applied this language in similar factual scenarios.

In the California case of In re A.C., 220 Cal. Rptr.3d 725 (Cal. Ct. App.

6/30/17), a California court concluded it had subject matter jurisdiction although it

was not the Home State according to the UCCJEA. The mother, who was born in

California, but lived in Mexico, was deported from Mexico back to California

along with her two children at the border. San Diego police officers arrived at the

border after the mother and children were detained, because they received a call

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that the mother might be unfit to care for the children. A petition was filed by the

San Diego County Health and Human Services Agency because they believed the

children were at risk of harm due to the mother‟s inability to care for them. The

mother asserted only a court in Mexico could have jurisdiction over the matter, as

she and her children had been residing in Mexico prior to their deportation, and her

children had Mexican citizenship. The California district court made good faith

attempts to contact the Mexican courts to discover whether they intended to

exercise jurisdiction over the custody matter. The California court received no

response. After determining the children and mother had substantial contacts with

California, i.e. they previously lived in California and had family members

residing in California who could provide care for the children, the California court

held it had subject matter jurisdiction under the UCCJEA. Specifically the court

stated:

Mother also asserts the court could not exercise
subject matter jurisdiction under section 3421,
subdivision (a)(2), because there is no evidence showing
that the children and at least one parent had significant
connections to California other than mere physical
presence and that there is [no] substantial evidence
available in California concerning the children's care,
protection, training, and personal relationships.
However, Mother fails to acknowledge and dispute
evidence in the record showing that Mother and the
children had significant connections to California and
that there is substantial evidence in California regarding
the children's care, protection, training, and personal
relationships. (§ 3421, subd. (a)(2).)

Id. at 738-39. Unlike In re A.C., this court is unaware of any attempts by the trial

court to contact India‟s courts, or by Mr. Banerjee, to discover whether India‟s

courts would exercise jurisdiction in this matter.

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A New York court in Gharachorloo v. Akhavan, 889 N.Y.S.2d 256 (N.Y.

App. Div. 11/24/09), also refused to exercise jurisdiction where the children were

born in New York, but had resided in Iran for several years prior to the father

commencing custody proceedings in New York.

Although Mr. Banerjee has not been served with notice of any custody

proceedings in India, India is the Home State of the children and has not declined

jurisdiction. There is no evidence in the record to show that India has declined

jurisdiction in this custody matter, finding Louisiana the more appropriate forum.

Mr. Banerjee suggests otherwise and argues India failed to take jurisdiction over

the matter, but also admits neither he nor Mrs. Banerjee has sought the assistance

of the Indian courts as to child custody matters. However, this court notes that Mr.

Banerjee curiously asks the court to consider the delays that have taken place in

India “in the case at bar.” The only proceedings Mr. Banerjee has informed this

court of in India are those related to domestic violence.

Additionally, Mr. Banerjee has not proven that the children have substantial

connections to Louisiana. Louisiana Revised Statutes 13:1813(2) requires that

when a Home State declines jurisdiction, the child must have significant

connections with this state prior to Louisiana having jurisdiction. The children

have never lived in or visited Louisiana. The children‟s only connection to

Louisiana is that their father has taken up residence in this state. On the other

hand, the children have lived in India since 2010, more than five years before this

action was commenced in Louisiana. Their mother lives in India. They also have

relatives of both sides of their family in India. Though Mr. Banerjee testified the

children do not have extended family in India, he did state his mother, father, and

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sister resided there on the date of the trial court hearing,2 and that Mrs. Banerjee‟s

father and brother live in India. Furthermore, Mrs. Banerjee did not single-

handedly decide to uproot her children to India. The family, Mr. Banerjee

included, made the decision to move to India in 2010, and resided there together as

a family for several years. This fact is a consideration in India‟s determination of

jurisdiction, as seen in material provided by Appellant in the record. For instance,

Appellant provided the trial court with the Supreme Court of India‟s decision in

Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243 (India) in which India

denied jurisdiction after the child was removed from the U.K. by the mother, who

unilaterally decided to move the child. Also, see those cases cited therein by

India‟s Supreme Court and Judgment of Sole Custody, Archana Bansal v. Sanjeev

Gopal, No. 02-4869-M3 (La. 15th Judicial District Court 11/14/02), provided by

Appellant.

The trial court summarized its application of the UCCJEA in its Reasons for

Ruling as follows:

In this case, the children and their mother have never
been in the State of Louisiana. Further, the father has
only lived here for approximately one (1) year prior to
instituting these proceedings. Under the UCCJEA,
Louisiana is not the home state of the minor children. On
the other hand, India would qualify as the home state
under the statute. Neither minor child has a significant
connection with the State of Louisiana, nor is there
substantial evidence available in this state concerning the
children's care, protection, training and personal
relationships. Also, no other courts having jurisdiction
have declined to exercise jurisdiction on the grounds that
a court of this state is the more appropriate forum to
determine the custody of the children. See R.S. 13:1813.

2
Mr. Banerjee testified that, at the time of the hearing, he was in the process of
sponsoring his parents and sister to come to the United States. Mr. Banerjee also testified he has
other family living in the United States.

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After a review of the record and the above discussed jurisprudence, we agree

with the trial court‟s determination that Louisiana does not have jurisdiction under

the UCCJEA in this case.

Non-Application of UCCJEA under La.R.S. 13:1805(C).

Mr. Banerjee also asserts on appeal that the UCCJEA does not apply in this

case. Louisiana Revised Statutes 13:1805 states:

A. A court of this state shall treat a foreign country
as if it were a state of the United States for the purpose of
applying Subparts A and B of this Part.

B. Except as otherwise provided in Subsection C
of this Section, a child custody determination made in a
foreign country under factual circumstances in
substantial conformity with the jurisdictional standards of
this Act shall be recognized and enforced under Subpart
C of this Part.

C. A court of this state need not apply this Act if
the child custody law of a foreign country violates
fundamental principles of human rights.

Louisiana Revised Statutes 13:1805 mandates that Louisiana courts treat a foreign

country as if it were a state of the United States, unless the foreign country‟s child

custody laws violate fundamental principles of human rights. This statute went

into effect on August 15, 2007.

Prior to the effective date of La.R.S. 13:1803, the Uniform Child Custody

Jurisdiction Act (UCCJA) governed and a similar provision allowed a court to

apply the UCCJA to the international arena. La.R.S. 13:1722(2006)(repealed

2007).3 This provision stated:

3
La.R.S. 13:1701 and 13:1722 were repealed by Acts 2006, No. 822, section 2, effective
August 15, 2007. The UCCJEA was introduced by House Bill No. 60. The proposed UCCJEA
was recommended by the National Conference of Commissioners on Uniform State Laws in
1997 and, at the time of the House Bill, had been adopted in 42 states.

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The general policies of this Part extend to the
international area. The provisions of this Part relating to
the recognition and enforcement of custody decrees of
other states apply to custody decrees and decrees
involving legal institutions similar in nature to custody
institutions rendered by appropriate authorities of other
nations if reasonable notice and opportunity to be heard
were given to all affected persons.

Amin v. Bakhaty, 01-1967, p. 10 (La. 10/16/01), 798 So.2d 75, 83. However, the

UCCJA at the time of this decision only provided that the trial court could consider

a foreign nation to be a “state,” but it did not mandate the court to do so.

Under the UCCJA, the Louisiana Supreme Court in Amin, upheld

Louisiana‟s jurisdiction over custody, even though Louisiana was not the child‟s

Home State, by concluding there was no other “state,” as defined by the UCCJA,

and that Louisiana jurisdiction was in the best interest of the child. The UCCJA at

the time defined a “state” as “any state, territory, or possession of the United

States, the Commonwealth of Puerto Rico, and the District of Columbia.” Amin,

798 So.2d at 81, fn 11.

In reviewing the best interest of the child, the supreme court quoted the trial

court‟s reasoning:

When making an award of custody, this Court is
compelled to consider Ahmed's best interest. See La.
C.C. arts. 131 and 132. The only other forum that could
possibly determine custody would be Egypt. However,
the Egyptian Court is not compelled to consider the
minor child's best interest. Dr. Bakhaty would have the
absolute right to guardianship, as well as the right to
physical custody. This Court believes that a parent's
interest in a relationship with his or her child is a basic
human right. State in Interest of A.C., 93-1125
(La.10/17/94), 643 So.2d 743. However, it is most likely
that Ms. Amin will be deprived of a relationship with
Ahmed if she is forced to return to Egypt to pursue
custody or visitation rights, particularly in light of the
fact that she has been convicted of removing the minor
child from the territory of Egypt without Dr. Bakhaty's

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permission. Since the minor child has always lived with
his mother, it would not be in his best interests to deprive
him of a relationship with her at his age. Therefore, this
Court believes that it is in Ahmed's best interest that this
Court assume jurisdiction under the provisions set forth
in La. R.S. 13:1702(A)(4). An analysis of the provisions
of the UCCJA, the statute's stated purpose, and review of
other jurisdictions applying the UCCJA leads this Court
to the same conclusion.

Amin, 798 So.2d at 82. The supreme court further investigated the discretion of the

trial court to consider a foreign country a state, and reviewed jurisprudence from

Louisiana and other jurisdictions. The supreme court noted:

In exercising that discretion, the courts' recognition of
foreign courts generally turned on the following issues:
(1) whether the child custody laws of the foreign
jurisdiction and those of the United States were similar,
particularly in light of considering the best interests of
the child; (2) whether foreign custody decrees existed
prior to initiating any proceedings in the reviewing court;
(3) whether any of the parties were U.S. citizens; and (4)
whether the parties received adequate notice and a
chance to be heard in the foreign forum.

Id. at 84. Furthermore, the most prevalent consideration was whether the foreign

jurisdiction “applied the best interests of the child in its application of their child

custody laws.” Id. (Emphasis added). In Amin, the supreme court affirmed the

trial court‟s decision to decline recognizing Egypt as a “state” “based on the

fundamental differences between Egypt‟s child custody laws and Louisiana‟s child

custody laws. In Louisiana, custody in all cases will be determined by a court in

the best interest of the child.” Id. at 85 (citations omitted). However, “custody

laws in Egypt follow strict guidelines, irrespective of the best interest of the child.”

Id. at 85. For instance an expert in the case testified that Egypt follows Islamic

law, which under such the concept of “guardianship” provides the father with the

absolute right to the guardianship and physical custody of the minor child. Id.

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Additionally, after divorce, the mother‟s physical custody is generally only allowed

if the father lives nearby and can continue to exercise control. Id.

The trial court in this case also reviewed Amin, and asked Mr. Banerjee to

provide information explaining why Mrs. Banerjee‟s rights and benefits in relation

to the children would be greater than his in India. Specifically, the trial court

stated, “But the reason they did not apply this [the UCCJEA4] is because it did not

give the mother any basic civil rights in term of custody of her children. So if it‟s

the same thing in reverse, that information would be very helpful to the Court.”

The trial court issued Reasons for Ruling which, in part, reviewed the information

provided at its request:

After reviewing all of the information submitted by MR.
BANERJEE's counsel, which has been filed into the
record of this proceeding, the Court finds that India's
jurisdictional standards are in substantial conformity with
the UCCJEA and the Court does not find that the child
custody laws of India violate fundamental principles of
human rights.

After reviewing a recent pronouncement from India‟s supreme court in the case of

Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243 (India), the trial court

concluded:

It is clear that the legal principles applied by the court in
India are very similar to the provisions of the UCCJEA.
More particularly, the India court looks to where the
children and the parties have the most substantial
contacts.

Furthermore, the trial court found that India‟s courts are not reluctant to hear

child custody matters involving non-citizens, as suggested by Mr. Banerjee. We

agree. The articles and material provided by Mr. Banerjee suggest Indian courts

4
The trial court states the UCCJEA was applied in Amin, but we note that it was the
UCCJA at the time.

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will decline jurisdiction over custody matters where children have been brought to

India by one parent from a jurisdiction where they have resided for some period of

time, and where, in many of those cases, custody proceedings were already

initiated before the parent moved the child. That is not the case here, where both

parties and the children moved as a family to India in 2010. We also agree with

the trial court‟s conclusion that India‟s child custody laws do not violate

fundamental principles of human rights, finding only that there is a rebuttable

presumption in favor of the mother when children are under the age of five, which

has no application in the current case.

Although Mr. Banerjee suggests we can consider whether India‟s laws in

general violate fundamental principles of human rights, we disagree. Louisiana

Revised Statutes 13:1805(C)(emphasis added) clearly considers the foreign

country‟s child custody laws only, stating, “A court of this state need not apply this

Act if the child custody law of a foreign country violates fundamental principles of

human rights.”

Finally, Mr. Banerjee argues, as a non-citizen, he would not have access to

Indian Courts. However, the articles and materials Mr. Banerjee provided do not

show Indian courts are reluctant to hear custody matters involving non-citizens.

Instead, those materials suggest the Indian courts‟ refusal to hear those cases was

based on the fact that one parent made a unilateral decision to bring the child to

India, or a foreign court already issued a custody order and the child was removed

in violation thereof. After a reading of the record and law we agree with the trial

court‟s above summarizations and conclude that India‟s child custody laws do not

violate fundamental principles of human rights.

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CONCLUSION

Based on the reasons recited above, we find that Louisiana does not have

subject matter jurisdiction over this child custody matter. The judgment is

affirmed. Costs of this appeal are assessed to Appellant, Mr. Banerjee.

AFFIRMED.

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