N.Y. Court Refuses to Order Yemeni Father to Return Children to U.S.

The children have lived in Yemen long enough that it is now their "home state" for N.Y. family law purposes.

|The Volokh Conspiracy |

In Karimah K. v. Bassim A., decided by New York trial court judge Javier E. Vargas last week, the parents were born in and married in Yemen, and lived there from 2002 to 2005. They then apparently came to the U.S., but only the mother became a U.S. citizen. They have four daughters; the opinion is silent on the daughters' citizenship.

In 2016, the family went to Yemen for family religious holiday celebrations.

Although [mother] was expecting to return with the Children for the start of school in September 2016, Father allegedly made a unilateral decision for the family to remain in Yemen. That was apparently the preamble of the Father's controlling behavior and physical and verbal abuse that she allegedly endured throughout the marriage.

According to Mother, Father's behavior prompted her to leave the marital home in Sanaa, Yemen, without the Children in November 2018, in order to reside with her brother in a distant Yemeni city. Upon learning that Father married a second wife and because of his threats, Mother indicates that she never returned to the marital home.

Instead, the Mother later traveled to the United States to be with her parents in New York in April 2019, again leaving the Children behind. Although she claims to be in frequent telephonic and electronic contact with them, the Children have resided in Yemen with the Father since 2016. The Children live in Sanaa with the Father, paternal grandparents and an aunt in a home with a swimming pool, attend the same school together and engage in extracurricular sports activities. Mother claims that Father works at a delicatessen located in Jamaica, New York, frequently travels for business purposes from Yemen to New York, and has other business ventures in New York….

[Mother seeks] an order:

(1) directing the Father to make travel arrangements on behalf of the Children to enable them to come to New York;

(2) commanding him to surrender his and the Children's passport and other travel documents to the Court;

(3) requiring Father to remain in the jurisdiction of this Court during the pendency of the proceedings;

(4) granting Mother temporary legal and physical custody of the subject Children; and

(5) prohibiting Father or anyone else under his direction or control to arrange any marriages for any of the subject Children during the pendency of this action….

Mother—who appeared in Court fully-covered in a Burqa—also filed a Family Offense Petition against the Father seeking an Order of Protection on behalf of herself and the Children, reporting that she had fled Yemen due to domestic violence and repeated acts of sexual and physical abuse committed against her by Father. In her papers, the Mother specifically denied in three separate paragraphs the existence of "any order of legal or physical custody of the Children" or "any order, mandate, judgment or decree of any court of competent jurisdiction" involving the Children [but later, faced with Yemeni divorce documents, Mother finally acknowledged their existence -EV]….

[Father argues] that the New York Family Court lacks subject matter jurisdiction under the Uniform Child Custody Jurisdiction & Enforcement Act ("UCCJEA") [as enacted by the New York Legislature], because the Children have undisputedly resided with him in Yemen for the last three years pursuant to Mother's consent….

Mother maintains that she and the Children remained in Yemen "not by choice but by circumstance, as she had no means of travel," fears the Father's retaliation and political connections with the Houthi government, and reiterates that Father engaged in physical and verbal abuse against her…. Mother argues that Yemen cannot be considered the Children's home state based on the circumstances of their stay there, that the parents and the Children have significant connections and "substantial evidence in New York." …

The UCCJEA governs a New York State court's jurisdiction in international custody and visitation matters. New York courts have jurisdiction to make an initial custody determination if New York is the child's "home state." Under the UCCJEA, "home state" is defined as "the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." Pursuant to DRL § 75-d, a court of this state shall treat a foreign country as if it were a state of the United States).

[Father must prevail] as Yemen is the Children's home state…. [T]he Children have resided in Yemen with Father for several years prior to [Mother's] commencement of these custody proceedings in New York. Although Mother would have a basis to argue subject matter jurisdiction if she and the Father were New York residents, even though the Children live abroad, the record reflects that no proof of Father's New York residency has been submitted to the Court. New York is not the Children's home state.

In contradiction to Mother's statements, Father presents Divorce Documents issued by the Ministry of Justice Court in Yemen granting him sole custody all four Children, the two older girls as per Yemeni law and the two younger girls upon Mother's consent. The Divorce Documents show that they were signed by Mother and Father while witnessed by four individuals. Now, Mother belatedly argues that, even if she signed the Documents, it was under duress or fraud by armed individuals {"carrying firearms, in addition to traditional Yemeni knives"}, and that she was not aware that she was giving up custody of her Children. Even if the Court were to concede that the circumstances involving Mother's signing of the Divorce Documents were suspect, this by no means affects the jurisdictional question of Family Court….

"Home state jurisdiction is paramount and whether to accept jurisdiction is a home state prerogative." Mother contends that Yemen should not be considered a "home state" or a viable jurisdictional alternative since the child custody laws of that country, as written or applied, violate fundamental principles of human rights. She further contends that Yemeni laws regarding women's rights and domestic violence are also on par with human rights violations. With the ensuing civil conflict, including bombing campaigns, Mother argues that access to whatever legal system exists has been even further curtailed. Moreover, she maintains that the situation in Yemen is dangerous and not safe for her Children.

Here, it is apparent that Yemen is in the process of undergoing a Civil War, and that more than likely Yemeni laws regarding domestic violence, child custody, and basic human rights do not conform to our current expectations in the State of New York…. [But r]egardless of whether one agrees with the values and practices prevalent in various cultures across the globe, this Court is not jurisdictionally empowered to make a broad public policy finding that Yemeni laws violate the fundamental principles of human rights and should thus not be considered a viable jurisdictional alternative or a "home state."

In any event, it is clear from this record that Father did not abscond with the Children to Yemen, but that the parties traveled to Yemen as a family. Mother has provided no proof that her stay in Yemen was supposed to be temporary or that she was unaware of the U.S. Department of State's Alerts & Warnings applicable to those traveling to Yemen. {"U.S. citizen women who are married to Yemeni or Yemeni-American men should be aware that their children may not be able to depart if the children are brought to Yemen. In many instances, women must obtain permission from their husbands to obtain an exit visa. They also may not be able to take their children out of Yemen without the permission of the father, regardless of who has legal custody."}

Additionally, Mother did not leave the Yemeni marital home until November 2018, which is more than two years after the couple's departure from New York. The fact remains that she left her Children behind…. According to the Divorce Documents, Father returned Mother's passport, social security card and her clothes. It also states that Father handed over Mother's dowry in the amount of $10,000 and all of her rights as required by him. Despite Mother's concerns about the validity of the Divorce Documents, it is evident that Mother immediately traveled to the United States leaving her Children behind in Yemen….

Furthermore, there is no indication from the record presented that the Father has harmed the Children. While Yemen presents itself as a dangerous place to raise the Children due to the Civil War and conflict, and Mother is concerned that the oldest girls may be forced to marry in the immediate future, presumably in accordance with the local custom, there appears to be no imminent risk of harm to them. One can only be optimistic that Father will consider his daughters' best interests in deciding whether to return with them to the United States or in making any other decisions regarding their future. As such, this Court also declines to exercise temporary emergency jurisdiction….

NEXT: Today in Supreme Court History: February 11, 1803

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  1. “N.Y. Court Refuses to Order Yemeni Father to Return Children to U.S.”

    That’s a little harsh dontcha think?

    The court based its decision on established NY law and the facts of the case.

    It didn’t “refuse” anything.

    1. It certainly did refuse to do something. Courts refuse to do a lot of things. The verb “refuse” is perfectly cromulent.

      What verb would you use instead?

      1. An experienced editor might have used “declines.”

        “Refuses” is a good choice, though, if the aim is sensationalism.

        1. It’s a cold day in hell, but I agree with rev.

          1. Don’t disagree with the proprietor, mad_kalak. He might put you on his censorship list.

    2. “Future Terrorists Prevented from Immigrating.”
      There, headline fixed.

      1. These are your peeps, Prof. Volokh.

        Still wondering why strong law schools aren’t much interested in hiring more movement conservatives?

  2. According to the decision, the court granted the father’s request and denied the mother’s petition.

    The court did not refuse anything.

    1. Your first sentence refutes your second.

      1. OT, but the misuse of “refute” is one of my pet peeves.

        It means “conclusively disprove,” not “dispute” or “disagree with”.

        You, of course, used the word correctly. Many thanks.

    2. Definitions of “deny” include “To decline to grant or allow; refuse.”
      Definitions of “refuse” include “To not allow someone to have or do (something); deny”

      In other words, they are synonyms. So, yes, the court did refuse the mother’s petition.

    3. You continue to refuse to explain why refuse is not applicable.

      See how that verb works?

  3. While the court’s point about jurisdiction is well taken, it does seem odd that the prospect of forced marriage does not constitute a “risk of harm”. Forced marriage is, among other things, rape.

    1. It doesn’t appear the risk of forced marriage is imminent and may be speculative.

      1. “may be speculative”

        Not in Yemen.

      2. Is there enough time between when such a marriage is “speculative” and “imminent” as to prevent it from happening?

  4. [quote]Mother—[b]who appeared in Court fully-covered in a Burqa[/b]—also filed a Family Offense Petition against the Father seeking an Order of Protection on behalf of herself and the Children, reporting that she had fled Yemen due to domestic violence and repeated acts of sexual and physical abuse committed against her by Father. [/quote]

    What does the Burqa have to do with anything?

    1. My guess is that the court is demonstrating that the mother appears to be fully accepting of the same cultural norms to which she is arguing are human rights violations.

      1. If the court had in fact said that it believes that women who wear burkas thereby “demonstrate” that they accept rape, it ought to be reversed in a heartbeat.

        But it said no such thing.

        1. Of course it would be unacceptable for the judge to come right out and say that, which is why judges sprinkle in little irrelevant facts like these in an opinion so that the reader can read between the lines and the judge can maintain plausible deniability.

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