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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 228 September Term, 1995 EN BANC

JOOHI Q. HOSAIN (FKA MALIK)

v.

ANWAR MALIK

Wilner, C.J., Moylan, Bloom, Fischer, Davis, Murphy, Hollander, Alpert, Paul E. (retired, specially assigned), JJ.

Opinion by Davis, J. Dissenting Opinion by Hollander, J. in which Alpert, J. joins

Filed: February 21, 1996

Joohi Q. Hosain (formerly Joohi Malik) appeals from an order of the Circuit Court for Baltimore County (Kahl, J.) entered in a custody dispute in which appellant, the mother, and appellee, Anwar Malik, the father, have been battling for sole custody of their minor child. By this order, the circuit court declined to assume

jurisdiction in the matter and granted comity to various Pakistani court orders that granted sole unrestricted custody of the child to appellee. Four questions were presented originally on this appeal.

Appellee presented the first question, a threshold matter, and appellant presented the next three issues. as follows: I. Should this Court dismiss appellant's appeal because appellant allegedly included and relied on matters in the appendix of her brief that were extraneous to this appeal? Did the circuit court abuse its discretion by proceeding with a remand hearing in the absence of the child's attorney? We restate these issues

II.

III. Did the circuit court err in determining that appellant failed to prove that Pakistani law was not in substantial conformity with Maryland law? IV. Did the circuit court err in not assuming jurisdiction under the Uniform Child Custody Jurisdiction Act?

Subsequent to oral argument before a three-judge panel of this Court on October 6, 1995, we issued an Order to counsel to appear before this Court, en banc, on January 10, 1996 to specifically address the querie, "In deciding whether the Pakistani Court applied the best interest of the child standard, should the trial court's determination focus on the particular culture, customs and mores of Pakistan and the religion of the parties or,

- 2 alternatively, is the best interest standard to be determined based on Maryland law, i.e., American cultures and mores?". We answer

the four original questions in the negative and we hold that the lower court properly determined the best interest standard by applying relevant Pakistani customs, culture and mores. therefore, affirm the order of the circuit court. We,

FACTS
This is a long and bitter child custody dispute involving orders of courts in both Maryland and Pakistan. Not too long ago,

these parties and their dispute were before this Court in Malik v. Malik, 99 Md. App. 521 (1994), which we decided on March 30, 1994. Needless to say, with the battle still raging, the parties have returned once again to this Court. Subsequent to oral argument

before a three-judge panel of this Court, it was determined that an en banc hearing would be necessary. for an en banc hearing. The Court set the matter in

The facts of this appeal arise directly

out of the proceedings following Malik. As a matter of background, we recite the facts of this case as stated in Malik: The parties to this appeal are battling for custody of their daughter (the child), who was born in Karachi, Pakistan on September 11, 1983. . . . [T]he child's father . . . is a citizen of Pakistan. [T]he child's mother, also a citizen of Pakistan, has obtained a student visa that permits her to remain in this country on a temporary basis. The parties were married on June 20, 1982 and lived together until September of 1990, at which time the

- 3 child was attending St. Joseph's Convent School in Karachi. On September 15, 1990, [the mother] left the marital home and moved in with her parents. She took the child with her. [The father] sued for custody. When [the mother] learned of [the father's] lawsuit, she fled the country, taking the child with her. Soon thereafter, [the mother] moved into the home of a man with whom she has continued to live and by whom she conceived a son who was born in 1991. [The mother] was represented by counsel in the Pakistani custody proceeding. She refused, however, to appear in person. She also refused to obey the judge's order that the child be produced. It appears that the judge did consider a written statement submitted by [the mother], but awarded custody to [the father]. Having obtained legal custody of his daughter, [the father] set out to find her. [The mother] hid the child from [the father] for over two years. In 1992, [the father's] private detectives were finally able to locate the child and [the mother] in Baltimore County. Once she realized that she had been discovered and that [the father] was about to seek enforcement of the order granting him custody of his daughter, [the mother] filed a complaint in the Circuit Court for Baltimore County, requesting custody of the child and a restraining order against [the father]. At the conclusion of an emergency hearing, the trial judge decided that the Circuit Court for Baltimore County had jurisdiction to determine custody, that the Pakistani custody order was not entitled to comity, that temporary custody should be granted to [the mother], and that [the father] should be enjoined from going within three hundred feet of the child, [the mother] or their residence. Id. at 523-24. The parties point out to this Court that appellant

fled to the U.S. from Pakistan with the child shortly before -- not after -- appellee filed a petition for custody in Pakistan. regard, we stand corrected. In this

Additionally, appellant has since

married the man by whom she had a son.

- 4 In Malik, the father presented the following question for our review: "Did the chancellor err in exercising jurisdiction when Id. at

custody proceedings were pending in a foreign country?" 525.

Although we held that the circuit court did have "home state"

jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) (codified in MD. CODE ANN., FAM. LAW

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