1
The Escape from Domestic Violence: Do Non-Muslim Women have the Option to Leave
with their Children from non-Hague Muslim States to Return to the United States?
Reham S. Hewedak
TEXT:
“I do not have to let you go home. You have to do whatever I say, and you are staying here.” He
pushed my shoulders, slamming me onto the bed. His screams took on a tone of insolence,
almost laughter, as though he were the gloating victor in an extended, undeclared war.1
Introduction
In 1987, American Betty Mahmoody (“Mahmoody”) published “Not Without my
Daughter” which later became a motion picture starring Sally Field.2 The true story documents
Ms. Mahmoody’s escape with her daughter from Iran, where her husband had physically and
psychologically abused her, back to the United States (U.S.).3 Domestic violence is a global
phenomenon affecting millions of women each year.4 According to Human Rights Watch,
domestic violence is one of the primary causes of women’s injuries in almost every country of
the world.5 Numerous studies also suggest that domestic violence occurs across all socio-
economic and cultural groups.6
The introduction of Islam over fourteen hundred years ago in Arab societies, in which
female infanticide and martial violence was previously the norm, aimed at affording women the
right to freedom from oppression, the right to justice, and the right to peacefulness even during
1 Betty Mahmoody, Not Without My Daughter 40 (William Hoffer, 1
st ed.1987).
2 Merle H. Weiner, International Child Abduction And The Escape From Domestic Violence, 69 Fordham L.
Rev.594, 611(2000). 3 Id. at 611; Mahmoody, supra note 1, at 40-416.
4 Lisa Hajjar, Religion, State Power, And Domestic Violence in Muslim Societies; A Framework For Comparative
Analysis 29 Law & Soc. Inquiry 1, 8(2004); Human Rights Watch Report 392 (1998), available at
http://www.hrw.org/legacy/worldreport/Back-04.htm#P643_128126 5 See Human Rights Watch Report supra note 4, at 392.
6 Murray Straus, Richard Gelles & Suzanne Steinmetz , Behind Closed Doors: Violence in the American Family (1
st
ed. 1980), quoted in Domestic Violence Resource Center, Myth and Facts (2007),
http://www.dvrc.org.au/index.php?action=view&view=33163 (last visited Nov. 11, 2012).
2
divorce.7 In verse 30:21, the Qur’an provides: “And among His signs this that, that He created
For you mates from among Yourselves that ye may Dwell in tranquility with them, and He has
put love And mercy between your (hearts)…”8 The harmony principle contained in this ayah and
repeated through the Qur’an clearly indicates the protection of women’s rights under Islamic
law.9 Moreover, in verse 2:187, the Qur’an states: “They (your wives) are your garment and you
are their garment.”10
This is a reference to spouses being each other’s sanctuary as each covers
the other’s shortcomings, and therefore, promoting tranquility and harmony within the family
unit.11
However, too frequently, women in the position of Mahmoody are abused in the name of
Islam.12
First, this note will highlight the Islamic view of domestic violence and the Muslim
states’ use of religion to justify the lack of restrictions in the laws of domestic violence. Second,
the note will address Non-Muslim women’s rights in Islamic law and the various problems Non-
Muslim women face in divorce and child custody disputes after surviving domestic violence.
Finally, this note will propose some recommendations to cure some of the legal issues faced by
American Non-Muslim women in Muslim countries in trying to leave to the U.S. with their
children to escape domestic violence.
I. Islamic Law Treatment of Women and Domestic Violence
Islamic law is based primarily on the Qur’an and Sunnah (consisting of the spoken words
of Prophet Muhammad, his conduct, or lack thereof).13
Shari’a is the Islamic code from which
7 Noooria Faizi, Domestic Violence in the Muslim Community,10 Tex J. Women & L. 209, 214 (2009).
8 Qur’an 30:21; Id. at 215.
9 Azzizah Y. al-Hibri, An Islamic Perspective on Domestic Violence, 27 Fordham Int’l. L.J. 195, 204 (2003).
10 Qur’an 2:187.
11 Al-Hibri, supra note 9, at 202.
12 See Judy Bachrach, Western Women in Muslim Lands Lose Their Rights, in WOMEN in ISLAM 27, 27 (Diane
Henningfeld, 1st ed. 2011).
13 Thomas Foley, Extending Comity to Foreign Decrees in International Custody Disputes Between Parents in the
U.S. and Islamic Nations, 41 Fam. Ct. Rev. 257, 259-260 (2003).
3
marriage, divorce, and female behavior is regulated in the majority of Muslim countries.14
The
Qur’an and Sunnah are used by Islamic jurists along with secondary sources to develop legal
rules.15
Qiyas is an Islamic jurist principal used to derive an appropriate legal rule, consistent
with the Qur’an and Sunnah, when primary sources are silent on an issue.16
When this method is
used the rule of law must be with the consensus of legal scholars, also known as Ijma.17
In this
note, the term Muslim country refers to a state legally constituted as an Islamic republic or a
country with a large majority Muslim population that has been influential in the drafting of
family laws within that nation. Family and custody laws referred to in this note will vary in
interpretations of the courts but all refer to the religion of Islam as a constant yardstick. Muslim
countries hold Christians and Jews who are married to Muslims to be subject to elements of
Islamic family law.18
Also, Muslim countries consider children of these mixed marriages to be
Muslims and citizens of their father’s country even if the children hold dual citizenship.19
Therefore, a Non-Muslim woman seeking divorce and custody of her children in a Muslim
country would need to understand and assert her rights under the Shari’a.
A. Islamic Law Treatment of Women
Fourteen hundred years ago, the Qur’an gave women the right to own property and land
titles.20
All women were also entitled to receive marital gifts as well as reasonable maintenance
and child support after divorce.21
Moreover, a woman is not obligated under Islam to contribute
to the upkeep of the household, as that is the responsibility of the husband and for that reason a
14
Id. at 260. 15
Id. 16
Id. 17
Id. 18
Danielle M. Andrews, Non-Muslim Mothers v. Egyptian Muslim Fathers: The Conflict Between Religion And
Law in International Child Custody Disputes And Abductions, 23 Suffolk Transnat’l L. Rev. 595, 608 (2000). 19
Id. at 608-609. 20
Khalida Tanvir Syed, The Qur’an Protects Women Rights, in WOMEN in ISLAM 56, 58 (Diane Hennningfeld,
1st ed. 2011).
21 Id. at 59.
4
Muslim’s woman inheritance is half of her male’s counterpart. Mahr, which is usually a
monetary marital gift from the Muslim man to his prospective wife, is also purely the woman’s
right under Islamic law.22
Divorce is also permissible in Islam but rather discouraged.23
Islam recognizes that
couples may simply not be compatible for one another, and the woman in this scenario has a
right to ask for divorce or khul’a (a type of no fault divorce relieving women of proving any
harm so long as they forfeit all financial claims from the marriage).24
Under the Shari’a,
marriage is, therefore, considered to be a contract which can be dissolved either by mutual
consent or by either party to a contract.25
It should be noted that Islam intended to give women
equal status not only in marital contracts but also in matters of divorce.26
For example, the
marital contract can provide for conditions providing for certain rights to a woman such as
monogamy and access to divorce.27
In fact, a man can delegate his right to divorce, also known
as Talaq-i-Tafwid, to his wife at the time of marriage and she can exercise this right when any of
the conditions of the marital contract are violated.28
Thus, the Qur’an very clearly recognizes a
woman’s individuality when it states: “For men is the benefit of what they earn, and for women
is the benefit of what they earn.”29
But unfortunately some Islamic jurists interpret the Shari’a by traditions and culture that
permit the undermining of the women’s position in matters of marriage and divorce.30
For
example, the Qur’an requires mediation in an attempt at reconciliation before a divorce can take
22
Al-Hibri, supra note 9, at 199. 23
Asghar A. Engineer, The Rights of Women in Islam 120 (1st ed. 1992).
24 Id. at 120; Hajjar, supra note 4, at 25.
25 Engineer, supra note 23, at 120-121.
26 Id. at 126
27 Id. at 122
28 Id. at 139
29 The Qur’an 4:32
30 Engineer, supra note 23, at 126.
5
place.31
However, the prevalent practice today is very different and divorce has become the
exclusive preserve of the husband who can just pronounce to the wife the word talaq thus sealing
the divorce between them.32
Most of the divorces between Muslims in India, for example, take
place in this manner; however, this is not the Islamic way of divorce because it leaves the women
with no legal redress against this pronouncement.33
B. Islamic Law Treatment of Domestic Violence
The Qur’an repeatedly describes the relationship between husband and wife as one of
affection and mercy.34
Further, it instructs husbands to live with their wives in kindness or leave
them amicably.35
Prophet Muhammad also disapproved of men hitting women, and he never hit
any woman or child in his life.36
Aisha who was married to Prophet Muhammad after Khadija’s
death has reported in a Hadith (saying) that: “The messenger of God has never beaten a wife nor
a servant, and has never hit anything with his hand except when fighting in the cause of God.”37
Furthermore, in his last sermon, Prophet Muhammad emphasized that men should treat their
wives well and was quoted as saying that: “The strong men is not the one who use the force of
physical strength, but the one who controls his anger.”38
In Islam, domestic violence could be used as a valid ground for divorce.39
However,
some Muslim states have set their own legal requirements by statutes for the divorce to be
31
Qur’an 4:35; Id. at 126-127. 32
See Id. at 127. 33
Id. at 127. 34
Qur’an 30:21; Al-Hibri, supra note 9, at 204. 35
See Mohamed H. Ali, Muslims Must Reject Violence Against Women, in WOMEN in ISLAM 70, 72 (Diane
Henningfeld, 1st ed. 2011); Faizi, supra note 7, at 213; Qur’an 2:229.
36 Ali, supra note 40, at 72; Faizi, supra note 7, at 213.
37 Samia Menesy, Al Mar’ah bayna al-Islam wa-alshar’I’ wa-el-Monzamat Eldawleya al-okhra 127 (1
st ed. 2012).
38 Faizi, supra note 7, at 213.
39 See Al-Hibri supra note 9, at 209.
6
granted under the domestic violence grounds.40
For example in Egypt, the substantial burden is
on the alleged victim to prove her injury.41
In order to file for divorce based on the grounds of
physical violence, the woman is required to provide the court with a medical certificate from a
government hospital outlining her condition and two witnesses (preferably not related to her)
who saw the abuse occur.42
The need for witnesses provides a huge obstacle to women seeking a
divorce on the basis of physical abuse in Egypt.43
Moreover, section 60 of the Egyptian criminal
code states: “The provisions of the penal code shall not apply to any deed committed in good
faith pursuant to a right determined by virtue of Shari’a.”44
This law applying to any act of
violence has, therefore, been interpreted to justify domestic violence in cases in which: (1) “the
beating is not severe; (2) the beating is not directed at the face; and (3) the beating is not aimed at
vulnerable fatal blow areas.” 45
Whereas in Iran, the courts perceive domestic violence to be a matter of disgrace for the
parties involved, and women, as a result, tend to not report their husbands’ abusive behavior.46
Article 165 of the Iranian Constitution states that judges must give reasons for verdicts issued by
providing reference to the laws and principles on which their verdicts are based.47
However, the
question of whether a man has the right to hit his wife is left unaddressed in law except in cases
where there are obvious signs of violence on the victim’s body.48
The law in Iran, therefore,
40
16 Human Rights Watch, Divorced from Justice: Women’s Unequal access to Divorce in Egypt 22 (2004),
available at http://www.hrw.org/sites/default/files/reports/egypt1204.pdf; See Zahra Tizro, Domestic Violence in
Iran: Women, Marriage and Islam 18 (Homa Katouzian & Mohamad Tavakoli, 1st ed. 2012); Social Institutions and
Gender Index: Saudi Arabia, The Organization for Economic Cooperation and Development,
http://genderindex.org/country/saudi-arabia#_ftn31 (last visited Nov. 11, 2012). 41
16 Human Rights Watch supra note 40, at 22. 42
Id. 43
Id. 44
Egyptian Law No. 58 (1937) Promulgating the Penal Code quoted in 16 Human Rights Watch supra note 40, at
13. 45
16 Human Rights Watch supra note 40, at 13-14. 46
Tizro supra note 40 at 18-19; 90-92. 47
Id. at 92. 48
Id.
7
allows judges to resolve domestic violence cases by referring to tradition and culture, which
tends to have major negative implications for women’s rights and addressing the violence against
women.49
Men’s leadership, which is attributable to the Shari’a, actually has its roots in culture and
customs of the time of revelation, and the Qur’an’s aim was to introduce change gradually to
society.50
Makkan men were particularly rough with women and used to hit their wives in
Jahiliyyah (also known as pre-Islamic Arabia) and they carried this practice into Islam.51
Domestic violence; however, was not sanctioned by the Qur’an because the ideals expressed in
the various verses of the holy book actually promoted harmony within the family unity.52
In one
verse the Qur’an states: “O Humans revere your Guardian Lord, Who created you from a single
nafs (soul) and created from it [the nafs] its mate, and from this scattered (like seeds) countless
men and women.”53
In light of the this verse and other similar verses, the Qur’an reflects a model
for gender relations between spouses created from the same nafs, which is intended to be
characterized by affection and mercy.54
The controversial “Chastisement Passage” in the Qur’an reads as follows:
As to those women on whose part you fear nushuz (rebellion), admonish them (first), (then)
wahjuruhunna fi’l madhaji’ (abandon them in beds), (and last) wadhrubuhunna (hit them
lightly); and if they obey you, seek not against them means (of annoyance or harm), for God is
most high, and Great (above you all).55
At first glance this verse seems to be in contrary to the harmony principle expressed in other
verses of the Qur’an.56
However, it is well known that the Qur’an adopted a gradualist
49
Id. at 91. 50
See Al-Hibri supra note 9, at 207-212. 51
Id. at 207. 52
Id. at 204. 53
Qur’an 4:1. 54
Al-Hibri supra note 9, at 202. 55
Qur’an 4:34. 56
Al-Hibri supra note 9, at 206.
8
philosophy for social change.57
One has to take into account the sociological context in which the
Qur’an was revealed for it would have been impossible to introduce a perfect Islamic society all
at once.58
For example, Arabs consumed significant amounts of alcohol in Jahiliyyah, and,
therefore, the Qur’anic prohibition against drinking alcohol was only at first advisory, next
applied only to prayers, and finally, the prohibition became comprehensive and absolute.59
Similarly, the “Chastisement Passage” was revealed in a society in which men were
particularly violent with their wives.60
They carried on this practice until one day the Prophet
heard about the problem and prohibited domestic violence by allowing the wife the right to qisas
(a form of equitable retribution).61
Shortly thereafter, the men complained to the Prophet to
revisit the issue.62
At that point, the Prophet received the Qur’anic revelation of the
“Chastisement Passage” which appeared to reverse the Prophet’s earlier ruling but in fact limited
both the act and modified the concept of “hitting” to extract it of any harmful effect.63
The social
context in which the “Chastisement Passage” was revealed must be understood and interpreted
because the rest of the Qur’an articulated a higher standard of gender interaction.64
Therefore,
due to the Qur’anic internal consistency, the so called “Chastisement Passage” leaves room for
erroneous, culturally skewed or subjective interpretations.65
The gradualism reflected in the “Chastisement Passage” was not instituted to prohibit
“hitting” women as in the case of alcohol.66
The prohibition against domestic violence was, in
fact, immediate but the approach was quite complex because the Qur’an both radically
57
Id. at 207. 58
Id. 59
Id. 60
Id. 61
Id. 62
Id. at 208 63
Id. at 208-209. 64
Id. at 204. 65
Id. at 204. 66
Id. at 208.
9
transformed the concept of hitting into a non-violent symbolic act and limited the “offense” for
which a man may hit his wife.67
The Qur’an made “hitting” an act of last resort after the husband
first goes through a serious of peaceful steps.68
The husband has to first establish that the wife
was nashiz (rebellious), and then go through several steps of conflict resolution before he is
allowed to symbolically “hit” his wife by using a miswak (a soft small fibrous twig used as a
toothbrush in the Arabian Peninsula) to express his anger or frustration.69
Also, any injury to the
wife from his actions is deemed clear grounds for divorce.70
The “Chastisement Passage” permits husbands to symbolically “hit” their wives only for
nushuz, which literally means “to rise above, or act superior to.”71
Hence, the verse has been
understood by Islamic jurists with a patriarchal perspective to cast marital life into a hierarchical
structure with interpreting nushuz to mean disobedience or rebellion by the wife against the
husband.72
However, a nashiz woman could be understood to be the opposite of a righteous wife
by the immediately preceding passage in the Qur’an.73
The passage states: “Men are the
qawwamun (protectors) of women, because God has given the one more than the other, and
because they support them from their means.”74
Therefore, the righteous women are [qanitat],
and guard in the husband's absence what God would have them guard.” The word qanitat refers
to the act of being submissive and obedient to God but medieval Islamic scholars have concluded
that since the verse was about marital relations that the obedience of the righteous women
applied to the obedience to the husband as well.75
Islamic feminists have increasingly questioned
67
Id. at 208-209. 68
Id. at 209. 69
Id. at 212. 70
Id. at 209. 71
Id. at 213. 72
Id. 73
Id. 74
Qur’an 4:34. 75
Al-Hibri supra note 9, at 213.
10
such interpretations and explained that the word qawwamun refers to a person taking the
responsibility of safeguarding the interests of another and should not be taken to mean that men
are masters to be blindly obeyed or a police force giving orders.76
As Afshar suggests: “to admit to the legitimacy of violence within marriage would be to
admit that the very foundation of the social unit in Islam is inherently flawed.”77
Feminists’
interpretation of the Qur’an which does not condone violence against women is consistent with
the next verse (after the “Chastisement Passage”), which provides: “If you fear discord between
the two (spouses), then send an arbiter from his family, and another from hers; if they wish to
repair the situation, God will reconcile them. For God has full knowledge and is expert in all
things.” 78
Otherwise, the “Chastisement Passage” contradicts the next verse, which advises
spouses experiencing marital problems to attempt at mediation and reconciliation with the help
of family relatives.79
Domestic violence will cause more than a simple discord between spouses
as it leads to the fear and oppression of women.80
Domestic violence is, therefore, most likely not
contemplated by the “Chastisement passage;” otherwise, the mediation and reconciliation
recommended in verse 4:35 of the Qur’an would be impossible to achieve.81
No interpretation of the Qur’an, however honest, can be free from the male superiority
influence of its culture because the evolution of the Shari’a itself was not devoid of human
opinion.82
For example, in Saudi Arabia today, women are still not allowed to drive vehicles,
though there is nothing to this effect in the Qur’an.83
The Shari’a, similar to common law, did
76
Id. at 213; Faizi, supra note 7, at 212; Tizro supra note 40 at 46. 77
Tizro supra note 40 at 46. 78
Qur’an 4:35. 79
Al-Hibri supra note 9, at 212. 80
Id. 81
Id. 82
Engineer supra note 23, at 3. 83
See Id. at 5; Social Institutions and Gender Index: Saudi Arabia, supra note 45.
11
not come into being all of a sudden as it went through a process of evolution over centuries.84
In
fact, the four surviving Sunni schools of jurisprudence: (1) Iman Abu Hanifa, (2) Iman Shafa’i,
(3) Imam Malik, and (4) Imam Ahmad bin Hanbbal all still differ on many questions in the
Shari’a.85
Therefore, the Muslim states use of religion to justify the lack of restriction in the
laws of domestic violence is more likely attributable to the culture and social attitudes of the
societies, which sustain or contribute to the problem of impunity, than to the religion of Islam.86
II. Non-Muslim Women are Unable to Flee Back to the U.S.
A. The Shari’a Custody Laws
Under the Shari’a, both mother and father must be physically, mentally, and morally fit
and of the age of majority to be awarded custody upon divorce.87
Physical custody of the child is
presumed in favor of the mother during the child’s “tender years.”88
Legal custody, on the other
hand, is presumed in favor of the father for the child at any age.89
Therefore, although the father
receives the ultimate legal custody of the child, in most cases, the mother is usually awarded the
physical custody during the child’s “tender years” which last until the age of seven for boys and
nine for girls.90
After this point, the burden of proof shifts and physical custody is presumed in
favor of the father to start the spiritual upbringing of the child as a Muslim.91
Any presumptions
under the Shari’a law, which arise in favor of mother or father, however, can be rebutted by
providing evidence of the other parent’s physical, mental, or moral unfitness to be awarded
custody of the child.92
84
Engineer supra note 23, at 6. 85
Id. at 8-9. 86
Hajjar, supra note 4, at 8. 87
Foley supra note 13, at 264- 265. 88
Id. at 260-261. 89
Abd Al-Hakim Ebn-Muhammad, Huquw al-Usrah fi al-Islam 242-246(1st ed. 2010).
90 Id.
91 Id.; Foley supra note 13, at 264- 265.
92 Foley supra note 13, at 264.
12
Non-Muslim women, under the Shari’a, receive the same custody rights as Muslim
women on the condition that the child is raised as a Muslim.93
A Muslim father can, however,
bring a valid claim into court requesting physical custody of the child during his/her “tender
years” if he feared that the child will not be raised as a Muslim.94
Moreover, physical custody of
the child will shift to the maternal grandmother in cases where the mother remarries.95
If the
mother’s subsequent marriage fails, her rights to physical custody of the child will revert back to
her. 96
B. The Shari’a Relocation Laws
The complexity of custody litigation becomes more acute for Non-Muslim women who
would like to return from a Muslim country with their child to the U.S. According to the Islamic
custody laws, child custody is awarded to a parent in the child’s primary place of residence.97
Therefore, if the father establishes the child’s primary place of residence in his Muslim country,
the Non-Muslim mother will be unable to legally travel with the child outside that Muslim
country without the father’s permission.
Moreover, there are two conditions by which a woman can legally move from a Muslim
country in accordance with the Shari’a: (1) the country to which the woman intends to move has
to be her country of citizenship; and (2) the marriage needs to have taken place in the country in
which she intends to move.98
If both conditions are met, a mother can relocate with her child
outside a Muslim country without the father’s permission. 99
Therefore, for a Non-Muslim
American woman who had resided with the child in the U.S. and was temporarily visiting a
93
Ebn-Muhammad supra note 89, at 242. 94
Id. 95
Id. at 242-243. 96
Id. 97
Id. at 246. 98
Id. at 246-247. 99
Id. at 247.
13
Muslim country but wrongfully retained with her child by an abusive husband, she stands a
chance at winning physical custody in some circumstance.
First, the child would need to be of the age in which she could claim physical custody
(during the child’s “tender years”) under the Shari’a. Second, she needs to assert that the child
will be raised as a Muslim during his upbringing to overcome a Muslim father’s challenge to her
custody claim. Finally, the Non-Muslim mother will need to present evidence pertaining to the
child’s primary place of residence and marriage taking place in the U.S. If the father presents
evidence of the mother taking her child to a Jewish synagogue or Christian church, for example,
it will pose a significant hurdle for the Non-Muslim mother to overcome in claiming physical
custody of the child because it is perceived to detrimentally affect a child’s Islamic
upbringing.100
C. The Hague Convention
Moreover, Non-Muslim women will face no remedy in international law if their child is
abducted or retained in a country which is not signatory to the Hague Convention on the Civil
Aspects of International Child Abduction (“The Hague Convention” or “Convention”) of 25
October, 1980.101
The Hague Convention’s purpose is “to secure the prompt return of children
wrongfully removed to or retained in any Contracting State 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.”102
The Hague Convention explicitly prohibits contracting states from
deciding the merits of custody disputes without first determining whether the child is to be
returned under the Convention. The remedy of return whereby a child is returned to its country
100
Ebn-Muhammad supra note 89, at 242. 101
The Hague Conference on Private International Law, 28 Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction(2012), available at http://www.hcch.net/index_en.php?act=conventions.text&cid=24;
Weiner supra note 2, at 597. 102
The Hague Conference supra note 101, at Article 1.
14
of habitual residence, therefore, protects children from their wrongful removal or retention across
international borders, and provides procedures for their safe return.103
With the exception of Turkey and Burkina Faso, no predominantly Muslim country has
become party to the Hague Convention.104
The reasons being that Muslim countries derive their
family laws from the Shari’a, and, therefore, will not accept the automatic return policy of the
Hague Convention which lack any provisions concerning the child’s religious upbringing.105
Also, the Hague Convention does not consider the gender of a parent as a factor directly relevant
to international custody disputes; however, such a determination is fundamental in child custody
under the Shari’a.106
The U.S. does not share any similar conflicts with an automatic return
policy under the Hague Convention because its domestic state laws have to comply with the
Equal Protection Clause of the Fourteenth Amendment, which will bar any discrimination based
on the gender or religion of parents in determining custody disputes.107
The Hague Convention will, therefore, not be applicable in cases of Non-Muslim
American women concerned with the remedy of return for their children from Muslim countries
from which they fled to escape domestic violence.108
In cases where the Hague Convention does
not apply, the U.S. government can do very little to help its citizens if the non-signatory Muslim
country ignores requests for the child’s return.109
The U.S. government has, in fact, successfully
interfered in very few cases to ensure the safe return of children from non-Hague states to their
103
Weiner supra note 2, at 597. 104
The Hague Conference supra note 101, at Status Table. 105
Foley supra note 13, at 261. 106
See Id. 107
See Id.; Cynthia A. McNeely, Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family
Court, 25 Fla. St. U.L. Rev. 891, 923-946 (1998). 108
See Smita Aiyar, International Child Abduction involving Non-Hague Convention States: The Need for A
Uniform Approach, 21 Emory Int’l L. Rev. 277, 280 (2007). 109
Id. at 294-295.
15
American parents.110
In one case, Congress exerted pressure and successfully retuned three
children to their American mother from Egypt, where they were wrongfully abducted by their
father.111
However, in the majority of cases parents often feel helpless when the abducting parent
takes the child to a Non-Hague Muslim state.112
Unfortunately, no other choice may exist for the parent but to explore self-help remedies
such as re-abducting the child back to the U.S. with the help of activist organizations.113
For
example, The American Association For Lost Children (“AAFLC”) was recently featured on
Investigation Discovery on a show called "Who the [Bleep] Did I Marry?" Mark Miller and
Patricia Moore of AAFLC took on a daring mission out of the country and successfully retrieved
two missing children for their American mother from Lebanon.114
With the help of AAFLC,
American Nabela put her own freedom at risk and successfully returned her children to the U.S.
after her husband had taken their two children without her consent and moved to Lebanon.115
D. Extending Comity to Foreign Decrees
The American law that applies in International Child custody disputes between the U.S.
and the majority of Muslim country which are non-signatory to the Hague Convention is
contained in the Uniform Child Custody Jurisdiction Act (“UCCJA”) and, more recently, the
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).116
To date, 49 states,
110
Id. at 295. 111
Id. 112
Id. 113
See Id. at 298. 114
Jason Hughs, Who The (Bleep) Did I Marry?: Children Kidnapped to Lebanon, Huffington Post (July 19, 2012),
http://www.huffingtonpost.com/2012/07/19/who-the-bleep-did-i-marry-kidnapped-to-lebanon
video_n_1685314.html 115
Id. 116
Foley supra note 13, at 261.
16
the District of Columbia, Guam, and the U.S. Virgin Islands have all adopted the UCCJEA.117
The UCCJEA has clarified some aspects of the original and modified jurisdiction of the UCCJA
with the result that is making courts consider domestic violence to protect the rest of the family
when a parent, child, or any sibling of the child is being abused.118
When a non-Hague parent from a Muslim state is involved in an international custody
dispute in the U.S., the international doctrine that applies to recognition and enforcement of a
foreign nation’s custody decree is that of comity.119
The general reasoning behind extending
comity to foreign decrees is that the U.S. judgments will be treated similarly in courts of foreign
nations.120
However, the doctrine of reciprocity is non-binding between the U.S. and other
Muslim states.121
Therefore while the U.S. can recognize decrees of Muslim nations, there is no
guarantee that Muslim countries will give similar treatment to a custody decree from an
American court.122
The provision of the UCCJEA regarding international custody disputes is §105, which
provides that “a child custody determination made in a foreign country under factual
circumstances in substantial conformity with the jurisdictional standards of this [act] must be
recognized and enforced,” unless “the child custody law of [the] foreign country violates
fundamental principles of human rights.”123
The UCCJEA also mandates treatment of a foreign
nation equal to a “state” of the U.S.124
The comment to the UCCJEA explains that when applying
117
Uniform Law Commission, Legislative Fact Sheet-Child Custody Jurisdiction and Enforcement Act (2012),
available at http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Child Custody Jurisdiction and
Enforcement Act 118
Joan Zorza, The UCCJEA: What Is It and How Does It Affect Battered Women in Child-Custody Disputes, 27
Fordham Urb. L. J. 909, 918 (2000). 119
See Foley supra note 13, at 262. 120
Id. at 263. 121
Id. 122
Id. 123
Unif. Child Custody Jurisdiction And Enforcement Act §1-105 (1997) [hereinafter UCCJEA]. 124
Id.§105(a).
17
§105(c) in regards to human rights violations, the court should be focused only on the child
custody law of the foreign nation and not on other aspects of their legal system.125
Moreover, the
comment states that §105(c) should be invoked only in the most “egregious
cases.”126
Accordingly, the threshold question before U.S. courts ruling on whether to extend
comity to a child custody decree from a Muslim nation, absent a human rights violation,
becomes whether the foreign court exercised jurisdiction “in substantial conformity with the
jurisdictional standards” of the UCCJEA. 127
Under the UCCJEA, unless an emergency situation is involved, a court has jurisdiction to
make an initial child-custody determination only in the presence of certain factual
circumstances.128
The four types of jurisdiction under the UCCJEA are: (1) “home state;” (2)
“significant connection;” (3) “appropriate forum;” and (4) “no other state.”129
The state is the
child's “home state” for six months after a child leaves, regardless of why the child had left,
provided that a parent continues to live in the “home state.”130
A period of temporary absence
from the state, however, does not affect determination of the home state.131
Case law in international custody disputes between parties from the U.S. and Islamic
nations have been remarkably limited on the issue of whether the Shari’a laws contravene
fundamental principles of human rights under the UCCJEA §105(c) standard.132
Most parties
opposing enforcement has simply failed to raise the issue.133
The issue was recently raised in one
case, In re Marriage of Donboli, in which an Iranian national man sought to enforce a foreign
125
Id. §1-105; See Foley supra note 13, at 263. 126
UCCJEA §1-105; See Foley supra note 13, at 263. 127
UCCJEA §1-105(b)-(c). 128
Zorza supra note 118 at 915. 129
UCCJEA §2-201. 130
Id.; Zorza supra note 118 at 915. 131
Zorza supra note 118 at 915. 132
Jeremy D. Morley, International Family Law Practice §7:23 (August 2012). 133
Id.
18
custody order issued by a court in Iran.134
The married couple had lived throughout their
marriage in Washington State where their child was born.135
They went to Iran for an extended
family visit, intended to be for just four months, but the husband then refused to leave Iran and
prevented his wife from doing so.136
He filed for divorce in Iran and the wife was legally served
with the documents. Eventually, after more than six months in Iran, the wife finally succeeded in
leaving Iran with the child and filed an action for divorce and custody in Washington.137
The
Iranian court then issued a custody order in favor of the husband.138
Surprisingly, the U.S. court
did not rely on UCCJEA §105(c) but instead employed a general concept of “strong public
policy” to avoid the obligation of enforcing the Iranian custody decree.139
The court relied in part on In re Custody of R., which was decided pursuant to the
UCCJA rather than UCCJEA.140
Thus, Donboli stands for the proposition that not only does the
human rights clause §105(c) of the UCCJEA preclude enforcement of foreign custody orders
based on custody laws that violate human rights, but also that courts possess the power not to
extend comity to foreign orders if they violate the forum state's strong public policy.141
It is
important to note that the, former law, UCCJA only allowed for the recognition and enforcement
of foreign custody decrees issued by “legal institutions similar in nature” to the U.S. “if
reasonable notice and opportunity to be heard were given to all affected persons.”142
Under the
UCCJA, some courts found fundamental differences between the Shari’a and state laws because
134
In re Marriage of Donboli , No. 53861-6-I, 2005 WL 1772328 (Wash App. July 18, 2005). 135
Id.at 1-5. 136
Id. 137
Id. 138
Id. 139
Morley supra note 132. 140
In re Custody of R., 947 P.2d 745 (Wash. App. Div. 2 1997). 141
Morley supra note 132. 142
Uniform Child Custody Jurisdiction Act § 23 (1968).
19
it denied consideration of the child’s “best interests,” thus offending public policy.143
However,
the UCCJEA does not contain the “best interests” of the child standard, and, therefore, U.S.
courts will be less likely to consider the Shari’a in substance to determine whether to extend
comity to a foreign custody decree under the newer UCCJEA.144
Also, a court’s finding of a
human rights violation will be reserved to the most “egregious cases” 145
under the newer
UCCJEA. Therefore, the UCCJEA will likely pose a greater obstacle for some Non-Muslim
American women seeking to be heard in U.S. courts, after fleeing domestic violence from
Muslim countries, in which they resided for more than six months, and their abusers had won
custody of their children.
In fact, some Muslim countries do not allow women the opportunity to travel outside
their borders without their husband’s permission.146
Moreover, in some Muslim countries, a
foreign woman is automatically granted citizenship of her husband’s nationality by virtue of their
marriage.147
Ms. Mahmoody, for example, had to illegally escape from Iran (where she was
automatically granted the Iranian citizenship by virtue of her marriage to an Iranian citizen) with
her daughter after her husband attempted at turning their two-week vacation into a permanent
relocation of the family.148
The case of Mahmoody illustrates how Non-Muslim victims of
143
See Foley supra note 13, at 266-268. 144
UCCJEA (1997). 145
Id. at §105 comment. 146
Mohammed Jamjoom and Tricia Escobedo, Saudi woman activist demands right to travel, CNN (July 10, 2009),
available at http://edition.cnn.com/2009/WORLD/meast/07/10/women.saudi/index.html; Roya Karimi and Daisy
Sindelar, Iran Deputies To Mull Draft Law Restricting Women's Right To Travel, Radio Free Europe Radio Liberty
(Nov. 17, 2012), available at http://www.rferl.org/content/iran-draft-law-restricting-womens-right-to-
travel/24772571.html; Nina Burleigh, Egypt and the Universal Rights of Women, Huffington Post World (Feb.5,
2011), available at http://www.huffingtonpost.com/nina-burleigh/egypt-and-the-universal-r_b_819178.html 147
Iranian Nationality Law Book 2, Article 976 (6), available at
http://www.princeton.edu/irandataportal/legislation/institutionsgovernance/nationality-law/; Saudi Arabian
Nationality Regulations Resolution 25/1/1374 H(4)16, available at
http://www.unhcr.org/refworld/pdfid/3fb9eb6d2.pdf; Libyan Nationality Law No.(24) 2010/1374, available at
http://www.unhcr.org/refworld/type,LEGISLATION,,LBY,4e2d8bf52,0.html 148
Mahmoody supra note 1.
20
domestic abuse often do not have the option to legally leave from Muslim countries to escape
their abusive relationship for the fear of losing custody of their children under the Shari’a.
III. Recommendations
A. Criminal Prosecution of Child Abduction
The self-help option of re-abducting a child either alone or with the help of activist
organizations is usually a final option for Non-Muslim women seeking the return of their child
from a non-Hague Muslim state.149
However, the Department of State has properly strongly
dissuaded parents from utilizing this self-help option of re-abducting children from abroad
because it may greatly expose American citizens to the risk of criminal sanctions in a foreign
country.150
The death penalty, for example, may be imposed in some Muslim countries for
parents who attempt at re-abduction.151
Congress also enacted the International Parental Kidnapping Crime Act of 1993
(“IPKCA” or “Act”) to fill the void when a child is abducted or wrongfully retained in a non-
Hague contracting country.152
IPKCA provides that “whoever removes a child from the U.S., or
attempts to do so, or retains a child outside the U.S. with intent to obstruct the lawful exercise of
parental rights shall be fined under this title or imprisoned not more than three years, or both.”153
The Act itself recognizes that the Hague Convention provides the best remedy for left behind
parents in the U.S. who face child abduction by the other parent.154
However, IPKCA still
provides an avenue for the left behind parents facing international abduction of their child to
vindicate their rights through the federal criminal justice system in the U.S.155
Every state has its
149
Andrews supra note 18, at 599. 150
Aiyar supra note 108, at 298. 151
Id. 152
18 U.S.C.S § 1204 (2003). 153
Id. 154
Id. 155
Id.
21
own unique criminal parental kidnapping statute as well, which could be used for prosecuting
international kidnappings.156
Unfortunately, only a few cases have been decided under the Act because the Act was
passed to facilitate extradition of the abductor from countries with whom the U.S. has extradition
treaties.157
Also, the return of the abductor is contingent on that the country to which the
abductor has fled specifically recognizing the felony offense of parental kidnapping.158
Therefore, in most cases, IPKCA will only work where the abducting parent voluntarily returns
to the U.S. but it does not provide for any enforceable mechanisms to either extradite the
abducting parent to the U.S. or force the return of the abducted child from a Muslim country.159
One case which illustrates the success of IPKCA is Unites States v. Amer.160
The case
involved a father who moved himself with his three children back to Egypt from the U.S. without
his wife’s knowledge.161
The married couple had lived for eight years and had two of their
children in the U.S.162
When the father attempted at re-entering the U.S., the following year, he
was arrested and convicted under the IPKCA.163
The court imposed a sentence of 24 months'
imprisonment and a one-year term of supervised release, with the special condition that the
father returns the three children to the U.S.164
Although the mother could not use the Hague
Convention to return her children from Egypt, IPKCA was successfully used to reunite her with
her children in the U.S.165
156
Susan Kreston, Prosecuting International Parental Kidnapping 15 Notre Dame J.L. Ethics & Pub. Pol'y 533, 550
(2001). 157
Id. at 551. 158
Id. 159
Aiyar supra note 108, at 297. 160
U.S. v. Amer, 110 F.3d 873, 876 (2d Cir. 1997); Id. at 296. 161
Amer, 110 F.3d 873 at 876; Aiyar supra note 108, at 296. 162
Amer, 110 F.3d 873 at 866-877. 163
Id. 164
Id. at 877 165
Aiyar supra note 108, at 296.
22
Because many Muslim Americans and residents still have family members in Muslim
countries, foreign travel with minor children poses the greatest risk in child abduction.166
Moreover, it is estimated that one in five parental kidnapping involves taking a child across
international borders.167
Therefore, prosecutors will increasingly find themselves confronted with
international child abduction cases and should become familiar with methods to secure the safe
return of children in cases involving non-Hague contracting states.168
Federal prosecutors and
law enforcement should play a vital role in enforcing IPKCA to its full extent.169
The need for
specialized knowledge is required in giving the investigation and prosecution of international
parental kidnapping a priority, and discrediting the myth that parental kidnapping should be dealt
exclusively as a civil matter in states’ family courts.170
A less than certain outcome should not preclude formal charges under the IPKCA
because if the evidence is legally sufficient, a reasonable probability of conviction supports
proceeding with prosecution.171
It therefore should be the policy of the U.S. to vigorously
prosecute international parental kidnapping especially in cases involving non-Hague contracting
states where the left behind parent suffer the addition trauma of having to navigate the foreign
culture, legal system, and having no remedy in return of their children under the Hague
Convention.172
Federal prosecutors will need to be aware of available options for prosecuting the
166
Warren Camp, Child Custody Disputed in Families of Muslim Tradition, 49 Fam. Ct. Rev. 582, 585 (2011). 167
Allison M. Scott, From a State-Centered Approach to Transnational Openness: Adapting the Hague Convention
with Contemporary Human Rights Standards as Codified in the Convention on the Rights of the Child, 11 Ind. J.
Global Legal Stud.233 (2004). 168
See Kreston supra note 156, at 592. 169
Id. 170
See Id. 171
Id. at 553. 172
Id.
23
perpetrator to ensure meaningful access to justice for the left behind parents and abducted
children victimized by this crime.173
B. Bilateral Treaties
Another realistic solution to international child custody disputes reside in the possibility
of reaching bilateral treaties between the U.S. and non-Hague Muslim states.174
The government
of the U.S. and Muslim countries must work together to achieve a consistent remedy that parents
can effectively use to protect their children from the detrimental effects of domestic violence and
international child abduction.175
The difficulty with this proposal lies in the fact that Muslim
countries differ greatly with the U.S. in culture, religion, and law.176
However, both the U.S. and
other Muslim countries need to compromise in order to achieve legitimate results to protect
children within their borders against the devastating effect of parental child abduction. 177
Some non-Hague Muslim states have already shown some potential for compromise.
Egypt, for example, allows Non-Muslim spouses and their children under the age of seven to
travel outside its borders without obtaining their Muslim spouses’ permission and prohibits
Egyptian fathers from kidnapping children of the same age who live abroad with their Non-
Muslim mothers.178
On the other hand, the State Department has indicated that they have
initiated discussions to explore options of establishing bilateral treaties on the subject with
various countries in the Middle East.179
In fact, bilateral treaties involving non-Hague Muslim
states resolving international child custody disputes have emerged for nearly three decades and
173
Id. at 534. 174
Andrews supra note 18, at 629. 175
See Id. 176
Id. 177
See Id. at 629. 178
Id. 179
Aiyar supra note 108, at 294.
24
currently include: Belgium/Morocco, Belgium/Tunisia, Canada/Lebanon, France/Algeria and
Australia/Egypt.180
In 2009, several judges and custody experts from both Western and Muslim delegations
met at the Third Malta Conference on Cross Frontier Family Law Issues (“Conference”) for
discussions on addressing the difficulties posed by international child abduction between the
nations concerned.181
The joint declaration recognized the need for establishment of a network of
Central Authorities and the development of trans-border mediation services in cases of child
custody disputes.182
Participating countries in the Conference included: Australia, Bangladesh,
Belgium, Canada, Egypt, France, Germany, India, Israel, Jordan, Malaysia, Malta, Morocco,
Netherlands, Oman, Pakistan, Qatar, Spain, Sweden, Switzerland, Tunisia, Turkey, the United
Kingdom, and the U.S., which indicates a global trend towards cooperation between Hague and
Non-Hague state parties.183
The proposed treaty between the U.S. and a Muslim country should contain a provision,
which allows for representatives from both nations to meet and discuss possible remedies for
cases involving domestic violence and children wrongfully abducted or retained in either
country.184
Also, a narrowly tailored domestic violence provision should be adopted to ensure
that victims’ children would not be subject to the remedy of return because in no case should
states privilege forum shopping accomplished through force by a batterer over a forum
180
Id. 181
Id. 182
The Hague Conference on Private International Law, Third Malta Judicial Conference on Cross-Frontier Family
Law Issues Declaration (March 2004), available at
http://www.hcch.net/index_en.php?act=events.details&year=2009&varevent=161 183
Id. at 1. 184
See Andrews supra note 18, at 629.
25
incidentally selected by his victim.185
Such proposed provisions can protect survivors of spousal
abuse from having to return to an unsafe jurisdiction in order to litigate custody.186
The Shari’a leaves room for some negotiations to occur between the U.S. and non-Hague
Muslim nations on resolving international child custody disputes in a way that is respectful to the
cultures and religions of both the West and East.187
It is important to realize that the gender
presumptions under the Shari’a are not absolute and that the presumption can be rebutted by a
showing of the other parent’s physical, mental, or moral unfitness.188
The U.S. could in turn
provide assurances of providing access to eligible non-citizens parents within its border to
exercise parenting time in compromising to reach a resolution on a bilateral treaty, which will be
a “win-win” for both nations involved.
C. Amend The Hague Convention to Provide for a Uniform Approach for Dealing
with Non-signatory States.
Today, there remains a clear divergence in the different approaches taken by state courts
in the U.S. in addressing non-Hague cases.189
This creates more of an incentive for potential
abductors to remove their children to Muslim countries over others.190
A possible solution would
encompass amending the Hague convention to provide for a uniform approach in dealing with
child custody disputes involving non-Hague contracting states.191
In drafting an amendment, it is important to consider that the Hague Convention
addresses jurisdictional matters but does not consider the child custody standards of the various
legal systems.192
Therefore, the Hague Convention uses a “state-centered” approach which
185
See Weiner supra note 2, at 706. 186
Id. 187
See Foley supra note 13, at 264. 188
Id. 189
Aiyar supra note 108, at 314. 190
Id. at 314-315. 191
Id. 192
Id. at 315.
26
provides less protection to children because a “transnational” universal standard of human rights
is not being enforced.193
In contrast, the Convention on the Rights of the Child (“CRC”), which
was adopted by the United Nations in 1989, recognizes the international human rights of
children.194
The CRC operates based on the standard of the “best interests of the child,” which
encompass the child’s civil, political, economic, social, cultural, and humanitarian rights, while
allowing for cultural and local interpretations of these universal rights.195
The CRC also
guarantees children’s social rights in protection from abduction, and cultural rights in
participation in their own cultures and freedom to practice their own religions.196
The CRC,
therefore, provides a “transnational approach” and an amendment to the Hague Convention is
needed to emulate that same approach.197
First, the amendment would require the contracting states to the Hague Convention to act
in accordance to the welfare of the individual child when dealing with non-Hague cases in their
courts.198
Second, the language used in the amendment need to reflect that the “best interests” of
the child would be the main consideration in international child custody disputes involving non-
Hague states.199
Instead of purely relying on the principles of comity, courts’ decisions in the
U.S. would, therefore, turn on whether returning a child to a non-Hague state would be in the
child’s “best interests.” 200
There is a strong argument against applying the Hague principles in cases involving non-
Hague contracting states because it gives no incentive for Muslim countries to join the Hague
convention if their children are returned to them without them having to return other children to a
193
Id. 194
Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 43 [hereinafter CRC]. 195
Id; Andrews supra note 18, at 601. 196
Andrews supra note 18, at 601. 197
Aiyar supra note 108, at 315. 198
Id. at 316-317. 199
Id. at 315-316. 200
Id. at 316-317.
27
culture, which is completely different than their own.201
However, the proposed amendments
would seek to develop a uniform approach in addressing non-Hague cases being heard in
signatory states in a manner that would support the foundational principles of the CRC without
directly applying the Hague Convention to non-signatory Muslim states.202
While the amendment may not be able to develop a fixed concept of what will constitute
the “best interests” of a child, a checklist could be used as a reference in applying the “best
interests” of the child standard in non-Hague Convention cases.203
By developing tangible
objective criteria, international courts can consistently apply the standard into a variety of
environments without being hampered by judgments based on local or subjective views.204
Unfortunately, the “best interests” of the child standard has not been defined under the CRC.205
However, the U.K. Children’s Act of 1989 provides a workable solution to defining the “best
interests” standard based on the following criteria.206
Section 1(13) of the children’s act
considers:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his
age and understanding);
(b) the child’s physical, emotional and educational need;
(c) the likely effect on the child of any change in his circumstances;
(d) the child’s age, sex, background and any characteristics of his which the court considers
relevant;
(e) any harm which the child has suffered or is at risk of suffering; and
(f) how capable each of his parents, and any other person in relation to whom the court
considers the question to be relevant are of meeting his needs.207
Utilizing this checklist as a basis for the Hague Convention amendment is advisable because it
considers both the mental and physical health of the parent which is relevant where the parent
201
See Id. at 317. 202
See Id. 317-318. 203
Id. at 316. 204
Id. 205
See CRC supra note 194. 206
Children Act, 1989, c. 41(U.K.); Aiyar supra note 108, at 317. 207
See Children Act §1(3)
28
has been a victim of domestic violence. Such an approach will likely assure Non-Muslim
victims of domestic violence escaping to a Hague Convention country, as the U.S., that they
could assert their rights without having to return to an unsafe jurisdiction in order to litigate
custody.208
Moreover, section 1(15) of the U.K. Children’s Act prevents Convention courts from
making an order in non-Hague cases, unless the “best interests” of children call for such
action.209
Therefore, the amendment encourages courts to examine whether foreign courts would
give equal importance to the child’s welfare if returned. This means that there will be instances
in which a child would be returned from a Hague state to a non-Hague contracting state under
the proposed amendment. Thus, the proposed amendment in application only aims at avoiding
the inconsistencies in approaches being applied by Hague Convention states in non-Hague cases
which may endanger the very children who ought to be protected under the Hague Convention,
even if they belong to non-Convention countries.210
Conclusion
A solution is needed for the Ms. Mahmoody’s of this world-- those women whose
batterers force them to live in a non-Hague state and are unable to return to the U.S. with their
children due to the Shari’a custody laws. Moreover, these Non-Muslim American women are
unable to use the Hague Convention remedies to return their children from Muslim countries
after fleeing from domestic violence to the U.S.211
While the automatic return policy of the
Hague Convention has little chance of gaining acceptance by Muslim countries, the U.S. should
208
See Weiner supra note 2, at 706. 209
Children Act supra note 194; Aiyar supra note 108, at 318. 210
Aiyar supra note 108, at 319. 211
Id. at 291.
29
respect Muslim countries religious and cultural reasons for such a denial and establish bilateral
treaties to improve the existing situation.212
Bilateral treaties remain to be one of the only viable
options that have the capability of resolving international child custody disputes between Non-
Muslim mothers and Muslim fathers, and therefore, countries involved should make major
efforts at allowing for a consistent procedure in dealing with these conflicts.213
In no case should countries privilege forum shopping accomplished through force by a
batterer over a forum incidentally selected by his victim in a non-Hague state.214
Amending the
Hague Convention to adopt a uniform approach for dealing with non-signatory states provides a
solution, which can remove the incentive for potential abductors to remove their children to
Muslim states over others.215
Moreover, the proposed amendment to the Hague convention
should require the contracting states to act in accordance to the welfare of the individual child
when dealing with non-Hague cases to protect children, even if they belong to non-Convention
cases.216
American Non-Muslim survivors of domestic violence should be able to assert their
rights to justice without having to return to unsafe jurisdictions and IPKCA provides an avenue
for left behind parents facing international child abduction to vindicate their rights through the
federal criminal justice system in the U.S.217
While IPKCA has its limitations, it should be the
policy of the U.S. to vigorously prosecute international parental kidnapping cases involving non-
Hague contracting states where the left behind parent suffer the addition trauma of having to
navigate the foreign culture, legal system, and having no remedy in return of their children under
the Hague Convention.218
212
Andrews supra note 18, at 629. 213
See Id. at 629. 214
See Weiner supra note 2, at 706. 215
Aiyar supra note 108, at 319. 216
See Id. 217
See Kreston supra note 156, at 533. 218
See Id.