Friday, March 29, 2019
Lehn v. Al-Thanayyan, dated March 7, 2019. 2019 WL 1070824.
The Court upheld the reliance by an Arizona trial court on my testimony concerning the laws and practices of Kuwait as to child custody in international matters.
The case concerned a Kuwaiti father with permanent residency in the United States, his wife who was a U.S. citizen, and their two children, of dual Kuwaiti and U.S. nationality. They had previously lived in Kuwait but, with the father’s consent, the mother and children had relocated to Arizona while the father remained in Kuwait but visited the U.S. regularly.
The mother requested that the father’s parenting time occur only in Arizona because she feared that if he were permitted to take the children to Kuwait, he would not return them to the United States. Mother also requested that the father be ordered to surrender his passport and U.S. permanent resident card to his attorney before exercising parenting time in the U.S.
The trial court upheld my testimony and ruled accordingly. The father appealed, claiming inter alia that I was not qualified to provide the expert testimony that I did provide. The Court of Appeals did not agree.
It ruled that:
“Morley testified that he worked exclusively on international family law matters, including international child custody matters, international child abduction prevention, and recovery of internationally abducted children. He explained that his opinions about Father were based on facts provided by Mother and Father’s expert, and he acknowledged that his opinions may lack foundation if those facts were incorrect. The factual statement Mother provided to Morley, however, was substantially consistent with her trial testimony. Therefore, viewing that evidence in the light most favorable to affirming the decree, see Boncoskey, 216 Ariz. at 451 ¶ 13, Morley’s opinions did not lack foundation.
Moreover, Morley’s opinions in this case were based on his extensive experience and research. He relied on official statements and information about Kuwaiti law from the United States Department of State, the United Kingdom, and non-governmental organizations that provide information relating to international child abductions. Morley testified that he had gained significant knowledge about international child custody disputes, written several articles and two treatises on the subject, and provided expert testimony in the United States and internationally. Father also stipulated that Morley was an expert and that his own expert agreed with some of Morley’s testimony regarding Kuwait family law. The family court acknowledged the strengths and weaknesses in both experts’ positions and was in the best position to judge their credibility. See Gutierrez, 193 Ariz. at 347 ¶ 13. Thus, the court did not abuse its discretion by accepting Morley’s testimony and report.”
The Court of Appeals also upheld my opinions concerning the risk factors of potential international child abduction. Based on my evidence the lower court had based its parenting time orders on findings that are consistent with several factors listed in Section 7 of the Uniform Child Abduction Prevention Act for determining whether a parent poses a risk of abducting the child. The appeal court held that, “As Mother’s expert testified, other United States courts have applied these and similar risk assessment factors. … Although Arizona has not adopted the UCAPA, the court nevertheless had the discretion to rely on these factors in the absence of a specific statute to the contrary as long as it also considered the children’s best interests.”
Tuesday, March 26, 2019
I am pleased to have been accepted again as an expert on the child custody laws and practices of India in international child abduction cases by a court in Canberra, Australia. I testified yesterday as to the recent decisions of the Supreme Court of India, including the most recent case of Lahari Sakhamuri v Sobhan Kodali.
Tuesday, March 12, 2019
On Tuesday, The New York Times published Vierra's story, whose cousin said she has not been allowed to leave the country with her 4-year-old daughter, Zaina, since divorcing her Saudi husband a year ago. Vierra's cousin declined to comment to INSIDER.
Saudi Arabia's guardianship laws assign a male relative control over every woman. Though she is divorced, Vierra's husband is still her guardian, maintaining control over her ability to travel internationally or get a job.
Her cousin told The Times that Vierra tried to come back to Washington state to spend Christmas with her family, but her ex wouldn't allow it.
Vierra's case is somewhat unique in that she is a foreigner. Usually after a divorce, a Saudi woman's guardianship passes back to her father, or to her closest living male relative. It's possible that Vierra's ex remains her guardian because she has no Saudi male relative for her guardianship to pass to.
Even if Vierra were able to leave the country herself, either through permission from her ex or through petitioning the local courts, there's little hope that she'll ever be able to take her daughter with her because the girl's biological father will remain her guardian until she marries, and the Saudis don't recognize Zaina's dual citizenship.
Legal experts say there's little hope her daughter could get another guardian
While women can sometimes petition to get a new guardian, these situations are usually narrowly tailored to women whose male guardian has grown too old for the responsibility, according to Human Rights Watch.
In the vast majority of cases, a girl's father is her guardian at birth and the only time it transfers is when she marries, and even then her guardian must sign off on her suitor, according to HRW. If her husband dies before her, the woman's guardianship passes to another male relative.
Jeremy Morley, founder of an international family law practice in New York, told INSIDER it's highly unlikely Vierra could get a new guardian for her daughter Zaina.
She would have to show a "heavy burden of proof" that her ex is mentally ill, a criminal, or not fulfilling his guardian responsibilities — and even then Zaina's new guardian would just be another male member of her father's line, Morley said.
Zaina's dual citizenship won't help her, either. Though the girl was born in Saudi Arabia, her mother's American citizenship passed to her at birth. But the Saudi government doesn't recognize dual citizenship, so she'll get no special treatment if her mother finds out a way to leave and tries to take her with her, without the permission of the girl's father.
Furthermore, custody of Zaina will transfer to her father when she turns 7, under Sharia law, according to HRW.
Robert D. Arenstein, a New York-based lawyer who has tried over 400 international child custody cases, called the policy "very chauvinistic."
"Unless she can get out of Saudi Arabia in some way, which is not necessarily going to happen, I would tell her to try and stay with the child and get a lawyer that does Sharia law to help her out," Arenstein told INSIDER.
Saudi Arabia has made it somewhat easier for women to petition for custody of their children in the last year, not requiring them to file lawsuits and go through the court Saudi system like in the past. But Vierra would still have to apply for custody of Zaina.
When couples divorce in the US, state law determines the process for who gets custody of the children. If it's disputed, courts often decide based on the "best interests of the child."
The US probably can't help, either
Morley said Vierra can petition a court in her home state of Washington to take the custody case, but even then there's "no chance whatsoever that the Saudi courts will pay attention to an American ruling."
"She is in desperate trouble," he said. "She can ask for political help. That is all I can see beyond begging for mercy from her husband. Make promises to him that she will treat him in a certain way, or give him something else that he wants."
And if that fails, "she can possibly find a very dangerous way to be smuggled out of the country."
The State Department declined to weigh in on Vierra's case to the Times, citing privacy rules, but the department's deputy spokesman, Robert J. Palladino, did address the issue generally at a press briefing on Tuesday.
Palladino said that anytime an American travels overseas they're "subject to the laws of the country in which they travel," including Saudi Arabia where women require their guardian's permission to leave the country.
"We routinely encourage American citizens to make sure — to read — what we publish and to understand the laws of the countries to which they're visiting," Palladino said.
He added: "We engage with the Saudi government and all nations on [women and girls rights'] issues. It's something that we do routinely in our diplomacy. It's something that we continue to stand up for and something that is part of what we as the diplomatic corps do globally."