Posted by Eugene Volokh:
Mother's and Child's Moving Back from Saudi Arabia, and Child Custody:
http://volokh.com/archives/archive_2009_08_02-2009_08_08.shtml#1249598248
An interesting [1]trial court opinion I just ran across, though it was
decided in May 2006. It doesn't break any new legal ground, but it
does provide an interesting perspective, I think, on a particular kind
of problem, and how some courts approach it. From the facts:
1. Plaintiff is C__ C. Al-R__, an adult citizen of Pennsylvania and
the United States of America, residing in Millville, Columbia
County, Pennsylvania.
2. Defendant is F__ S. Al-R__, an adult citizen of Saudi Arabia
residing in Tabouk, Saudi Arabia.
3. The parties met while they were students at the University of
Scranton in Scranton, Pennsylvania. Plaintiff graduated from the
University of Scranton with a Bachelor of Science degree in May of
2000 and received a Master of Science in School Counseling degree
in May 2003.
4. The parties were married on August 28, 2001, in Honesdale, Wayne
County, Pennsylvania, in an Islamic ceremony. She had converted to
Islam by accepting the five basic precepts of the Islamic religion
prior to the marriage. She never converted to �cultural� Islam as
it is observed in Saudi Arabia.
5. While living in Pennsylvania, plaintiff became pregnant with the
parties' child. Defendant wanted to move to Saudi Arabia to live
and raise the child. Plaintiff was reluctant but agreed to relocate
on a trial basis. She did some superficial research on what life
would be like for her and her family in Saudi Arabia. Defendant did
not fully disclose to her what life was like for women in Saudi
Arabian culture, although he fully knew or should have fully known
the difference since he had lived in both cultures for significant
periods of time. Plaintiff had never lived in the Saudi culture.
6. Defendant knew that plaintiff was a strong-willed woman who
would have a difficult time adapting to a controlling Saudi male
dominated culture....
([2]Show more of the excerpt.)
8. While in Syria [on the way to Saudi Arabia] and after moving to
Saudi Arabia, plaintiff found that life for women, and for her
specifically, was brutal, something that defendant apparently did
not disclose. Plaintiff attempted in good faith to adhere to the
cultural dress codes and the mores of Saudi society. However, she
was not prepared for the abusive treatment, physically and
psychologically, inflicted upon women in that society.
9. Specifically, defendant repeatedly abused plaintiff in many ways
for over a year.... [Details available in the full opinion. -EV]
12. Any employment which she could secure in Saudi Arabia had to be
arranged by defendant, who became extremely controlling....
13. In accord with Saudi custom, a divorce will occur if the
husband says �I divorce you� three times. While they were in Saudi
Arabia, he said it two times. If it had happened a third time,
plaintiff would have had no one to help her since she could not
talk to men outside of the family and women were powerless to help.
Thus, she would have had to go to the U.S. Embassy and return to
the United States without her daughter.
14. In the spring of 2005 she began to feel depressed and isolated.
She saw a counselor. The only advice she received was to pray and
to be more accommodating to her husband.
15. In August of 2005, plaintiff persuaded defendant to permit her
and the minor child to visit her family in Pennsylvania. Defendant
bought round-trip tickets for plaintiff and the child. Before they
left Saudi Arabia, defendant made plaintiff write down the names of
her family members. He told her that if she did not return, he had
connections in the United States and he would harm her and her
family. He also stated that he would rather see their daughter
�dead� than raised in the United States. He told the minor child,
�May God help you if you become a prostitute and a bitch like your
mother.�
16. Plaintiff visited Pennsylvania with Sarah. However, she failed
to get on the plane and return to Saudi Arabia as scheduled on
August 28 or 29, 2005. She had called defendant and said she was
not returning, using the excuse that a relative was ill. She also
told defendant that she was fearful of returning. However, she
simply decided that she could not live in Saudi Arabia. She did not
want her and her daughter to be forever subjected to the abuse she
had experienced.
17. Before she left, she expressed her love for defendant. After
she failed to return, she continued to express her love for
defendant. However, said expressions of love were for the man she
knew in the United States, not for the man she lived with in Saudi
Arabia. Her expressions of love were based in fear and were not
genuine. She was afraid that if her true feelings of fear were
expressed, not only would she not have been allowed to leave Saudi
Arabia, but she would have been in danger in the United States.
18. When plaintiff did not return to Saudi Arabia in August 2005,
defendant knew or should have known that she would not return. He
had lived in the United States long enough to be aware of the
cultural differences. He knew or should have known that the abuses
that he heaped upon plaintiff in Saudi Arabia would not be accepted
by such a strong and educated American woman as his wife. He knew
or should have known that he had deceived her by not fully
explaining the control and abuse that she would have to endure in
Saudi Arabia. He threatened her and her family with harm if she did
not return. He knew that when she did not return that she would
never return to his extreme abuse and viciousness.
19. Plaintiff established a residence in the United States and in
Pennsylvania by the end of August 2005. She purchased a car in
August 2005. She rented an apartment for herself and her daughter
in August 2005. She secured a job in Pennsylvania in August
2005....
20. Plaintiff and defendant communicated by e-mail through December
2005, when all communication ended.
21. Plaintiff filed the complaint in divorce and custody on March
8, 2006.
22. On March 8, 2006, Pennsylvania had been the home state of
plaintiff and Sarah for at least six months....
([3]Hide most of the excerpt.)
As I understand it, the purely legal issue is whether the wife lived
with the daughter in Pennsylvania starting August 31, or was simply
visiting there, for at least a couple of weeks. But the answer,
according to the court, seems to turn quite substantially on the
nature of the problems that the wife was facing in Saudi Arabia, and
on the husband's responsibility for the problems -- apparently since
that bears on the legally significant question of whether the mother
intended to establish residency in Pennsylvania, and perhaps whether
the father should have recognized that intent. (Note the finding that
"When plaintiff did not return to Saudi Arabia in August 2005,
defendant knew or should have known that she would not return.")
Likewise, the court's conclusion that the plaintiff didn't engage in
"unjustifiable conduct" (which would have statutorily stripped the
court of jurisdiction) seems influenced by the situation the wife
faced in Saudi Arabia, and the husband's possible responsibility for
that situation. In any case, you can read the whole opinion for more
on this.
References
1.
http://www.columbiapa.org/courts/opinions/civil/Al-R__%20v.%20Al-R__%20322%20of%202006%20Juris.pdf
2. file://localhost/var/www/powerblogs/volokh/posts/1249598248.html
3. file://localhost/var/www/powerblogs/volokh/posts/1249598248.html
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