Foreign Child Custody Disputes Involving People Coming from Countries That Apply Islamic Family Law

From Souratgar v. Fair (S.D.N.Y. Dec. 26, 2012):

Petitioner Abdollah Naghash Souratgar, an Iranian citizen, petitions this Court for the return of his son, Shayan, to Singapore. Shayan, who will soon be four years old, was born in Singapore and has Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore. She traveled to the United States where neither petitioner, respondent, nor the child has any meaningful ties or connections.

The father sued in American court, seeking return of the child to Singapore. The relevant American legal rule is that provided by the Hague Convention treaty, and the federal statute — the International Child Abduction Remedies Act — that implements it:

The Hague Convention seeks to “secure the prompt return of children wrongfully removed to or retained in” signatory states. The United States has ratified the treaty and implemented its terms through ICARA. Singapore acceded to the treaty in May 2012.

Under the Hague Convention, a child’s removal from a signatory state is wrongful when “[ (a) ] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [ (b) ] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The treaty applies to children under the age of 16….

In order to prevail, petitioner must establish by a preponderance of the evidence … that “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” …

Based upon the record as a whole and the Court’s assessment of the credibility of the witnesses, this Court finds by a preponderance of the evidence that petitioner has established each required element under the Hague Convention: (1) the child was a habitual resident of Singapore; (2) the child’s removal was in breach of petitioner’s custody rights; and (3) petitioner was exercising those rights at the time of the child’s removal. The Court further finds that respondent has failed to prove by clear and convincing evidence either of her affirmative defenses (1) that the child will be subjected to a grave risk of harm if he returns to Singapore, or (2) that fundamental principles of the United States relating to the protection of human rights and fundamental freedoms do not permit repatriation of the child….

The court concluded that there was no “grave risk of harm if [the child] returns to Singapore,” despite husband’s abuse of the wife, because the spouses would no longer be living together and because the Singapore legal system would likely provide sufficient protection to the wife and the child. The court then turned to the question whether the “fundamental principles of the United States relating to the protection of human rights and fundamental freedoms” should preclude return of the child, given the potential application of Islamic law in Singapore to Muslim family law disputes. (Muslims are a minority in Singapore, but Singapore, like some other countries, including Israel, Lebanon, and India, provides that in some situations family law disputes are routed through the religious courts of the religion to which the family belongs.) Here was the court’s reasoning:

[Wife] argues that returning the child is not permitted by the fundamental principles of the United States because the custody determination in Singapore will be made in a Sharia Court. [Singapore law] grants the Sharia Courts in Singapore considerable discretion in considering evidence from non-Muslims. Ms. Hassan testified that a woman’s testimony is worth less than a man’s in the Sharia Courts. Moreover, she testified that Sharia Law applies presumptions favoring fathers and disfavoring non-Muslim parents in custody determinations. These rules, [wife] urges, ought shock the conscience and offend notions of due process.

The Court concludes, however, that it need not reach the issue of whether the procedural and substantive rules in Sharia Courts “shock the conscience” or “offend all notions of due process” because the Court finds that [wife] has failed to prove that it is more likely than not that the Sharia Court will make a final custody determination in this case.

As noted, Singapore is a predominantly non-Muslim country with about 15 percent of the population as Muslim. Singapore has a dual legal system in which civil and Sharia Courts function concurrently. [Singapore law] sets out guidelines for the Sharia Courts in Singapore and vests them with limited jurisdiction. For instance, a Sharia Court does not have jurisdiction to consider domestic violence matters, including applications for protective orders. The Sharia Courts have exclusive jurisdiction in divorce actions where both spouses are Muslim or where the parties were married under the provisions of the Muslim Law. Unless a spouse commences a divorce action in the Sharia Court, the Sharia Court is “divested of any authority or jurisdiction in [a custody] matter.” However, when a divorce action is pending in Sharia Court, the Sharia Court also has jurisdiction to decide ancillary matters of custody and division of property.

Still, [Singapore law] provides procedural mechanisms for a litigant in Sharia Court to commence or continue custody proceedings in the Singapore civil courts. A civil court would be able to decide the issue of custody if both parties “consent to the commencement of the civil proceedings” or “consent to the continuation of the civil proceedings,” and obtain a certificate of attendance, which is issued after a counseling session. If the parties do not consent, the Sharia Court may still, in its discretion, grant an application for leave to commence or continue civil custody proceedings, if “every party who will be affected by such leave has been notified of the application at least 7 days before the grant of such leave,” and the parties “attend counseling provided by such person as the Court may appoint.” The frequency with which these provisions are invoked in practice is unknown, in part because there is no system of recorded judgments.

True, the order of February 16, 2012 of the Singapore family court contemplates that the issue of custody will be determined by the Sharia Courts. But that order was entered into after a mediation session and was “BY CONSENT” of the parties, each of whom was represented by counsel and neither of whom challenged the order. If [wife] had objected to the Sharia Court acting on the custody matter, one would expect her counsel to have documented the client’s desire or intent to have the Sharia Court stand down in favor of the Singapore Court.

The Court rejects the [wife]‘s after-the-fact claims that she never consented to the matter proceeding in the Sharia Court. The [husband]‘s expert set out plausible grounds why she may have rationally thought such a path was in her interest. Thus, any unfairness in the process in Sharia Court is, in this case, a self-inflicted wound.

But in any event, circumstances have evolved which make it likely that the Singapore family court where [wife]‘s original custody petition and [husband]‘s cross-petition remain pending will exercise jurisdiction over the custody dispute. First, the Court finds that there is no divorce action currently pending between the parties in the Sharia Courts in Singapore.

Second, in an affidavit dated December 7, 2012, [husband] affirmed that he “undertake[s] not to pursue any action in the [Sharia] Court of Singapore in relation to the custody, care and control of [his] son” and “commit[s] to the custody proceedings being continued and adjudicated upon in the Family Court of Singapore within the realm of civil proceedings.” The affidavit was sworn to at the Singapore Consulate in Manhattan, and Ms. Gomez [husband’s lawyer] filed the document as an affidavit in the Subordinate Courts of Singapore on December 11, 2012.

Ms. Gomez testified before this Court that [husband]‘s undertaking, if given to the Family Court of Singapore, is binding and enforceable. According to Gomez, it will require a judge to enter a court order for it to be punishable by contempt. [Husband] has familial ties and significant business interests in Singapore. He has been substantially compliant with court orders during the pendency of the Singapore proceedings and these proceedings. [Wife] has failed to prove that custody will be determined by the Sharia Courts rather than the civil courts.

[Wife] also urges that there are insufficient protections against domestic violence in Singapore, and thus, Article 20 bars the child’s repatriation. But the Court finds that Singapore has reasonable procedures to ensure the safety of the child during the pendency of the custody proceedings including supervised visitation. Moreover, [wife] was able to obtain two expedited orders, and had the opportunity to proceed to trial on each application in order to obtain permanent [protection orders].

It may be the case that [wife] was barred in the second proceeding from bringing up evidence relating to the first application, which she voluntarily dismissed, due to the court’s evidentiary rules. However, this does not rise to the level of shocking the conscience or offending all notions of due process. [Footnote: Article 20 is silent as to whether it applies only to the human rights and fundamental freedoms of the child, or to the parties in the case as well. The Court concludes that Article 20 is broad enough to encompass the rights of the parties but only insofar as they relate to the exercise of custody rights of the child.] Accordingly, fundamental principles of the United States regarding the rights and freedoms of domestic violence victims do not prohibit the return of the child under Article 20.

The court was thus able to duck the question whether American courts should refuse to send children back to countries where Sharia law likely would be applied in considering their cases. What do people think should be the right answer there? Again, focus on a situation where the parents and the child have no prior relationship with America — they aren’t American citizens, and they weren’t living in America when the dispute arose — but one parent brings the child to America in order to keep the other parent from having custody or visitation with the child.

Should American courts refuse to send the child back to the country of origin, because the judicial system in that country is biased against women and non-Muslims? (This could be either the overall judicial system, in a country that applies Sharia broadly, or the Islamic family law judicial system in a country that provides that family law disputes are to be decided by religious courts of the family’s religion.) Or should they say that, when the parties have no prior contact with America, the custody of the child should be decided under the laws of the home country, even if such laws would be seen as unacceptably discriminatory under American standards?

Relatedly, I take it that there’s a reciprocity dimension here: If America refuses to send back children who are taken from Country X to America, then Country X might well do the same when an American parent flees to that country, seeking to deny the other parent’s custody or visitation rights. (Assume that country X is otherwise a friendly country, which would normally be willing to send the American children back so that their parents’ rights could be effectively decided by American courts.) How should that affect the analysis, if at all?