Olarinde v. Korede

ADEPOJU OLARINDE v. KEHINDE KOREDE

No. 2405

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

August 20, 2020

Circuit Court for Prince George's County

Case No. CAD 16-30253

UNREPORTED

Fader, C.J., Berger, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Kenney, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, Adepoju Olarinde ("Father"), appeals the grant of custody of his two youngest children to their mother, appellee, Kehinde Korede ("Mother"). He presents two questions¹ for our review, which we have consolidated and rephrased as one:

Did the Circuit Court for Prince George's County err as a matter of law in determining that Maryland was the children's home state?

For the reasons that follow, we answer that question "no" and affirm the circuit court's decision.

FACTUAL AND PROCEDURAL BACKGROUND

The parties, both of whom are dual citizens of Nigeria and the United States, married in August of 1997 in Nigeria. While residing as a couple in Nigeria, two children were born: a daughter, O.O., in 1998, and a son, S.O., in 2001. The family moved to Maryland, in 1999, where two more children were born: a daughter, D.O., in 2007, and a son, J.O., in 2008.

Both testified to incidents of domestic violence during their marriage, and in either 2009 or 2010,² Father went back to Nigeria, continuing to return to Maryland for months at a time. When in Maryland, he has worked as a licensed practical nurse and carried on a business of purchasing "used cars" in the United States to sell in Nigeria.

In 2010, the oldest son, S.O., with the consent of both parents, went to Nigeria with Father; he returned to Maryland in 2017. In 2012, the oldest daughter O.O. moved to Nigeria to attend law school, and has since returned to Maryland. Both are now emancipated.

On August 2, 2016, Father filed a Complaint for Absolute Divorce from Mother in the circuit court, seeking sole physical custody and sole legal custody of the then three minor children, S.O. being fifteen at that time. Father stated in his complaint that the children were living with him in Nigeria. In Mother's answer to the complaint, she indicated that the children were "with [Father] by force." In her counter-complaint, she requested an absolute divorce and sole custody of the three minor children.

The First Hearing

On January 17, 2017, a hearing was held on Father's complaint and Mother's counter-complaint. Mother and Father were both self-represented and no other witnesses were called to testify. Father testified that, in the past, Mother had "neglect[ed] the children" and that they were taken into foster care when he was in Nigeria. According toFather, when he returned to the United States, social services "gave [the two youngest children] back to [him]," and the children asked "to come [to] Nigeria."³ When the court inquired about where the children were and their care, the following exchange ensued:

THE COURT: So who is watching the child in Nigeria when you are in the United States?

[FATHER]: My mom, my siblings, taking care of them. And I have a housekeeper taking care of them.

Mother's account was different. She testified that in 2015, she and the two younger children were in Nigeria visiting family that included the two children spending a few days with their siblings. She planned to return to Maryland with the children, but was not able to because Father physically attacked her and kept the children in Nigeria. She furthertestified that Father and his "new wife"⁴ were preventing any communications between her and the children. She stated:

[I] [j]ust want my children. That's the only thing. The divorce is okay. I want my children. He is not [t]here. He stay[s] here a lot. Anything can happen. No family is there. It's the new wife there and mistreating them[.]

The court's findings included:

I do find and it's relevant to me, I do believe mom to be more credible than dad with this version that she did take the children to Nigeria and that dad basically took the child[ren].⁵ And I do not find that there was consent for dad to keep the two minor children in Nigeria.

* * *

[D]ad travels back and forth to Nigeria. The two youngest children stay with mom. Mom took the children - I find this - to Nigeria over the holidays to visit relatives. And I do find that dad took the children through a brother and has kept the children in Nigeria. And mom does not know where her younger -- the two younger children are. And dad has basically hid two children from the mother.

* * *

I find mom has been the primary custodian. Dad disappears for periods of time.

* * *

Mom has not been able to see the children whatsoever. I don't find there was a voluntar[y] abandonment. I quite honestly think that dad took the children without permission.

The circuit court granted Mother primary physical custody of the minor children, and joint legal custody with the Father. Father filed a Petition/Motion to Modify Custody on February 8, 2017, explaining that circumstances had changed and the order was no longer in the best interest of the children because "[a]ll of the children are in Nigeria, school fee, care, hospital care, feeding care are be[in]g taken care [of] by me [Father] up till today[.]" The circuit court denied that motion.

On May 16, 2017, Mother filed a Motion for Modification and/or Contempt because she "travelled to Nigeria to retrieve the children and [Father] will not cooperate or compl[y] with the court order." On September 17, 2019, she filed a Petition for Contempt and Motion to Enforce Court Order, alleging that "[Father] continues to violate the Order," by hiding the children, and has not revealed where they "reside, the school that they attend or who is caring for the children." Mother claimed that "[Father] has essentially kidnapped the minor children, and denied [her] of any access to the minor children, including keeping [her] informed regarding the children's wellbeing, education, and medical needs."

In his October 23, 2019 response to that petition, Father requested the court to dismiss or modify the custody order because the court "had no jurisdiction over the custody of the children." That same day, he also filed a Complaint for Modification of Custody Order, to Vacate and Dismiss Custody Order for Lack of Jurisdiction and to Vacate Orderof Child Support for Lack of Jurisdiction. A hearing was scheduled for December 13, 2019.

The Second Hearing

On December 13, 2019, the circuit court heard testimony from Mother, Father, and their two older children. Mother was again self-represented and Father was represented by counsel. Mother repeated her testimony from the earlier hearing that she and the two minor children vacationed in 2015 in Nigeria to visit family and that Father "took the [minor] children by force" during what was intended to be a few-days visit. When she attempted to retrieve the children, "Father hit [her]] on the head," which she "report[ed] . . . to the police in Nigeria."

At this hearing, Mother's version of what happened in 2015 was supported by the testimony of the two older children. O.O. testified that Father had "persuaded" the two older children "to request that [the two minor children] come over for a sleep over for a few days," and Mother allowed it. But "when it came time to return[] [the minor children], [Father] went and put them away, like hid them." She further testified:

I think he had his girlfriend take them I believe or had them stay with one of - somewhere outside of where we live where [Mother] couldn't get to them. Now, every time she came to get them and she came with her family members sometimes and she tried coming alone to plead on her own sometimes, too.

Just, you know, when you're trying to find a solution, you use different avenues to see which one gives you the best results. So that's what she did and he still said no. He wouldn't even want to meet with her and stuff like that. And he did that consistently until - like she did delay her flight for some time, but when she realized she couldn't get them, she had to go[.]

* * *

It was agreed - the terms that were based on that agreement was that they would come over - they came to Nigeria, but the sleepover - they would sleep over for three days, for three days - two nights, three days, and on the third day they would go home. The agreement was not for them to stay with him and base a life and education there. That was never the agreement.

O.O. also testified about Mother's efforts to recover the children:

[FATHER'S COUNSEL]: All right. Since this order came in effect in 2017, has your mother made any efforts to come and get the children?

[O.O.]: Yes, she has, several times. She took the legal route when she saw that the verbal communication one on one was not working. When she saw that having personal contact with him was not working and he was reiterating things to other people the wrong way, she took the legal route.

She filed papers. And I know she filed papers because not from her mouth but from his mouth. He came and stated it several times trying to get us to try and, you know, cover him up in court or try and make statements or recordings and stuff like that so that he can use in evidence - as evidence in court.

* * *

She even contacted the American Embassy and they went in and they went to go and retrieve the children not once, not two but about three times and he had deliberately moved them out of state or told the teachers not to let them talk to them or at all.

The oldest son, S.O., testified about what happened when Mother attempted to pick up the children from Father:

That day I was coming from school. I went to college. It's a school in Nigeria. And when I came back, I noticed - I went to the shop and I noticed that there was blood in the shop. And I

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