UAE: Abu Dhabi Divorce for Non-Muslims

 by Jeremy D. Morley

Abu Dhabi’s non-Muslim Personal Status Law (Abu Dhabi Law No 14/2021) allows non-Muslims to obtain a divorce in the Emirate by means of a civil procedure in a new court, the Abu Dhabi Civil Family Court, under a secular law that is separate from that which applies to UAE Muslim families. 

Abu Dhabi Executive Regulation No 8 of 2022 provides the regulations pursuant to which the non-Muslim Personal Status Law applies.

Jurisdiction

The Civil Family Court has jurisdiction as to civil family matters that concern:

1. Non-Muslim citizens of the UAE.

2. Foreigners who are nationals of a country that does not apply the provisions of Islamic law mainly in matters of personal status. If the foreigner has multiple nationalities, the relevant nationality is the one that the person has used in the UAE.  

3. Marriages that were conducted in a country that does not apply the provisions of Islamic law primarily in matters of personal status.

4. Marriages that were concluded in accordance with the provisions of civil marriage.

Divorce

If the Civil Family Court has jurisdiction, either spouse may secure a divorce on a no-fault basis. The first hearing is scheduled at least 30 days from the date of filing the application, and a divorce may then be granted forthwith.

Lump-Sum Award

Article 16 of Regulation 8 provides that,

“At the discretion of the court, the judge may compel either spouse to pay a lump sum to compensate the other party after the divorce has occurred, taking into account the following calculation criteria:

1. The total years of marriage and the age of the spouses, so that the amount of compensation increases with the increase in the number of years of marriage.

2. The extent to which the husband or wife contributed to the failure of the marital relationship through neglect, fault, or the commission of any act that led to divorce, such as infidelity or abandonment.

3. What the husband/wife has suffered in terms of material or moral damage, and what she missed of previous or subsequent profit, such as the forfeiture of the divorced woman’s right to her husband’s inheritance or her sitting at home because of marriage.

4. The economic, financial and social status of each spouse according to an accounting expert report.

5. Education level and university degrees.

6. The extent to which the wife sacrifices her work and future career to raise children.

7. In the event that the husband stipulates that the wife not work.

8. The standard of living to which the wife and children were accustomed during marriage.

9. The extent of the wife's contribution to the husband's wealth.

10. The wife's health conditions.

11. The wife's functional status and her ability to work .

12. The physical condition of the spouses at the time of the divorce.

13. The wife’s wealth and available sources of income according to an accounting expert report.

14. The number of children, their ages, and the extent to which they need care.

15. The difference in income between spouses and the financial dependence of one of them on the other.”

Temporary Support

Once a divorce is granted, the Court may award temporary support to the wife.

Final Support

The Court may also issue a final support (maintenance) order in favor of a wife, after evaluating the same factors that should be evaluated when considering a lump-sum award.

Housing  

Unless the court orders otherwise, the father is obligated to pay housing support in kind or cash to his ex-wife for the duration of the joint custody of the children. It should include basic utility bills such as electricity, water, internet, gas, and air conditioning. The new dwelling should be commensurate with the standard of living that the children were accustomed to before the divorce. The court should also consider the distance of the new dwelling from their old dwelling. The court may exempt the father, in whole or in part, from paying the housing support if the divorced mother has financial solvency that allows her to rent or own suitable housing that meets the needs of the children. The assessment of financial solvency is subject to the discretion of the judge, with reference to the report of accounting expert.

Financial Expert

The court may assign the task of evaluating the financial status of the spouses to an English-proficient accounting expert to assess the total financial value to which the wife or husband is entitled after the divorce.

The court and the expert may be guided by the following criteria for estimating and calculating the financial value due after divorce: -

·       Percentage of monthly income: a cash percentage of no less than (25%) of the husband’s last monthly income (according to the salary certificate or the last account statement, whichever is greater) x number of years of marriage.

 

·       Percentage of the husband’s property and wealth: a percentage (in kind or cash) of the market value or purchase value - whichever is greater - of the husband’s property and wealth, including real estate and financial investments such as shares and bonds, or interest in limited liability companies or private joint stock and movables owned or registered in the husband’s name such as valuables and means of transportation of all kinds.

 

·       The joint money between the spouses and the extent of their participation in it.

The court has the discretion to decide this amount according to the circumstances of the divorce. It may also increase or decrease this amount and estimate the method of calculating it, paying it, and paying it in instalments according to the results of the accounting expert report on the assessment of the financial situation of the spouses in a way that ensures a decent living for the divorced woman and children without incurring financial costs beyond the father’s financial capabilities.

Child Custody

Custody of children is joint unless the parties agree otherwise, until they are 16 years old, but the court may order otherwise.

If the parents do not agree on how to divide the joint custody between them, the court shall determine whether it shall be divided on a weekly, bi-monthly or monthly basis, or in any other way that takes into account the best interests of the child.

Either parent may request the removal of the other party from joint custody, whether legal custody or physical custody or both. After a hearing, the court shall initially decide what it deems necessary and essential in the interest of the child, whether by temporarily suspending joint custody pending a decision on the case, or by assigning a social expert to evaluate the matter.

The court shall order that a parent shall forfeit custody, whether temporarily or permanently, if any of the following cases are established:

1. The child is at risk of being exposed to domestic violence or abuse.

2. Inadequate living conditions provided by the parent.

3. The child needs particular health care that the parent cannot provide.

4. Behavioral, psychological or mental problems that the parent suffers from that may

harm the child or expose the child to danger or neglect.

5. Lack of time to take care of the child or neglecting the child.

6. The child’s desire, provided that he reaches the age of 12.

7. Abuse of drugs or alcohol or any psychotropic substances.

8. Health reasons that impede the parent from carrying out his duties towards caring and attention for the child.

9. Parent’s remarriage.

10. Any other reasons the court deems appropriate.

Upon cancelling joint custody, the court has the discretion to apply what it deems appropriate from the rules of justice and fairness or the best international practices of comparative legal systems with regard to custody and visitation with the best interests of the child taking precedence. The court shall expeditiously decide on the request for intervention to settle the disputed joint custody matter and shall take what it deems appropriate in the best interests of the child, taking into account the stability of the child's academic and sports life after the separation of the parents and not changing the child’s as lifestyle as much as possible as a result of divorce.

In the case of joint custody, none of the parents may travel with the child outside the country by a unilateral decision without the written consent of the other party, or a court order authorizing the travel.

Either parent may submit a request to the judge to compel the party applying for travel to provide sufficient guarantees for the child's return to the country again according to the specified date, and the request is subject to the judge's discretion.

Either parent may submit a petition to the court to ban the child from traveling for a temporary period by setting forth specific objections to such travel of the child and an explanation of any danger that requires banning the child from traveling. The application is subject to the discretion of the court.

 

 

KOREA CHILD ABDUCTION NONCOMPLIANCE

Korea has again been found non-compliant by the United States Department of State as a result of the failure of the Korean authorities to enforce orders to return internationally abducted children.

In the 2023 Annual Report on International Child Abduction issued by the US State Department, as required to be issued by the International Child Abduction Prevention and Return Act of 2014, the State Department has found that:

“Korean law enforcement authorities regularly failed to enforce return orders in abduction cases. As a result of this failure, 50% of requests for the return of abducted children under The [Hague Abduction] Convention remained unresolved for more than 12 months."

The Korean Ministry of Justice has responded by conceding that it had failed to enforce return orders because Korean regulations provide that such orders cannot be enforced if the child is of a sufficient age and refuses to return.

One such case concerns John Sichi, whose two children were abducted by his Korean wife from San Francisco in 2019. The Supreme Court of Korea ordered the children's return in accordance with the Hague Abduction Convention, but the enforcement authorities in Korea have failed to secure their return.

MARRIAGE-LIKE RELATIONSHIPS IN BRITISH COLUMBIA, CANADA

by Jeremy D Morley

In British Columbia, Canada, unmarried partners may be deemed to be in a “spousal relationship” that entitles them to be treated as spouses for the purpose of securing financial remedies upon the termination of the relationship as if they were actually married. Section 3 of the Family Law Act of British Columbia provides that such a relationship exists if it is a “marriage-like relationship,” but it does not define the term.

For the purpose of being entitled to a division of assets or debt, the relationship must have existed for two years. For spousal support, it can be less than two years if the partners have a child.

In A.J.L v. J.C., 2023 BCSC 664, the Supreme Court of British Columbia analyzed the parties’ relationship in great detail to determine whether their relationship had been “marriage-like.”  The claimant asserted that she and other party were together for eight years. However, while they resided in the same home for a few months, they spent most of the time in separate residences. The trial occupied 27 days, much of which was devoted to what the court described as “laboriously reviewing electronic data downloaded from the claimant’s phone so as to detail the parties’ interactions on an almost daily basis.”

The B.C. courts have frequently considered the meaning of the term “marriage-like relationship,” but basically they merely conclude that any and all evidence concerning the nature of the parties’ relationship can be considered and that no one element is necessarily determinative. Indeed, they insist that a court “must take a holistic approach,” recognizing that spousal relationships “are many and varied.” Austin v. Goerz, 2007, BCCA 586.

In A.J.L, the court focused on the following facts: the parties had never commingled their finances, had maintained separate residences, had identified their separate residences as “home,” had never included the other in their estate planning, had filed taxes separately, had mostly kept their possessions in their separate residences, had rarely intermingled their families for joint celebrations or vacations, and had not held themselves out as married to the outside world.

The court held that the totality of such factors led to the conclusion that the claimant had failed to establish that the parties were spouses at any time over the entire eight-year period of their relationship.

International Child Relocation: When is an Application Required?

 by Jeremy D. Morley

          If a parent wants to take a child who is living in the United States to live in another country, is it necessary for the parent to apply to court for permission to relocate?

A.     Consent

If the relocating parent has received the other parent's consent to relocate, then there will generally be no problem, provided:

   (a) The consent is to relocation rather than to take the child for a mere visit; and

   (b) The consent can be proven.

          Obviously, it is infinitely better for the relocation consent to be in writing, since proving oral permission may be difficult. It is also preferable for the writing to be drafted or at least reviewed by counsel.

          Another problem with consent is that it might be withdrawn. If it is withdrawn before the child is relocated, it will have little or no effect.

B.    No Consent

If the other parent has not consented, it is extremely dangerous, for a variety of reasons, for a parent to take a child to live in another country unless:

   (a) The other parent has no rights of either custody or of visitation, either because of a court order to that effect or because the parties are unmarried and, under the local state law, the other parent is a father as to whom the requisite steps for paternity have not been taken; or

   (b) The relocation is expressly authorized by a valid court order.

The reasons for concern include:

 

1.               It may be criminal under federal law. The International Parental Kidnapping Act makes it an offense to remove or attempt to remove a child who has been in the United States from the United States with the intent to obstruct the lawful exercise of parental rights. It includes the retention out of the United States of a child who has been in the United States.

The term “parental rights” means the right to physical custody of the child, whether joint or sole, and includes visiting rights, whether arising by operation of law, court order, or legally binding agreement of the parties. This means that even if one parent has sole custody of a child while the other parent has nothing but limited rights of access, it would normally be felonious for the custodial parent to relocate the child to another country without either the other parent's consent or a court order authorizing the relocation.

 The crime is a felony punishable by up to three years in jail or a fine. It is an affirmative defense that the defendant acted within the provisions of a valid court order granting the defendant legal custody or visitation rights and that order was obtained pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act the issuance of a custody order prior to a parent taking a child out of the United States.

Anyone who “aids and abets” the abduction might also be charged with the crime.

2.               It may be a crime under state law. Every state has a provision in its criminal law that bars parental kidnapping in one form or another. Thus, New York's Penal Law provides that a parent is guilty of custodial interference in the second degree when, intending to hold such child permanently or for a protracted period, and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian. It becomes first-degree custodial interference if done with the intent to permanently remove the victim from the State of New York.

3.             There might be extradition from the country to which the parent has gone.

4.             Once an arrest warrant has been issued, an Interpol Red Notice may be issued requesting the provisional arrest of the parent with a view to extradition based on an arrest warrant or court decision.

5.              Many states require a parent who intends to relocate a child to give prior notice --ranging in most but not all cases from 30 to 90 days of the intended move if the non-residential parent does not consent. Once a parent objects, a hearing on the issue of relocation must be held before the relocation may occur. Violation of the statute will lead to sanctions imposed by the courts of the state from which the child is taken.

6.              The child's home state will continue to have exclusive custody jurisdiction for at least the six months subsequent to the relocation. If a custody case is commenced in the home state during that period, the courts of that state will normally have continuing exclusive jurisdiction thereafter. This means that the left-behind parent can ask for and will presumably obtain an emergency order directing the taking parent to return the child to the state, and perhaps to the custody of the other parent, forthwith. If such an order is violated the taking parent could be held in contempt of court.

7.              If the other country is a treaty partner with the United States under the Hague Convention on the Civil Aspects of International Child Abduction, the left-behind parent can petition for the child's return in accordance with the provisions of that treaty. That will usually lead to an expedited hearing in the appropriate court in the country to which the child has been taken, followed by an order directing the child's immediate return to the United States, unless one of the extremely narrow and limited defenses can be proven. Once the child is returned to the United States, the U.S. court is likely to bar any further international travel by the parent who has been found to be an international child abductor.

8.              In some countries, the left-behind parent can petition the foreign courts to enforce a U.S. custody order, either through a registration system similar to the UCCJEA or through a general child custody case.

9.              There are other actions that a left-behind parent can take, such as bringing a civil lawsuit for intentional infliction of emotional distress.

 

Algeria and International Child Abduction

 Jeremy D. Morley

My expert evidence on the international family law aspects of the laws and procedures of Algeria has resulted in a highly favorable settlement for a parent who feared that the parties’ children might be taken out of the United States to Algeria. I explained that. in my opinion. if the other parent were to take the children to Algeria  and keep them there, then, notwithstanding the issuance of orders requiring the return of the children by the U.S. courts, it would be exceedingly difficult and probably impossible for the left-behind parent to secure the children’ s return home to the United States. I explained in detail the likely outcome of potential litigation in Algeria, and discussed the potential measures to prevent abduction out of the United States. 

In my opinion, when the country in question is a well- recognized safe haven for international child abduction, far less evidence that any specific parent is a potential international child abductor should be  required in order to justify –  and indeed to require –  that a court should take effective steps to prevent a potential child abduction than if the country in question is a compliant party to the Hague Abduction Convention. However, without expert evidence, there is no way for a court in the United States to make the necessary findings concerning the laws and practices of the foreign jurisdiction. 

Preventing International Child Abduction: The U.S. National Targeting Center

 by Jeremy D. Morley

www.international-divorce.com

 

The National Targeting Center in the U.S. Customs and Border Protection Agency provides invaluable assistance in identifying parents and children about to leave the country in violation of U.S. court orders, provided the process is properly initiated.

Any parent who has obtained a valid and enforceable order from any court in the United States that bars the other parent or another specified person from removing the child from the United States can ask the Abduction Prevention Unit of the Office of Children's Issues of the U.S. State Department to place the identified parent (or other prohibited person) and the child on the prevent departure list maintained by the Office. The Office will need the actual court order and other identifying information, including dates of birth, and it will then coordinate with the Department of Homeland Security’s U.S. Custom and Border Prevention (the “CBP.)

The National Targeting Center (the “NTC”) is the unit of the CBP which analyzes traveler data and threat information to identify high-risk travelers before they board US-bound flights.

CBP creates travel alerts for identified and listed  children who are at risk of international abduction and any potential abductors. Commercial carriers are required to transmit data on all outgoing and incoming travelers to CBP, which the NTC continuously monitors in real-time through an electronic data interchange system known as the Advance Passenger Information System (APIS), and it vets that information against the travel alerts. It then works with CBP officers and with local law enforcement to intercept the child before departure and to enforce the applicable valid court orders.

Counsel who are retained by parents to take measures to prevent their children from being abducted from the United States should normally use their best efforts to obtain enforceable and comprehensive court orders to prevent any such abduction. That will generally require counsel to consult with, and then to present evidence from, experts knowledgeable as to (a) the extent to which the specific country to which the child may be abducted is or is not likely to expeditiously return an internationally-abducted child, and (b) the risk factors of potential international child abduction. Once a court order is obtained, it is then incumbent on counsel to present the order and other required information to the State Department and to secure the requisite information concerning the child and the potential abductors to be included in the Prevent Abduction Program list so that a travel alert is promptly issued by the CBP.

Note, however, that such a listing is only one of the methods that should be employed in any effort to prevent international child abduction. The United States has no exit controls, and travel by public carrier is only one way for a child to be taken out of the country.

RECOGNITION OF FOREIGN COUNTRY DIVORCE DECREES: AN IMPORTANT NEW CASE

 Jeremy D. Morley

www.international-divorce.com

 

The rule that a foreign country divorce decree will not be recognized unless at least one spouse was domiciled (or possibly resident) in the foreign country applies in most states even if the parties both appeared in the foreign proceeding. See Jeremy D. Morley, International Family Law Practice, Sec. 5.11 (2020 edition).

New York has long followed its own path on this issue. The New York courts have consistently ruled that foreign divorces are valid and should generally be recognized if at least one party appeared in person in the foreign court or was otherwise significantly connected to the foreign country and the other party had notice of and the opportunity to participate in the foreign proceeding, so long as the petitioning spouse satisfies the jurisdictional ”requirements of the foreign nation granting the divorce. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709, 13 A.L.R.3d 1401 (1965).

But now, the Fourth Circuit Court of Appeals has held that a divorce obtained in a foreign nation by its own citizens is not invalid in Virginia simply because these citizens were not domiciled in their home country at the time of the divorce. It has ruled that their citizenship in that country provides an adequate relationship between person and place to justify the foreign nation's exercise of control over their marital status. Adjei v. Mayorkas, --- F.4th ----,2023 WL 1787879 (4^th Cir. 2023).

The Court recited the long-standing principle that Virginia will grant comity to an act of another sovereign only if (1) the other sovereign had jurisdiction to enforce its order within its own judicatory domain, (2) the relevant law of the other sovereign is reasonably comparable to that of Virginia, (3) the decree was not obtained through fraud, and (4) enforcement of the other sovereign's decree would not be contrary to the public policy of Virginia.

In the pending case, the USCIS had denied an application for U.S. naturalization on the ground that the petitioner’s purported marriage to a U.S. citizen was invalid since his intended wife’s prior Ghanaian divorce would not be recognized in Virginia because, although the parties to that divorce decree were citizens of Ghana, they were each domiciled in the United States, not Ghana, at the time of the Ghanaian divorce decree. The lower court held that the petitioner's wife's divorce was not entitled to comity as neither spouse was domiciled in Ghana at the time of the divorce.

The Fourth Circuit disagreed. It held that,

“Citizenship in a nation, like domicile in a state, “implies a nexus between person and place of such permanence as to control the creation of legal relations.” Williams v. State of N.C. (Williams II), 325 U.S. 226, 229, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); see also Evans, 72 S.E.2d at 324. Thus, the citizenship of both parties in a nation provides that nation with a jurisdictional basis for granting the parties a divorce that seems “reasonably comparable” to the relationship between a state and its domiciliaries. For these reasons, we believe that, if faced with the question, the Supreme Court of Virginia would consider Boateng and Gyasi's citizenship in Ghana, the nation in which the divorce was granted, to be an acceptable alternative to domicile.”

In analyzing the issue of Virginia’s public policy, the Circuit court stated that it did not follow that Virginia would refuse to recognize, as a matter of comity, a divorce issued by a foreign nation simply because Virginia itself would not grant a divorce under similar circumstances. This was especially true where, as in the case at bar, the basis for the foreign nation's jurisdiction to grant the divorce was the divorcing parties' citizenship in that nation, a basis that “has no independent analogue in the domestic context.”

Although Virginia could, as some states such as Nevada do, expressly forbid the recognition of all out-of-state divorces where both spouses are domiciled in the state where recognition is sought, Virginia law does not so provide. Furthermore, the Supreme Court of Virginia had repeatedly recognized that the public policy of Virginia favors recognizing divorces whenever possible, so that one's marital status does not change with one's location. And where, as here, the divorce is followed by a subsequent marriage, the Commonwealth's interest in uniformity in marital status is reinforced by an even more foundational aspect of its public policy: “uphold[ing] the validity of the marriage status as for the best interest of society.” 

The Court stated that the importance of recognizing out-of-state divorces has only increased with advances in transportation, citing New York’s Rosenstiel case, and the fact that the world has become even smaller and more mobile since then. It concluded that, “Given these precedents, we believe when, absent any fraud, a couple has married relying on a consensual divorce granted by a foreign nation to its citizens and in accordance with its laws, Virginia public policy would favor recognition of the divorce upon which the second marriage's legitimacy depends.”

To what extent the Fourth Circuit’s reasoned decision will apply in other states and in other circumstances remains to be seen.

 

ABDUCTION PREVENTION MEASURES: FAILURE TO ADOPT HAGUE CONVENTION INSUFFICIENT BASIS TO REQUIRE

 by Jeremy D. Morley

www.international-divorce.com

A Colorado appeal court has remanded a case in which a trial court imposed measures intended to deter possible international child abduction to the U.A.E. because the lower court ruling was almost exclusively based on the mere fact that the U.A.E. has not adopted the Hague Convention on the Civil Aspects of International Child Abduction. In re Marriage of Badawiyeh, 2023 WL 163958 (Colo. Ct. Apps. 2023).

Colorado is one of the small number of states that have adopted the Uniform Child Abduction Prevention Act (“UCAPA”). UCAPA authorizes a court to order “abduction prevention measures” if the court on its own motion “finds that the evidence establishes a credible risk for abduction of the child” or if the party seeking an order specifies the “risk factors for abduction”. Section 7 of UCAPA contains a list of the potential risk factors.

In the case at bar, the trial court allowed the father to take the parties' children to visit the U.A.E. but subject to certain quite minor conditions in the form of a need to post a $50,000 travel bond and a provision that a third party should hold the children's passports until they needed for the authorized travel. The court justified its decision to impose the conditions by citing that the facts that the U.A.E. was not a signatory to the Hague Convention and that a case in the U.A.E.  to seek to remove the children would likely be expensive.

The father appealed and the appeal court ruled that UCAPA required the court to make a specific finding based on a review of all the risk factors that the traveling parent posed a credible risk of abducting the children before it could impose any abduction prevention measures. It further held that the mere fact, standing alone, that a country had not acceded to the Hague Convention was an insufficient risk factor. It held  that,

“We agree with these other jurisdictions and decline to adopt a bright-line rule or singular test permitting the imposition of abduction prevention measures simply because a parent intends to travel with a child to a country that is not a signatory of the Hague Convention.”

It primarily cited a New Jersey case, Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 824 A.2d 268, 281-82 (2003in which the court had accepted, as genuine, the mother's fear that the father would abduct the child and flee to Lebanon, but concluded that “fear alone is not enough to deprive a non-custodial parent of previously agreed upon visitation.” It expressly refused to adopt a bright-line rule prohibiting out-of-country visitation by a parent whose country has not adopted the Hague Convention or executed an extradition treaty with the United States, since “such an inflexible rule would unnecessarily penalize a law-abiding parent and could conflict with a child's best interests by depriving the child of an opportunity to experience and share family heritage with that parent.” It also warned that to focus solely on the conflict between the parent's native country's laws, policies, religion, or values and our own would border on “xenophobia, a long word with a long and sinister past.

The Colorado decision underscores the need for parents who seek to prevent their children from being taken overseas because of a genuine and well-founded fear of abduction to provide the court with clear evidence of the risk factors presented by the potential abductor and of the challenges presented by the foreign country’s legal system. Such factors should normally be supported by expert evidence. Likewise, it is essential to provide the court with admissible evidence concerning the appropriate measures that are required to significantly deter any potential abduction. For example, in my experience, conditioning travel on filing a bond is generally pointless because children are obviously priceless. 

CONNECTICUT COURT REFUSES TO ENFORCE UAE CUSTODY ORDER

by Jeremy D. Morley[1]

A Connecticut court has refused to enforce a custody order of the United Arab Emirates on the ground that the order is repugnant to Connecticut public policy. The UAE court awarded custody of two children to their father because they and the father are Muslim while the mother is Christian. Al Namani v. Watson, Superior Court, Hartford, Connecticut, May 31, 2022 (unreported)[2].

Specifically, the UAE court summarized the reasons for its decision as follows:

“As per the documents and papers, daughter …  is 11 years old and son … is 9 years old. The plaintiff is still Christian as per the statement of claim. The Personal Status Law stipulates that the custodial patent’s [sic] religion shall be the same as the child's religion and her custody shall be until the child becomes five years old whether a male or female. Accordingly, the court cancels her right of child custody of [the children], the father shall be the custodial parent and all alimony and child support shall be cancelled effective from the date of granting him the custody.”

 

After judgment was issued, the mother removed the children from the UAE without their father’s consent and brought them to her family home in Connecticut. The father then sought to register and enforce the UAE order in Connecticut pursuant to Connecticut's version of the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), Connecticut General Statutes, §46b-115 et seq. He argued that, because the children had been living in the UAE for more than six months immediately preceding the commencement of a case in that country for divorce and then a case for custody, the UAE was the children’s home state. He further argued that the UAE courts had continuing and exclusive child custody jurisdiction, since he continued to live there. Accordingly, he asserted that the UCCJEA required the Connecticut courts to register and enforce the UAE custody order, and that they had no right to modify it.

The mother opposed registration pursuant to General Statutes, §46b-115ii. That section provides that a court in Connecticut must treat a foreign child custody determination “as a child custody determination of another state … unless such determination was rendered under child custody law which violates fundamental principles of human rights or unless such determination is repugnant to the public policy of this state.”

Significantly, Connecticut's statutory provision is unique to that state, despite the fact that Connecticut generally adopted the standard version of the UCCJEA that was promulgated by the Uniform Law Commissioners. That version provides that, “A court of this State need not apply this [Act] if the child custody law of a foreign country violates fundamental principles of human rights.” When it adopted the Act, Connecticut chose to expand the so-called “escape clause” by adding a second and distinct basis for a refusal, which is that of repugnance to state public policy of enforcing a foreign custody order.

In his ruling, Judge Daniel J. Klau determined the public policy of Connecticut concerning child custody matters by reviewing the Connecticut statutes and case law on that issue. He cited the statutory provisions (General Statutes §46b-56(b) and (c), which require the application of the “best interests of the child” and extensive caselaw establishing “the clearly defined public policy of our state that family courts must make child custody determinations according to the best interests of the child.”

The judge then reviewed the UAE custody order and ruled that it was repugnant to Connecticut public policy because it expressly stated that its decision was based on the mother’s status as a Christian, whereas the father and the children were Muslims,. The fact that the UAE child custody statute contained a provision which mentioned the best interests of the child was not significant because the judgment, as written, was based solely on religion.

The father’s claim that the mother waved the public policy argument by having initiated a divorce case in the UAE several years prior was held to be unpersuasive because any such waiver by a litigant would not and could not bind the state court, which is “entitled, nay obligated to resist the invitation to become the instrument by which party seeks to enforce a judgment that is repugnant to public policy.”

In several cases in other states that do not have a public policy exception in their state statutes, courts have nonetheless relied on public policy to preclude recognition of foreign country custody rules. Merely by way of example, see: In re Marriage of Donboli, 128 Wash. App. 1039 (2005) (barring recognition of Iranian order that did not consider child's best interest). J.A. v. A.T., 404 N.J. Super. 132, 960 A.2d 795 (App. Div. 2008) (barring recognition of a Greek order that did not properly consider child's best interest); and H.L.K. v. F.A.A., 2015 WL 5971123 (Pa. Super. Ct., 2015) (Saudi order based on age, gender, and religion was inherently violative of Pennsylvania public law).

For more on this issue, see Jeremy D. Morley, International Family Law Practice, § 7.28.

The Connecticut case is also significant for its analysis of the meaning of the “escape clause” provision that a foreign country order must be enforced  “unless such determination was rendered under child custody law which violates fundamental principles of human rights.” Other courts have held that that language limits a court to analyzing the foreign law as it is written, rather than the law as it is applied in the foreign country, even if the law reads well but is applied in a manner violative of fundamental human rights. That position is supported by the official comment to the relevant section of the UCCJEA, which states that “the court's scrutiny should be on the child custody law of the foreign country and not on other aspects of the other legal system.” Indeed, in Matter of Yaman, 105 A.3d 600, 611 (N.H. 2014), the Supreme Court of New Hampshire held that “[t]he comments to the UCCJEA . . . clarify that the analysis is meant to focus on the foreign jurisdiction's substantive law, and not its legal system or how the law is implemented.” 105 A.3d at 611.

However, Judge Klau disagreed. He cited with approval the case of Coulibaly v. Stevance, 85 N.E.3d 911 (Ind. Ct. App. 2017). There, the Indiana Court of Appeals had insisted that, “we do not believe that the UCCJEA limits the courts of this state to considering the foreign jurisdiction's law only on its face, without regard to whether that law was applied in a manner violative of fundamental human rights. One can imagine multiple circumstances in which a foreign jurisdiction's custody law is unobjectionable as written, but applied in a manner that clearly violates a parent's or child's fundamental human rights.” 

Judge Klau concurred with Coulibaly since, “to hold otherwise would make the court a party to the enforcement of a judgment which, on its face, violates public policy or fundamental human rights.” Judge Klau then supported that argument with an appropriate caution. He sensibly opined that courts should “be reticent to make broad judgment about whether a foreign country’s laws violate fundamental principles of human rights or are repugnant to the public policy of the court’s state. It is one thing for a state court to opine on a particular judgment of a foreign court. It is another thing entirely for a state court to opine on a foreign country’s system of law in general.”

In conclusion, the Al Namani v. Watson case demonstrates a sensible application of the use of public policy and common sense to prevent the otherwise-automatic obligation to enforce most foreign country custody orders issued by a home state court that are based on norms that offend human rights or the standards of the forum state.

 

 

 

 

 

 

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[1] Mr. Morley is a New York lawyer who concentrates on international family law and consults with attorneys and clients globally on international family law matters, always with local counsel as appropriate and necessary. He may be reached at ww.interational-divorce.com

[2] The author provided substantial assistance on the case to defendant’s counsel, Dara P. Goings of West Hartford, Connecticut.

KOREAN NONCOMPLIANCE WITH HAGUE ABDUCTION CONVENTION

Korea has been cited by the U.S. State Department as “noncompliant” with its obligations under the Hague Abduction Convention, and the U.S. Special Advisor for Children’s Issues in the State Department's Bureau of Consular Affairs met with Korea's Ministry of Justice today, December 7, 2022, to address the problem.

In July 2022, the U.S. Embassy in Seoul delivered a diplomatic protest known as a “demarche” to Korea's Deputy Foreign Minister, citing Korea’s failure to comply with its treaty obligations.

The specific cited problem is that 50% of U.S. requests for the return of children abducted from the U.S. remained unresolved for more than 12 months.

A likely unanticipated consequence of Korea’s failure to comply with the Hague Convention is that it will make it significantly more difficult for a Korean parent living in the United States (or, presumably, in any other country) to take a child to visit family in Korea if the non-traveling parent objects. If such issues are brought before a court in the United States, a judge who is presented with expert evidence concerning the difficulties of securing the return of children from Korea will necessarily be most concerned that the child will be retained in Korea and that it will be difficult or impossible to secure the child’s return.

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Jeremy Morley has provided expert evidence on such issues concerning Korea to courts in the United States.

CHINA, INTERNATIONAL CHILD ABDUCTION, AND EXPERT TESTIMONY

China is a safe haven for international child abduction. I submitted a very detailed expert report to that effect and then testified remotely as an expert witness in a court in the U.S. today.

The other side conceded this essential fact.