The Volokh Conspiracy
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Westlaw just posted this very interesting decision in H.L.K. v. F.A.A.; it was handed down by a Pennsylvania family court on Oct. 22, 2014, but wasn't made available on Westlaw until yesterday. Note that the appellate court affirmed the family court's holding, but it didn't reach the public policy analysis: "Because we conclude that the family court did not abuse its discretion in declining to register the foreign custody order pursuant to Section 5445(d)(1), we need not decide whether the Saudi court's order is contrary to public policy."
Plaintiff, HLK (hereinafter, "Mother"), and Defendant, FAA (hereinafter, "Father"), formerly husband and wife, are the parents of [an 18-year-old son and 14- and 13-year-old daughters]. Mother is a citizen of the United States and Father is a citizen of Saudi Arabia. Mother met Father in Allegheny County when she was 15 years old. The parties married in Allegheny County in 1994 when Mother was 18 years old.
At the end of 1994, the parties moved to Saudi Arabia. Thereafter, the parties' three children were born. All three children are dual citizens of the United States and Saudi Arabia. At some point in the parties' relationship, Mother converted to Islam and all three children were raised in the Islamic faith in Saudi Arabia.
In 2008, Mother moved back to Allegheny County and filed for divorce in Allegheny County in 2009. However, before a divorce decree was entered, she moved back to Saudi Arabia and continued her marriage to Father until October, 2012, at which point Mother and Father finally divorced. Immediately following the divorce, Mother believed she was required to leave Saudi Arabia because she was no longer sponsored by Father to remain legally in the country. She returned alone to Allegheny County on October 5, 2012. At that time, due to "guardianship" laws in Saudi Arabia, Mother was unable to return to Allegheny County with the children without Father's permission.
In June of 2013, Father permitted the children to visit Mother in Allegheny County. Initially, the parties' intent was for the children to visit Mother during the summer months and to return to Saudi Arabia to attend school in the fall. At some point in August of 2013, the parties' daughters allegedly informed Mother of their desire to remain with her in the United States. On August 7, 2013, Mother … presented a Complaint for Confirmation of Custody/Complaint for Custody in Allegheny County, requesting custody of all three children …. Upon Father falling to appear, this Court Issued an Order dated August 7, 2013, confirming Mother's primary custody of the three children. On August 18, 2013, the parties' son [the eldest child] returned to Saudi Arabia. The parties' two daughters, however, remained with Mother and Mother enrolled them in school in the Mount Lebanon School District in Allegheny County for the 2013 school year. [The custody of the son, who is now 18 and living in Saudi Arabia, is no longer at issue. -EV] …
[Procedural details omitted. -EV] On April 17, 2014, Father initiated custody proceedings in Saudi Arabia…. On July 17, 2014, a Saudi Arabian court issued a custody order that granted Father sole custody of the parties' children. On July 25, 2014, Father filed a request to have the Saudi custody order registered in Allegheny County….[Much of the rest of the substantive discussion omitted; I focus here on the question whether there were public policy reasons for the court not to recognize and apply the Saudi custody order. -EV]
Under Section 5445(d), a Court shall decline to register a foreign custody order if the person contesting registration establishes that:
(1) the issuing court did not have jurisdiction under Subchapter B (relating to jurisdiction);
(2) the child custody determination sought to be registered has been vacated, stayed or modified by a court having jurisdiction to do so under Subchapter B; or
(3) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of section 5408 (relating to notice to persons outside Commonwealth), In the proceedings before the court that Issued the order for which registration is sought.
Here, the Saudi Order is not entitled to registration because Saudi Arabia did not have jurisdiction to enter the initial child custody determination when Father initiated proceedings there on April 17, 2014.
Assuming arguendo that Saudi Arabia did have jurisdiction to make the initial child custody determination, this Court still declines entry of the Order in Allegheny County under principles of comity, as said Order violates Pennsylvania public policy. A cursory review of the Saudi Order … reflects that the basis for awarding sole custody to Father is inconsistent with Pennsylvania public policy. In pertinent part, the Saudi Order reads as follows:
In his fourth issue, Father argues that the family court erred in exercising jurisdiction over Mother's second custody complaint filed on May 23, 2014, when Father's custody action in Saudi Arabia, filed on April 17, 2014, was pending, of which Mother was served with notice on May 20, 2014. The following provision of the UCCJEA is applicable.
First, (t)he non-Muslim shall not have fight of custody of a Muslim, the scholars emphatically supported this, Ibn Al Qayem stated in Zad (5/410) 'The custodian's care is that a child be grown up and educated on his religion of Islam, and after maturity is so difficult for him/her to leave it.'
Second, (t)he Companions view thatthe custody of each girl who attains the seventh year of age is with her father, Al Insaf stated (24/490): 'if a girl completes the seventh year of age she should stay with her father,' Al Bahouti stated in Al Kashaf (5/502): 'the custody of a girl who attains the seventh year or more of age is with her father till puberty.'
Third, (o)n the Shariah basisif either parent desires to live in a remote country, priority for child custody shall go to the father, whether the traveler is the father or mother, as stated by Al Merdawi In Al Insaf (24/480).
Fourth, (t)he female after attaining seventh year of age shall have no choice and she should stay with her father till marriage, providing the custody aim is to protect her, and the father is often more careful in protecting his daughter which is why she is engaged through him. Therefore she should remain under his care for her own safety to guard her against any immoral acts.
Fifth, in custody, the benefit of the person under custody has priority for issuing ruling in custody disputes. The two girls were born in the Kingdom of Saudi Arabia, and it Is priority for them to stay in the Kingdom of Saudi Arabia rather than any other country, in particular their brother … is living with their father, the plaintiff for the whole family to live under the same roof.
On all the above mentioned, I have issued the ruling that the custody of the two girls … shall be with the plaintiff.
See Kingdom of Saudi Arabia, Ministry of Justice, Order of Court dated July 17, 2014, at pp. 5-6 (emphasis added) (errors in original). These provisions, which appear to be the basis for the Saudi Court's award of sole custody to Father ("On all of the above mentioned …"), clearly do not reflect public policy in Pennsylvania. Therefore, even if Saudi Arabia did have jurisdiction in this custody matter, this Court declines to register the July 17, 2014 Order of Court under principles of comity.
[Footnote: Some of our sister states have declined to defer to certain countries and/or register custody orders similar to the Saudi Arabia Order sub judice under principles of comity. See e.g., Ali v. Ali, 652 A.2d 253, 260 (N.J. Super. 1994) (refusing to recognize and enforce a Gaza Court custody decree based in Islamic/Sharia law); Tataragasi v. Tataragasi, 477 S.E.2d 239, 246 (N.C. App. 1996)(finding Turkish/Islamic law not in conformity with North Carolina law in custody proceeding); Amin v. Bakhaty, 812 So.2d 12, 23 (La. App. 1 Cir. 2001) (declining to extend comity toward the Egyptian/Islamic legal system in custody proceeding); Charara v. Yatim, 937 N.E.2d 490, 497-99 (Mass. App. Ct. 2010) (child custody determination by the Lebanese Jaafarite Court was not decided under law in substantial conformity with Massachusetts law governing child custody cases, and thus was not entitled to comity).]
Seems right to me. I think U.S. courts should indeed sometimes accept as given the judgments of foreign family courts, including judgments that are based on rules that we view as improperly discriminatory. If two Saudis (call them Hamid and Wafa) get divorced in Saudi Arabia, and one of them (Hamid) comes to the United States some years later, U.S. courts ought to accept the Saudi divorce decree, and (generally speaking) the Saudi child custody decree.
Say that Wafa goes to a U.S. court and argues that Hamid's remarriage to his new wife Nora is invalid, because Hamid and Wafa's divorce was entered pursuant to a sex-discriminatory Saudi rule, and should thus be rejected—or that Wafa should get custody of her children, whom Hamid and Nora have been raising for the past five years, because the child custody order was sex-discriminatory (or discriminatory based on religion). I don't think U.S. courts should upset the family structure that, rightly or wrongly, was decided on by Saudi courts as to Saudi citizens and that has endured for years since then.
But when one of the spouses is a U.S. citizen, the children are U.S. citizens (as well as Saudi citizens), and the children have been living in the United States, American constitutional and public policy guarantees come into play much more strongly. In such a situation, a Pennsylvania court ought not let the mother's legal rights yield to a Saudi decree that is so sharply inconsistent with Pennsylvania public policy.
UPDATE: Several readers asked why this case isn't governed by the Hague Convention on the Civil Aspects of International Child Abduction. I am not an expert on the Hague Convention, but I suspect that the reason neither it nor the International Child Abduction Remedies Act (the federal statute that implements the Convention) were discussed in the Pennsylvania opinions is that Saudi Arabia isn't a signatory to the Convention, and the Convention applies only to children who are habitually resident in signatory states. So either the children were habitually resident in the U.S., in which case I assume the Convention wouldn't require their return—or they were habitually resident in Saudi Arabia, in which case the Convention wouldn't apply to them.