Anyanwu v. Anyanwu

Facts

H and W are citizens of Nigeria who have resided in the United States for over twenty years. H was a professor at Montclair State University prior to his incarceration. They were married in Baltimore, Maryland, on August 25, 1984. Their two children were born in the United States: Uchechi, born June 1, 1985; Ogechi, born October 19, 1986, and now deceased. The children had dual citizenship with Nigeria. By 1996 there were significant marital problems. H filed for a divorce in Nigeria in August 1996, although W contends that she was never served. In June of 1997, the parties and their children traveled to Nigeria where they have over 100 family members. While in Nigeria H told her that the marriage was over, confiscated her passport and denied her access to the children. Claiming that she was in fear for her physical safety, she returned alone to the United States in July 1997. Later that month H also returned. The children remained in Nigeria. On August 5, 1997, W filed another complaint under the Domestic Violence Act, N.J.S.A. 2C:25-17, and a Temporary Restraining Order directed H to return the children to P's custody. H was served with the order after his return from Nigeria. At a hearing on August 11, 1997, the restraints against H were continued, and he was directed to produce the children in court three days later. On August 14, 1997, both parties appeared, but the children were not present. H advised the court that his father had decided to raise the children according to the customs of Nigeria and would not allow them to return to the United States. The judge found that H was in violation of the Final Restraining Order and pursuant to R. 1:10-3 remanded H to the Morris County Correctional Facility until he complied with the order. H has remained confined since that date. On appeal, the trial court was ordered to give H a 'trial-type' hearing to give him an opportunity to prove his claimed inability to comply with the order and with the further direction to the hearing judge that if H was successful, he should be released immediately. That hearing was held on September 18, 1997. At that hearing a letter was produced from Chief Val Onugha, Chairman of the Amaraka Customary Court of Imo State, Nigeria, directed to the trial judge stating that the issue of custody of the two daughters was before the Customary Court in Nigeria as a result of the 1996 divorce action filed by H and that the Nigerian court ordered that the children were to remain in Nigeria. The letter also stated that jurisdiction was based on a celebration of a customary marriage in Nigeria and that W had knowledge of the suit brought by H. The Nigerian judge also clearly stated that he would not honor any document signed by H because as long as H was in prison and in chains any document he signs cannot be free of duress. H was remanded back to confinement. On appeal, it was held that H he had not abided by the order of the trial court to make good faith, and best efforts to get the children to the U.S. We remanded with a direction to focus the R. 1:10-3 order more sharply to detail exactly what steps H needed to take to purge himself of contempt and secure his release. The trial judge then issued a detailed order directing H on how to purge his contempt: 

1. Direct a letter to his father authorizing his father to turn over custody of the Defendant's children to a representative of the United States Department of State or such person as the Plaintiff may designated. 

2. File an application to the appropriate Court in Nigeria requesting that custody of the children be turned over to the Plaintiff/mother so that they may be returned to the State of New Jersey for further proceedings. 

3. Request that the appropriate Court in Nigeria appoint a Guardian of his children, request the court to direct that custody of the children be turned over to the Guardian and that the Guardian deliver the children into the custody of the United States Department of State at the Embassy/Consulate in Lagos. 

4. Direct his father to make immediate arrangements for the return of the children to New Jersey including making arrangements to take the children to the airport and place them on a flight whose ultimate destination is New Jersey. 

5. Write a letter to the President and/or Prime Minister of Nigeria requesting their assistance in obtaining the return of his children to New Jersey. 

6. Request his father, the government and the Courts in Nigeria to Order that the sister and brother-in-law of Defendant who last had custody of the children immediately to notify him of their latest whereabouts and medical condition. 

7. File a Certification/Affidavit with the United States Department of State, the Nigerian Consulate and the United States Embassy in Lagos stating that he is the father of the children and he wants them returned to the United States. He must authorize whatever steps are necessary to effect the return of the children to New Jersey. 

H appealed from the January 4, 1998 order. This court affirmed that H was not in jail for failure to produce the children but because he has refused to try. During the divorce proceedings. H submitted papers that purport to be a judgment of the Customary Court in Nigeria on August 13, 1998, dissolving the customary marriage between the parties and awarding custody to H based on his complaint filed in 1996. W has responded that if the judgment is authentic, it was the product of corruption or bribery. She also asserts that she had an order of a Nigerian court incorporating the award of custody to her under the Final Restraining Order entered in New Jersey. On March 12, 1999, H again moved for release from custody, and again the Family Part judge denied his motion on the basis that no efforts were made by H to effect the return of the surviving child to New Jersey. W did not submit opposing papers. The trial judge reported W was still desirous of enforcement and 'H offered no additional information that would manifest compliance with the extant order,' we then considered H's arguments on appeal. The order was affirmed. On February 1, 2001, H filed a motion for review of his incarceration based upon what he described as 'new evidence.' A letter from the U.S. Embassy in Lagos signed by the Vice Counsel recites that the parties were married according to the Customary law and customs of Imo State in Nigeria on May 26, 1984, and explains under Nigerian law once a 'bride price' is paid by the husband, the children and all property of marriage belong to the husband and his extended family. The letter also noted an August 19, 1997 order of the Customary court restraining W from removing or dealing with the children without consent of the court. Responding to the issue as to what steps can be taken to return Uchechi to the United States, the writer stated somewhat ominously: All other legal means to either resolve the case or to enforce the subsequent judgment obtained in the High Court of Lagos State and ensure that the surviving child is returned to the United States have failed. Another letter written by a third party stated that H cannot forcefully bring those children here to the U.S. If it were not so, what stops the children's mother from going to Nigeria, her country of origin, and to bring the children to the U.S. now that the husband is locked up and has no power to stop her from going to get the children. W's own parents will not allow her to take the children because neither she nor Rev. Anyanwu own those children by themselves. That is our custom, i.e., the African custom. The judge then determined that continued incarceration would no longer be coercive and released him. This appeal followed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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