In re Lay Wah – Correct Application of the Law but Probably a Bad Result
This is a case where application of the rules (which is always the correct thing to do) produced a bad result for the kids and demonstrates the problem when children from non-Hague countries are part of the litigation. In re Lay Wah, ___ S.W.3d ___, 2009 WL 2152565 (Tex. App.—Dallas 2009, no pet. h.) Here is the quick facts: Father is a U.S. citizen born in Taiwan. Mother is not a U.S. citizen, and was born in Singapore. They were residents of Beijing when they married in Las Vegas in 1997. Children were born in Singapore in 1999 and 2001. Family moved to Plano, TX in 06/01, and bought a home there. In 01/04, family moved to Shanghai following father’s promotion. On 03/10/08, father resigned from his job and brought the children to the U.S. without mother’s knowledge or consent. Father and children moved to Plano on 03/24/08. Father filed for divorce on 04/29/08 based on insupportability. He also sought a division of the parties’ community estate and orders for conservatorship, possession and support of the children. The petition alternatively requested that the court use its temporary emergency jurisdiction under the UCCJEA. Mother filed a special appearance with a plea to the jurisdiction, requesting that trial court dismiss the petition for want of jurisdiction. At the hearing, mother orally requested that trial court award her immediate custody of the children and their belongings, as well as order husband to return mother’s green card, social security card and jewelry. On 05/01/08, trial court dismissed the divorce petition and declined to exercise emergency jurisdiction. After dismissing the case, trial court awarded custody of children and their be-longings to mother, and ordered father to give mother her green card, social security card and jewelry. Husband appealed and petitioned for a writ of mandamus.
The Court affirmed the Trial Courts ruling that it did not have jurisdiction to maintain a divorce but overruled the Trial Courts ruling returning the children after exercising emergency jurisdiction. On a side note, it appears at the time of ruling from the Court of Appeals no one is sure where the mother or the children are located and she may have fled the jurisdiction of the Court. The COA’s ruled the Trial Court has temporary emergency jurisdiction when children are present in the state and have been abandoned or are subject to mistreatment or abuse. This exercise of jurisdiction is reserved for extraordinary circumstances. Nothing in the record justified trial court’s exercise of temporary emergency jurisdiction in this case.
It seems as if the mother’s location isn’t publicly known and potentially returned to either China or Singapore then the father has no remedy at law to seek parenting rights. If this is the case, then I don’t follow the COA’s reasoning the children were not in a state or condition of abuse. In all practicality, they are going to grow up without one of their parents by the unilateral acts of one of the parents. I’m pretty sure this is a form of abuse.