American Mom Stuck Fighting for Her Daughter in Saudi Arabia

From People Magazine, September 21, 2019

Bethany Vierra’s daily routine begins at sunrise, when she gets up to make pancakes or scrambled eggs for her young daughter, Zaina, a curly haired 4-year-old. It’s the familiar prelude to happy hours of coloring, reading inside their apartment and swimming in Riyadh, the Saudi Arabian capital.

But for Vierra — a Washington state native ensnared in a months-long custody battle for Zaina following an acrimonious split from her husband — each morning also begins a new day of dread.

At any moment, the 32-year-old yoga instructor could be made to surrender her daughter to the Saudi grandmother whom the little girl barely knows.

“Bethany and Zaina might never see each other again,” Kathi Vierra, Bethany’s mom, tells PEOPLE.

Kathi is frank when describing the case: “It’s gone on too long. It’s like that nightmare you keep having and you can’t get rid of.”

Divorced from Zaina’s father, a Saudi businessman, Bethany was recently judged too Western by a Saudi court to keep custody of her daughter. She was blamed for wearing her hair uncovered and for wearing a bikini while in the U.S., and the judge took issue with English — not Arabic — being Zaina’s first language, as a sign of her failure to assimilate. Bethany’s mother says that during the custody fight, Bethany’s ex also pointed to a Facebook photo of her doing a handstand and brought up the fact that she had attended Burning Man, which is reputed for its artistic and libertine atmosphere.

Still, Bethany’s ex-husband, 35-year-old Ghassan Alhaidari, did not receive custody either. Finding neither parent preferable, the judge instead ordered Zaina to be raised by her paternal grandmother — despite previous concerns from both Bethany and Alhaidari that the grandmother could be a damaging influence on the girl.

The judge cited the grandmother’s education and her high status. “Additionally,” he wrote, “the criticisms against [her] are not as strong as what was presented against the parents.”

The judge noted in his ruling that Alhaidari and his mother were living together but wrote that he did not expect that to continue, “knowing that it is in men’s nature not to stay at home and not honor/fulfill the parental role themselves.”

…..

More complicating still is that Bethany’s ex-husband is his mother’s own “guardian,” a State Department source says.

Bethany officially lost custody in July, but the court agreed that Zaina should remain with her during the appeal, the Vierra family says.

If the appeal goes against her, Bethany must relinquish Zaina to her former mother-in-law and seek permission in court to visit the child she has raised from infancy.

Although the judge cited Sharia (or Islamic) law in his multi-faceted ruling, Bethany does not cast fault on the country that is structured around conservative religious principles.

“Islamic law would protect my right as a mother and my daughter’s right to be in my care until she reaches the age of maturity,” Bethany says.

Nevertheless, in practice, Western women typically don’t retain custody of their children in Saudi Arabia, according to international family law expert Jeremy Morley. “I don’t know of any Western woman winning [full] custody of dual-national children in a Sharia court,” Morley says.

Even when she retains custody in Saudi Arabia, a Western mother does not have full rights regarding where her child lives. The State Department cautions that “in [a] Saudi Arabia divorce, Saudi courts rarely grant permission for the foreign parent to leave the country with the children born during the marriage, even if he or she has been granted physical custody.”

Brazil’s Interpretation of the One-Year Period under Article 12, Hague Abduction Convention

by Jeremy D. Morley

www.international-divorce.com 

Brazil has adopted an unusual interpretation of the one-year provision in Article 12 of the Hague Abduction Convention, which creates a significant trap for the unwary.

Article 12 of the Convention provides that if “the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State” where the child is located is more than one year from the date of the wrongful removal or retention, the authority concerned “shall order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”

Courts have generally concluded that the relevant period ends on the date that a judicial proceeding for the child’s return is commenced and that the mere filing of an application with a Central Authority does not “stop the clock” for this purpose, unless the specific administrative tribunal itself has jurisdiction to issue a return order. Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997); V.B.M. v. D.L.J. [2004] N.J. No. 321; 2004 NLCA 56; Re M. (Abduction: Acquiescence) [1996] 1 FLR 315; Perrin v. Perrin 1994 SC 45, 1995 SLT 81, 1993 SCLR 949; Plonit v. Ploni,  Israel Family Appeal 548/04.

However, the Brazilian Central Authority states that Brazilian courts hold that the time period is tolled as soon as an application is received by the Central Authority in Brazil.

In its response to the HCCH questionnaire concerning the practical operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Prel. Doc. No 2 of January 2017), the Brazilian Central Authority states that:

“The most impressive change on the Brazilian jurisprudence noticeable at least since 2013 is the consideration that the 1-year period of article 12 has its "ad quem" term not at the commencement of the judicial procedures, but at the moment that the file has been received at the Brazilian Central Authority. This scenario has a potential effect on reducing the number of cases where the allegation regarding the settlement of the child to his/her new environment is considered.”

The Brazilian claim that this will reduce the number of cases in which the issue is raised of whether or not a child is settled in its new environment is mistaken. Shortening the one-year period will obviously have exactly the opposite effect.

NOTES ON LAWS AND PRACTICES OF CHINA

By Jeremy D. Morley

www.international-divorce.com

Wǔxīng Hóngqí ("Five-starred Red Flag")

1.                  China does not comply with international norms concerning the return of internationally abducted children.

2.                   China has failed to adopt the Hague Abduction Convention and has failed to enter into any bilateral arrangement with the United States to return abducted children.

3.                  There can be no extradition from China for international child abduction, since there is no extradition treaty between the U.S. and China.

4.                  In most cases, a left-behind parent’s only potential remedy if a child is taken to and wrongfully retained in China is to search for the child him / herself, while seeking the assistance of the Chinese police, and then, if the child is successfully located, to initiate a new plenary case for custody of the Child in China. However, it is often relatively easy for abducting parents to conceal their location with a child in China for extensive periods of time. Child kidnapping is rampant in China.

5.                  The Chinese courts generally refuse to handle family cases concerning foreigners or concerning parties who are not registered as domiciled in China. 

6.                  The courts in China are not required to enforce foreign custody orders and they do not do so. There is no system in China to register foreign custody orders or enforce foreign custody orders. China has entered into treaties with some countries concerning the enforcement of commercial judgments, but they do not extend to family matters.

7.                  There is no law in China similar to the Uniform Child Custody Jurisdiction & Enforcement Act in the United States concerning the recognition of the continuing and exclusive jurisdiction of the courts of another country. The U.S. system whereby a court retains exclusive modification jurisdiction even after a child has become habitually resident in another country is alien to China.

8.                  Any court proceeding in China concerning custody of or access to an abducted child will likely be unpredictable and difficult.

9.                  China does not have any legal mechanism to apply for or issue urgent or emergency orders in family law cases.

10.              It is usual in China for the custody of a child to be awarded to one parent only.

11.              Visitation rights are extremely limited in China, typically being limited to a daytime visit once a month. There is no precedent for any equal sharing of custodial time or for the issuance of a detailed time-sharing arrangement that would provide for the non-residential parent to spend substantial periods of time with the child.

12.              It would be unprecedented for a Chinese court to order that a child should be relocated to a foreign country. Nor is there any realistic likelihood that a Chinese court would compel a Chinese parent to allow permit the Mother to have any visitation outside China.

13.              It is difficult to enforce child custody orders issued by a Chinese court. The enforcement procedures that exist in China can easily be thwarted, so that enforcement can easily be delayed for extended periods of time or permanently. It is a fundamental principle of Chinese law and culture that the state should not normally interfere in private family life.

14.              Judges in China are not independent. They are state employees responsible to the Chinese Communist Party. In 2017 the President of China’s Supreme People’s Court denounced judicial independence as a false Western idea and insisted that the Chinese judiciary is subordinate to the Chinese Communist Party.

15.              There is a high level of corruption in the Chinese legal system. The U.S. State Department reliably and authoritatively reports that in China, “[c]orruption often influenced court decisions, since safeguards against judicial corruption were vague and poorly enforced. Local governments appointed and paid local court judges and, as a result, often exerted influence over the rulings of those judges.”

16.              Courts in England and in Hong Kong have confirmed that foreign custody orders are unenforceable in China and that cross-border child abduction into China is without any meaningful remedy.

17.              If a parent abducts a child to China and retains the child in China, the left-behind parent will normally have grave difficulty in enforcing any rights concerning the child.

NOTES ON LEBANON AND CHILD ABDUCTION

by Jeremy D. Morley

Return of children abducted to or in Lebanon

• Jeremy Morley has testified as an expert witness with respect to the laws and practices of Lebanon in respect of international child abduction to Lebanon.
• There are extreme difficulties in returning a child to the United States from Lebanon when retained by a Lebanese parent.
  
• Lebanon is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
• There are no extradition treaties between Lebanon and the United States.
• Under Lebanese law, Lebanese nationals may prevent their wives and children (even if they are American citizens) from leaving Lebanon.
• Lebanon does not recognize international parental kidnapping as a crime.
• Issues of child custody and divorce in Lebanon are generally decided in religious courts under religious law. Thus, if the father is a Sunni Muslim and the mother is a Christian the custody of their children will normally be decided by a Sunni Muslim court.
• One might petition a civil court to handle a custody case instead of a religious court. The issue would be whether the religious court has jurisdiction. It could take up to two years to have the civil court assume jurisdiction and a minimum of four to five years to have the case decided.
• Among Sunni Muslims, the father has physical custody of a daughter over the age of nine and of a boy over the age of seven. For Shia Muslims the father generally has physical custody at for boys at age 2 and for girls at age 7.
• If a father establishes that the mother is unfit or lacking good moral character, she will lose any right to the child. Muslim law requires a child to be raised in the Muslim faith, and if it were proven that a mother tried to raise the child as a Christian, she could be found unfit.
• Lebanon does not recognize dual nationality. American/Lebanese dual nationals who carry Lebanese papers will be treated as Lebanese nationals by security authorities.
• A child who is a dual American and Lebanese citizen would be bound by Lebanese law in the eyes of the Lebanese civil courts.
• The U.S. State Department cannot offer any real assistance even if there were a United States court order directing the return of the child from Lebanon.

Lebanon & International Child Abduction

From the State Department's 2019 Report on International Child Abduction:

Lebanon demonstrated a pattern of noncompliance by persistently failing to work with the United States to resolve abduction cases in 2019.

Lebanon does not adhere to any protocols with respect to international parental child abduction. In 2004, the United States and Lebanon signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children.

In 2018, Lebanon demonstrated a pattern of noncompliance. Specifically, the competent authorities in Lebanon persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 50 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years and one month.

Lebanon was previously cited for demonstrating a pattern of noncompliance in the 2015 and 2016 Annual Reports.

Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Lebanese law, and parents face difficulties resolving custody disputes in local courts.

Enforcement: Judicial decisions in Lebanon were generally not enforced, which contributed to a pattern of noncompliance. There was one case (accounting for 33 percent of the unresolved cases) that has been pending for more than 12 months in which law enforcement has failed to enforce a return order.

INDIA: SAFE HAVEN FOR INTERNATIONAL PARENTAL CHILD ABDUCTION

Jeremy D. Morley
jmorley@international-divorce.com

I have long asserted that India is a safe haven for international child abduction. See, e.g. I have frequently provided expert evidence on this issue, including in cases in many U.S. states, as well as Canada and Australia.

In May 2019, the U.S. Department reported, in its Annual Report on International Child Abduction, that India does not adhere to any protocols with respect to international parental child abduction and has demonstrated “a pattern of noncompliance” within the meaning of the  International Child Abduction Prevention and Return Act. That legislation requires the Secretary of State to submit to Congress, within 90 day of its Annual Report, an “Action Report” that describes the specific actions that the State Department has taken against countries determined to have been engaged in a pattern of noncompliance.

In July 2019, the Department submitted its Action Report. Unfortunately, the purported “actions” that it has listed with respect to India are mere requests and a couple of diplomatic protests.

The Department describes the actions as follows:

• Throughout the year, officials at the highest levels of the Department engaged with the Government of India on the issue of international parental child abduction. Department officials pressed India to assist with resolving abduction cases and to accede to the Convention.
• In July 2018 and March 2019, the U.S. Embassy in New Delhi delivered diplomatic notes requesting India’s assistance in resolving existing abduction cases. Since February 2019, U.S. Embassy New Delhi has attended sessions of the Indian government’s Mediation Cell at the request of the Indian government to observe the processing of requests submitted to the Mediation Cell.
• In March 2019, the United States delivered a demarche and letter to the Indian government urging India’s accession to the Convention. The letter was signed by the U.S. Ambassador and 38 other Ambassadors or acting Chiefs of Mission representing like-minded countries.
• In May 2019, the Department hosted an IVLP delegation composed of Indian government officials and attorneys. The Department discussed the Convention with the participants, and provided an overview of abduction and prevention resources in the United States, including child-location assistance, attorney referrals, and two parent consent regulations. The participants came away with a clearer understanding of the Department’s views on IPCA, the Convention, and its importance.
• Upon release of the 2019 Annual Report, U.S. Embassy New Delhi delivered a demarche notifying the Indian government that the Department had cited India in the 2019 Annual Report for demonstrating a pattern of noncompliance and once again requesting India’s assistance with resolving existing cases.

The problems concerning India and international child abduction are not merely the fact that India has refused to sign the Hague Abduction Convention. The challenges include the following: The Indian jurisprudence in custody cases concerning internationally abducted children is both confused and confusing. 

• Court proceedings in India in such cases are generally exceedingly slow, unpredictable and difficult, and require the repeated personal presence of the left-behind parent over extended periods of time.
• The courts in India will not normally honor or enforce foreign child custody court orders.
• The courts in India assume custody jurisdiction over internationally abducted children and do not recognize the continuing and exclusive jurisdiction of foreign courts to handle matters concerning the custody of such children
• The courts in India do not issue mirror custody orders.

In my opinion, when the country in question is a well- recognized safe haven for international child abduction such as India, far less evidence that any specific parent is a potential international child abductor should be required in order to justify – and indeed require – a court to take effective steps to prevent a potential child abduction than if the country in question is a compliant party to the Hague Convention.

Preventing International Child Abduction in Divorce

My article, Preventing International Child Abduction in Divorce, which was originally published in the American Bar Associations's GPSolo Magazine, is now available here.