By
Prof. Gabriel Sawma
As this article was being
written, the court of Common Pleas of Allegheny County, Pennsylvania, Family
Division, issued a judgment in our favor, granting the custody of two children
to the mother and denying a request by the father to take the children back to
Saudi Arabia. This custody order complies with out argument before the court of
Pennsylvania that the Saudi custody order should not be recognized for
violation of US and international law, and it should not be recognized for
violation of Pennsylvania public policy, and because Saudi Arabia is not a
signatory to The Hague Convention on the Civil Aspects of International Child
Abduction. The court order is not published yet; I will post the link once it
is published. A copy is available at the request of judges and lawyers.
In recent years, I have
been getting calls from clients throughout the U.S. and Canada seeking help in
bringing back their children who were kidnapped from the United States to Saudi
Arabia by their fathers. Most of these cases involve a marriage of Saudi men to
women of U.S. nationality. This situation becomes a frustrating task for judges
and lawyers for not being able to have the government of Saudi Arabia comply
with U.S. court decisions to bring back the children, or grant visa to the
mother to travel to Saudi Arabia and see her children. That is because Saudi
Arabia does not recognize US court orders.
In other situations, the
children live in the United States with their mother, but fear that the husband
can obtain Saudi passport for the children and plans to take them to Saudi
Arabia with the purpose of staying there and not allowing them to come back to
the United States.
This article addresses the
legal issues facing women who see their children abducted to Saudi Arabia by
their fathers for the sole purpose of keeping them in that country and not
allowing them to return to USA. Some of the calls I receive indicate “fear of
abduction” by the husband. The article also helps American women to understand
the ramifications, in connection with custody of their children, when they
marry Saudi men.
On its website, the U.S.
Embassy in Riyadh, capital of Saudi Arabia, states the following: “The Kingdom
of Saudi Arabia is not a party to The Hague Convention on the Civil Aspects of
International Child Abduction, nor are there any international or bilateral
treaties in force between Saudi Arabia and the United States dealing with
international parental child abduction. American citizens who travel to Saudi
Arabia are subject to the jurisdiction of Saudi courts, as well as to the
country’s laws and regulations. This hold true for all legal matters including
child custody. Parents planning to travel with their children to Saudi Arabia
should bear this in mind.” (See Embassy of the United States in Riyadh, Saudi
Arabia at: http://riyadh.usembassy.gov/ipca2.html
Introduction
Saudi Arabia is a kingdom
located in the Middle East between the Persian Gulf and the Red Sea. It borders
Jordan, Iraq, and Kuwait to the north, Yemen to the south, and Oman, the United
Arab Emirates (UAE), and Qatar to the east.
Unlike most Muslim
majority countries of the Middle East, where personal status laws have been
codified for the various religious communities, Saudi Arabia does not have a
codified family law. The religion of Saudi Arabia is Islam and its constitution
is the “Book of God Most High and the Sunna of His Prophet.” This means the
rule of Saudi Arabia draws its authority from the Quran and the sayings and
deeds of the Prophet of Islam. Consequently, Sharia courts apply, in cases
brought before them, the rules according to the Quran, the Sunna and the
interpretations of these two divine elements given by major scholars in the
Hanbali School of Thought, which is the dominant school of jurisprudence in the
kingdom.
Without going into
details about the Schools of Thought in Sunni and Shi’i Islam, it is worth to
note here that Islamic Sharia is explained within the context of Four Schools
of jurisprudence in Sunni Islam and three Schools within the Shi’a community. These
are known in Arabic as Madhaahib, singular Madhab. In other words, each Muslim
majority county applies the rules of Islamic Sharia according to one or more of
these Schools. Saudi Arabia, for example applies the rules of Hanbali
jurisprudence, while Lebanon and Syria apply the rules according to Hanafi
School of Thought for the Sunnis. In Indonesia, they apply the rules of
Shafi’i. (For more information on the distribution of Schools of Thought in the
Islamic world, see: http://veil.unc.edu/religions/islam/law/
Custody Orders Are Determined by
Religion, Gender, and Age of the Child
Custody orders issued by
Saudi Shari’a courts are based on religion, gender of the child, and his or her
age. The most important criteria in Saudi custody orders is that the custodian
father will take care of the children by bringing them up within the Islamic
faith. This means that the religion of the father determines the custody of his
children; a child born of a Muslim father, his or her custody goes directly to
the father without taking into consideration the Western notion of the ‘best
interest of the child.’
In the event of divorce,
custody of girls and boys belong to the father when they reach age of seven.
Girls are not given a choice to live with the mother or father, but boys are
usually give that choice.
Saudi courts generally do
not award custody of children to non-Saudi women. If the mother is not Arab
Muslim, judges will not grant her custody of the children.
Saudi custody orders do
not take into consideration the best interest of the child. Shari’a court
judges do not interview the children and do not provide the opportunity for the
children to make their views known.
In Saudi Arabia, the
mother’s role in reproduction is, in fact, limited to childbirth, nursing, and
the nurturing of young children. Beyond that stage, custody of children belongs
to the father.
Under Saudi law, no woman
or child can leave the country unless the ‘guardian’ approves of that. The
‘guardian’ is the husband, who has authority to deny his wife or children,
whether adult or not from traveling outside the country without his permission,
even if they hold U.S. citizenship.
In most cases, Saudi
fathers have married their half-American daughters to other Saudi men. The U.S.
Embassy can intercede with the Saudi government to request exit visas for adult
U.S. women, but there is no guarantee that the visas will be issued, and
obtaining an exit visa without the male guardian’s consent takes many months,
if it can be obtained at all. The U.S. Embassy cannot obtain exit visas for the
departure of minor children without their father’s permission.
In September 2002, the Foreign
Minister of Saudi Arabia announced that any adult American woman who wishes to
leave Saudi Arabia, can do so even without permission of her male guardian. The
Foreign Minister did not say anything about half-American children.
Saudi Arabia does not
recognize dual citizenship. The U.S. Embassy in Riyadh states that: “The Saudi
government does not recognize dual nationality. Saudi authorities have
confiscated the U.S. passports of U.S. citizens and U.S.-Saudi dual nationals
when they have applied for Saudi citizenship or a Saudi passport.” <http://riyadh.usembassy.gov/service/passport-and-citizenship/dual-nationality.html>
In its 2016 report on
Saudi Arabia, Amnesty International states the following: “Women and girls
remained subject to discrimination in law and in practice. Women has
subordinate status to men under the law, particularly in relation to family
matters such as marriage, divorce, child custody and inheritance, and they were
inadequately protected against sexual and other violence. Domestic violence
remained endemic, despite a government awareness-raising campaign launched in
2013. A law criminalizing domestic violence which was adopted in 2013 remained
unimplemented in practice.” (See <https://www.amnesty.org/en/countries/middle-east-and-north-africa/saudi-arabia/report-saudi-arabia/ >
In Saudi Arabia, women
are prohibited from obtaining passport, marrying, traveling, or accessing
higher education without the approval of a male guardian.; A father may force
his female children into marriage without their consent, and underage girls may
be forced to marry.
Under the Islamic rules,
a Muslim man may marry up to four wives at one time, and according to the
Qur’an, women should be devoutly obedient to their husbands and “men are the
protectors and maintainers of women because Allah has made one of them to excel
the other.” (Qur’an 4:34)
One such manifestation of
obedience is wearing the hijab, which
means face and head covering and all over the body, and men can end the
marriage by simply stating ‘I divorce you’. The husband can divorce his wife
without having to obtain a judicial order, and without having to give very much
justification. On the other hand, a woman must get a judicial decree in order
to get out of the marriage.
Under Islamic law, a
woman’s testimony in court is equivalent to half that of a man, and a Muslim
woman is prohibited from marrying non-Muslim man.
Saudi Arabia Does Not Have Equal
Protection of the Law
The most influential
formulation of the principle of equal protection of the law was set forth in
the 1868 Fourteenth Amendment to the US Constitution is not recognized in Saudi
Arabia. The Kingdom discriminates against women, whose status is more difficult
than in any other country in the world, particularly with regard of freedom of
movement (forbidden from driving), and may not travel without being accompanied
by a male relative, freedom of speech, and freedom from dress restrictions.
Saudi Arabia Is Not Party to The Hague Convention On
the Civil Aspects of International Child Abduction
Saudi Arabia is not party
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, nor to an extradition treaty with the U.S.
Saudi Arabia Does Not Recognize U.S. Custody Orders
Saudi Arabia does not
recognize U.S. court orders, including custody of children and divorce decrees,
which are consequently unenforceable in Saudi Arabia.
Saudi Arabia Did Not Sign the Universal Declaration of
Human Rights (UDHR) and Entered Reservations on Other International Human
Rights Treaties
UDHR was adopted on
December 10, 1948 by the United Nations General Assembly. Saudi Arabia never
signed the Declaration, and ratified The Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) by entering reservations that
make Islamic Shari’a superior to the Convention, which was adopted in 1979 by
the UN General Assembly.
Saudi Arabia did not
ratify the International Covenant on Civil and Political Rights (ICCPR), which
was adopted on December 19, 1966 by the General Assembly of the United Nations.
Saudi Arabia is one of the few states that is not a party to ICCPR. Human
Rights Watch confirms this fact in its report, which reads: “Despite its
assertions to the contrary, Saudi Arabia, by virtue of its membership in the
United Nations, is committed to uphold universal human rights standards,
including those set forth in the Universal Declaration of Human Rights (UDHR),
which are recognized as norms of customary international law. Other
international instruments elaborate upon these rights, most notably the
International Covenant on Civil and Political Rights (ICCPR), to which 138
states are party. Although Saudi Arabia is one of the few nations that is not a
party, the terms of ICCPR provide guidance as to the content of the fundamental
rights that Saudi Arabia is obliged to respect, based on Saudi’s participation
in the United Nations and the universally binding character of such rights.”
(See the Report on this link: <https://www.hrw.org/reports/1997/saudi/Saudi-07.htm
Saudi Arabia Violates Treaty on Human
Rights for The Child
In November 1989, the
United Nations General Assembly adopted a human rights treaty called The
Convention of the Child (CRC), or (UNCRC). It sets out the civil, political,
economic, social, health and cultural rights of the children. It defines a
child as any human being under the age of eighteen, unless the age of majority
is attained earlier under a state’s own domestic legislation. The treaty came
into force on September 2, 1990, after it was ratified by the required number
of nations.
Saudi Arabia ratified the
Convention on the Rights of the Child in 1996, but it entered a reservation
“With respect to all such articles as are in conflict with the provisions of
Islamic law.” This means, Saudi law enforcement officials, judges, and
prosecutors “have very broad discretion to determine issues such as when to
arrest children, how long to detain them and what punishments to impose on
those deemed to have broken the law.” (See Adults Before Their Time: Children
in Saudi Arabia’s Criminal Justice System, volume 20, by Human Rights Watch,
2008, p.8.) This also means that Saudi Arabia considers Islamic Shari’a
superior to international human rights laws.
There is no minimum age
of marriage in Saudi Arabia, a number of notorious child marriage cases have
reported by the media, such as when an eight-year-old girl requested the courts
in May 2009 to grant her divorce from her fifty-year-old husband. (See A Conspicuous
Silence: American Foreign Policy, Women, and Saudi Arabia by Valerie Hudson,
Columbia University Press, 2015, electronic version)
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, mainly the law of marriage, divorce
and custody of children, Hindu marital disputes in U.S. courts, and Iran
divorce in USA.
·
Professor of Middle
East Constitutional and Islamic law,
·
Expert Consultant on
Islamic divorce in US Courts and Canada,
·
Expert Consultant on
Hindu divorce in U.S. courts,
·
Expert Consultant on
Iranian Shi’a divorce in USA,
·
Expert Consultant on
Islamic finance.
Admitted to the
Lebanese Bar Association; 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., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance
for MBA program at the University of Liverpool, United Kingdom.
Travelled extensively
to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab
Emirates, Jordan, Syria and Palestine.
Wrote many articles on
Islamic and Hindu divorce in USA, custody of children in the Middle East and
Central Asia; and on abduction of children to Muslim countries;
Speaks, reads and
writes several languages including Arabic, English, French and others.
Interviewed by:
Contact Information:
Tel. (609) 915-2237
For more information
on our field of expertise, please visit our websites at the following links,
where you will find most of our articles:
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