Interesting Child Custody / Alleged Threat of Female Genital Mutilation Case

Mohamed Aly, born and raised in Egypt, lives in Canada. Amal Aden, born and raised in Somalia, lived in Minnesota until she and Aly met on a Muslim dating site and she moved to Canada. They married, and have a daughter, born in 2011. But Aden left Aly, taking the daughter back with her to Minnesota. Aly then petitioned under the Hague Convention (a treaty) and the International Child Abduction Remedies Act, “alleging that Aden wrongfully removed their child to the United States. Aly contends that the child is a habitual resident of Canada within the meaning of the Convention, and accordingly seeks an order from the Court directing the prompt return of the child to that country. Aden opposes the petition, alleging that Aly has not met the requirements under the Convention and raising affirmative defenses to the return of the child — including that there is a grave risk of harm should the child be returned to Canada.”

The court (Aly v. Aden (D. Minn. Feb. 14, 2013)) went through a lot of details, including the various factual allegations and cross-allegations, and I can’t do all those details justice here. Here, though, is an interesting discussion of the mother’s (Aden’s) argument that returning the daughter to the father would put the daughter at risk for female genital mutilation (some paragraph breaks added):

58. Aden alleges that Aly approves of the practice of female genital mutilation (“FGM”). Aden also alleges that Aly asked Aden to take [daughter] to Aden’s mother, who lives in Kenya, to have the child undergo FGM. Aden testified that Aly then stated that if Aden’s mother would not do the procedure, Aly would take [daughter] to his mother in Egypt to have the procedure done.

59. Aly denies that he approves of FGM or that he would subject [daughter] to FGM and instead alleges that Aden’s mother and Aden herself have been advocates of subjecting [daughter] to the procedure.

60. Aden has undergone FGM, and Aden’s mother had the procedure performed on Aden’s younger sister despite Aden’s protests. None of Aly’s female family members have undergone FGM, and Aly alleges that none of his family members support the practice.

61. Ms. Roundtree [one of Aly’s ex-wives] also alleges that Aly believes in FGM. Ms. Roundtree alleges that she and Aly had a daughter together and Ms. Roundtree gave her daughter a different last name to protect her from Aly. Aly denies that he is the child’s father.

62. Aden presented expert testimony from Elizabeth Boyle about the practice of FGM. Aly presented expert testimony from Mr. Abed Awad, an expert on Islamic law, about the practice of FGM….

64. Boyle testified that a number of factors specific to Aly put [daughter] at risk of being subjected to FGM. These factors include that Aly is a Salafi Muslim from Egypt, that Aly “apparently said he wanted to have [[daughter]] circumcised,” that Aly “has shown an interest … in women’s chastity,” and that Aly has demonstrated a conservative approach toward Islam as evidenced by his belief in polygamy for males and his history of serial divorces. Boyle alleges that the most likely cause of harm to [daughter] would be if Aly took her to Egypt, where “it’s easy to get the practice performed.”

65. Mr. Awad testified that many variables enter into whether a child is subjected to FGM. FGM is less likely as the level of education and economic status of the child’s parent’s increases, and is also less likely where parents were raised in a metropolitan area and currently live in a country where the practice is not prevalent.

66. FGM is not a practice mandated by Islam. And the mainstream Islamic organizations’ position is that the practice is unIslamic. Additionally, FGM is not an accepted or prevalent practice in North America and is illegal in both Canada and the United States….

Aden argues that returning [daughter] to Canada would put the child at a grave risk of physical and psychological harm because of Aly’s history of abuse and desire to subject [daughter] to FGM. Under the Convention, the Court is not bound to order the return of the child if the person who opposes the return establishes that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, art. 13(b). Aden has the burden of proving a grave risk of harm by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A). As an exception to operation of the Convention, the grave risk of harm defense is narrowly construed….

[T]he Court finds the allegations that Aly will subject [daughter] to FGM to be too speculative to demonstrate a grave risk of physical and psychological harm by clear and convincing evidence. Although subjecting [daughter] to FGM would clearly constitute a grave harm, the grave risk inquiry focuses on “immediate” risks. [Footnote: In making this determination, the Court gives little weight to the testimony of Ms. Boyle and Mr. Awad. Both experts testified to the statistical probability of Aly subjecting [daughter] to FGM based on Aly’s background and religious beliefs. Although these factors are not entirely irrelevant, the Court finds that the heart of this case turns on whether Aly actually would subject [daughter] to FGM and whether this threat is immediate — not whether his background suggests he may be statistically more or less likely to do so.]

At most, the record contains allegations that Aly believes in the practice and has expressed a desire to subject his daughter to the procedure, potentially by taking her to Egypt. None of the female members of Aly’s family have undergone the procedure, suggesting that immediate family pressure is not an issue.

The record does not reflect that Aly would be able to obtain this procedure in the United States or Canada, which the Court finds mitigates any immediate risk to [daughter]. Aly is not currently in possession of [daughter]’s passport, and the Court finds no reason the passport cannot be kept in the possession of a neutral party pursuant to a Canadian court order during the duration of the custody proceedings. Should Aly’s alleged desire to subject [daughter] to FGM manifest itself into actual plans to carry out the procedure, the Court believes that the Canadian court is equipped to prevent this occurrence. Finally, Aden’s family history — having undergone the procedure herself and having a mother who subjected Aden’s younger sister to the procedure despite Aden’s protests — suggests that it is possible that [daughter] may face just as great of a risk of undergoing the procedure while under her mother’s custody as she would face if she was returned to Canada….

The Court stresses that under the Convention, it is not charged with resolving this custody dispute between Aden and Aly, determining which party is a better parent, or inquiring into the best interests of [daughter] The Court is constrained to determining whether Aden has demonstrated by clear and convincing evidence that [daughter] would be subjected to a grave risk of physical or psychological harm if returned to Canada. Here, the Court finds that Aden has failed to make such a showing….