Prof. Gabriel Sawma
This article is written to address the issue of recognizing, by U.S. courts, divorce decrees obtained from Saudi Arabia involving custody of children. In most cases, a client needs a lawyer immediately; he or she returns to the first lawyer they can find, and who may not be familiar with international child custody law.
Article 1 of the Constitution of Saudi Arabia states that “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital”. God’s book is the Qur’an; the Sunna of His Prophet is the sayings and deeds attributed to Muhammad, the Prophet of Islam. The school of jurisprudence governing the law of marriage, divorce and child custody is the Hanbali School in Sunni Islam.
Saudi Arabia is a not party or signatory to the Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between the Kingdom of Saudi Arabia and the United States dealing with international parental child abduction. This is the case also for all legal matters involving child custody. Thus the Hague Convention does not apply; instead, the Uniform Child Custody and Jurisdiction Act (UCCJA) and the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA) apply to the child custody decrees obtained from Saudi Arabia. In the UCCJA, “state” is defined as including foreign countries, and therefore, the act applies internationally. Unless specifically identified as a U.S. state, the word “state” in article 23 of UCCJA refers to both U.S. states and foreign countries. It is important to note that the UCCJA is not reciprocal with foreign countries. U.S. states deciding custody jurisdiction will treat any foreign country’s court just like a U.S. court, but foreign countries’ courts, do not use the UCCJA.
In Saudi Arabia, issues related to marriage, divorce and custody of children, are based on Islamic law, according to the Hanbali School of Jurisprudence. The primary concern of the judicial system in Saudi Arabia in deciding custody cases is that the child born of Saudi parents be raised in accordance with the Islamic faith. Such cases are handled by the first layer of Islamic “Shari’a” courts known as Personal Status Courts, whose function is to adjudicate matrimonial cases, including custody of children.
THE JUDICIAL SYSTEM IN SAUDI ARABIA
Since the creation of Saudi Arabia in 1932 by King Abdul Aziz, several “Administrative Committees” with judicial powers have been periodically created. These “Administrative Committees” had jurisdiction over civil, commercial, administrative and criminal case and disputed arising out of the implementation of several laws and provisions. On April 2, 2005, a Royal Order was issued which approved principle amendments to the organization of judiciary in the country, including the establishment of specialized courts for the first time, in the areas of labor, commercial, domestic, and criminal. On October 1, 2007, King Abdullah bin Abdul-Aziz issued a Royal Decree approving a new body of laws regulating the judiciary and the Board of Grievances. The purpose of the new laws is to provide higher judicial standard. Under the new Judiciary law of 2007, the court system of Saudi Arabia is composed of: (1) High Court; (2) Courts of Appeals; and (3) First-Degree Courts, which are composed of the following:
· General Courts;
· Criminal Courts;
· Personal Status Courts; and,
· Labor Courts.
Marital disputes including custody of children lies under the jurisdiction of “Personal Status Courts.”
Non-Saudi women in general are not awarded custody of children. A non-Saudi, Arab Muslim woman, may not be granted custody of her children unless she is residing in Saudi Arabia, or the father is not Muslim. If both parents are non-citizens of Saudi Arabia and not Muslims, the Personal Status Court may refer their marital dispute to the court of their nationality. In some cases, Saudi authorities may deport both of them. An American wife married to Saudi citizen may find herself summarily divorced, deported, and deprived of any right of visitation with her children born of the marriage. Islamic law does favor men over women in the dissolution of marriage; whereby a husband may divorce his wife any time of his choosing, with or without reason, by merely stating three times “I divorce you”. The husband does not have to notify his wife of the divorce. Saudi laws require that all individuals visiting that country must have a sponsor by Saudi citizen in order to get an entry visa.
Leaving Saudi Arabia requires permission to exit the country. It is impossible to leave the country legally without the express permission of the Saudi husband. A pregnant woman is required to stay in Saudi Arabia until she gives birth of a child; the child is considered Muslim if his father is Muslim. Additionally, a Saudi husband has the right, under Islamic law, to marry up to four wives at one time. An American woman married to a Saudi man may find herself a co-wife in Saudi Arabia, sharing her husband with up to three other women.
The general rule in Islamic law is that a Muslim woman is prohibited from marrying non-Muslim. A custody dispute between a Saudi mother and a foreign father is determined by the Personal Status Court. If the foreign father wins custody of his children, he may need permission from the Saudi mother to remove the children from Saudi Arabia. The law of Saudi Arabia does not grant Saudi citizenship to children born of Saudi mothers and non-Saudi fathers.
CUSTODY IS BASED ON AGE AND GENDER OF CHILDREN
Under Saudi law, a mother is granted custody of her male child until the age of nine, and female child until the age of seven. However, Personal Status Courts may make exceptions to these general rules, taking into consideration the interest of the child. If the mother who has custody of her children moves to another country, the father is entitled to custody. Personal Status Courts may deny custody to the mother if the mother is incapable of safeguarding her children or bringing them up to religious beliefs other than Islam. The mother can lose her custody to her children if she re-marries a non-Muslim, or residing in a home inhabited by non-relatives. A divorced Muslim woman who has custody of her children must live in a house with her relatives. If the husband is sentenced to prison, the court may grant custody to his father; even if the Saudi father has made clear his wishes that mother has full custody.
ARE SAUDI CUSTODY ORDERS RECOGNIZED IN USA?
Most Western countries abide by the Hague Convention, Saudi Arabia does not. Thus, the abduction of a child from USA to Saudi Arabia is not a crime under Saudi law unless there is already a Saudi court order regarding custody of the child. But if the parent is entitled to custody according to a Saudi court decision, then Saudi Arabian Personal Status Courts would consider parental child abduction a criminal offence. Western lawyers and judges face difficulties for child abduction cases when dealing between jurisdictions like Saudi Arabia.
There are cases where husband divorces his wife in Saudi Arabia and obtains a custody decree of his children. Would such a decree be recognized in the United States if the wife resides here and the husband resides overseas? The general principle is that a divorce decree obtained in a foreign country is entitled to recognition under the principle of comity provided that the decree was issued by a court of jurisdiction, and does not offend public policy considerations. This means that state courts will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of a sister state. As such, each state can decide for itself which foreign country judgments it will recognize and which it won’t. Recognition of a foreign divorce decree may include financial issues between the parties such as spousal and child support, distribution of assets including the Mahr agreement, and child custody.
Seeking recognition of a Saudi divorce decree in U.S. courts, including custody order requires knowledge of the law of civil procedures and Islamic law according to the Hanbali School of Jurisprudence of Saudi Arabia. A Saudi Personal Status Court who issues an order of custody keeps its jurisdiction over the case no matter what the court in the U.S decides. Islamic Shari’a courts do not recognize civil marriages or civil divorces among Muslim couples by non-Islamic courts.
International child custody involving Saudi nationals requires a legal counsel who understands the law of custody in Saudi Arabia, something that most general legal practitioners would not ordinarily deal with. International clients, whether living in the United States or abroad, can suddenly find themselves dealing with, or being accused of, international child-abduction.
As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals.
Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:
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