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Abstract
The addition of a Shari'a-compliant parenting plan to American child custody orders can reduce the risk of abduction to Islamic countries where there are obstacles to securing a child's return. Determinations of custody in disputed divorce actions between parents seeking relief in American, secular courts can be complicated when those parents are dual nationals or citizens of other cultures and legal traditions. In Islam, marriage is formed by contract, responsibilities are defined by culture, and terms of divorce are set forth in the original marriage contract. A growing population of Muslim households in the United States needs legal practitioners, judges, mediators, and custody evaluators who understand the legal, sociocultural, and religious aspects that are the foundation of the Muslim family.
Acknowledgments
The information relating to the legal requirements of specific foreign countries is obtained from past experience and is not necessarily authoritative. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel.
Notes
Islamic Family Law, EMORY LAW SCHOOL, http://www.law.emory.edu/IFL (last visited July 29, 2013).
Fatima Akaddaf, Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) to Arab Islamic Countries: Is the CISG Compatible with Islamic Law Principles?, 13 PACE INT'L L. REV. 16 (2001).
JAMAL L. NASIR, THE ISLAMIC LAW OF PERSONAL STATUS (1990).
THE HOLY QUR'AN: TEXT, TRANSLATION AND COMMENTARY 2:177 (a. Yusuf Ali trans., 1983) (hereinafter “THE HOLY QUR'AN”)..
Translated by Yusuf Ali as: “It is not righteousness that ye turn your faces towards east or West; but it is righteousness- to believe in God and the Last Day, and the Angels, and the Book, and the Messengers; to spend of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfil the contracts which ye have made; and to be firm and patient, in pain (or suffering) and in adversity, and throughout all periods of panic. Such are the people of truth, the God-fearing.” Id. (emphasis added).
Id. at 2:282.
SAHIH BUKHARI vol. 3, bk. 46, no. 737 (Muhammed Muhsin Khan trans.), available at http://www.usc.edu/org/cmje/religious-texts/hadith/bukhari/046-sbt.php.
Id. at vol. 3, bk. 39, no. 521, available at http://www.usc.edu/org/cmje/religious-texts/hadith/bukhari/039-sbt.php.
Id. at vol. 3, bk. 36, no. 464, http://www.usc.edu/org/cmje/religious-texts/hadith/bukhari/ 036-sbt.php.
Al-Baqarah, translated by Yusuf Ali, Chapter 2, Verse 282, in part: ” … And get two witnesses out of your own men. And if there are not two men (available), then a man and two women, such as you agree for witnesses, so that if one of them (two women) errs, the other can remind her. And the witnesses should not refuse when they are called on (for evidence). You should not become weary to write it (your contract ), whether it be small or big, for its fixed term, that is more just with Allah; more solid as evidence, and more convenient to prevent doubts among yourselves, save when it is a present trade which you carry out on the spot among yourselves, then there is no sin on you if you do not write it down. But take witnesses whenever you make a commercial contract .” THE HOLY QUR'AN, supra note 4, at 2:282 (emphasis added).
NASIR, supra note 3.
Joelle Entelis, International Human Rights Regarding Women's Equality and Islamic Law, 20 FORDHAM INT'L L.J. 1269, 1269–70 (1997).
JOHN L. ESPOSITO & NATANA J. DELONG-BAS, WOMEN IN MUSLIM FAMILY LAW, CONTEMPORARY ISSUES IN THE MIDDLE EAST (1982)..
Id..
NASIR, supra note 3.
Except some communities in Turkey, Afghanistan, Pakistan, India, China, Bangladesh, Iraq, Albania as well as the countries of Syria, Egypt, and Jordan. NASIR, supra note 3, at 15; ANNE-MARIE HUTCHINSON & HENRY SETRIGHT, INTERNATIONAL PARENTAL CHILD ABDUCTION 14 (1998).
HUTCHINSON & SETRIGHT, supra note 16, at 50. The Hanafi school does, however, require a guardian if the woman is of no or limited legal capacity. Id..
ESPOSITO & DELONG-BAS, supra note 13.
NASIR, supra note 3.
Id..
Azizah Y. al-Hibri. Understanding Muslim Marriage Contracts, ISLAMIC HORIZONS, March/April, at 30–34 (2001).
Al-Baqara 2:228: ” … and the divorced women shall undergo, without remarrying, a waiting-period of three monthly courses: for it is not lawful for them to conceal what God may have created in their wombs, if they believe in God and the Last Day. And during this period their husbands are fully entitled to take them back, if they desire reconciliation; but, in accordance with justice, the rights of the wives [with regard to their husbands] are equal to the [husbands'] rights with regard to them, although men have precedence over them [in this respect]. And God is almighty, wise.” THE HOLY QUR'AN, supra note 4, at 2:228.
Id..
ESPOSITO & DELONG-BAS, supra note 13.
Id..
NASIR, supra note 3.
ESPOSITO & DELONG-BAS, supra note 13.
NASIR, supra note 3.
DAWOUD SUDQI EL ALAMI & DOREEN HINCHCLIFF, ISLAMIC MARRIAGE AND DIVORCE LAWS OF THE ARAB WORLD (1996).
THE HOLY QUR'AN, supra note 4, at 4:34.
Translated by Yusuf Ali as: “MEN SHALL take full care of women with the bounties which God has bestowed more abundantly on the former than on the latter, and with what they may spend out of their possessions. And the righteous women are the truly devout ones, who guard the intimacy which God has [ordained to be] guarded. And as for those women whose ill-will you have reason to fear, admonish them [first]; then leave them alone in bed; then beat them; and if thereupon they pay you heed, do not seek to harm them. Behold, God is indeed most high, great!” Id..
Azizah Y. al-Hibri, An Islamic Perspective on Domestic Violence, 27 FORDHAM INT'L L. J. 195 (2003). (quoting and translating The HOLY QUR'An, supra note 4, at 4:34).
WOMEN, THE FAMILY, AND DIVORCE LAWS IN ISLAMIC HISTORY (Amira El-Azhary Sonbol ed., 1966).
Interview with M. Radwan, Assistant Director for Political and Congressional Affairs, The Royal Embassy of Saudi Arabia, in Washington D.C. (May 2005).
Marriage of Dajani, 204 Cal. App. 3d 1387 (1988).
Marriage of Shaban, 88 Cal. App. 4th 398 (2001).
Aziz v. Aziz, 488 N.Y.S.2d 123 (Sup. Ct. 1985).
Akileh v. Elchahal, 666 So. 2d 246 (Fla. Dist. Ct. App. 1996).
al-Hibri, supra note 27.
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 [hereinafter Hague Abduction Convention].
Uniform Child Custody Jurisdiction and Enforcement Act, CAL. FAM. CODE§§ 3400–3465 (West 2004 & Supp. 2013).
The U.S. is in the process of ratifying the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Oct. 19, 1996, 35 I.L.M. 1391 (Hague Protection Convention). That treaty does contain provisions for recognition and enforcement of foreign custody orders, but differs from American domestic law in that it vests modification jurisdiction in a child's new country of habitual residence. No Islamic country is a party to the Protection Convention.