In today's mobile society, it's increasingly common for people to marry someone from another country and to move back and forth between that country and the United States. If the couple divorce and they have children, many conflicts can arise. Which country's law should govern who gets custody of the children? Is it the wife's country? The husband's country? The country where they lived during most of their marriage? The country where one or the other of them moved after their separation?
This is the context for most of the child custody cases involving Muslims that American courts have dealt with. Many, though not all, of the cases involve a woman who moved to the U.S. with the child(ren) after the separation, having previously lived in a Muslim country. Often the woman initiates divorce proceedings in an American court while the man initiates divorce proceedings in the courts of his own country. Should the American court recognize and uphold the decision of the Muslim country's court?
Case law in this area is decidely mixed. So far I've found six cases. In two of them the American court upheld the decision of the Muslim country's court. In another two, the American court rejected the decision of the Muslim country's court. And in the remaining two, an appellate court instructed a trial court to examine whether or not to uphold the decision of the Muslim country's court.
The governing law in all cases is the Uniform Child Custody Jurisdiction Act (UCCJA), which had been enacted by all the states in question. The UCCJA deals with interstate rather than international jurisdictional issues. In applying it to international custody disputes, the courts have recognized the decisions of foreign courts only when they feel that the decisions are not contrary to public policy in their states.
It's the "not contrary to public policy" part that causes the most problems for Muslims. In all six cases, the question that the court had to answer was whether the Muslim country's court considered the best interests of the child in its custody decision.
As I showed in the first entry on this topic, Islamic law does in fact hold the best interests of the child to be central. This may or may not be true of the actual laws in a Muslim country, which are not necessarily in accord with Islam. I haven't researched the Muslim countries' laws that were at issue in any of these cases, so I can't speak to whether they are just or not.
The two cases that appellate courts remanded to the trial courts for further proceedings are Ivaldi v. Ivaldi, 147 N.J. 190 (1996), and In re the custody of R, 88 Wn. App. 746 (1997). Ivaldi dealt with the courts of Morocco while In re R dealt with the courts of the Philippines.
The two cases in which the decision of the Muslim country's court was rejected are Ali v. Ali, 279 N.J. Super. 154 (1994), and Amin v. Bakhaty, 798 So. 2d 75 (2001). Ali deals with the courts of Gaza, Palestine. The New Jersey Superior Court said:
This court has no knowledge as to whether the Sharia court made specific findings as to what was in Nader's "best interests." However, it is revealing that the defendant submitted proof in support of his request for comity which indicates that under Muslim law, a father is automatically entitled to custody when a boy is seven; the mother can apply to prolong custody until the boy is nine, however, at that time, the father or the paternal grandfather are irrebuttably entitled to custody. Such presumptions in law cannot be said by any stretch of the imagination to comport with the law of New Jersey whereby custody determinations are made based upon the "best interests" of the child and not some mechanical formula.
Ali, supra at 167 (citations omitted).
Amin deals with the courts of Egypt. The Supreme Court of Louisiana based its decision on the following description of Egyptian law:
According to Dr. Bakhaty's expert, Ms. Aby, Egypt follows Islamic family law, which structures some of the rights between family members based solely on gender. Under the Egyptian concept of "guardianship," the father has the absolute right to the guardianship and the physical custody of the minor child. While physical custody of a young child would generally be with the mother, guardianship or right of control always stays with the father. After a divorce, the mother's physical custody of the child will generally only be allowed if the father with guardianship lives nearby and could continue to exercise control, including the right to choose the habitual residence of the child.
Amin, supra at 85.
I want to stress here that I do not know if these representations of the laws of Gaza and Egypt are accurate. The use of the word "automatically entitled" in Ali and the phrase "based solely on" in Amin imply that the courts of Gaza and Egypt do not make any inquiry into whether the father is of good moral quality (as Islamic law demands) nor consider any other factors. Is this true? Or do the courts of Gaza and Egypt follow principles that generally give preference to a certain parent as being in the best interests of the child? There's a big difference.
That's illustrated in the last set of cases, in which American courts upheld the decisions of Muslim countries' courts. The two cases are Malak v. Malak, 182 Cal. App. 3d 1018 (1986), and Hosain v. Malik, 108 Md. App. 284 (1996). Malak deals with the courts of Lebanon. At the trial, a summary of the proceedings in the Lebanese court was introduced. These made it clear that the Lebanese court had considered the best interests of the children in the immediate future and the long run.
Hosain deals with the courts of Pakistan. The Court of Special Appeals of Maryland noted:
And this case is not about whether the Pakistani religion, culture, or legal system is personally offensive to us or whether we share all of the same values, mores, and customs, but rather whether the Pakistani courts applied a rule of law, evidence, or procedure so contradictory to Maryland public policy as to undermine the confidence in the trial.
Hosain, supra at 302.
Later, it said:
Preliminarily, we believe it beyond cavil that a Pakistani court could only determine the best interest of a Pakistani child by an analysis utilizing the customs, culture, religion, and mores of the community and country of which the child and - in this case- her parents were a part, i.e., Pakistan
Id. at 309.
The court examined the rules of preference employed by the Pakistani judge in determining the best interests of the child and noted:
[W]e are simply unprepared to hold that this longstanding doctrine of one of the world's oldest and largest religions practiced by hundreds of millions of people around the world and in this country, as applied as one factor in the best interest of the child test, is repugnant to Maryland public policy.
Id. at 318, 319.
The Hosain court conducted an extremely thorough investigation of Pakistani law and recognized that just because another country has different ideas about what is in the best interests of the child than American courts do, that doesn't mean they haven't considered those interests.
Likewise, the Malak court looked at the actual proceedings of the Lebanese trial court. By contrast, the Ali court looked only at a statute without investigating how the Gaza courts interpret and apply that statute (an odd error to make in a common law system, one would think) and the Amin court likewise did not look at the trial proceedings in Egypt but took the testimony of an expert witness (whose qualifications are not indicated) about statutory law.
Part of the failure is with counsel who do not seem to have made efforts to provide the judges with sufficient information. A judge can only rule on what he hears. But I think that part of the failure is also with judges who seem to be unwilling to consider that another culture may have different ideas about what is in the best interests of the child than they do and that these other ideas are valid for the people of that culture.