The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

International Foreign Judgments in Divorce and Custody Cases: A Clash of Legal Cultures
By Michael A. Benedetto

“Every lawsuit affects some people.  In this case there are three persons who are primarily affected. The father of a six-year-old girl has not seen his daughter for over two years.  The child’s mother is incarcerated in New Jersey for failing to take steps to return the child from Spain. Most seriously affected, the young child of the couple, is in Spain without either her mother or her father.1

Divorce in General. As the above quote indicates, domestic relations attorneys need pay serious attention to the effect and consequence of not only the laws of this country but, in an age of international commerce and travel, that of other countries as well. 

Under the “full faith and credit” provision of Article IV of the U.S. Constitution, as well as various “uniform” statutes governing aspects of divorce, support and custody, the effect of actions taken by “foreign” states2 of this country (domestic decrees) not only must be recognized by the various other states, but have the advantage of being interpreted within the system of American culture and jurisprudence.

Such an advantage is not the case when an international foreign law or court order is at issue.  In those situations, American courts are not obliged to follow Article IV but, even when an international convention or treaty is in place, must defer to the judicial-made doctrine of international “comity”.  This doctrine was articulated over a hundred years ago by the U.S. Supreme Court in Hilton v. Guyot3; and subsequently adopted in a 1949 divorce case by the Illinois Supreme Court in Clubb v. Clubb4.  In that case the court refused to sustain an action by an Englishwoman for contempt for alleged nonpayment of an English court’s alimony order, explaining:

“Comity, in a legal sense, is neither matter of absolute obligation on the one hand nor or mere courtesy and good will on the other, but it is a recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws…(citing Hilton)5

Since that time the principle of “comity” has taken on many different interpretations by U.S. courts involving domestic relations cases. Some of those cases involve the validity of divorces obtained in other countries while others involve interpretation of custody and Hague Convention rulings by non-American courts.  As will be demonstrated in the cases below, our courts have been required to interpret the principles of comity not only from a judicial perspective but a cultural one as well.

In the case of In Re Ramadan[6] , a 2006 case from New Hampshire, the parties were from and had married in Lebanon in 1986, and had eventually settled in the State for over three years with their three children prior to the action. In October, 2003 the wife filed for divorce in the State alleging irreconcilable differences. The husband responded that he had obtained a divorce under Islamic law (typically referred to as a talaq) by declaring “I divorce you” three times in the presence of the wife the day before she filed.  He further alleged he had subsequently traveled to Lebanon where a religious magistrate had issued a decree to that effect.

Rather than entering a quagmire concerning the validity of the Islamic divorce, the high court rejected the husband’s argument in part on the basis of lack of jurisdiction over the parties in the Lebanese action. It ruled that New Hampshire was the true domiciliary of the parties and their children at the commencement of the wife’s action and quoted state law to the effect that “a divorce obtained in another jurisdiction shall be of no force or effect in this State...if both parties were domiciled in this State at the time the proceeding for the divorce was commenced”[7],[8].   Furthermore, even if there was no such state statute, recognizing an ex parte divorce from a nation where neither party was domiciled would “frustrate and make vain all State laws regulating and limiting divorce”[9].

As to recognizing the talaq pursuant to the principles of international comity, it declared comity to be a “discretionary doctrine that will not have to be applied if it violates a strong public policy of the forum state or if it leaves the court in a position where it is unable to render complete justice”[10].  As it noted in the instant case and others similarly decided, it would present a “considerable hardship in seeking relief in Lebanon, when all of the issues presented could be determined in New Hampshire”[11]. 

Though Ramadan could be construed as a strictly venue case, in Aleem v. Aleem[12], a 2008 case from Maryland, the court was faced with a more difficult challenge.  In that case the parties had married in Pakistan, eventually emigrated to the U.S. and had two children born here.  The husband had worked for twenty years at the World Bank, and remained a Pakistani national, while the wife had obtained permanent resident status.  After the wife filed for divorce, the husband went to the Pakistani embassy in Washington, D.C., and, just as in Ramadan, performed a talaq by declaring “I divorce you” three times and memorializing it in a document[13].

Since it was questionable as to whether the parties were truly domiciled in the State, being here on diplomatic visas, the court was required to directly address the question of whether such a divorcing process, even though completely acceptable in Pakistan, could be recognized by a U.S. court pursuant to the principles of comity.

It was first noted that according to the principles of talaq, only the husband has a unilateral right to such a divorce, though he can share that right in the parties’ marriage “contract”.  Such an independent right would be “contrary to the public policy”[14] of Maryland and the equal protection clause of its constitution[15].  Needless to say, a process needing only a pronouncement of divorce without prior notice and which deprived the other spouse of property and other equitable remedies in exchange for return of dower (51,000 rupees or, approximately $2500, versus a marital estate valued at over $2 million), constituted a “lack and deprivation of due process”[16] and against the state’s public policy.

But what if the parties had entered into a marriage “contract[17]in their original homeland which gave both parties the right to end their marriage talaq style in this country and without notice?  This would obviously present problems beyond those enunciated in Aleem for several reasons.  First the court would have to interpret the so-called contract by laws of the foreign land[18].  Is the “contract” a true pre-marital agreement?  Some hint as to how a court would rule is stated, for example, in the Aleem case.  The court took pains to note that the marriage had been “arranged” by the family, that the agreement had been presented to the wife the day of her marriage, that her legal adviser or “vakil” was her uncle, a non-lawyer, and  that she was 18 years old and a high school graduate while the groom was 29 and a doctoral candidate at Oxford in England.  Such facts would certainly scuttle most pre-nuptial agreements in this country if American jurisprudence standards were used.

It is acknowledged that various courts can take opposing positions on these issues of interpretation of international marital contracts.  In In Re Marriage of Shaban[19]  a lower California appeals court refused to recognize or enforce such a contract that was entered into in Egypt in 1974 under “Islamic law”. Applying the rules of contract interpretation, the court distinguished pre-marital contracts from other contracts in that the “temptation for selective memory is usually greater in domestic relations cases that it is in real estate deals”[20] and therefore parol evidence as to its interpretation would not be allowed.  Furthermore the court noted at least four schools of interpretation of Islamic law, all of which would have to be considered in light of Egyptian culture in the early 1970’s!

Such problems did not deter the court in Odatalla v. Odatalla[21] where it encountered a marriage contract entered into in New Jersey by an Islamic couple now in the process of divorce. According to the contract, the husband was required to pay the wife $10,000 (called a mahr agreement) in the event of a divorce which he now contended was a religious process and not subject to enforcement by the courts as an infringement on separation of church and state.  However the court refused to accept his argument since it believed interpretation should be guided by “neutral principles of law” and not religious policies or theories[22] noting that previous courts had made similar determinations in cases involving other religious agreements including a Jewish Ketubah[23] and that the mahr was “nothing more and nothing less than a simple contract between two consenting adults”[24].

 Comity and Custody. In comity cases involving custody, whether under the Uniform Child Custody Jurisdiction Act (hereinafter UCCJA) of the several states or the Hague convention, legal decisions become quite a bit more complex since parties often move themselves and their children around and the court is more protective of the children’s needs. A good example of that is found in Ali v. Ali[25]  involving an American citizen mother and a father from Gaza where the couple had married in 1983 in a Muslim ceremony and where their son was born.  Due to the outbreak of the Gulf War, the parties relocated to the east coast of the U.S. in 1991 and began a “trial” separation in two different locations there.  They thereafter “reunited” in Gaza with the mother again returning to the U.S, leaving their son with the father in Gaza who promptly filed for and received an ex parte divorce from her and custody of the child, now age 7, from a Shari’a court.

In the subsequent divorce action filed by the mother in New Jersey, the court refused to recognize the Gazan divorce due to an obvious lack of notice and due process but did not stop there.  In assessing the “best interests” of the minor child, the court totally discounted the father’s claim that under Muslim law a father is “automatically” and “irrebutably” entitled to custody when a boy is seven.  Since such a claim was diametrically opposed to state law and “repugnant” to all U. S. case law involving “best interests” comity was, needless to say, not extended.

In another action where the father had not seen his two sons in over one year, Maqsudi v. Maqsudi[26], the court refused to recognize a divorce decree from Uzbekistan where the father’s due process rights had been violated in the extreme.  The father, an Afghanistan émigré who had become an American citizen, married the mother, a daughter of the then current president of Uzbekistan, in a religious ceremony in that country and again in a civil ceremony in New York city.  Afterwards they lived in the U.S., where both their sons were born, except for a two year period when the family moved to Uzbekistan to allow the father to assist his family’s business there.   

After returning here, the marriage began to dissolve and the mother fled to Uzbekistan with the children.  In attempting to locate the whereabouts of his children by telephone, the father learned that his relatives were being taken from their homes in the middle of the night for questioning, that his family business had been taken over by the government, that 24 members of his family had been deported and two of them sentenced to prison for alleged currency and tax violations.

The mother then obtained a divorce in her homeland, without any actual notice to the husband, and received custody of the children.  In the interim, the father filed a state court action and obtained service of the mother in her country.  Though she herself did not appear, she did utilize two experts to attest to the validity of the Uzbekistan divorce during a 14-day trial on the jurisdictional issues alone.

After a lengthy analysis of the history of the family’s comings and goings between the two countries, the court was finally able to conclude that the father had not received actual notice of the Uzbek proceedings and that it had “home state” jurisdiction over the children since the UCCJA not only applied to jurisdictional issues between the various states but between countries as well.  What is not stated in the opinion is how the father is supposed to regain custody of his children in light of the mother’s “clout” in her homeland and her exhibited hostility to the father and his extended family?  Since her country was not indicated to be a Hague Convention signatory, it would appear that given the mother’s lack of cooperation, diplomatic channels would have to be employed. 

However even when another country is a signatory to the Hague Convention, the process remains problematic as per the highlighted quotation from Innes v. Carrascosa above.  In said case, the husband was an American citizen who had married a Spanish citizen in 1999 in Spain.  The parties then commenced to reside in the U.S. where their daughter was born the next year.  They separated in early 2004 when the mother went back to Spain and, through their attorneys, entered into an agreement allowing the father parenting time with the minor child and prohibiting either party from removing the child from the U.S. without the written permission of the other party.

Thereafter, both parties filed divorce actions against the other, the father filing a divorce action in New Jersey and the mother filing a “civil annulment” action in Spain.  Shortly thereafter, the mother returned to the U.S., grabbed the child and returned immediately to Spain with her, leaving the child with her grandparents while she again returned to the U.S. to defend the New Jersey action. Not surprisingly, the New Jersey court ordered the child returned and the original parenting agreement to be enforced.

Due to the continuing reluctance of the mother, the father filed an action in Spain under the Hague Convention[27], the International Child Abduction Remedies Act[28]  and the New Jersey court orders.  Several Spanish courts then reviewed the case and determined that the child had not been “abducted” since the father had not established legal custody of the child prior to her removal to Spain.  The divorce action then proceeded in New Jersey, attended by the mother, wherein the court found it had jurisdiction over the parties and the custody issues, and awarded custody to the father on the basis of the mother’s actions characterizing her as “unfit”.  She was then arrested by the local prosecutor for custody interference and subsequently incarcerated. 

Upon her appeal, the New Jersey appellate court was required to review the action of the Spanish courts pursuant to the father’s unsuccessful Hague Convention action.  It’s first finding was that the Spanish court had misinterpreted the Convention since its only jurisdiction involved the child’s “habitual residence” or domicile, not whether the child had been wrongfully abducted or not. Because the child’s domicile was clearly established and the mother’s actions had been contemptuous, the New Jersey court refused to “afford comity to the courts of Spain in this matter” holding its decisions to be “prejudicial” to the rights of an American citizen,  “repugnant” to this country’s public policy and a “wide departure”[29] from it as well[30].

Likewise in Asvesta v. Petroutsas[31], a federal court refused to uphold an “egregious”[32] decision of a court in Greece under the Hague Convention. Here the father, who had dual American and Greek citizenship, and the mother, a Greek citizen, were married in this country.  When the marriage soured after the birth of their child, they each took turns removing the infant from both countries while  filing Hague Convention lawsuits here and abroad. Not surprisingly, a court in Greece where the mother eventually moved and an American court, where the father resided, each respectively ruled that the parent in residence was entitled to custody of the child.  While giving accord to the U.S. Supreme Court’s seminal ruling in Hilton v. Guyot that the merits of a foreign judgment should not be tried de novo[33], the reviewing court nonetheless found precedent in Innes and other related cases for doing just that.  Realizing that a re-examination of the Greek court’s decisions could “undermine the mutual trust necessary for the Convention’s continued success”[34], the court, admittedly “reluctant”[35] to do so, nevertheless refused to extend comity to said decisions since it felt the Greek court had “misinterpreted” the Hague Convention, contravened the Conventions “fundamental premises or objectives,” and failed to meet a “minimum standard of reasonableness”[36].

Conclusion. There are clearly differing points of view by American courts on interpretations of marriage contracts and divorces undertaken under foreign practices and by non-American courts.  Where it suits their purposes, forum-shopping parties will invoke those jurisdictions which favor their cause regardless of the effects on their spouses or their children.  Though countries have attempted to resolve international jurisdictional disputes by international conventions, courts still have the ability to interpret facts independently of each other and to override their nondomestic foreign counterparts.  The resulting confusion is not in the “best interests” of children or their parents and will only increase in direct proportion to the mobility of each country’s population.

Innes v. Carrascosa, 918 A. 2nd at 691 (N.J. Super A.D. 2007)

2 Legal referencing typically denotes all decrees and judgments of each of the United States as “foreign” decrees.  However decrees of non-American courts are properly referenced as “international” decrees.

3 159 U.S. 113, 16 S. Ct. 139 (1895).

4 402 Ill. 390, 84 N.E. 2nd 366.

5 84 N.E. 2nd at 371. 

6 891 A.2nd 1186 (S.Ct. of New Hampshire, 2006).

7 Id., at 1190.

8 Apparently, Illinois has no such comparable law.

9 Id., at 1191.

10 Id., at 1190. 

11 Id., at 1191.

12  947 A. 2nd 489.

13 According to Muslim Family Law, only “notice” of the talaq to the other party is required with no specification of its form or nature, Pakistan Muslim Laws Ordinance, Section 7, Par. (1) (1961), Muslim Family Laws with Commentary (Mahmood). Nadeem Law Book House, Lahore, Pakistan.

14 947 A. 2nd at 500.

15 Maryland had enacted the Equal Rights Amendment which the court further used in its analysis.

16 947 A.2nd at 501.

17 The translated “marriage certificate/contract” is scanned into the opinion, 947 A. 2nd at 492-3. 

18 Illinois courts have such powers, see Keck v. Keck, 309 N.E.2nd 217, 56 Ill. 2nd 508 (1974).

19 105 Cal. Rptr. 2nd 863 (Ct. of Appeals, 4th dist., Cal. 2001).

20 105 Cal. Rptr. 2nd at 868.

21 810 A.2nd 93 ([18]Sup.Ct of N.J.,2002).

22 Id., at 96-7. 

23 Id., at 97.

24 Id., at 98.

25 652 A.2nd 253 (Sup. Ct. of N.J., 1994).

26 830 A.2nd 929 (Sup.Ct. of N.J., 2002). 

27 Hague International Child Abduction Convention, 51 Fed. Reg. 10,498 (1986).

28 42 U.S.C. 11601-11611 (1988).

29 918 A. 2nd at 709.

30 As a result, the mother continued to be incarcerated and subject to $500 daily sanctions as of the date of

the opinion.

31 580 F.3rd 1000 (9th Circ., 2009).

32 580 F. 3rd at 1021. 

33 580 F. 3rd at1011.

34 580 F.3rd at 1014.

35 580 F. 3rd at 1021.

36 Id., n.25.

Michael A. Benedetto is a 1972 graduate of Loyola University Chicago School of Law. He served as Assistant Attorney General in the Illinois Attorney General’s Office (1972-81) and was Chief of that office’s Consumer Fraud and Protection Division for three years. He has been in private practice since 1981 currently concentrated in family law. He was a founding member of Advocates for Shared Custody, a former member of the Executive Committee of the Chicago Bar Association’s Matrimonial Law Committee, was appointed to the Illinois Supreme Court ADR Committee and Domestic Relations Task Force and is a certified child representative.

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