Professor Gabriel Sawma
The Hague Convention on the Civil Aspects of International Child Abduction was adopted on October 25, 1980. The purpose of the Convention was to address the increasing problem of abduction of children on international scale within the context of international law and at the same time, taking into account the rights of custody and visitation under national law. In most cases, the child is taken by one spouse to another country. He wakes up in that country surrounded by people he or she never met before, and told these are your relatives, whom the child do not understand their language. The house is different from the child’s house; the neighborhood looks different from the child’s neighborhood at home. But the child is told that this is the home he or she will be living in, and the left-behind parent will not be with the child anymore.
According to the preamble, “the Convention aims to protect children’s internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.”
The United States ratified the Hague Convention on July 1, 1988 through enabling legislation codified by the International Child Abduction Remedies Act (ICARA). Among the countries whose majority of population are Muslims, only Turkey and Bosnia have ratified the Hague Convention in addition to Turkmenistan and Uzbekistan in Central Asia. Countries utilizing Islamic Shari’a-based family law are reluctant to sign on the convention for its non-compliance with Islamic religious doctrines regarding women and children.
MARRIAGES BETWEEN PEOPLE OF DIFFERENT RELIGIOUS, ETHNIC AND CULTURAL GROUPS.
With the increased number of immigrants to the United States, Canada and Europe from countries whose majority of population are Muslims, marriages between couples with different religious beliefs have given birth to children, whose religious affiliation and what language should they learn, in addition to what kind of a relationship the children will have with their grandparent and family members who live overseas. All of these and others became a factor in creating, religious, cultural and ethnic friction between the spouses. This in turn causes one spouse to abduct a child to his country of origin.
APPLICATION OF THE HAGUE CONVENTION
One of the goals of the Hague Convention is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” [Article 1(a)]; and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” [Article 1(b)]. The term “wrongfully removes” as stated in Art. 1 exists when the left-behind parent’s custody rights have been violated, and the child must be removed from his or her “habitual residence” in order to fall within the scope of the Hague Convention as described in Article 4 which reads: “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
Article 3 of the Convention states that such removal or retention is to be considered wrongful where
- It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was Habitually resident immediately before the removal or retention; and
- At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 12 establishes a one-year period during which the left-behind parent must locate the child and file a petition under the Hague Convention. Article 12 reads:
Where a child has been wrongfully removed or retained in terms of Article 3, and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested States has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
CUSTODY LAW OF IRAN
Iran is not a signatory to the Hague Convention on Child Abduction, and therefore, recovery of children is obstructed by this non-signatory status. Nothing can be done legally to bring back a child who is abducted by one parent from the United States to Iran. You may want to read this article in The Washington Post. http://www.washingtonpost.com/sf/feature/wp/2013/04/04/her-husband-had-taken-their-young-daughter-to-iran-she-was-determined-to-get-the-child-back/
If the abduction is successful, the child will be raised with false beliefs concerning the left-behind parent and often the other parent’s country and value. It is important to note that abduction of girls to Iran, in particular, is really tragic; they will be raised with the traditions that will make girls subservient to men and their marriages, divorces, inheritance, and custody of their children will be ruled according to Islamic Shari’a. It is unlikely that girls in Iran will have the basic comforts and securities that the United States offers.
Women in the USA, wanting to marry men from any country in the Middle East, should consult with experts in this field and should read more about abduction of children. Remember the law of Iran gives custody of the children at age 2 for boys and age 7 to girls. So there is no violation of law in Iran if the husband takes his children to his home country and decides not to return them back to the United States.
In Iran, mothers are given few rights in regard to custody of their children, who are viewed as belonging to their fathers. The custody of children in Iran is two years for boys and seven for girls. However, if the mother remarries another husband, her custody reverts to the first husband. There is no enforcement mechanism for a mother to visit her children, and in most cases, women may decide to remain in an unhappy marriage so that they do not lose their children. After the Iran-Iraq War (1980-88), widows of the war managed to pressure the government of Iran to change the law to allow them to retain custody of their children even after remarrying.
The Islamic law of Iran allows a man to marry up to four permanent wives at any one time, concurrent with as many temporary marriages as he can afford. Article 6 of the marriage and Divorce Act of 1937 requires that the prospective husband must declare whether or not he already has a wife. According to Article 1041 of the Iranian Civil Code, the age of marriage is set at 9 years for girls and 15 years for boys. Nevertheless, with the consent of his or her guardian, a minor may be permitted to marry before reaching age of majority. The Note to Article 1041 of the Civil Code thus specifies: “With the consent of the guardian, marriage of the independent child may be permitted even before the age of majority, provided that the best interest of the said child is taken into account.” There is no reference to the mother’s right or responsibility in this matter.
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, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada. Expert Consultant on Hindu divorce in U.S. courts and Iranian divorce in USA.
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., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled numerous times to Saudi Arabia, Kuwait, Bahrain, Qatar and the Arabian Gulf States, Jordan, Syria, Palestine, and wrote extensively on Islamic and Hindu divorces, custody of children in USA and abroad, and abduction of children to Muslim countries.
Speaks, reads and writes several languages including Arabic, English, French and others
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