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

I blogged about Souratgar v. Fair when the district court decision came down, but now there’s a Second Circuit opinion. Here are the key facts:

The boy at the center of this case, now four-year-old Shayan, was born in Singapore in January 2009 to [Lee Jen Fair] and [Abdollah Naghash] Souratgar, who are both residents of that country. Souratgar is an Iranian national who has owned a business in Singapore since 1989. Lee is a Malaysian national who worked as an airline attendant, saleswoman, and retail manager in Singapore. She converted to Islam, Souratgar’s faith, just prior to their marriage in Singapore in 2007. Shayan is a citizen of Malaysia with Malaysian and Iranian passports….

In April 2011, when Shayan was two, Lee filed an ex parte application in the Singapore High Court for sole custody. She cited concern that Souratgar would take Shayan from the country and cut her off from the boy. On May 16, the Subordinate Court of Singapore issued an ex parte order directing Souratgar to hand over Shayan’s passports and personal documents to Lee and barring Souratgar from removing the child from Singapore without court approval and Lee’s knowledge or consent. Souratgar complied with the order, denied Lee’s charges, and cross-applied for sole custody.

While the custody proceedings were pending in Singapore, Lee moved out of the marital home with Shayan and refused to disclose their whereabouts to Souratgar. He eventually found them in Malaysia, where Lee denied him access to the boy. Souratgar then filed a custody application in the Syariah Court of Malaysia, which granted joint custody to the couple in early July. Thereafter, Lee succeeded in obtaining a dismissal of that order from the Malaysian Syariah Court for lack of jurisdiction.

After Lee and Shayan returned to Singapore, the custody proceedings in Singapore’s Subordinate Court resumed. Following a mediation session on July 14, 2011, the Subordinate Court barred either parent from removing Shayan from Singapore without the other’s consent and ordered interim supervised visitation for Souratgar of two hours per week at Singapore’s Centre for Family Harmony. Following another mediation session on February 16, 2012, both parties agreed to a consent order by the Subordinate Court to have custody decided by the Syariah Court of Singapore. [Foontote: In late 2011, Lee had filed for divorce in Singapore’s Syariah Court and used that proceeding to dismiss the temporary joint custody order of the Malaysian Syariah Court.] In the meantime, Shayan remained in Lee’s care, while Souratgar’s visitation time was doubled.

On May 20, 2012, Lee removed Shayan from Singapore, in violation of the Singapore Subordinate Court’s order. Souratgar, through a private investigator, eventually located Lee and Shayan in [New York], and on October 18, filed an ex parte application in the district court under the Convention for Shayan’s return to Singapore.

The case is now in American court under the Hague Convention on the Civil Aspects of International Child Abduction, a treaty that the U.S. and Singapore has signed, and that U.S. courts generally follow (and that U.S. citizens reciprocally benefit from). Under the Hague Convention, “when a parent wrongfully removes a child from one contracting state which is the child’s country of habitual residence to another contracting state, the other parent may initiate a proceeding to repatriate the child to the first state.” Such removal is required unless the other parent can establish one of the defenses, and the two relevant ones are under Article 13(b) (where “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”) and under Article 20 (where return to the country of habitual residence “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”).

As to Article 13(b), the court concluded that there was little risk of Shayan’s being exposed to serious spousal abuse if Shayan were returned to Singapore, and little risk of direct abuse of Shayan, and then went on to analyze Lee’s argument that return would harm Shayan by potentially depriving him of access to her (his mother):

Lee … posits various scenarios in which the boy would be deprived of his mother post-repatriation. She claims Souratgar may (a) resort to Syariah court proceedings in Singapore or Malaysia to win custody outright; (b) abscond with Shayan to Iran; or (c) expose her to the charge of apostasy (leaving the Muslim faith), a religious crime punishable by death in her home country of Malaysia. The district court dismissed these claims as lacking factual support.

As an initial matter, we cannot conclude that the prospect that one parent may lose custody of the child, post-repatriation, necessarily constitutes a grave risk to the child under the Convention. Since the Convention defers the determination of custody to courts in the country where the child habitually resides, it is quite conceivable that in some cases one or the other parent may lose legal custody after repatriation and be deprived of access to the child. Thus, the possible loss of access by a parent to the child does not constitute a grave risk of harm per se for Article 13(b) purposes. But even assuming that the prospect of the child losing his mother poses a grave risk to the child’s well-being, there is no basis to disturb the district court’s finding that Lee has not made a clear and convincing showing that any of the scenarios that she raised is likely to occur….

Lee argues that Souratgar’s attainment of custody in a Syariah Court is preordained. The district court heard expert testimony that under Islamic law, a woman’s testimony may be entitled to less weight than a man’s and there are presumptions in custody determinations that favor fathers over mothers and Muslims over non-Muslims. Lee has not shown, however, that the question of custody is likely to be decided by a Syariah Court upon repatriation, much less that such courts are predisposed to reach a certain outcome. If anything, the record is to the contrary. Lee successfully obtained a dismissal of the order of the Malaysia Syariah Court, which had awarded the couple joint custody, for lack of jurisdiction. Furthermore, her aspersions on Syariah proceedings in Singapore are inconsistent with her consent in February 2012 to have custody decided by that court.

Moreover, the Singapore Syariah Court has pendant, not exclusive jurisdiction, to hear child custody matters among Muslim couples. By statute, divorce actions between individuals of the Muslim faith, a religious minority in Singapore, must be brought in the country’s Syariah Court. But any party to a divorce proceeding before the Syariah Court may apply for leave to have custody decided by a secular court. And when both parties consent, they do not need to apply for leave in the Syariah Court to have custody matters decided in a secular court.

Souratgar has committed to pursue any custody proceedings, upon repatriation, in Singapore’s civil courts. Even if this undertaking is unenforceable, as Lee insists, she may still invoke it, as well as this Court’s decision, in any application to transfer the custody determination from the Singapore Syariah Court …. In light of these options, we cannot fault the district court’s conclusion that Lee failed to make a sufficient showing that the question of custody will be decided by a Syariah Court….

Lee also claims that Souratgar will abscond with Shayan to Iran to subvert the custody proceedings in Singapore. She testified that Souratgar has expressed a preference for Iranian military schooling for the boy, that he would like to take Shayan to see the boy’s paternal grandparents in Iran, and that he has considered the possibility of relocating his business activity to that country. The district court, however, found no credible showing that Souratgar would abduct the boy to Iran or any other country in violation of a court order, and we discern no error in this finding. We cannot fail to observe, moreover, that unlike Lee, Souratgar has to date honored the legal requirements of the courts in Singapore….

Finally, Lee claims that Souratgar exposed her to being charged with apostasy, which she says, is a capital offense in Malaysia and thus created a “grave risk” that Shayan would lose his mother. This claim is based on the testimony of Yasmeen Hassan, Lee’s expert witness on Islamic law, who testified that apostasy is punishable by death in Malaysia. The claim distorts both the facts and law. Souratgar did not accuse Lee of leaving the faith. In his attempt to obtain access to Shayan in Malaysia, Souratgar filed an affidavit with Malaysia’s Syariah Court reporting that Lee had committed certain acts in violation of Islamic law, such as selling cakes containing alcohol online and attending church. Additionally, although punishment for those who abandon the Muslim faith has been debated in Malaysia, the national government has consistently blocked any formal implementation of rules concerning apostasy. See Kikue Hamayotsu, Once a Muslim, Always a Muslim: The Politics of State Enforcement of Syariah in Contemporary Malaysia, 20 S.E. Asia Research 399, 400 (2012); Abdullah Saeed & Hassan Saeed, Freedom of Religion, Apostasy and Islam 19 (2004). Hence, there is no indication that Lee could even be charged with apostasy in Malaysia, much less face the death penalty.

Finally, the court rejects the article 20 defense:

[Article 20] is to be “restrictively interpreted and applied.” Article 20 is a “unique formulation” that embodies a political compromise among the states that negotiated the Convention, which “might never have been adopted” otherwise. The defense is to be invoked only on “the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.” It “is not to be used … as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.” We note that this defense has yet to be used by a federal court to deny a petition for repatriation.

In urging the Article 20 exception in this case, Lee insists broadly that Syariah Courts are incompatible with the principles “relating to the protection of human rights and fundamental freedoms” of this country. While this general assertion might find sympathy among some in this country as a political statement, we decline to make this categorical ruling as a legal matter. Moreover, Lee has failed to show that the issue of custody is likely to be litigated before Singapore’s Syariah Court. Given that failure, we are not inclined to conclude simply that the presence of a Syariah Court in a foreign state whose accession to the Convention has been recognized by the United States is per se violative of “all notions of due process.” [Footnote: Indeed, such a holding would contradict the State Department’s view expressed upon Singapore’s accession as a bilateral partner under the Convention last year, that Singapore is a “role model” among states in the region. United States and Singapore become Hague Abduction Convention Partners.]

We are also mindful of the need for comity, as “[t]he careful and thorough fulfillment of our treaty obligations stands not only to protect children abducted to the United States, but also to protect American children abducted to other nations-whose courts, under the legal regime created by this treaty, are expected to offer reciprocal protection.” In the exercise of comity, “we are required to place our trust in the court of the home country to issue whatever orders may be necessary to safeguard children who come before it.”

This analysis generally seems right to me, but note that — given the particular way that, according to the court, Singapore treats Sharia court proceedings — the Court of Appeals was 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 in such a situation (this case but with the likelihood that Sharia law would indeed be applied)? Let’s 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?