American Court Refuses to Honor Lebanese Islamic Court Child Custody Order

Strikes me as quite sensible, not because of some special disability imposed on Sharia law as such, but because of the application of generally applicable American rules, under which comity is given to certain foreign child custody decrees only if they generally comply with American norms. The case is Charara v. Yatim (Mass. Ct. App., decided today) (some paragraph breaks added):

This is an appeal by the father, Said Yatim, from a divorce judgment entered in the Probate and Family Court that awarded custody of the couple’s two minor children to the mother, Hiba Charara; divided their property; and ordered the father to pay child support. The parties, as well as their children, are United States citizens who were living in Massachusetts when the marriage suffered an irretrievable breakdown in 2004. On May 30, 2004, the couple (with their children) returned to Lebanon for the purposes of there obtaining a religious divorce. Once in Lebanon, the father did not institute divorce proceedings as he had agreed, but instead sought and obtained custody of the two children. The mother returned to the Commonwealth and instituted the underlying divorce action, in which she also sought custody and child support.

Following a trial, a judge of the Probate and Family Court concluded that no deference was due the custody order issued by a Jaafarite religious tribunal (Jaafarite Court) in Lebanon. The probate judge based his decision on evidence, including the testimony of experts, that the Jaafarite Court’s custody order was not made in “substantial conformity” with Massachusetts law regarding the best interests of the children….

On June 23, 2004, the father initiated an action for reconciliation and custody in the Jaafarite Court in Lebanon. That court has jurisdiction [under Lebanese law] over family matters arising between persons of the Shia sect of the Islamic religion…. By a temporary order dated July 29, 2004, the father was given custody of the children….

In deciding the question whether the Jaafarite Court’s decree should be given deference, the probate judge engaged in a two-step determination. He first determined that the Probate and Family Court “has jurisdiction to make a custody determination in this case pursuant to G.L. c. 209B, § 2(a)(2), because no other state is the home state of the [children], the [mother] resides here, and because the children and the parties resided here until 2004, there exists substantial evidence here regarding the children and their care.” Second, he “decline[d] to give deference to the Lebanese Judgment because it was not in ‘substantial conformity’ with the laws of Massachusetts. G.L. c. 209B, § 14.” …

B. Substantial conformity. To support his argument that the probate judge erred in concluding that the Jaafarite Court decree was not decided under law in substantial conformity with Massachusetts law governing child custody cases, the father claims (1) that the testimony of his expert supports the conclusion that “the relevant standard for custody matters under the Jaafarite School of Islamic Law in Lebanon is the best interests of the children”; and (2) the mother was under no duress when she entered into the agreement in Lebanon that gave custody to the father.

1. Best interests standard. The probate judge’s findings and conclusions regarding the substantive law of best interests applied in the Lebanese Jaafarite Court, as compared to that applied in the Commonwealth, are set forth below:

“Based on the evidence, it is clear that male children in Lebanon go to the Father at the age of two. The parents are not evaluated equally when determining the best interest of the children and which parent should have physical custody. Although the Mother can obtain custody, it is only if the father is a criminal or cannot or will not care for the children. Unlike Massachusetts which requires that the court determine the best interest of the child and which parent should have custody based upon the ‘happiness and welfare of the children,’ it is clear that the Lebanese law does not take that into consideration unless the father is unfit. G.L. c. 208, § 31.”

We have said that the ” ‘substantial conformity’ test requires the satisfaction of three procedural components: whether the foreign court (1) had jurisdiction over the parties and the subject matter; (2) applied procedural and substantive law reasonably comparable to ours; and (3) based its order on the ‘best interests of the child.’ This “analysis tracks standards reflecting the traditional doctrine of comity.” These and other traditional principles of international comity all find their source in the seminal decision of the United States Supreme Court, Hilton v. Guyot, 159 U.S. 113, 163-167, 190-191, 202-203, 228 (1895).

The issue before us, whether the substantive laws of the Jaafarite Court in Lebanon are in substantial conformity with those of Massachusetts, turns largely on the question whether the Lebanese Jaafarite Court considers the best interests of the children, as that standard is understood under the laws of the Commonwealth.

Here, the probate judge credited evidence, including certain testimony of the parties’ experts, that, as between separating or divorcing parents, the Jaafarite Court in Lebanon will give the father custody of a son over the age of two absent circumstances, not present here, that would render him unfit.

As the judge’s findings reflect, not only the mother’s experts but those of the father support the rulings as to the law that governed the parties’ custody proceedings in the Jaafarite Court in Lebanon. The father’s expert “testified that custody in Lebanon is determined according to the ‘best interest of the child’ but that there is a presumption that it is in the best interest of male children [to] be in the custody of the mother until the age of two and after that, [that] they be in the custody of the father.” A second expert testifying for the father stated, in response to a question regarding the mother’s right to petition for custody in Lebanon, that “once a male child reaches the age of two, the father is more entitled to custody.” The mother’s expert testified that “in Lebanese Jaafarite Court, best interest for the child is being with the father after the age of two.” The presumption may be rebutted only upon evidence of unfitness, such as that he “is a criminal, taking drugs, or incapable of caring for the child.” …

The evidence presented in this case amply supports the judge’s finding that it is not the relative fitness of the parents that is considered by the Jaafarite Court in Lebanon, but only the father’s fitness, and if both parents are fit, then the father will be awarded custody. On this basis, the judge’s conclusion was correct that no deference was due the Jaafarite Court custody decree.

The best interests of a child is the overarching principle that governs custody disputes in the Commonwealth. “[T]he touchstone inquiry of what is ‘best for the child’ is firmly rooted in American history, dating back to the Nineteenth Century.” What is in a child’s best interest depends upon the particular needs of the child, and is left largely to the discretion of the judge, who “may consider any factor pertinent to those interests.” …

The best interests analysis our courts employ is thus unlike the presumptive entitlement to custody that governed the custody proceeding in the Jaafarite Court in Lebanon. The custody judgment of that court is therefore not in substantial conformity with the laws of the Commonwealth….