Washington Court Refuses to Enforce Saudi Child Custody Decree

"During the custody battle [in Saudi Arabia], Ghassan AlHaidari accused Bethany of gender mixing, adultery, and insulting Islam and Saudi Arabia. Gender mixing, a punishable crime, entails having a male friend. To prove the charge of adultery, Ghassan submitted a photograph of Bethany with a male, who Ghassan claimed to be her boyfriend. The crimes of adultery, insulting Islam, and insulting Saudi Arabia carry a death penalty in Saudi Arabia."

From yesterday's Washington Court of Appeals decision in In the Matter of the Marriage of AlHaidari, written by Chief Judge George Fearing and joined by Judges Robert Lawrence-Berrey and Rebecca Pennell (see the full opinion for more factual, procedural, and legal details):

Ghassan and Bethany AlHaidari married in Saudi Arabia in November 2013. Bethany is a United States citizen, and Ghassan is a citizen of Saudi Arabia. The couple begot ZA, in Saudi Arabia, in December 2014. ZA is a citizen of both the United States and Saudi Arabia….

In September 2017, Bethany AlHaidari asked Ghassan for a divorce. In Saudi Arabia, if Bethany filed for divorce, the law demanded that she provide a reason and return her dowry. Ghassan could file for divorce without making payment and without giving any reason. Ghassan refused the request for a divorce. Later, however, Ghassan contended that he had divorced Bethany in 2018.

Bethany AlHaidari's legal residence in Saudi Arabia depended on the cooperation of Ghassan because, as husband, he was her legal guardian. In 2018, Bethany requested that Ghassan update her residency status in Saudi Arabia, and he refused. He also refused to allow ZA and Bethany to visit Bethany's family in Washington State.

On February 7, 2019, Bethany AlHaidari's permission from the Saudi Arabia government to reside in the county expired. Bethany no longer held legal status in Saudi Arabia and, therefore, could not file proceedings in the Saudi court system. She also could not pay salaries for her company's employees, nor access her bank account for risk of being deported or jailed. The Saudi government provided her with legal residency status again after Bethany spoke to the media and the New York Times published her story.

In November 2018, Bethany filed for divorce. Bethany alleged Ghassan's substance abuse and domestic violence to be reasons for divorce. In January 2019, a Saudi Arabia judge granted the divorce and custody of ZA to Bethany AlHaidari.

The Chelan County Superior Court described the January 2019 Saudi divorce proceedings:

1.) Bethany struggled to communicate her position and defend herself because she had no legal counsel and the court appointed interpreter did not speak or understand basic English. 2.) Bethany was denied $26,000 in alimony because Ghassan claimed he "Islamicly divorced" Bethany in May of 2018 and swore under oath he was telling the truth, despite Bethany's testimony and text messages expressing his refusal to divorce her at that time. Bethany's testimony was not considered because she could not provide two male witnesses to support her testimony. 3.) Although Bethany wore a full body black covering that also covered her hair, she was ordered by the judge to leave the courtroom and only return if her entire face, including her eyes, was covered as well. This is particularly relevant because it demonstrates the impact of the accusations and photos Ghassan presented to the Saudi court later in the case in order to discredit Bethany.

… The parties thereafter engaged in a bitter custody battle in the Riyadh, Saudi Arabia court. Both sides tendered inflammatory accusations about the other in an attempt to discredit the other's ability to parent. Ghassan denunciated Bethany as being an unfit mother because she had a learning disability, worked full time, and placed ZA in school.

In April 2019, Ghassan AlHaidari posted a video on social media that showed an uncloaked Bethany practicing yoga in Riyadh's American diplomatic quarters. Ghassan also delivered a copy of the video to Saudi police. Police investigated Bethany for criminal charges of public indecency and disrupting public order, a criminal charge that could result in lashings and imprisonment.

In the ensuing custody hearing, Ghassan AlHaidari presented to the Saudi judge a photograph, taken in the United States, of Bethany in a bikini and the video of her practicing yoga. Ghassan also submitted a video of Bethany commenting, during a visit between ZA and her father, that it was "me time."

During the custody battle, Ghassan AlHaidari accused Bethany of gender mixing, adultery, and insulting Islam and Saudi Arabia. Gender mixing, a punishable crime, entails having a male friend. To prove the charge of adultery, Ghassan submitted a photograph of Bethany with a male, who Ghassan claimed to be her boyfriend. The crimes of adultery, insulting Islam, and insulting Saudi Arabia carry a death penalty in Saudi Arabia.

During the custody proceedings, Bethany AlHaidari asserted that Ghassan had agreed that ZA live with Bethany, but now acted from revenge rather than in furtherance of ZA's well-being. Bethany brought to court videos of verbal abuse and death threats from Ghassan and his drug use. The judge declined to view these videos.

Ghassan's sister, Leena AlHaidari, testified in court against her own mother, AlBandari AlMigren. Leena averred that her mother was abusive, unfit to parent, and addicted to pills.

In June 2019, Saudi Arabia Judge Abdul-Ellah ibn Mohammed Al-Tuwaijiri ruled that "'though all three candidates were unsuitable to parent, the grandmother was better than the parents.'"The court derided Bethany as a foreigner, who embraced western cultural traditions. The judge lamented that ZA spoke fluent English. According to Judge Tuwaijiri, ZA needed protection from Bethany's western culture and traditions. The Saudi court awarded custody to Ghassan's mother.

Bethany AlHaidari sought assistance from the media, the United States government, and human rights organizations. Meanwhile, Ghassan filed a complaint with the Saudi government alleging Bethany refused visitation. The Saudi government issued an arrest warrant for Bethany and a ten-year travel ban prohibiting her from leaving Saudi Arabia.

Bethany AlHaidari appealed the custody decision issued by Judge Tuwaijiri. An appellate judge ignored the appeal and transferred the case to the civil court to force a settlement. After one unsuccessful settlement conference, a Saudi head judge told the parties that he awarded no one custody and he was closing the case.

Under Saudi law, the lack of a court award of custody resulted in Ghassan AlHaidari, as ZA's father and guardian, retaining all parental rights. Bethany lacked any rights to visitation. The Saudi government barred her from travel with ZA, obtaining an identification document for ZA, taking ZA to the hospital, or enrolling her in school.

Bethany AlHaidari reconciled with Ghassan in order to convince him to reach a settlement affording her custody rights to ZA. Bethany negotiated for a right to travel in exchange for forfeiting all financial claims including child support. In November 2019, someone prepared a prospective agreement [related to property settlement, child support, and child custody] labeled as a "deed." The parties did not sign the deed, but the deed contains a court stamp and suggests that Judge Abdulelah Mohammed Altwaijri, at the Personal Status Court judge in Riyadh, approved the agreement….

In December of 2019, Bethany AlHaidari feigned reconciliation with Ghassan. Thereafter she received his permission to travel to the United States with ZA for a visit with her family in Wenatchee. She left Saudi Arabia with ZA.

Bethany AlHaidari has not returned to Saudi Arabia. Bethany admits dishonesty in her negotiations with Ghassan, but she testified that she agreed to the terms of the November 2019 deed under duress. She agreed to terms in the deed in order to maintain custody of her daughter and to leave Saudi Arabia. She refuses to return to Saudi Arabia or to return ZA to the nation.

Bethany sought child custody in Washington state court, and Ghassan responded that the Washington court should defer to the Saudi decision. Under Washington statute, Washington courts must normally defer to foreign courts' child custody decisions entered when the foreign courts had proper jurisdiction. But there are two potentially relevant exceptions:

[3] A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.

[4] A court of this state need not apply this chapter if the law of a foreign country holds that apostasy, or a sincerely held religious belief or practice, or homosexuality are punishable by death, and a parent or child may be at demonstrable risk of being subject to such laws. For the purposes of this subsection, "apostasy" means the abandonment or renunciation of a religious or political belief.

The appellate court concluded:

Ample evidence supports the superior court's ruling that Bethany AlHaidari faced a death sentence if she returned to Saudi Arabia because of both her religious and political beliefs. {Because of the word "renunciation," the parent need not have been a former believer of a religious belief.} Saudi legal experts and Bethany testified to her danger on any return…. In his brief, Ghassan does not dispute that Bethany could garner the death sentence on her return to Saudi Arabia.

The appellate court also decided that the 2019 agreement was unenforceable:

Without citing any law, Ghassan AlHaidari complains that the superior court refused to enforce the November 2019 deed. Ghassan also assigns no error to the trial court's finding that Bethany signed the deed under duress. A contract is voidable when signed under duress.

The appellate court also noted some further findings of the trial court, though the appellate court's conclusion as to the other matters meant that it didn't have to discuss those findings further:

In its letter ruling, the superior court reviewed the qualifications of Bethany AlHaidari's experts Hala AlDosari and Abdullah S. Alaoudh and found that both possessed sufficient knowledge, skill, experience, training, and education concerning child custody law in Saudi Arabia. The court observed that Ghassan AlHaidari's expert, Abdulaziz Alkhorayef, practiced law in Saudi Arabia and would risk his profession and personal standing to speak against Saudi Arabia's justice system, given the treatment of Saudi Arabian dissidents by the Saudi government. Furthermore, his testimony contradicted the written court records issued by the Saudi court in the parties' case.

The superior court agreed with Bethany AlHaidari, based on the Saudi Arabia court records, that the Saudi judge afforded Bethany no credibility simply because she was female….

In the February 2021 letter ruling, the trial court found that Saudi Arabia law denies women, non-Muslims, and non-Saudi citizens' due process. The Saudi Arabia court denied Bethany due process because the judge did not treat Bethany equal to Ghassan. The court reasoned that due process constituted a fundamental human right.

Bethany AlHaidari is represented by Marten Neraas King, Harry H. Schneider Jr., and Kathleen M. O'Sullivan (Perkins Coie LLP).