Wednesday, November 28, 2012

Qatar’s Child Custody Law

Jeremy D. Morley*

Qatar’s law as to child custody is Sharia law and is codified in the Qatari Law of the Family, Law no. 22 of 2006.


All child custody disputes are decided by Qatari courts based on Islamic Sharia law, regardless of the religion of the parents. The precepts of the statutory law are completely subordinated to the religious precepts of Islam. The Qatari courts are required to apply Sharia law even if the parents are not adherents to that religion.

Qatari law applies the Sharia law concept of a sharp division between the physical custody of a child and the legal guardianship of a child. The mother is given an express statutory preference for physical custody, up to a certain age of the children. The father is given an express statutory preference for guardianship. It is extremely rare for that right to be taken away from him. It is deemed the “natural right” of the father to assert such rights to the exclusion of the mother. Guardianship is akin to legal custody. It provides the father with the exclusive right to make decisions concerning the child.

Qatari law expressly states that the mother shall have custody of children up to certain defined ages. It lists 18 individuals or categories of relatives successively entitled to claim custody of a minor child, starting with the mother, as being entitled to custody, so that if the mother loses her primary right to custody – whether by reason of her remarriage, her denial of Islam or otherwise -- the next relative on the list has the primary right to custody.

Qatari law provides for enormous limitations on a mother’s right to custody if she is non-Muslim

Qatari law provides that if a mother remarries she is automatically subject to the loss of her rights to custody of the child (unless she marries the father’s brother or another close relative of the child). (Qatar Family Law, Article 168)).

Qatari law provides that a women's testimony is equal to half of a man's.

Qatari law expressly provides that a mother who is Muslim has far greater custodial rights than a mother who is not a Muslim. The Qatari family law allows a Muslim mother to have custody of a child until the child is 13 (if a boy) or 15 (if a girl) (Qatar Law, Article 173) but it permits a non-Muslim mother to have custody only until the child is 7 (Qatar Law, Article 175) and even then she must raise the children as Muslims in order to retain custody. (Articles 173 and 175 of the Qatari Family Law)).

Qatari law expressly provides for a mother who renounces Islam to lose all rights of custody over her children. (Qatar Family Law, Article 175).

Qatari law expressly provides for a mother to lose all rights of custody over her children if her conduct creates a “fear that the ward is acquiring a different religion.” (Qatar Family Law, Article 175).

Qatari law provides that the Hanbali school of Islam is the residual source of all governing rules, “unless the court decides to apply a different opinion for reasons set out in its ruling.” In the absence of Hanbali text, the court is directed to “another of the four schools” and failing this to the “general principles of the Islamic shari`a.” (Qatar Family Law, Article 3).

______________________
Jeremy D. Morley has previously provided expert evidence as to Qatari child custody law.

Tuesday, November 27, 2012

Panama – Removal of Children from Panama

Here are the provisions of Panama law concerning taking children out of Panama. As with other Latin American countries Panama has strong and efficient exit controls and in general it bars one parent or anyone else from taking children out of Panama without the express authorization of the other parent or a court order.






Jeremy D. Morley

PANAMA IMMIGRATION LAW (2008)

(unofficial translation)

TITLE VI

IMMIGRATION CONTROL

CHAPTER 1
ENTRY AND EXIT

Article 38. The immigration control will be exercised by the National Immigration Service, according to the present Law Decree and its regulations, in compliance with the immigration policy as established by the Executive Branch.

Article 39. The nationals in order to exit the country shall present an updated passport or a letter of safe-conduct and comply with the other requirements that the present Law Decree establishes.

The National Immigration Service will carry a registry of immigration control of the underage persons, in which their identities will be included, the country of destination, the identification of the responsible person and the document of authorization.

Article 40. The departure from the national territory of any foreign or Panamanian underage person that is found under any immigration category, will be allowed in the following cases:

*1. If he/she is accompanied by the father or the mother.

*2. If he/she is accompanied by one of their parents, and this one has the written authorization from the other, duly authenticated by a notary public.

*3. If he/she is accompanied by one of their parents, and this one has the written authorization from the judge duly authorized for this purpose, and in the case that one of the parents is deceased, the death certificate of the absent parent shall be attached.

*4. If he/she is accompanied by a third party a written authorization shall be presented from both parents, according to what is established in numerals 2 and 3 by the present Article.

*5. If the underage person travels alone a written authorization from both parents shall be presented, according to what is established in numerals 2 and 3 by the present Article. Paragraph: The foreign non-resident underage persons are excluded from this disposition.

Article 41. The immigration authorities located at the immigration posts shall prevent the entry or exit of foreigners, and the exit of nationals, when there is an order in place issued by a competent authority.

Article 42. The foreigner that has incurred in a infringement or violation of immigration law, may not exit the country without having cancelled the corresponding financial penalties. By not having the financial resources to comply with the imposed penalty, his or her deportation procedures shall proceed.

Article 43. Without prejudice to the current international conventions in the Republic of Panama, in order to enter the national territory, foreigners shall comply with the following requisites:

*1. To enter by land, air or sea immigration posts officially made available.

*2. To present, by petition from the immigration authority, their passport or current travel document and, in case that it is required, the current entry visa.

*3. To allow to be interviewed by the competent authorities at the moment of entry or exit, that their data and biometrics registry to be validated in situ and their luggage and personal documents to be inspected and verified.

*4. To present the Ingress and Egress Card provided by the international transportation company, duly completed, without prejudice of the right from the National Immigration Service to implement other automated mechanisms of collecting the information, according to the international standards.

*5. Not having an impediment to enter.

*6. To have proof of financial solvency to cover their expenses while remaining in Panamanian territory. An exception is made from this disposition when the passenger is in transit who remains within the immigration facility.

*7. To have a return ticket to their country of origin or residence, when required by the immigration category.

*8. To have cancelled all of their obligations with the National Immigration Service.

*9. To comply with health standards as established by the Ministry of Health, as well as any other measures ordered by other competent authorities.

Article 44. The foreigner will have the obligation, at the moment of registration, to present his/her passport or travel document, as well as to provide to the owners or hotel managers or lodging places, the information about their stay and departure. At the same time, the owners or hotel managers or lodging places will have the obligation to send this information to National Immigration Service that will implement automated mechanisms for its collection.

Article 45. Every foreigner that is found within the national territory must carry his/her immigration document of identification and show it to the competent authority, when it is required to do so.

Tuesday, November 13, 2012

Michigan’s Flawed Proposal to Limit International Child Abduction

by Jeremy D. Morley


Jeremy D. Morley is the author of The Hague Abduction Convention, published by the American Bar Association

A draft law in Michigan, which recently received unanimous approval from the Michigan Senate, would require that all Michigan child custody orders must prohibit a parent from taking a child to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. In my opinion, the proposed legislation is simplistic and will create a mound of unintended consequences.

Specifically the proposed legislation would provide that, “A parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague convention on the civil aspects of international child abduction.”

The language is a well-meaning but unnecessarily crude effort to reduce the chances of international child abduction.

The potential problems or flaws with the proposed legislation include the following, among many others:

• Not every country that is a party to the Hague Convention complies with the terms of the treaty.

• Not every country that is a party to the Convention has been accepted by the United States as a treaty partner.

• Not every country that has failed to sign the treaty will fail to return abducted children.

• If a foreign “trailing spouse” (see my article at http://www.international-divorce.com/The-Plight-of-the-Expatriate-Spouse) who comes to Michigan to marry a Michigan resident is automatically barred from taking her child to visit her home country and her family “back home” serious consequences might result. Thus, even though a country such as India is not a party to the Hague Convention and has a legal system that is most unlikely to return abducted children promptly (if at all), it is possible to envisage a situation where an Indian mother should be permitted to take one child to a family visit to India if her other child is to remain in Michigan.

• It might be possible to secure a “mirror order” (see my article at www.international-divorce.com/irror_Orders_to_Help_Prevent_International_Child_Abduction) from a foreign country’s courts that would provide sufficient protection under that country’s laws and legal system (if the Michigan court is supplied with satisfactory evidence that such an order would be effective) as to justify a child being taken to visit his parent’s country of origin.

• The language would apparently bar the relocation of a child to any non-Hague country. It could therefore absurdly prevent a court from allowing an abandoned and impecunious foreign parent who is a victim of extreme domestic violence to return to her home country with her child.

The problem with simplistic solutions to complex issues of international child custody is that in the real world the circumstances of a child vary so much that a one-size-fits-all law is bound to yield unfair and outrageous results.



Friday, November 09, 2012

Back Home From The UAE

We are thrilled to advise that our client, Stacy Peters, has returned to the United States with her two children.

Her oldest child was the subject of a lengthy and hotly-contested international custody battle.

Our client is overjoyed and very grateful but she now asks for some time alone with her children.

Please follow this link for a recent story on the matter:
http://www.thenational.ae/news/uae-news/missing-dubai-toddler-returns-to-mother


Ugandan Divorce Law: Cabinet approves laws on pre-nuptial contracts, elections funding

By NATION REPORTER

Posted Thursday, November 8 2012 at 17:39

In Summary
-Matrimonial Property Bill provides for equal legal status of men and women in marriage and recognises the capacity of either spouse to acquire separate property during marriage.

Cabinet on Thursday passed into law Campaign Finance Bill, 2012, that will regulate and the amount of money to be used during elections.

Cabinet also approved Matrimonial Property Bill, which provides for the rights and responsibilities of spouses in relation to matrimonial property.

The law provides for equal legal status of men and women in marriage and recognises the capacity of either spouse to acquire separate property during marriage.

It also makes provisions for how persons professing the Islamic faith should be governed by Islamic law in all matters relating to matrimonial property.

Further, the new law provides for how matrimonial property shall be dealt with in cases of polygamous as well as customary marriages.

The law also allows for spouses to enter agreements as to how they will own property either separately or collectively.

It also provides for division of matrimonial property between and among spouses within the context of Customary Law, particularly in polygamous unions.

Cabinet also passed into the Marriage Bill, which brings together in one law Christian, Islamic and Hindu marriages as well as marriages consummated under Civil and African Customary law.

It also provides for the legalising of ‘come-we-stay’ marriages.

Under this law, it is proposed that chiefs will be enabled to consider ‘come-we-stay’ affairs that last more than six months as a marriage and to register them as such.

This law now provides legal protection to all marriages and will facilitate the protection of the rights of children and spouses in all types of marriages in country.

It also makes it possible for customary marriage and ‘come-we-stay’ marriages to have marriage certificates.

It also provides for maintenance of spouses and children in a situation where a marriage has broken down or divorce has occurred.  
http://www.nation.co.ke/News/Cabinet+approves+laws+on+prenuptial+contracts+elections+funding/-/1056/1615210/-/cs37dpz/-/index.html

Thursday, November 08, 2012

Testimonials

Testimonials: We receive a constant stream of unsolicited testimonials about our services in international family law, especially concerning international child abduction and international child custody. Please see our Testimonials page at our full site here: 

http://www.international-divorce.com/testimonials.htm

Saudi sharia judges decry Westernizing "stench" of legal reforms

By Angus McDowall
RIYADH
Tue Nov 6, 2012

(Reuters) - Saudi judges who enforce sharia (Islamic law) have condemned what they see as "the stench of Western ideas" in sweeping legal reforms pushed by King Abdullah, underscoring friction between government modernizers and religious hardliners.

In a letter to Justice Minister Mohammed al-Issa seen by Reuters, eight judges complained about foreign trainers who shave their beards contrary to purist Islam, the minister's meetings with diplomats of "infidel" states and plans to let women practice as lawyers.

The authenticity of the letter, which did not directly criticize either the king or Issa, was confirmed by a source in the Justice Ministry who said it was sent late last month.

Saudi lawyers and political analysts say the judicial reforms announced by King Abdullah in 2007 and supported by Issa are needed to make the legal system more efficient and modern.

"The system deters investors, who find the judiciary opaque. Outdated administrative procedures and inadequate judicial training remain problems," the U.S. embassy said in an assessment in 2009 revealed by WikiLeaks.

Since becoming de facto regent while he was crown prince in 1995, Abdullah has pursued cautious reforms aimed at modernizing Saudi Arabia's economy and making it more socially open, but he has often been blocked by powerful religious conservatives.

The world's top oil exporter has no written legal code or system of precedent, and judges determine cases based on their own interpretation of sharia.

Lawyers say this means similar cases often yield starkly different verdicts and sentences. In some cases King Abdullah has stepped in to annul decisions seen as embarrassing to the country, such as the 2007 jailing of a rape victim on charges of consorting with unrelated men.

However, the reforms have made scant progress five years after being announced, according to lawyers and the ministry source, a delay they blamed on conservatives in the Justice Ministry and within the judiciary.

"I think the majority of judges are in favor. They want to see development both as professionals and for society. But there's another 30 percent. They fight (Issa) day and night, trying to slow down what he is doing," said the ministry source.

Saudi society and government remain very religious and socially conservative. Women are barred from driving, only Islam can be practiced in public and morality police patrol the streets to enforce compliance with social and dress codes.
(Editing by Mark Heinrich) http://www.reuters.com/article/2012/11/06/us-saudi-reform-law-idUSBRE8A511020121106

Tuesday, November 06, 2012

Hague Convention 1996 comes into force in UK on 1st November

From: Family Law Week


Convention strengthens the authority of child’s habitual residence

The Hague Convention 1996 on the International Protection of Children comes into force in the UK from 1 November 2012.

The Convention has uniform rules determining which country's authorities are competent to take the necessary measures of protection. These rules, which avoid the possibility of conflicting decisions, give the primary responsibility to the authorities of the country where the child has his or her habitual residence, but also allow any country where the child is present to take necessary emergency or provisional measures of protection. The Convention determines which country's laws are to be applied, and it provides for the recognition and enforcement of measures taken in one Contracting State in all other Contracting States.

An Outline prepared by the Hague Conference says that the following are some of the areas in which the Convention is particularly helpful –

Parental disputes over custody and contact
The Convention provides a structure for the resolution of issues of custody and contact which may arise when parents are separated and living in different countries. The Convention avoids the problems that may arise if the courts in more than one country are competent to decide these matters. The recognition and enforcement provisions avoid the need for re-litigating custody and contact issues and ensure that decisions taken by the authorities of the country where the child has his or her habitual residence enjoy primacy. The co-operation provisions provide for any necessary exchange of information and offer a structure through which, by mediation or other means, agreed solutions may be found.

Reinforcement of the 1980 Child Abduction Convention
The 1996 Convention reinforces the 1980 Convention by underlining the primary role played by the authorities of the child's habitual residence in deciding upon any measures which may be needed to protect the child in the long term. It also adds to the efficacy of any temporary protective measures ordered by a judge when returning a child to the country from which the child was taken, by making such orders enforceable in that country until such time as the authorities there are able themselves to put in place necessary protections.

Unaccompanied minors
The co-operation procedures within the Convention can be helpful in the increasing number of circumstances in which unaccompanied minors cross borders and find themselves in vulnerable situations in which they may be subject to exploitation and other risks. Whether the unaccompanied minor is a refugee, an asylum seeker, a displaced person or simply a teenage runaway, the Convention assists by providing for co-operation in locating the child, by determining which country's authorities are competent to take any necessary measures of protection, and by providing for co-operation between national authorities in the receiving country and country of origin in exchanging necessary information and in the institution of any necessary protective measures.

Cross-frontier placements of children
The Convention provides for co-operation between States in relation to the growing number of cases in which children are being placed in alternative care across frontiers, for example under fostering or other long-term arrangements falling short of adoption. This includes arrangements made by way of the Islamic law institution of Kafala, which is a functional equivalent of adoption but falls outside the scope of the 1993 Intercountry Adoption Convention.