Friday, March 29, 2019
Lehn v. Al-Thanayyan: Expert Testimony, Jeremy Morley, Child Abduction, Kuwait
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.”