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Banerjee v. Banerjee

Court of Appeals of Louisiana, Third Circuit

December 13, 2017

MONOJIT BANERJEE
v.
SHALINI BANERJEE

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

          Richard Damian Mere Attorney at Law COUNSEL FOR PLAINTIFF-APPELLANT: Monojit Banerjee

          Shalini Banerjee DEFENDANT-APPELLEE

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

          CANDYCE G. 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]

         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; Otwellv. 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 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 ...


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