EXTENDING COMITY TO FOREIGN DECREES IN INTERNATIONAL CUSTODY DISPUTES BETWEEN PARENTS IN THE UNITED STATES AND ISLAMIC NATIONS

STUDENT NOTE

EXTENDING COMITY TO FOREIGN DECREES IN INTERNATIONAL CUSTODY DISPUTES

BETWEEN PARENTS IN THE UNITED STATES AND ISLAMIC NATIONS

Thomas Foley

Intemational custody disputes involving parents and children from Islamic nations and the United States have yielded a spectrum of interpretation of Islamic Shari’a law and the best interests of the child. The lack of a determinative treaty between the United States and al1 but one Islamic nation has led to an inconsistency of criterion in determining whether to extend comity to a custody decree from a court ofan Islamic nation. The domestic law statutes, which determine junsdiction in these matters, have provisions for international application and recognition of foreign custody decrees. The recognition of custody decrees from the courts of Islamic nations is contingent upon the satisfying of procedural and substantive thresholds. Focusing on the substantive, the author opines that American courts have a responsibility to understand certain aspects of the law, culture, and religion of Islam in order to accu- rately determine if the threshold has been meet.

Keywords: comity; custody; Islamic; child; jurisdiction

Where Islam is concemed, the Western inclination to totalize a non-Western culture seems especially strong, although even a moment’s reflect should prompt doubts about whether well over a billion people dwelling in dissimilar social and econornic circumstances in countries ranging from Morocco to Indonesia, al1 of which are undergoing a disruptive process of modernization, would be likely to constitute a meaningful unit o r share a common cultural perspective that would warrant lumping them al1 together under the rubric of “Islam” or “Islamic civilization.’”

-Ann Elizabeth Mayer

The family plays an integral part in the various cultures of the world. Unfortunately, with diversity can come misunderstanding. This misunderstanding has found its way into the world of intemational family law in relation to intemational custody disputes between parties from the United States and Islamic nations.

Islamic family and custody law is based on the social and religious teachings of Islam and frequently appears to conflict with the best interest of the child standard in American custody law.* The issues involved in intemational disputes involving a Muslim parent often go beyond “mere” custody and the normal battles between parents whose marriages break up.’ Many such marriages split along cultural, ethnic, and national lines,“ and properly determining the issues involved in these disputes requires an understanding of Islamic law, religion, and culture. This note will focus on whether and when American courts must extend comity

Author’s Note: The author wishes 10 acknowledge the Honorable Jusrice Joseph L? Kay, judge of the Appeal Divi- sion of the Family Court of Australia, for his generous und learned assistance.

FAMILY COURT REVIEW, Vol. 41 No. 2, Apnl2003 257-275 DOI: 10.1 177/1531244503252052 O 2003 Association of Farnily and Conciliation Courts

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to appropriate custody decrees of Islamic courts, which comport with basic due process, and do not violate a fundamental public policy of an American state. An American court should grant comity when the custody decree of the Islamic court does not violate our notions of fundamental human rights. If the custody decree of an Islamic court violates these fundamental human rights by applying a gender-based presumption too rigidly and is completely void of consideration for the best interests of the child, an American court should not grant comity.

This note will include a five-part analysis to reach the conclusíon offered above. Part 1 consists of an analysis and comparison of the best interest of the child standard used in U.S. custody law and the religion-based standards of Islamic custody law. Part 11 consists of a discussion of the doctrine of comity and how it is relevant to deciding child custody disputes in American courts involving a decree from an Islamic court. Part 111 discusses attitudes toward gender in Islamic culture and custody law that should be considered by American courts when rendering their decisions. Parí IV is an analysis of recent cases of international custody disputes between parties from the United States and Islamic nations and the issues they present. Part V addresses some actions to be taken and suggests questions that might assist a court in determining the extension of comity to a custody decree from an Islamic court.

There is no determinative treaty controlling how American courts should treat the custody decrees of Islamic countries. Fundamental differences between Islamic and Western cultures make it seemingly impossible for one to be agreed on. The Hague Convention on Civil Aspects of International Child Abduction is a determinative treaty that applies between many nations in regards to international custody disputes and will be discussed further in Parí

The lack of a determinative treaty with Islamic nations means that different American state courts can give different weight to custody decrees from Islamic nations. American courts hearing these complex custody disputes have a responsibility to understand the law, culture, and religion of Islam in rendering decisions6

1. A COMPARISON OF CUSTODY STANDARDS

The legal institutions of various cultures around the world define the best interests of a child differentl~.~ The religious and social values of a society dictate the answers to legal questions of custody, parental authority, upbringing, permissible social behavior of minors, and degrees of freedom.' It has been argued that this influence results in a national and cultural bias leading courts to believe that it is in the child's best interests to be raised in his or her respective nation or culture rather than in another country? At the very least, it often results in the court believing that the child's welfare will best be advanced by entrusting custody decisions to the local forum rather than the foreign forum. Although this bias is true of both Islamic and U.S. courts, 1 suggest it is more likely that an Islamic court will not recognize an American custody decree unless its outcome coincides with what the local forum perceives is in the child's best interests." These differences of influence in institutions are apparent between the best interest of the child standards in U.S. custody law, which focuses on the needs of the child and each parent's ability and willingness to meet those needs," and custody law in Islamic nations, where social and religious values of Islam answer questions of parental authority and fitness."

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A. U.S. CUSTODY LAW AND THE BEST INTERESTS OF THE CHILD

In the United States, a result that is said to be in the best interests of the child is the standard for any custody decision.” A state will have either common law or statutory criteria for judges to determine what issues are relevant in determining how the outcome of the custody dispute would best advance the child’s ~e1fare . l~ It is important to note that there is no single dispositive factor in determining the best interests of the child. The court must identify al1 relevant factors, then weigh them against each other to determine how the child’s welfare will best be advanced. There may well be no unique answer, and the issue is then left entirely to the discretion of the decision maker.Is

Factors to be considered in determining the best interests of the child encompass a wide range of emotionai and physical criteria. Of primary importance are the needs of the child and the parent’s ability and willingness to meet those needs.I6 Custody statutes in the United States have included factors such as the wishes of the child; the parent’s wishes; the love and affection or intimacy between the child and each parent; the interaction and interrelationship between the parent, child, sibling, and other significant persons; the benefit of continuity of environment; the child’s adjustment to home, school, and community; the health, safety, and welfare of the child, and the mental and physical health of al1 individuals inv01ved.I~ Chief Justice Wilentz of the Superior Court of New Jersey expressed his perception of the best interests of a childin In Re BabyM’8 when he wrote, “ ‘Best interests’does not contain within it any idealized lifestyle; the question boils down to a judgment, consisting of many factors, about the likely future happiness of a human being . . . stability, love, family, happiness, toler- ante, and, ultimately, support of independence.””

The language of the factors and criteria used when determining the best interests of the child in U.S. custody law is laden with hints of Western influence. Westem countries have codified notions of individual rights that originated in European natural law philosophy as legal standards2’ British and French philosophers during the European Enlightenment advo- cated individual rights as the most important factor in a political and legal system.*’ This focus on the protection of individualism and individual rights has clearly influenced the standards by which U. S. courts will determine the best interests of the child.22 One need only look to the language discussed above to recognize the importance placed by the courts on try- ing to determine what factors will positively influence the child in becoming an individual. This is a focus far removed from shari’a law, which finds its basis in the teachings and scrip- tures of

B. ISLAMIC CUSTODY LAW AND THE BEST INTERESTS OF THE CHILD

In the context of this note, the term Islumic nation refers to a nation legaily constituted as an Islamic republic2‘ or a country with a large majority Muslim population’’ that has been influential in the drafting of laws within the nation.26 Although interpretations of the courts of the nations in both cases may vary, the religion of Islam is a constant yard~t ick .~~ Family and custody law of the Islamic nations referred to in this note are firmly based on such religious teachings.”

The principle of the separation of church and state is foreign to these Islamic nat i~ns.*~ Since the seventh century, “Islam has been not just a religion, but a complete code for living, combining the spiritual and the temporal, and seeking to regulate not only the individual’s relationship with God, but al1 human social relationships.”’O Islamic law consists of two pri-

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mary sources, the Qur’an and the tradition, or Sunnah. Islamic law’s secondary sources con- sist of the Qiyas, ijm, and Ijtihad.”

According to Muslim tradition, the Archangel Gabriel revealed the text of the Qur’an to the Prophet Muhammad,” and it is believed by Muslims to be the living word of G o ~ . ~ ’ Although the Qur’an contains some legal verses, in many areas it only expreses general principles of moral beha~ior,’~ which Muslims consider to be infallible and conclusive in its authority.’5

The Sunnah consists of the spoken words of Muhammad, the acts of Muhammad, and the absences of any expression by Muhammad regarding a given topic or issue.36 The Sunnah’s literal translation is “rule of c~nduct.”’~ It functions as a supplement and gives further expla- nation to the Qur’an’s moral directives.” However, it is not considered the word of God and will be discarded if it contradicts verses in the Q~r’un.~’ The Qur’an and Sunnah are used by Islamic jurists, along with the secondary sources, to develop legal rules.4”

Qiyus means analogy or analogical ded~ction.~’ This is an Islamicjurist’s principal means to derive an appropriate rule, consistent with the Qur’an and Sunnah, when these primary sources are ~ i l e n t . ~ ~ When this method is employed, it must also be with the consensus of legal scholars known as the ljrna?’ This process is often used today to determine Islamic principles for contemporary problems, such as the outlawing of n a r c ~ t i c s . ~ ~ The use of the Qiyas is an example of an intellectual striving to amve at one’s own judgment, which is known as Ijtih~d.~’ A Ijtihad is a process used by well-trained scholars to adapt Islamic law to changing s ~ c i e t i e s . ~ ~

The basic principle from which Islamic law proceeds is that of an unconditional submis- sion to G o ~ . ~ ~ Islamic men and woman are bound to pursue and accept obedience and sub- mission to God’s ~ i11 .4~ This will is believed by Muslims to embrace al1 aspects of their lives and is the path that guides muslim^.^^ According to Islam, the Shari’a is the path that God reveals, through the Prophet Muhammad, as the law intended to govern every detail of life as a Muslim.’”

Shari’a refers to the historical formulations of Islamic religious law, including a universal system of law and ethics purporting to regulate al1 aspects of Muslim’s public and private life.” Shari’a’s development and authority in Islamic law is derived from the Sunnah as well as the Qur’an.52 Shari’a’s role in the socialization process of Islamic nations influences individual and collective behavior, regardless of its status in their legal formal systems.” In regards to the Shari’a, it is important to note that

dueto its varied geographic coverage, from Senegal in the West to Indonesia in the East, and from Mauritania in the South to Central Asian former Soviet Republics in the North, Shari’a has been subject to a great number of variations through local and cultural influences. Despite the existence of these local customary influences a very large body ofbelief exists which is common to al1 M ~ s l i r n s . ~ ~

The Shari’u is considered more than a legal system in that it deeply affects aspects of thought, conduct, and life in ways foreign to Westem perception of a legal ~ystern.~’

Shari’a is the only basis of the family law in Islamic legal systems.s6 Under the Shari’a, custody has been deiined as the caring for the infant during the penod when it cannot do without the woman, who has the lawful right to bring it UP.’~ The Shari’a provides that until the child reaches a certain age, the custody and c a e of the child by the mother is lawful and appr~priate.’~ Even though the father has ultimate legal custody of his children, it is lawful that the mother has physical custody during their “years of dependency,” which last until the

Foley / EXTENDlNG COMITY 261

age of seven for boys and nine for g i r l ~ . ~ ~ After this point, the child starts his or her spiritual upbringing under the guardianship of the father or a full-blooded male relative of the father.@’

However, both rnother and father must be of the age of majority and of a sound mind.“ They must also be physically capable, not elderly, and not morally corrupt to be able to take care of the child.62 In addition, the paternal grandfather is irrefutably entitled tocustody if the father is unable to care for the ~ h i l d . ~ ~

Religion is an irnportant requirement in the determination of custody.@ Although some sects allow for a non-Muslim woman to have custody, al1 sects require that the child be raised as a Muslim.65 Males that have custody from a relation through the father’s bloodline must practice

Cases in the U.S. courts, involving a Muslim parent, appear in an especially aggravated form because of cultural differences as well as psychological and social effects on the children involved.6’ International custody disputes can result in stressful and coercive pressure on the children to choose between parents because the dispute feels like a lifelong proposi- tion of choosing between another family, nation, religion, and culture.68 In addition, cultural differences in family authority and discipline can be viewed by one parent as cruel, insensi- tive, and unloving while acceptable in the culture of the other ~ a r e n t . ~ ~ The cornplexity of custody litigation becomes significantly more acute when waged over multiple legally and culturally diverse jurisdiction~.~~

11. THE DOCTRINE OF COMITY

In many intemational custody disputes involving a party from the United States, the obligation to return a child who is a resident of a foreign country for determination of the issues abroad is to be governed by the Hague Convention on Civil Aspects of International Child Abd~ction.~’ The Hague Convention protects children from a wrongful removal across international borders and provides procedures to assist in a safe return, including an obligation that one signatory nation will respect and follow the custody rights and laws of al1 other signatory nations.” The goal of the Hague Convention is to provide civil remedies designed to retum children wrongfully removed from or wrongfully retained away from their country of habitual residence. The Hague Convention assumes that the merits of the custody dispute should be adjudicated under the law, and by the judicial authorities, of that country save in certain limited circ~mstances.~~

However, many countries refuse to participate in the Hague Convention because they do not accept the automatic return p01icy.~~ Rather, these countries believe that the determination of custody issues should occur within their own jurisdiction under their own l a w ~ . ’ ~ The autornatic retum policy asks Muslim nations to disregard the Shari’a’s teachings on how to raise a ~hi ld . ’~ Apart from Burkina Faso, no Muslim nation has ratified or acceded to the Hague C~nvent ion .~~

The Hague Convention does not consider the gender of a parent or religious upbringing as factors directly relevant to the choice of forurn considerations.’8 Both are fundamental in determining the best interests of the child under Shari’a la^.'^ Westem societies atternpt to avoid consideration of the gender and religion of the parent in custody disputes.” Westerners lack a similar conflict with an automatic return policy of the child because their religious duties and ways of life remain unaffected.8’

The American law that applies in intemational custody disputes between parties from the United States and an Islamic nation is contained in the Uniform Child Custody Jurisdiction


Act (UCCJA) and, more recently, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).’’ By 1983, al1 fifty states and the Distnct of Columbia had adopted the UCCJA, with some minor alterations.x3 Prior to this widespread adoption, state courts wit- nessed forum shopping and abuse of custody litigation by parties in~olved.*~ The UCCJA has a general goal of uniformity of the law of those states that enact it.”

The UCCJEA was drafted with the intention of clanfying certain ambiguities in the UCCJA to improve states’ ability to enforce custody orders efficiently.86 Once enacted by a state, the UCCJEA will replace the codification of the UCCJA.” At present, the UCCJEA has been adopted by thirty states and the Distnct of Columbia.”

The UCCJEA has clarified aspects of original and modified jurisdiction under the UCCJA.” In regards to original jurisdiction, the UCCJEA has pnoritized home state jurisdiction over significant connection jurisdiction.w However, the UCCJEA now requires significant connection jurisdiction to focus on the premise that the jurisdiction with the most evidence available regarding the child’s care, protection, training, and personal relationships should make the custody decisions.”

The provision of the UCCJA regarding application in international custody disputes is $ 23, which states the following:

The general policies of this Act extend to the international area. The provisions of this Act relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to al1 affected persons?*

The wording of 0 23 shows an intent to recognize and defer to custody decrees of a foreign nation’s courts if the proceedings included reasonable notice and opportunity to be heard in institutions substantively similar to the custody institutions of the United States.”

The provision of the UCCJEA regarding application in international custody disputes is 0 105, which states the following:

(a) A court of this State shall treat a foreign country as if it were a State of the United States of the purpose of Applying Articles 1 [Gen. Provisions] and 2 [Jurisdiction]

(b) Except as otherwise provided in subsection (c). a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this Act must be recognized and enforced under Article 3 [Enforcement]

(c) A court of this State need not apply this Act ifthe child custody law of a foreign country violates fundamental principles of human right~.’~

The wording of § 105 mandates treatment of a foreign nation as a state of the United States for purposes of international custody disputes.95 Furthermore, Q 105 sets clear procedural and substantive law thresholds that must be met for recognition of aforeign custody decree?6 Foreign decrees meeting the thresholds of § 105 will be recognized and enforced pursuant to (5 313.” This clarification modifies the largely discretionary standards of UCCJA 9 23 and provides a statutory basis for recognition and enforcement.’’

When a non-Hague country parentg9 is involved in an international custody dispute, like a parent from an Islamic nation, the international doctrine that applies to recognition and enforcement of a foreign nation’s custody decree is that of comity. ‘“O Comity will be extended unless the foreign judgment offends the public policy of the present forum proce- durally or substantively.’” The UCCJA’s 9 23’s substantive law threshold centered around

Foley / EXTENDlNG COMITY 263

the language of "institutions similar in nature" has left the extension of comity to the discretion of the judge.'"* The UCCJEA requires that once the thresholds of international application under Q 105 have been met, recognition and enforcement will be extended under 5 313.'"'

The UCCJEA's modified substantive threshold of 5 105 (c)'s "violates fundamental principles of human rights" language is derived from Article 20 of the Hague Convention.'" The intention of the Hague Conference was to have Article 20 restrictively applied so it would not erode therule of return."' The comment to UCCJEA Q 105 states that when applying 9 105 (c), the court's scrutiny should be focused on the child custody law of the foreign nation and not on other aspects of the other legal system.'" Furthermore, the comment states that the act takes no position on what laws relating to child custody would violate fundamental freedoms and that 9 105 should be "invoked only in the most egregious case^."''^

States have increasingly begun to appreciate that failure to recognize foreign custody decrees encourages child abduction, which has become a serious problem for the stability of families and respect for international law generally.''' "he Hague Convention, UCCJA 5 23, and UCCJEA 105 are examples of an emerging intemational consensus that foreign custody decrees should be respected to avoid inconsistent custody decrees from different states.Iw

The general rationale behind extending comity to a foreign decree in an American court is so the merits of an American judgment would be given similar treatment in the courts of that foreign nation.'" It is important to note that this doctrine of reciprocity does not create a binding obligation on either nation."' However, a majority of U.S. state and federal courts have extended recognition to decrees of foreign nations without regard to a question of reciprocity.'12 It must be noted that there is no guarantee an Islamic nation will give similar treatment to a custody decree from an American court.

Tn Egypt, for example, a foreign decree will be enforced only if the order does not contra- vene Shari'a law.'13 Thus, in practice, foreign custody orders from the United States are generally not automatically rec~gnized.' '~ American courts' adherence to substantive comity standards for recognition, narrowed from such peripheral issues as religion, would give more weight to recognizing an Islamic decree than vice versa.

Despite this potential for inequality in reciprocity, American courts should give similar treatment to the decrees of Islamic courts as they would the decrees of courts of other nations. Competing custody orders from American and Islamic courts wouid further frustrate the parties involved by making possession of the child the most important factor, thus encouraging child abduction."' Recognition of decrees from Islamic courts, even if done unilaterally, would promote and reinforce the United States' commitment to protecting the stability of families abroad through international law.' l 6

Recognition of a foreign decree can be declined if the claim is contrary to the public policy of the present f ~ r u m . " ~ In an international custody dispute under the UCCJA or UCCJEA, a decree being contrary to public policy would be decided under 5 23 of the UCCJA and Q 105 of the UCCJEA."'In determining whether to extendcomity to the custody decree of an Islamic court, an American court must determine if doing so would be contrary to the "institutions similar in nature" language of Q 23 of the UCCJA or would violate "fundamental principles of human rights" pursuant to $ 105 of the UCCJEA.'I9

In Egypt, civil courts hear child custody petitions and base their decisions on Islamic Shari'a law when a custody dispute involves a Muslim child.I2' Under Egyptian law, the mother is favored by being considered to be the appropriate custodian of the Muslim child


based on age.I2’ If disputes arise, Egyptian courts normally uphold presumptive custody over males until age ten and females until age twelve.’”

If the father of the child is Muslim, the mother must commit herself to raise the child as a Muslim in Eg~p t . ’*~ The mother retains presumptive custody unless she is deemed “ ~ n f i t . ” ’ ~ ~ When a mother is deemed unfit due to remarriage, death, or an inability to counter a court finding of physical or mental unfitness, the courts recognize an established order of prefer- entes of another adult

The custody determinations under Shari ’a in Egypt are generally consistent with other Islamic nations. For example, the religious and Shari ’u courts in Pakistan, Jordan, Lebanon, Saudi Arabia, Iran, Yemen, and the United Arab Emirates al1 apply consistent custody determination in regards to the presumptive custody of the mother during the ages of dependency, raising the children as Muslims within their respective nations, and the criteria of a mother’s “unfitness.”lZ6 However, the age at which the mother’s presumptive custody during the period of dependence does vary from seven to nine for a male, and nine to eleven for a female. Iz7

The international application provisions of the UCCJA and the UCCJEA have evolved from an understanding of the value of recognition of appropriate foreign custody decrees. Under UCCJA 5 23 and UCCJEA $ 105, depending on which act the U.S. state adopted, the declining of extension of comity must be for reasons that either render the issuing foreign court dissimilar in nature or violate basic notions of human rights, respectively. The gender presumption during the age of dependency has an important role in Islamic custody law and culture by focusing on the upbringing of the Muslim child in an Islamic society. When considering granting comity to a gender-presumption-based custody decree from an Islamic court, American courts should consider aspects of gender in Islamic custody law and culture.

111. ASPECTS OF ISLAMIC CUSTODY LAW AND GENDER THAT SHOULD BE CONSIDERED BY AMERICAN COURTS

It is clear that the gender presumptions under Islamic law in favor of the mother having custody during the years of dependency, and the father having custody after that age, would be considered gender bias and unenforceable if rendered in an American court.lZ8These gender-based preferences in custody decrees of Islamic courts acceptable under Islamic culture should not per se disqualify decrees from being recognized and enforced by American courts .

The gender presumptions under Islamic law are not absolute.”’ Islamic law leaves its courts with discretion to disregard gender-based presumptions after examination of the facts and circumstances of an individual case.I3” A presumption in favor of the mother or father can be rebutted by a showing of the parent’s physical, mental, or moral unfitness.I3’ Although the mother has additional standards of fitness in regards to remarriage and raising the child as a Muslim, physical capability, mental soundness, majority age, and moral integrity are standards that must be met by both the mother and father before granted custody of the child, regardless of age.I3*

The initial decision of the parents to raise the child as a Muslim in an Islamic nation must also be considered. The unilateral decision of the parent, whoremoves the child to the United States in violation of an Islamic custody decree, initially agreed to raise the child in an Islamic culture under the laws of the Islamic society. That parent implicitly agreed that it was in the child’s best interests to be raised in an Islamic society. That parent should not lightly be


able to negate that choice by taking the child to the United States in violation of a custody decree from the courts that parent initially recognized. The awarding of competing custody decrees to each parent in an international custodia1 deadlock would render actual possession of the child as the most important factor, thus giving further incentive to abd~ction.”~

The use of gender presumptions under Islamic law is acceptable under Islamic culture. When a custody determination is made in a case of this nature, it is impossible not to include a consideration of culture. To properly take Islamic culture in relation to gender and custody law into consideration, American courts should be aware of certain cultural aspects of Islamic law. Two examples of such aspects are the contention that Islamic governments, rather than Shari’a, are the true obstacles to equality in the and the view in Islam that the family is the comerstone of society and of vital significance to the conditions of future Muslim generations.I3‘ An awareness of these aspects can assist the court in placing the gender presumption in a perspective that shows consideration for the Muslim child’s best interests in an Islamic culture.

It has been argued that Muslims now have difficulty differentiating which aspects of life are mandated by true interpretations of the Qur’an and which have resulted from the persis- tence of a male-dominated ~tructure . ’~~ The issue here is not Islamic law but modem authori- tarian states “rationalizing governmental repression, protecting and promoting social and religious conformity, and perpetuating traditional hierarchies, which includes discrimina- tory treatment of women and n~n-Muslims.””~ Some view governments as using the guise of Islam as a scapegoat for disregarding equality provisions in the law and engaging in an hon- est interpretation of the Qur’an and other sources of Islamic la^.'^'

According to Islam, individual human rights exist only in relation to obligations to God, other individuals, and n a t ~ r e . ’ ~ ~ Therefore, the Western concept of “certain inalienable rights” is foreign to Islamic law.14” Rather, the Qur’an teaches that men and woman are equal in their relationship with God; differences arise between males and females in their social relationship to the family.14’ Al1 people have a specified communal, rather than individual, role in a Muslim society, and a woman’s primary role is that of child bearing and her occupa- tion of the private domain.I4*

This is important, not as a justification for a classification of Islamic family law as dis- criminatory, but rather as an insight into the paramount consideration given to the family unit in an Islamic culture. Islamic custody law considers the role of the mother to be more influen- tia1 during the child’s younger years and the father during the child’s older y e a r ~ . ’ ~ ~ The core reason of this dictate is not the differences between men and women, but rather a cultural belief about which parent can better promote the child’s best interests.

The importance of the family and child to Islamic culture should be taken into consideration by American courts when determining whether Shari ’a custody decrees meet the substantive law thresholds for extending comity pursuant to § 23 of the UCCJA and Q 105 of the UCCJEA.’” An American court’s understanding of the gender presumption in a custody decree from an Islamic court, as providing for the nurturing of a child when young and education of a child when older, in Islamic culture, can give the court a perspective to consider the substantive similarities between our institutions.

The custody decisions in Islamic culture, although based on a gender presumption, may provide sufficient consideration of the best interests of the child to meet the substantive thresholds of 0 23 and 0 105 to warrant the extension of comity. The existence of the gender presumption does not render the Islamic institutions dissimilar in nature or in violation of fundamental principles of human rights because there is consideration for both the parent’s fitness and the conditions of the child’s upbringing.


IV. CASE LAW

The question addressed in the next section of this note is whether some of the case law involving the best interests of the child in international custody disputes between parties from the United States and Islamic nations gave proper consideration to Islam and the custody decrees from Islamic Shari’a courts in extending comity.

Most recently, in Amin v. B a k h a ~ , ’ ~ ~ the Supreme Court of Louisiana upheld an appellate court’s finding that for purposes of the UCCJA, there are “fundamental differen~es”’~‘ between Egyptian law and the state law of Louisiana, which permitted the trial court to exercise residual jurisdiction under the UCCJA.’47 The court’s affirmation of fundamental differences was based on its determination that the Egyptian court was not mandated to consider the child’s best interests as paramo~nt . ’~~ The court referred to the absolute right of legal and physical custody the father would have under Shari ’u as denying consideration of the mother’s and child’s interests, thus offending the public policy of L~u i s i ana . ’~~

The mother brought the child from Egypt with the understanding that the father would meet them in Lo~isiana.”~ However, the father flew to Egypt and, upon learning the mother had left for Louisiana with the child without his permission, brought criminal charges against her.’” The father obtained a certificate of divorce and filed for a declaratory order in Egypt confirming his legal guardianship of the child under Islamic law.”* The mother filed for sole custody in Louisiana with the mutual stipulation that the Egyptian divorce was final.’s3 The court upheld the tnal court’s decision that residual jurisdiction was properly determined under the UCCJA and Louisiana state law without an abuse of di~creti0n.l~~

The court determined that the statutory language of the UCCJA allowed the trial court to consider a foreign nation to be a “state,” but the language did not mandate recognition of a foreign jurisdiction as a state for purposes of determining jurisdiction without regard to the best interests of the ~ h i 1 d . I ~ ~ The court stated that recognition of foreign court orders will be determined on the circumstances of a particular case in regards to the child custody laws of the foreign jurisdiction and those of the United States being similar in substantive standards that consider the best interests of the ~ h i 1 d . I ~ ~

The court upheld the trial court’s refusal to recognize Egypt as a state based on the fundamental differences between Louisiana’s child custody laws and Egypt’s, which, according to the court, follow guidelines that award custody irrespective of the best interests of the ~hi1d.I‘~ The court noted that Egypt follows Islamic family law, which structures some of the rights between families on gender in that physical custody of a young child would generally be with the mother, while guardianship or right of control always stays with the father.ls8 The court affirmed that extending comity to the Egyptianhslamic legal system, in this case would offend the public policy of Louisiana by not giving adequate consideration to the best interests of the child invo l~ed . ’~~

The court in Amin based its decision on “fundamental differences” between Islamic custody law and that of Louisiana’s. In my opinion, although there are differences between Lou- isiana and Islamic law, those differences do not violate such fundamental human rights so that Louisiana courts should deny comity to the custody decrees of Muslim courts. In the Islamic culture, custody law specifies that it is in the child’s best interests that he receives primary care from the mother during younger years and from the father during older years. The reason for this rule is not gender bias but a different vision of the best interests of the child between American and Islamic societies. The court’s opinion that an Islamic decree based on a gender presumption is so void of consideration for the best interests of the child that it raises to the leve1 of being “fundamentally” different gives inadequate attention to the culture and


values of Islamic society. American courts cannot condemn what reflects gender roles, as defined by Islam, without fundarnentally challenging the premise of Islamic culture and society. An understanding of the gender presumption as providing a mechanism to nurture and educate the child in Islamic culture, would provide a basis substantively similar in considering the child’s best interests consistent with fundamental principles of human rights to extend comity.

The court’s determination of the gender presumption and age requirements used in Islamic custody law and the law of the Shari’a court as being void of consideration for the best interests of the child disregards the vast importance of age and gender in Shuri’a. The Muslim child is thought to be better nurtured by the mother when young and better prepared for a religious life by the father when older. To hold that this gender presumption, per se, ren- ders an Islamic custody decree fundamentally different is inaccurate considering the capable mental and physical conditions the parent must be in to take care of the child, regardless of age, according to Islamic custody law.I6O

The court in Amin rendered a decision on the best interests of Muslim children simply assuming that because Islarnic law contains gender-based rules for custody and American law does not, Islamic court decrees should not be granted comity. The court failed to appreciate the cultural significance of gender in Islamic society and that gender is not an absolute presumption determining how custody should be awarded. In contrast, the decisions discussed below employed a deeper leve1 of understanding and respect of Islam in rendering their decisions as to whether comity should be granted to the decree of an Islamic court.

In re the Marriage ofMulukt6’ dealt with a California court decision on the enforceability of a child custody decree of the Shuri’a Sunnit court in Beirut, Lebanon. The California court decided that the Shari’a Court of Beirut deserved comity because that court took the best interests of the child into account even though applying the gender-based presumptions of Islamic law.I6’ The Shari’a court determined that the children’s best interests would be in retuming to Lebanon because they had a home in Beirut and relatives and friends there, and Lebanon is “still their h~meland.”’~~

”he California court found that the record showed that the Shari’a Court of Beirut did take the best interests of the child into account by looking at the “human, educational, social, psychological, material, and moral factors for the purpose of insuring the best interest of the children” in the present and f ~ t u r e . ’ ~ ~ The court noted that the parents and children have “many friends, neighbors, and relatives in Lebanon, and they are tied to their country with lots of environmental, traditional, social habits, heritage, and moral and cultural l i n k ~ . ” ’ ~ ~ The California court further recognized and relied on the Shuri’a court’s belief that because the children were Muslim and raised to accept Islamic morals and teachings, it would be in the long-term best interests of the children to be in Lebanon.IMThe court stated that it would be impossible for the children to continue to learn Arabic and to obtain an Islamic education in the California educational system.Ib7

The broader factors beyond a negative reaction to perceived gender bias in Islamic society that the California court took into consideration in deciding to grant comity to the decree of the Lebanese court are precisely the factors that must be considered by al1 American courts in deciding whether to grant comity to the custody decrees of an Islamic ~ 0 w - t . ’ ~ ~

There is a view that a decision such as Malak only “implicitly reaffirmed the patriarchal favoritism in L e b a n ~ n . ” ’ ~ ~ An international custody dispute is not the forum for an American court to provide a remedy for perceived gender bias in other cultures in which parents have chosen to raise their ~hi1dren.I~’ Asserting these contentions in an international custody dispute makes the Muslim child a conduit for other agendas.”’ A jurisdictional and comity anal-


ysis should not be clouded by the assertion of political and international human rights i s s ~ e s . ' ~ ~ A determination of Islamic culture being right or wrong ought not to be taken into consideration during a custody dispute over a child with already complex i s s ~ e s . ' ~ ~

In Hosain v. M ~ z Z i k , ' ~ ~ the Court of Special Appeals of Maryland addressed the validity of a custody decree of Pakistan awarding legal custody to the father. The court noted that a trial court should not grant comity to the Pakistani court if granting comity to the foreign decree was contrary to Maryland's public p01icy.'~~ The court determined that the same evaluation of the best interests of the child that would be made in an American court was made in the Pakistani c o ~ r t . ' ~ ~ The court asked.

In deciding whether the Pakistani court applied the best interest of the child standard, should the trial court's determination focus on the particular culture, customs, and mores of Pakistan and the religion of the parties or, alternatively is the best interest standard to be determined based on Maryland law, Le., American culture and mores?177

The Maryland court found that the best interest standard was the law in Pakistan and was used in awarding custody to the father,I7' citing language in the foreign decree from the Pakistani court that depriving the children of interaction with the father would be "injurious to the mental health and emotional well being of the child" and against the law of personnel ~tatus."~

In both Malak and Hosain, American courts gave consideration to the importance of family in a Muslim society and granted comity to the custody decrees of Islamic courts. They both recognized that although Islamic society and American society have different visions of gender roles, both seek to promote the best interests of their children in substantive custody decisions.

V. ASSISTANCE TO THE COURT IN DETERMINING THE EXTENSION OF COMLTY

An accurate representation offered to an American court of the law, culture, and religion of Islam would enable an American judge to consider al1 pertinent factors in deciding whether to extend comity for recognition of custody decrees from Shari'a courts. The initial step should be the retention of learned and capable lawyers experienced in international custody disputes."" Lawyers of this quality are essential in grasping the cultural issues involved, and necessary in helping to convey this understanding and respect of the law, culture, and religion of Islam to the courts for its beneficia1 use in custody determinations. The court will then be able to consider the appropnate and pertinent factors in rendering a decision in the best interests of the Muslim children involved.18' The following have been offered as examples of questions a court must address in determining the best interests of the child in international custody disputes:

What culture is the child going to be raised in? Will the child be raised a Muslim in a Muslim community in a Christian or secular country? Will the child be raised a Muslim in a Muslim community in a Muslim country? Or is the child going to be raised in a secular country with a limited to non-existent connection with the Muslim community and tradition of the other parent?lx2

It is important for the representatives of the parents in these intemational custody disputes to openly discuss the Islamic cultural education of the child.IB3 Advocacy in court must also

Foley / EXTENDiNG COMITY 269

come with a clear and correct representation of the cultural issues encompassed in the decrees of Sahri’a courts. Respect and consideration of Islamic cultural aspects could create a more amicable environment open to negotiations for the custody of the child.lR4

As international child custody cases involving Muslim parties increase, judges and practi- tioners should familiarize themselves with an understanding of Islamic law, religion, and culture.’8s This effort will be necessary in determining the appropriateness of the extension of comity to a foreign decree in these international custody disputes.’86 It must be recognized that extending comity may require a child to be returned to a society whose values Americans may not share, resulting in the child’s complete emersion into Islamic law, religion, and culture. This will only be able to be recognized by an informed consideration of Islam by Ameri- can courts and the advocates that appear before them.

CONCLUSION

In this increasingly smaller world, the infusion of Islamic culture into the West will only grow. Currently, there are 1.3 billion Muslims in the world, and 80 percent of them live out- side of the Arab world.’*’ The law, culture, and religion of Islam cannot be separated from each other because of their profound synergistic influence. It is important to understand that the diversity of a culture and its laws are not grounds for its rejection. A court’s understanding and respect of Islamic law, culture, and religion, conveyed by learned and capable representatives, is necessary to determine the appropriateness of extension of comity to foreign decrees in international custody disputes between parents in the United States and Islamic nations.

NOTES

1. Ann Elizabeth Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a Ciash with a Con- struct? 15 MICH. J. INT‘I L. 307.384 (1994).

2. Danielle M. Andrews, Non-Muslim Mothers v. Egvptian Muslim Futhers: The Conflict beiween Religion and Law in International Child Custody Disputes andAbductions, 23 SUFFOLK TRANSNAT’L L. REV. 595,606 (2000).

3. June Starr, The Global Battlejield: Culture and International Child Custody Disputes at Century ’s End, 15 ARIZ. J. INT‘L & COMP. L. 79 1,807 (1998).

4. Id. 5 . See Part 11, notes 7 1-81. The Hague Convention is effective between the U.S. and fifty-one nations. See List

of Hague Convention Signatory Countries at http://travel.state.gov/hague-list.html (last visited Oct. 25, 2002). 6. For limits on respect of Islamic culture, see Rest. 3rd Foreign Relations Law 8 205 (a)-(c), Effect of

Nonrecognihon: Law of the United States under the Law of the United States. “An Executive decision not to recognize an entity as a state, or a regime as a government, is deemed to imply that the representatives of the entity or regime are to be denied the right to sue in the courts of the United States.” Id. at Comment (a).

7. Lara Cardin, The Hague Convention on the Civil Aspects of International Child Abduction as Applied to Non-Signatory Nations: Getting to Squure One, 20 HOUS. J. INT‘L L. 14 1 at 151 (1 997).

8. Id. 9. Id.

10. See Part 111. 1 1. Monica E. Henderson, U.S. Siate Court Review of Islamic Law Custody Decrees- When Are Custody

12. See Andrews, supra note 2, at 607. 13. See Henderson, supra note 1 1, at 429. 14. Id.

Decrees in the ChildT Best Interests, 36 BRANDEIS J. FAM. L. 423,429 (Summer 1997-1998).


15. Id. at 227. 16. Id. at 228. 17. Id. at 228-30. 18. In re Baby M , 537 A.2d 1227 (1988). 19. Id. at 460. 20. Joelle Entelis, lnternational Human Rights: Islam’s Friend or Foe? 20 FORDHAM INT’L L. J. 125 1 , 1257

21. See id. at 1258-59. 22. See id. at 1259. 23. See id. at 1262. 24. E.g., Arab Republic of Egypt and Islamic Republic of Pakistan. See U.S. Department of State, Bureau of

25. For purposes of this note, lurge rnajority refers to Muslim populations greater than 75%. See id. 26. E.g., Republic of Lebanon. See id. 27. See generally, U.S. Department of State, Bureau of Near Eastern Affairs, Background Note, for Egypt,

Pakistan, Jordan, Lebanon, Saudi Arabia, Yemen, Iran, United Arab Emirates, and Israel (in regxds to the occupied territory of Gaza), avaiíable at http://www.state.gov/p/nea/bgn.htm.

(1997).

Near Eastern Affairs at http://www.state.gov/p/ned.

28. Both specifically and generally. See id. 29. See Entelis, supra note 20, at 1268. 30. JAMAL J. NASIR, THE ISLAMlC LAW OF PERSONAL STATUS 1 (1986). 3 1. See Entelis, supra note 20, at 1264-65. 32. Id.; Muhammad’s mission was from 610 A.D. to his death in 632 A.D. Abdullah Ahmed An-Na’im, Human

33. See Henderson, supra note 11, at 425. 34. See Entelis, supra note 20, at 1264. 35. See Henderson, supru note 1 1, at 425. 36. Id. 37. See Entelis, supra note 20, at 1265. 38. Id. 39. Id. at 1266. 40. Id. 41. Id. 42. Id. 43. Id. 44. Id. 45. Id. 46. Id. at 1267. 47. Id. at 1268. 48. Id. 49. Id. 50. Id. 51. See An-Na’im, supra note 32, at 13. 5 2 . Id. at 15. Shari’a’s development as acomprehensive legal andethical system had to await the collection and

53. Id. 54. Urfan Khaliq,Beyondthe Veil?AnAnalysisof the Provisions of the Womert ’s Convention in the l a w asStip-

ulated in Shari’n, 2 BUFF. J. INT‘L L. 1, 7 (1995). 55. See Entalis, supra note 20, at 1269. 56. See An-Na’im, supra note 32, at 15. Shari’a is nota formally enacted code. Instead, it consists of a vast body

ofjunsprudence that expresses views on the Qur’an and Sunnah and the legal implications of those views on the con- science of the individual Muslim. Only family law and inheritance law continue to be governed by Shar’u. Id.

Rights in the Muslim World, 3 HARV. HUM. RTS. J. 13, 14 (1990).

authentication of Sunna and was not developed until the second or third centuries of islam. Id.

57. See Nasir, supra note 30, at 156. 58. See Henderson, supra note 11, at 246-47. 59. See Andrews, supra note 2, at 609. 60. Id. 6 1. See Henderson, supra note 1 1, at 427. 62. Id.


63. PatriciaE. Apy,Munuging ChildCustody Cusesinvolving Non-Hugue Contructing Sfutes, 14 J. AM. ACAD.

64. See Andrews, supru note 2, at 608. 65. See Henderson, supru note 1 1 , at 427. 66. id. at 428. 67. See Starr, supru note 3, at 806. See also. Marilyn Freeman, The Effects und Consequemes oflnrernurionul

ChildAbducfion, 32 FAM. L. Q. 603 (1998). Although Freeman focuses on abduction, the literature reviewedpoints to many issues such as the effects on children from being taken out of social circles and familiar cultural settings. These issues are relevant in determining the best interests of a child on an international level, even where the child has not been abducted.

68. Glen Skoler, A Psychologicul Critique oflnfernutional Child Custody und Abduction ú r w , 32 FAM. L. Q. 557, at 562,572 (1998).

69. Id. at 514. 70. See Apy, supru note 63, at 77. 7 l . Hereinafter Hague Convention; Richard E. Crouch, Resolving International Cusrody Disputes in thr

72. See Andrews, supru note 2, at 597. 73. William Rigler and Howard L. Wieder, The Epidemic of Pemntul Child-Snatching: An Overview-

Aftempfs tu Prevent Purenrul Child Abduction, Applicuble UnitedSfutes íuws. und rhe Hugue Convention, In(c)( I ), uvuiluble uf http://travel.state.gov/je-prevention.html

MAIRIM. LAW. 77.82 (1997).

ünired Sfufes, 13 J. AM. ACAD. MATRIM. LAW. 229,230 (1996).

74. See Andrews supru note 2, at 599. 75. Id. 16. See Andrews, supru note 2, at 624. 77. See Starr, supru note 3, at 807; Burkina Faso effective since Nov. 1, 1992. See Hague Convention of 25

October 1980 on the Civil Aspects of International Child Abduction-Party Countnes and Effective Dates with United States, uvuiluble ur http://travel.state.gov/hague-1ist.html (last visited Nov. 1,2002). It should be noted that a few Hague member states have made bilateral agreements with certain lslamic nations conceming family matters. For a discussion of the formation of these bilateral conventions and their potential for a tool of cooperation with lslamic nations, see Caroline Gosselain, Child Abduction und Trunsfronfier Access: Biluterul Conventions und Islumic Stufes-A Reseurch Puper, Prel. Doc. No 7 August 2002, Special Commission of September/October 2002-Hague Conference on Pnvate lntemational Law.

78. Id. 79. Id. 80. Id. at 622; for a criticism of this point, see Susan Boyd, Some Postmodemist Chullenges tu Feminist Anuly-

ses of í u w , Family. und Stute: Ideology and Discourse in Child Custody úrw, 10 CAN. J. FAM. L. 79. (1991). AS Boyd expiains,

One of my starting points in researching child custody law has been that it is not possible to assess compre- hensively the status of children in western societies without also considering the status of the women who are usually expected to give primary care to them. Id. at 86.

81. Ser Andrews, supru note 2, at 624-25. 82. Kelly Gaines Stoner, The Uniform Child Custody Jurisdicrion und Enforcement Act (üCCJEA)-A Mefu-

morphosis ofrhe üniform Child CusrodyJunsdicfionAct(UCCJA), 75 N.D. L. REV. 301 (1 999). hereinafter UCCJA and UCCJEA, respectively. Although the Parental Kidnapping Prevention Act is relevant to pureiy domestic custody decrees, its full faith and credit requirement with sister states is not applicable on an intemational level. Richard Crouch, An Intricute Muze ofChild-Snatching Sfutufes, 23 FAM. ADVOC. 29, 30 (Spring 2001).

83. See Henderson, supru note 1 1, at 432. 84. Id. 85. Id. at 433. 86. See Stoner, supru note 82, at 301-2 (discussing these ambiguities). 87. Patncia Hoff, The ABC's of the UCCJEA: interstute Child-Cusfody Pructice under the NewAct, 32 FAM. L.

Q. 267,268 (1998). 88. Uniform Law Commissioners, Uniform Child Custody Jurisdicrion und Enforcement Acf: Stute Adoptions,

uvuiluble ut http://www.nccusl.org/nccusVuniformact_factsheets/unifo~acts-fs-uccjea.asp (last visited Nov. 17, 2002). The UCCJEA has been introduced in nine states including Maryland and New Jersey. id.

89. See Stoner, supru note 82, at 3 12-1 6. Under the UCCJA, original jurisdiction for making custody determinations is assertible on four grounds: home state, significant connection, emergency, and vacuum. The UCCJA's


lack of prioritizing these grounds led to theproblematic possibility of concurrent jurisdiction. Modifiedjurisdiction was assertable by the new courtestablishing jurisdiction under the UCCJA in conjunction to showing a lack ofjuris- diction by the initial decree issuing court. The UCCJEA provided rules for continuing jurisdiction ensuring that the state initiating the custody order is exclusive. Id.

90. Id. 91. Id. 92. UCCJA $ 23. 93. See Crouch, supru note 71, at 231. 94. UCCJEA 5 105. 95. See id. 96. See id. at subsections (b)-(c). 97. UCCJEA $ 313. 98. UCCJA $ 23. 99. A parent who is a citizen of a nonsignatory nation.

100. Hosain v. Malik, 671 A.2d 988 (1996); Hilton v. Guyot, 16 S.Ct. 139 (1895). Citing Justice Gray,

“Comity,” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the leg- islative, executive orjudicial acts of another nation. having due regard both to international duty and conve- nience. and to the rights of its own citizens or of other persons who are under the protection of its laws.

MARK w. JANIS & JOHN E. NOYES, INTEKNATI~NAL LAW-CASES AND COMMENTARY, 750 (2d. ed. 2001). 101. Id. Assume in this note that adequate procedural requirements are in place in the court systems of the

Islamic nations referred to and normal proceduralprotections of notice and opportunity to be heard were afforded to the parties in the cases discussed. Althoughprocedure is an importcomponent of adecision by an American court to extendcomity, the scope of this note will focus on the substantive conflict between the best interests of the child and Islamic law.

102. UCCJA $ 23. 103. UCCJEA $ 105 and 5 313. 104. See Hoff, supru note 87, at 299. Article 20 of the Hague Convention states, “The return of the child under

the provision of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

105. See Hoff, supru note 87, at 299. Article 20 and Article 12 are located in chapter 3, “Retum of Children, Hague Convention.”

106. Ser Comment to UCCJEA 5 105,1999 Main Volume. 107. See id. 108. See Rest. 3rd Foreign Relations Law 5 485, Reporter’s Notes, Note 1. 109. Id. 110. See Rest. 2nd Conflicts of Law 5 98, Comment (f) citing Hilton v. Guyot, supra note 91. 1 i 1. See id. For a detailed analysis of comity and reciprocity’s role in intemational law, see Joel Paul, Comity in

112. See Rest. 2nd Conflicts of Law $ 98 Comment (f). 113. See U.S. Department of State, International Parental Child Abduction Flyer-Arab Republic of Egypt, at

114. See id. 115. See Rest. 3rd Foreign Relations Law $485, Reporter’s Notes, Note 1. I 16. See id. 1 17. See Rest. 2nd Conflicts of Law 5 1 17, Comment (c). Foreign custody orders were afforded comity under the

UCCJA before the standards of the Hague Convention were instituted. A Pennsylvania court afforded comity to a custody decree issued by an Israeli court in Hovav v. Hovav, 458 A.2d 972 (1983). The children in this case were born in Israel and had spent mostoftheir lives there, with the only connection to Pennsylvania being the present visit to their maternal grandmother. The Pennsylvania court extended comity to the Israeli decree granting custody to the father despite the mother’s contention that the judgment rested on religious and nationalistic principles rather than on the best interests of the child. Id. at 976. The Pennsylvania court noted that it must recognize valid foreign custody decrees unless there is a sbowing that conditions in the custodia1 bousehold in Israel would be harmful to the children. Id. Although the decree cites religious principles, the Pennsylvania court determined that because the Israeli court referred to both civil and religious law wherein there existed “an ovenvhelming principle, which is the good of the child,” comity should be extended to enforce the foreign decree. Id. at 976. In the Massachusetts case In

Internatiunal Law, 32 HARV. INT‘L L. J. 1 (1991).

http://travel.state.gov/abduction-egypt.htm1.


re Custody ofMinor, 468 N.E.2d 251 (l984), the minor child in this case was an Australian citizen present in Massa- chusetts. íd. The court focused its analysis on whether the Australian custody order was based on paramount consideration of the welfare of the child and whether the mother in Massachusetts was given adequate notice of the Austra- lian custody decree obtained by the father. Id. at 254 The court commented that “the procedural and substantive law applied by the foreign court must be reasonably comparable to the law of the Commonwealth.” Id. at 255. The court found that the foreign order encompassed the same substantive law, that is, the best interests of the child; therefore public policy was not offended in extending comity. Id.

I 18. Section 105 of the UCCJEA is derived from the language of Article 20 of the Hague Convention. Article 20 of the Hague Convention states, “The return of the child under the provision of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedorns.”

119. UCCJA 5 23; UCCJEA 3 105 (c). 120. U.S. Department of State, International Parental Child Abduction Flyer-Arab Republic of Egypt, (12 http:/

121. See id. 122. Id. 123. Id. 124. Id. 125. Id.The preferences proceed to the maternal grandmother and great-grand mother, then to the paternal

grandmother. Id. A finding of unfitness can be based on a physical, mental, or moral inability to care for the child. Id. 126. See U.S. Department of State, International Parental Abduction, Country-Specific Abduction Flyers for

Pakistan, Jordan, Lebanon, Saudi Arabia, han, Yemen, and United Arab Ernirates, at http://travel.state.gov/ abduct.htm1.

127. U.S. Department of State, Intemational Parental Child Abduction-Islarnic Family Law, at http:// travel.state.gov/islamic_family_law.html.

128. See JOHN DEWITT GREGORY, &TER N. SWISHER, & SHERYL L. WOLF, UNDERSTANDING FAMILY LAW 445-46 (2d ed. 2001) citing Johnson v. Johnson, 564 P.2d 71 at 75 (1977); Ex parte Divine, 398 So. 2d at 686 (1981).

129. See Henderson, supra note 11, at 427. 130. Id. 131.Id. 132. Id. 133. See Rest. 3rd Foreign Relations Law aj 485, Reporter’s Notes, Note 1. 134. See Entelis, supra note 20, at 1300. 135. Id. at 1269. 136. Id. at 1300. 137. ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICS 175-176 (1999). 138. See Entelis, supra note 20, at 1300-01; see generally Part 1 (discussion of “sources of Islam”). 139. Id. at 1269. 140. Id. 141. Id. See also An-Na’im, supra note 32. An-Na’im explains,

The most important general pnnciple of Shan’a iníluencing the status and rights of women is the notion of qawama. Qawamn has its origins in verse4:34 of the Qua’an: “Men haveqawama [guardianshipand authority] over women because of the advantages they [men] have over them [women] and because they [men] spend their property in supporting them [women].” Id. at 14.

142. Id. 143. See Part 1. 144. See Andrews, supra note 2, at 597. 145. Arnin v. Bakhaty, 2001 WL 1223612(La.) (2001). 146. Under the UCCJA, the substantive threshold to extend comity for the court to consider is “fundamental dif-

ferences.” Upon adoption of the UCCJEA, the threshold would change to considering a “violation of human rights.” See UCCJA 5 23; UCCJEA 5 105.

147. See 2001 WL 1223612 at 6. The UCCJA provides four basis for a state to assert jurisdiction: “home state,” “significant connection,” “emergency,” and “residual.” The trial court declined home state and significant connection junsdiction as a result of the child’s limited time of one month in Louisiana prior to commencement of the action and declined emergency jurisdiction based on the Iack of abuse or mistreatment. The trial courí was able to exercise residual jurisdiction in the best interests of the child after it concluded that no other “state” as defined by the

/travel.state.gov/abductionegypt.html.

274 FAMlLY COURT REVIEW

UCCJA could assertjurkdiction. Id. at 4. On appeal from the husband, contesting jurisdiction, the Court of Appeal affirmed and the Supreme Couri of Louisiana granted certioari. Id. at 1.

148. Id. at 8. 149. Id. at 4. 150. Id. at 1. 151. Id. 152. Id. 153. Id. 154. Id. Thecourtremanded thecase to the tnalcourtfor“furtherproceedingsconsistent with theopinion.” Id. at 13. 155. Id. at 6. 156. Id. The test employed by the court is modeled from the language of section 23 of the UCCJA. The other

points of the test include whether foreigncustody decrees existed prior to initiating any proceedings in the reviewing court, whether any of the parties were U.S. citizens, and whether the parties received adequate notice and chance to he heard in the foreign courts. Id.

157. Id. at 7. 158. Id. The courtrelied heavily on the testimony of Bakhaty’s (husband) experton Islamic law relating to inter-

national child custody disputes and the application of the UCCJA, Ms. Patricia Apy. However, the court selected only portions of Apy’s correct assessment of Islamic famiiy law in supporting their determination of substantive fundamental differences. Apy gave her testirnony at the trial level. See id. at 2.

159. Id. at 8. 160. See Part 1, notes 48-50. 161. In reMarriugeofMuluk, 182Cal.App.3d 1018,227Cal.Rpt.r. 841 (1986).Themotherin thiscasecameto

California with her two children in July of 1982 without the father’s consent. After residing with her brother for two months, she fiied for legal separation and custody in September of 1982. Id.

162. Id. at 1025. 163. Id. at 1028. 164. Id. 165. Id. 166. Id. 167. Id. 168. See Part V. 169. See Starr, supru note 3, at 817. 170. See Rigler & Wieder, supru note 73, ut http://travel.state.gov/je_prevention.html (last visited Oct. 25,

171. Id. i 72. Id. 173. See ABC NEWS.com, Parents Left Behind: live Web interview with Attorney Patricia Apy, avuiluhle u!

http://abcnews.go.com/onair/Nightline/n1-0005 1 Icustodychat.htm1 (visited Oct. 25, 2002). 174. Hosain v. Malik, 108 Md.App. 284,671 A.2d 988 (1996). The child in this case was born in 1983 in Paki-

stan and had lived there until 1990 when the rnother left the home with her and subsequently fled the country. The mother was represented in custody proceedings initiated by the father in Pakistan; however, she consistently failed to appear. The father was awarded custody in Pakistan and eventually found the daughter in Baltimore County with the assistance of pnvate investigators after a two-year search. The father then sought enforcernent of his custody decree awarded iu Pakistan. Id.

2002).

175. Id. at 284. 176. Id. 177. Id. at 990. 178. Id. at 998. 179. Id. at 1002; the “iaw of personal status” is included in Shari’a law. 180. See Apy interview, supru note 174. The National Center for Missing and Exploited Children maintains and

provides a list of attorneys who have expressed an expertise and desire to represent clients in international chiid custody litigation. The National Center for Missing and Exploited Children can be contacted at www.ncrnec.org.

181. See Starr, supru note 3, at 806. 182. Id. 183. See Apy, supru note 63, at 96. 184. Id. 185. Id. at 97.


186. See Starr, supra note 3, at 806. 187. Don Belt, The World of Islam, NATIONAL GEOGRAPHIC, January 2002, at 77.

Thomas Foley is a managing editor (2002-2003) and a former staff editor (2001-2002) of Family Couri Review.

Documents

EXTENDING COMITY TO FOREIGN DECREES IN INTERNATIONAL CUSTODY DISPUTES BETWEEN PARENTS IN THE UNITED STATES AND ISLAMIC NATIONS