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UCCJEA, International Custody Order

mother and children in snow

Hamdan v. Freitekh, decided May 19, 2020 (UCCJEA, International Custody Order)

During the marriage, Mother and the children lived in Israel, while Father lived in Palestine. Mother and the children moved to North Carolina without advance notice to Father – Mother alleged that the move was due to domestic violence issues and to her concern that Father was a member of a radical Islamic group.  When Father learned of Mother’s intention to move to the United States, he instituted an action with the Shar’ia Court of Jerusalem in an effort to prevent Mother and the children from moving to the United States (by the time he filed his action, Mother and the children had already moved).  The Shar’ia Court issued a “provisional order” providing that the children would live with Mother in Israel during the week and with Father in Palestine on the weekends.  The order was served on Mother at her address in Jerusalem (after she had moved to North Carolina).  When Mother did not appear in Court after that, the Shar’ia Court entered a final custody order by default.

Father filed a petition in Union County seeking registration and of the foreign order.  Attached to the petition were copies of the provisional custody determination (in English and in Arabic) and of the final order (in Arabic only), but neither order was a certified copy in that neither included a certification that the documents were an exact reproduction of the Shar’ia Court’s orders.  The trial court granted the petition for registration and Father then moved for enforcement of the order.  The trial court granted the motion for enforcement and directed Mother to return the children to the jurisdiction of the Shar’ia court.  Mother filed her notice of appeal from the orders confirming and enforcing the foreign order.  On appeal, Mother argued that the Union County court did not have subject matter jurisdiction and that the trial court erred in enforcing the foreign order without first determining whether the law of the foreign country violates fundamental principles of human rights.  

The Court of Appeals held that the trial court did not have subject matter jurisdiction.  The UCCJEA requires that certified copies of the order sought to be registered accompany the petition for registration, which means that if the party seeking registration of a foreign order does not submit the requisite certified copies, the trial court does not have subject matter jurisdiction to hear the matter.  Because Father did not include certified copies of the orders, the trial court’s orders are void and should be vacated.  Because the subject matter jurisdiction issue was dispositive, the Court of Appeals did not address Mother’s argument regarding human rights violations.  

Reviewer’s comments:  I think Mother’s argument that in light of the domestic violence allegations, the Islamic jihadism concerns, and the default nature of the proceedings, the Shar’ia court’s order was entered in contravention of the fundamental principles of human rights and so North Carolina was not obligated to enforce the order is an interesting one.  For anyone else who thinks this is an interesting issue, Mother’s brief is worth a read.   

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