From — Missouri Lawyers Weekly
January 13, 1997
By Keith R. Krueger
An American couple who cared for two African-refugee orphans while their care-taker-aunt was dying were entitled to their permanent custody rather than the Children’s African uncle, who was “in a position to help the children maintain their cultural and ethnic identity,” the Western District of the Missouri Court Of Appeals has ruled.
This was because it was in the best interests of the children for them to continue living with their cousin in Kansas City, where they were well-adjusted, rather than to disrupt their lives by moving to a foreign land and learning a new Language.
The uncle argued that the children should be raised by the closest blood relative – who can educate the children as to their heritage and culture.
The Western District, noting that awarding custody to the American couple over the objections of the uncle “reveals a clash of values,” disagreed.
“[T]he law in Missouri is that, in the case of a guardianship of a minor, there is a preference to be given to a relative over a stranger when all other things are equal,” wrote Judge Patricia Breckenridge in her opinion for the court.
The court handed down its 28-page ruling in TH. and S.P. v. A.S., MLW No.18512, on January 7.
“The court said there is a preference for relatives, but only in case of a tie,” observed Jefferson City attorney Lori J. Levine, a member of the Missouri Lawyers Weekly editorial board for domestic relations.
“If the weight of the evidence is in favor of a stranger, the preference for a relative disappears,” Levine continued. “And in this case the homes [of the contending applicants for guardianship) were not equal.”
Levine cited several reasons for the court’s ruling. “[The uncle] was not a prominent figure in the lives of the children, appointing him guardian would disrupt the only close bond the children have with a relative (their cousin), and [the American couple] can provide for them and the children have a close relationship with them,” she pointed out.
The court also held that Missouri had jurisdiction of the case under the Uniform Child Custody Jurisdiction Act even though the children lived in Kansas for three months shortly before the guardianship petition was filed.” The court declared that under a “totality of the circumstances” test, this was only a “temporary absence” from Missouri which did not defeat jurisdiction.
“This is a case that goes in the little file you maintain for both guardianship and UCCJA cases, said St. Louis attorney Leigh Joy Carson, a frequent speaker at seminars on domestic relations. “It is a good primer on the law, and it has a nice discussion of the issues,” she added.
“The court makes it clear that they are adopting the ‘totality of circumstances’ test under the UCCJA, although I think it is a little bit of a stretch to say this was a ‘temporary’ absence.”
The two children were born in the African nation of Burundi in the middle 1980s.
Their mother, a member of the Tutsi tribe, hid fled to Burundi from Rwanda with and her, brother to escape the fighting in her land between the Hutus and the Tutsis.
In 1989, the uncle moved on to Nairobi, Kenya, and began to live there near his, half- sister, the children’s aunt. After the mother died in 1990, the children were taken to Nairobi to live with the aunt.
In January of 1991, the children’s uncle fled to Sweden with two of his half-sister’s children. He claims he took with him a strong knowledge of his own African culture and heritage and that of other memories of his family, including the two children involved in this case.
After he arrived in Sweden, he married a woman he had known in Africa. She bore a child and this family continues to reside together in Sweden.
When the uncle fled to Sweden he left behind, in Kenya, the two children involved in this case, his own half-sister (the children’s aunt), and her daughter (the children’s cousin).
Life In The U.S.A.
The aunt had been diagnosed with AIDS prior to 1991. She wanted to travel to the United States, where she could receive treatment for this disease. Eventually, the two children, their aunt, their cousin and one other family member traveled to the United States with two strangers. This “family” then settled in Kansas City, Missouri. Once in the United States, the family seldom heard from the uncle in Sweden. Although they struggled to make ends meet and the aunt’s health continued to decline, the uncle did not provide any financial assistance for them.
Eventually, the uncle from Sweden began trying to contact the children, first at their home and then at school, but the aunt resisted these efforts.
As the aunt’s health worsened, a white American couple, who had served in the Peace Corps in Africa, befriended the family. They cared for the two children in their Kansas City, Kansas, home for four weeks when the aunt went to Europe.
Soon after the aunt returned to Kansas City, her health took a turn for the worse, and she went into the hospital. The American couple again cared for the children in their Kansas home.
The uncle from Sweden and another uncle both tried to get custody of the children in the spring of 1994, as the children’s aunt lay near death, but the aunt did not believe either of them was qualified. The white American couple also resisted this notion, stating that they would not turn the children over to a stranger in a foreign country without first having an opportunity to “size him up.”
The children’s aunt died in June 1994. Soon thereafter, the American couple were appointed guardians and conservators of the children’s cousin, without opposition from the uncle in Sweden.
The American couple also sought to be appointed guardians and conservators of the tow children involved in this case , but the uncle from Sweden filed a competing application for appointment as guardian and conservator.
After a contested hearing, the trial court granted the petition of the white American couple and named them guardians and conservators of the two children. The uncle from Sweden appealed.
Section 452.450(l)(a), RSMo provides that a Missouri court has jurisdiction under the UCCJA to make, a child custody determination if it “[I]s the home state of the child at the time of commencement of the proceeding.”
Section 452.445(4) defines “home state” to include the state where the child lived with a person acting as a parent for at least six consecutive months.
However it also provides: “Periods of temporary absence of any of the named persons are counted as part of the six month or other period[.]”
The uncle contended Missouri was not the home state of the two children, because they had not lived in Missouri for six consecutive months.
Totality Of Circumstances
Missouri has never articulated a rule to govern when removal from the state constitutes a temporary absence, Breckenridge observed. She discussed a 1995 case which found an absence of 11/2 to 3 1/2 months was temporary, while a 1982 case had held that a one-month absence was not.
In other states, one court focused on the length of the absence from the state in determining whether the absence was temporary, while other if emphasized the intention of the parties, and still others looked to the totality of the circumstances.
“[T]he totality of the circumstances test is best suited to adequately deal with the variety of situations which occur, is consistent with prior Missouri decisions, and will be adopted by this court,” Breckenridge decided.
The children continued to receive public assistance from Missouri, even while they resided in Kansas, and they continued to attend school in Missouri. Breckenridge concluded the stays in Kansas were intended to be temporary. The Missouri trial court had jurisdiction to determine their custody, Breckenridge held.
Preference For Relatives
The uncle next argued that Missouri common law creates a rebuttable presumption that custody should be granted to a relative. This presumption can only be overcome, he said, by evidence that the relative is incapable of serving as custodian.
Breckenridge agreed there is a limited preference for near relatives in the appointment of a guardian for a minor. But she said the uncle overstated the extent of the preference. The law in Missouri is that, in the case of the guardianship of a minor, relatives are to be preferred over strangers, when all other things are equal, Breckenridge said. In this case, however, all other things were not equal, according to the judge.
Although the uncle had lived with the children prior to 1989, he, had not been a prominent figure in their lives since he moved to Sweden in 1991, Breckenridge noted.
On the other hand, the two children had been living in the same home with their older cousin for five years and had a close relationship with her.
Placing them in their uncle’s custody would disrupt this “siblinglike” relationship, for the cousin was already in the custody of the American couple and the uncle had expressed no interest in having the cousin come to Sweden to live with him.
Placing the children with their uncle would require the children to move to a foreign country where they do not speak the language, to live with five people with whom they have had very little contact for the last four years.
Breckenridge acknowledged that the uncle might be better able to help the children maintain their cultural and ethnic identity.
The cousin’s knowledge of African culture was limited, because she had left there at an early age. And although the American couple was more knowledgeable about African culture than most Americans, they knew little about the Tutsi tribe specifically, and made no real effort to expose the children to African influences in Kansas city.
Breckenridge said that on balance the best interests of the children required them to stay with their cousin in Kansas City. She affirmed the trial court’s judgment appointing the American couple as co-guardians and co-conservators.