Foreign Law in American Courts

Iranian Custody Decree Given Effect by a Colorado Court

Under Colorado law, the decree stripped a juvenile court of the jurisdiction over an attempt to terminate the parents' parental rights.

|The Volokh Conspiracy |


From In the Interest of A.B.A., decided yesterday by the Colorado Court of Appeals, in an opinion by Judge Neeti Vasant Pawar, joined by Judges John Dailey and James Casebolt, the facts:

Mother, S.T-K., and father, M.B., appeal the juvenile court's judgment terminating their parent-child relationships with their son, A.B-A. [But] under the Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA) [a Colorado statute]. the juvenile court lacked subject matter jurisdiction to terminate parental rights based on an existing child custody order in Iran….

Mother, father, and the child are citizens of Iran. The parents divorced in Iran in 2009, when the child was six years old. Custody of the child remained with mother pursuant to a court order.

Mother moved to California in 2011. The child remained in Iran, where his maternal grandmother and father cared for him at different times between 2011 and 2015. The child joined mother in California in 2015.

Mother and the child moved to Colorado in August 2016. The following month, mother suffered a mental health crisis and entered a mental health facility on an involuntary hold. Consequently, the Department took the child into protective custody. The Department filed a petition in dependency or neglect in October 2016. The juvenile court entered a deferred adjudication as to mother and later adjudicated the child dependent and neglected as to mother.

Father was in Iran at all times during the proceeding. In July 2017, the Department moved to serve him by publication because it had been unable to contact him. The juvenile court granted the motion, and the Department published a summons in an Adams County-area newspaper. Shortly thereafter, the juvenile court entered a default adjudication as to father.

The Department moved to terminate parental rights in December 2017. In April 2018, the day before the scheduled termination hearing, father contacted the family's caseworker. He said he had just learned of the case and wanted the child returned to him. Father continued to telephone the caseworker over the next month. Even so, in May 2018, the juvenile court terminated both parents' parental rights.

Some statutory background:

Dependency and neglect proceedings must comply with the UCCJEA. The UCCJEA establishes a comprehensive framework that a Colorado court must use to determine whether it may exercise jurisdiction in a child custody matter or whether it must defer to a court of another state [or, generally speaking, another country]….

The UCCJEA aims to avoid jurisdictional competition over child custody matters in an increasingly mobile society. To that end, the UCCJEA [generally] provides that the foreign court that issued a child custody order retains exclusive, continuing jurisdiction over the determination….

Notwithstanding a prior, enforceable foreign child custody order, however, a Colorado court may exercise temporary emergency jurisdiction to protect a child who is present in Colorado from mistreatment, abuse, or abandonment. But this temporary emergency jurisdiction under the UCCJEA is limited in scope and in time. Importantly, a Colorado court exercising temporary emergency jurisdiction may not enter a permanent custody disposition…. And the Colorado order remains in effect only until the foreign court enters an order or the period expires, whichever occurs earlier.

The court concluded that, under the Colorado UCCJEA, the presence of the Iranian child custody order stripped the Colorado court of jurisdiction to terminate parental rights; and the court held that the "human rights exception" to the UCCJEA doesn't apply:

The UCCJEA does not require enforcement of a foreign child custody order if the child custody law of the foreign country violates fundamental principles of human rights.

The UCCJEA does not define the phrase "fundamental principles of human rights," and the comment accompanying section 14-13-104 expressly "takes no position on what laws relating to child custody would violate fundamental freedoms." "While the provision is a traditional one in international agreements, it is invoked only in the most egregious cases." applying section 14-13-104, "the court's scrutiny should be on the child custody law of the foreign country and not on other aspects of the other legal system."

The comment notes that Section 20 of the Hague Convention on the Civil Aspects of International Child Abduction contains a similar provision. Courts interpreting the UCCJEA's "escape clause"—as the human rights exception is commonly known—have looked to that provision for guidance. Construing Section 20, the United States Department of State has explained that a country may invoke the human rights exception "on the rare occasion that [to do otherwise] would utterly shock the conscience of the court or offend all notions of due process." The exception "was intended to be restrictively interpreted and applied, and … not to be used, for example, as a vehicle for litigating custody on the merits or for passing judgment on the political system of [another] country." …

The Department argues that Iran's child custody law violates fundamental principles of human rights because it does not require an evaluation of the child's best interests or ensure that mothers are afforded an equal opportunity to parent their children. In particular, the Department alleges in its answer brief that Iranian child custody law includes the following features:

  • Fathers are considered the head of the family and have legal custody of children even when mothers have physical custody.
  • Fathers exercise direct control over their children's movement, including change of residence, choice of employment, travel abroad, and obtaining a driver's license or passport.
  • Custody of a child automatically transfers to the father when the child turns seven years old unless the father is found legally unfit to care for the child.
  • A Muslim mother who converts to a different religion will lose custody of her child.

… [But] the Department does not identify any record evidence or include any legal citation to support its characterization of Iranian child custody law. We are unwilling to say that Iranian child custody law violates fundamental principles of human rights based on nothing more than the Department's unsupported claims. Because the record does not establish that the escape clause applies, we conclude that the juvenile court was required to recognize the Iranian child custody order.

In so concluding, we also note that nothing about the Iranian child custody order in this case suggests a violation of fundamental principles of human rights. Most of the Department's escape clause arguments center around an alleged gender preference given to fathers in Iranian child custody determinations. (Again, these are arguments made without citation to Iranian law.) But the Iranian child custody order in this case does not enforce a gender presumption. Instead, the Iranian court's dissolution order granted full custody to mother:

"The permanent custody of the common son named [A.B-A.], 6 years old, is by [mother] and [father] waived from himself the right of custody. [Child support] of the son is 1000000 Rls. per month and should be paid by [father] to [mother]."

As to the assertion that Iranian child custody law deprives non-Muslim mothers of custody rights, the Department does not suggest that mother was in danger of losing custody based on her religious practice. And under the circumstances of this case, in which the juvenile court has already purported to terminate mother's parental rights on different grounds, we perceive no potential prejudice to mother.

To support application of the escape clause in this case, the Department relies heavily on the decision in Amin v. Bakhaty (La. 2001), in which the Louisiana Supreme Court considered whether to cede jurisdiction to an Egyptian court under the UCCJEA's predecessor, the UCCJA. The Department points to similarities between the child custody law of Egypt and Iran—again, without citation to legal authority. The analogy to Amin fails for three reasons.

First, the court in Amin reviewed whether a Louisiana trial court had discretion to exercise jurisdiction to enter an initial child custody order—not whether the trial court had jurisdiction to modify a prior custody order.

Second, the Amin court determined that it could exercise jurisdiction because doing so served the best interests of the subject child. But the UCCJEA no longer allows courts to exercise jurisdiction on this basis. An official comment to section 14-13-201 states that the "best interest" language of the UCCJA was eliminated because it "tended to create confusion between the jurisdictional issue and the substantive custody determination."

Third, the Amin court did not consider, as we must, whether the foreign country's child custody law violated fundamental principles of human rights. Amin is therefore unhelpful in determining whether the escape clause applies here.

For these reasons, we conclude that the human rights exception did not permit the juvenile court to disregard the Iranian child custody order in this case….

According to the Department, because the United States has no diplomatic relations with Iran, the juvenile court could not have conferred with an Iranian court…. [But] Section 14-13-104 expressly provides two exceptions to the rule that Colorado courts must treat a foreign country as if it were a state of the United States for purposes of determining jurisdiction under the UCCJEA. The exceptions do not include an exemption for a foreign country that has no diplomatic relations with the United States. We will not read such an exception into the statute….

Nor does the lack of diplomatic relations make it impossible for the juvenile court to attempt to fulfill this duty in this case. The record does not support the Department's assertion that the juvenile court had no means of contacting the Iranian court. Instead, the record shows only that the juvenile court did not recognize its duty to confer and, as a result, made no effort to do so. The Department's speculation that such efforts would have failed is just that: speculation. Such speculation provides no basis to conclude that the court's error was harmless.

In the end, because the juvenile court lacked subject matter jurisdiction to terminate either parent's parental rights, we vacate the judgment of termination.

The court also concluded that "the juvenile court erred when it granted the Department's motion to serve him by publication in Adams County knowing that he was in Iran":

The Department submitted an affidavit in support of the motion for publication. The affidavit averred that it "state[d] in detail all of the efforts made by [the Department] to procure personal service" on father. But it did not describe any efforts to locate father or make contact with him. Instead, the affidavit stated that father was in Iran, the caseworker was unable to contact him or his family, and the caseworker knew of no source of information to assist the Department in providing personal service. The affidavit also stated, in conclusory fashion, that the Department had exercised due diligence in attempting to locate father.

Further, while mother could presumably have provided the address at which she and father had previously resided together, the affidavit stated that father's last known address was unknown. And, although plainly incorrect, the affidavit stated that the actual identity of the child's biological father was unknown….

[T]he evidence [thus] indicated that father was in Iran, but it did not establish whether the Department had attempted to provide personal service by any means that would likely result in father receiving actual notice. [Further details omitted.-EV]