MA Court: Kidnapping by Mother ‘Insufficient to warrant modification of custody’

The extent to which state courts in the United States are willing to go to avoid enforcing fathers’ rights to their children and children’s rights to their fathers has been amply demonstrated time and again.  That means the bar is set pretty high for any judge seeking to outdo the others for the sheer outlandishness of his/her anti-dad sentiments.

Still, it’s possible to surpass the others as this case demonstrates (Leagle, 12/31/10).  This one actually touches on the surreal.

Back in 2001, Nazih Mohamad El Chaar and his wife were married in their native Lebanon.  They had a daughter in 2002 and divorced in 2004.  The Lebanese divorce decree gave primary custody to the mother and visitation to the Nazih.  This visitation was subsequently modified to one day per week.

In May, 2006, the mother left Lebanon with the child without the permission of the father or the Lebanese court. After a brief sojourn in Canada, she settled in Massachusetts. When he could not find the child, the father filed a petition in the Sunnite Muslim Court of Beirut (the Lebanese court) to modify the custody orders. The mother was represented by counsel at these proceedings.

In short, she kidnapped the child and hid out first in Canada and then in Massachusetts.  This violated the Lebanese court order that prohibited her from taking the child out of the country without the consent of the father and/or the court.  As readers of this blog know, that type of restriction on removal of the child is a standard part of custody orders in this country.

So Nazih went back to court in Beirut which, because of the mother’s violation of its order that prevented the child from seeing her father, transferred custody to him.

The mother appealed. In affirming the judgment, the Lebanese appellate court pointed out that since the mother traveled with her daughter outside the Lebanese territories after the father obtained a judgment giving him the right to see his daughter once a week, the father “has been deprived of the right and the girl was deprived of her right to see her father, and this matter is against her interest[,] which should be taken into consideration … before the mother’s interest.”

The mother’s action would violate the Hague Convention on the Civil Aspects of Child Abduction if Lebanon were a signatory country to the Convention, but it’s not.  So Nazih was stuck trying to get a Massachusetts court to enforce the order of the Lebanese court.

Now, when asked to enforce the order of a court of a foreign country, Massachusetts courts look to see if the order conforms to basic standards of fairness and substantive law in this country.  That’s reasonable.  After all, we don’t want to get into the habit of enforcing whipping at the behest of Singapore, stoning at the behest of Iran or cutting off limbs because a Saudi court so ordered.

So the Massachusetts court looked at the proceedings of the Lebanese court to see if what it did was substantially similar to what would happen in the Bay State.  That led it to ask whether what the court did was in the best interests of the child, because that is what’s required in Massachusetts.

Amazingly enough, the Massachusetts judges decided that the Lebanese court’s statement that  the mother had deprived the child of contact with her father “and this matter is against her interest[,] which should be taken into consideration … before the mother’s interest,” in some way didn’t consider the best interests of the child.

Of course the words of the Lebanese court make it perfectly clear that it based its decision squarely on the child’s interests which it held to supersede those of the mother.  You could find such a statement in countless opinions by state courts in this country, but in this case, the Massachusetts court decided it was mysterious and inscrutable.

Compounding its error, the judges admit that there’s no straightforward test for what a court will consider to be in the best interests of a child.  That is, they don’t have a set idea about what the best interests of the child consist of, but they know that the Lebanese court didn’t act in accordance with them, even though it said it did.  I hope that’s clear.

If that’s not strange enough, the Massachusetts judges clearly state that one criterion for determining the best interests of the child is “the need for stability and continuity in the child’s life.”  This the mother clearly violated by her abduction and hiding of the child.  And it’s precisely that that caused the Lebanese court to switch custody to the father for the clearly expressed purpose of promoting the child’s interests.

So even when the Lebanese court acted precisely in accordance with Massachusetts precedent, the judges were determined not to notice.

Now, all of that is bad enough, but to me it falls under the heading of standard family court anti-dadism.  It’s anti-father sentiment masquerading as law. 

But here’s what pushes the entire thing over into the realm of the surreal.  (Surely Joseph Heller would understand completely.)  The court is so concerned with the best interests of the child that it rewards child abuse by the mother.  (I told you it was surreal.)

As readers of this blog well know, there’s significant social science on the effects of parental child abduction on children and those effects are profoundly detrimental.  Mental health professionals rightly call parental abduction of children “child abuse.” 

That’s what it is and, in its zeal to find a way around a father’s rights to his child and his daughter’s rights to her father, the court ruled in favor of her mother’s abusive behavior.  That it simultaneously pretends to be acting in the best interests of the girl is what, in my mind, nudges this case out of the realm of simple anti-dadism and into that of the overtly loony.

Thanks to John for the heads-up.

Leave a Reply

Your email address will not be published. Required fields are marked *