Opinion
V-28721-4/2019
02-03-2020
In the MATTER OF A CUSTODY PROCEEDING PURSUANT TO FAMILY COURT ACT ARTICLE 6 Karimah K., Petitioner, v. Bassim A., Respondent.
The Mother was represented by Hannah West, Esq., from Sanctuary for Families, P.O. Box 1406, Wall Street Station, New York, NY 10268,t: 212.349.6009; and the Father was represented by Maria Coffinas, Esq., Coffians & Lusthaus, P.C., 186 Joralemon St # 910, Brooklyn, NY 11201, Phone: (718) 717-1005.
The Mother was represented by Hannah West, Esq., from Sanctuary for Families, P.O. Box 1406, Wall Street Station, New York, NY 10268,t: 212.349.6009; and the Father was represented by Maria Coffinas, Esq., Coffians & Lusthaus, P.C., 186 Joralemon St # 910, Brooklyn, NY 11201, Phone: (718) 717-1005.
For the following reasons, the Motions filed by Respondent Bassim A. (hereinafter "Father"), for this Court to dismiss the Petitions for Writ of Habeas Corpus and Custody filed by Petitioner Karimah K. (hereinafter "Mother"), are granted and the proceedings are dismissed in accordance with the following decision.
On September 11, 2002, the parties were married in a religious ceremony under the strict tenets of the Muslim Religion in the City of Ibb, Country of Yemen, where they remained until 2005. Both Father and Mother were born in Yemen, but only she became a United States Citizen. Their union was blessed with the birth of four Children, all daughters. It is undisputed that the Father, Mother and Children would frequently travel back and forth between Yemen and the United States. In fact, in the Spring of 2016, Mother voluntarily left New York to travel to Yemen with the Father and Children to participate in Ramadan and Eid Celebrations with their family in Yemen. Although she was expecting to return with the Children for the start of school in September 2016, Father allegedly made a unilateral decision for the family to remain in Yemen. That was apparently the preamble of the Father's controlling behavior and physical and verbal abuse that she allegedly endured throughout the marriage.
According to Mother, Father's behavior prompted her to leave the marital home in Sanaa, Yemen, without the Children in November 2018, in order to reside with her brother in a distant Yemeni city. Upon learning that Father married a second wife and because of his threats, Mother indicates that she never returned to the marital home. Instead, the Mother later traveled to the United States to be with her parents in New York in April 2019, again leaving the Children behind. Although she claims to be in frequent telephonic and electronic contact with them, the Children have resided in Yemen with the Father since 2016. The Children live in Sanaa with the Father, paternal grandparents and an aunt in a home with a swimming pool, attend the same school together and engage in extracurricular sports activities. Mother claims that Father works at a delicatessen located in Jamaica, New York, frequently travels for business purposes from Yemen to New York, and has other business ventures in New York.
By Order to Show Cause dated October 9, 2019, Mother commenced the instant proceedings against the Father in Kings County Family Court by filing Petitions for a Writ of Habeas Corpus and Custody, seeking an order: (1) directing the Father to make travel arrangements on behalf of the Children to enable them to come to New York; (2) commanding him to surrender his and the Children's passport and other travel documents to the Court; (3) requiring Father to remain in the jurisdiction of this Court during the pendency of the proceedings; (4) granting Mother temporary legal and physical custody of the subject Children; and (5) prohibiting Father or anyone else under his direction or control to arrange any marriages for any of the subject Children during the pendency of this action. That day, Mother - who appeared in Court fully-covered in a Burqa - also filed a Family Offense Petition against the Father seeking an Order of Protection on behalf of herself and the Children, reporting that she had fled Yemen due to domestic violence and repeated acts of sexual and physical abuse committed against her by Father. In her papers, the Mother specifically denied in three separate paragraphs the existence of "any order of legal or physical custody of the Children" or "any order, mandate, judgment or decree of any court of competent jurisdiction" involving the Children.
A Burqa is a loose, black enveloping garment "covering the entire body from the top of the head to the ground, with only a mesh screen allowing the wearer to see in front of her" (https://en.wikipedia.org/wiki/Burqa).
Based on the facts as then presented by Mother's Counsel, on October 9, 2019, the Court issued a full stay-away Order of Protection against the Father on behalf of the Mother only, ordered the Father to make travel arrangements and produce the Children in New York, directed him to surrender any and all of his passports to the Court, and directed that he is to remain in the jurisdiction of this Court. Summons were issued and the matter was adjourned to October 18, 2019, for service of the papers upon Father, who was allegedly on business visiting New York.
On the return date, Mother appeared with counsel who reported that service had not been effectuated upon Father. Upon counsel's application, the Court issued an order for substitute service by electronic means with respect to the custody and visitation proceeding and personal service with respect to the Family Offense proceeding. On October 28, 2019, Mother submitted proof that Father was served via electronic means. Mother also notified the U.S. Department of State so that Father could be placed on a "no flight list." The Court issued new summons on all dockets, extended the Temporary Order of Protection, reissued the Writ, sent notification to Father and adjourned the matter to November 26, 2019.
By Order to Show Cause dated November 22, 2019, Father moves for the dismissal of Mother's Petitions for Writ of Habeas Corpus and Custody on the basis that the New York Family Court lacks subject matter jurisdiction under the Uniform Child Custody Jurisdiction & Enforcement Act ("UCCJEA") embodied in Domestic Relations Law Article 5-A, § 75 et seq. , because the Children have undisputedly resided with him in Yemen for the last three years pursuant to Mother's consent. Father argues that Mother's Petitions are replete with lies, exaggerations and omissions, including the fact that the parties were in fact divorced by Attestation Divorce Documents dated April 3, 2019, executed by them and issued by the Ministry of Justice Court in the Republic of Yemen. The Divorce specifically refers to a settlement between the parties whereby, inter alia , the Father was awarded custody of the two older Children, the Mother got custody of the two younger girls until they reach the age of 11 years old unless she got married or traveled to U.S., Father was permitted to travel with the older girls "without condition or restriction," Mother was granted visitation with them, and Father returned her dowry, passport and paid the sum of $10,000 U.S. dollars to Mother. The Divorce Document is signed by the Father, Mother and four other witnesses including her brother at the grandfather's home. That Divorce was modified by a later Document, dated April 7, 2019, wherein the Mother agreed to give full custody of all the Children to Father apparently due to her impending travel to New York.
On November 26, 2019, Mother and Father appeared with their attorneys, who accepted service on all pending matters, and the Court set a motion schedule for opposition and replies to be submitted with respect to Father's Motion for dismissal. This notwithstanding, Father's attorney filed an Emergency Order to Show Cause on December 6, 2019, seeking a stay under CPLR 2201 of enforcement of the Order dated October 9, 2019, requiring the passports and return of the Children, pending the hearing and determination of the application challenging the Court's jurisdiction. Following contentious oral argument, this Court denied Father's application to stay the October 9, 2019 Order, and issued further orders for the Father to surrender his traveling passport to his attorney by December 9, 2019, who shall safekeep it as an officer of the court. It appears that Father failed to comply with those directions.
As a result, by a second Order to Show Cause dated January 8, 2020, Mother moves for an Order holding Father in contempt of court for his continued failure and refusal to abide by the Court's orders; and for a warrant for Father's immediate arrest and return to this Court's jurisdiction. Mother's counsel reported to the Court that Father not only failed to surrender his passport, but that he left the jurisdiction by returning to Yemen. The Court denied Mother's counsel's insistent application for a warrant and adjourned the Order to Show Cause to January 13, 2020, when Mother, her attorney and Father's attorney appeared. The Court noted that Father claimed and provided medical proof that their older child had a medical and cardiac problem which required his attention and that Father is not coming back; Mother expressed her disbelief that the Child was sick. Upon the application of Mother's attorney, the Court issued a Temporary Order of Visitation, directing that Mother was to have regular contact with the Children three times per week by telephonic/electronic means.
In opposition to the Father's Motions, Mother maintains that she and the Children remained in Yemen "not by choice but by circumstance, as she had no means of travel," fears the Father's retaliation and political connections with the Houthi government, and reiterates that Father engaged in physical and verbal abuse against her. Faced with the executed Divorce Documents, Mother finally acknowledged its existence and claims for the first time that she was forced to sign the Divorce Documents without "an opportunity to thoroughly review it" because the Father, her brother-in-law and another man arrived at her brother's residence uninvited and "carrying firearms, in addition to traditional Yemeni knives," and she feared for her and her family's life. With respect to the jurisdictional question, Mother argues that Yemen cannot be considered the Children's home state based on the circumstances of their stay there, that the parents and the Children have significant connections and "substantial evidence in New York." She supports her arguments with Amnesty International and Human Rights Watch 2019 World Reports describing the war-torn circumstances and decrying the lawlessness and human rights abuses in Yemen. The Court marked the Motions submitted and reserved decision by adjourning the matter to February 4, 2020. After reviewing the circumstances, the Court disagrees with Mother.
The UCCJEA governs a New York State court's jurisdiction in international custody and visitation matters (see Matter of Katz v. Katz, 117 AD3d 1054 [2nd Dept. 2014] ). New York courts have jurisdiction to make an initial custody determination if New York is the child's "home state" ( Domestic Relations Law § 76[1][a] ; see Matter of Slade v. White , 133 AD3d 767, 768 [2nd Dept. 2015] ; Matter of Becker v. Watanabe , 109 AD2d 861 [2nd Dept. 1985] ). Under the UCCJEA, "home state" is defined as "the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding" ( Domestic Relations Law § 75-a(7) ; see Matter of Agueda v. Rodriguez , 103 AD3d 716 [2nd Dept. 2013] ; Matter of Malik v. Fhara, 97 AD3d 583 [2nd Dept. 2012] ). Pursuant to DRL § 75-d, a court of this state shall treat a foreign country as if it were a state of the United States (see Hollander v. Weissberg 147 AD3d 831 [2nd Dept. 2017] ; Matter of Katz v. Katz , 117 AD3d at 1055 ).
Applying these principles to the case at bar, the Father's motion must be granted as Yemen is the Children's home state. Mother, a resident of New York, claims that she voluntarily left New York to travel to Yemen with Father and the Children in 2016. Allegedly due to the Father's physical, sexual and verbal abuse, Mother left the marital home in Yemen without the Children in November 2018 and then traveled to the United States in April 2019, again without the Children. Thus, it is undisputed that the Children have resided in Yemen with Father for several years prior to her commencement of these custody proceedings in New York. Although Mother would have a basis to argue subject matter jurisdiction if she and the Father were New York residents, even though the Children live abroad (see Matter of Nusrat C. v. Mohammad R. , 67 AD3d 419 [1st Dept. 2009] ), the record reflects that no proof of Father's New York residency has been submitted to the Court. New York is not the Children's home state (see Matter of Slade v. White , 133 AD3d at 768 ; Matter of Gharachorloo v. Akhavan , 67 AD33 1013 [2nd Dept. 2009] ).
In contradiction to Mother's statements, Father presents Divorce Documents issued by the Ministry of Justice Court in Yemen granting him sole custody all four Children, the two older girls as per Yemeni law and the two younger girls upon Mother's consent. The Divorce Documents show that they were signed by Mother and Father while witnessed by four individuals. Now, Mother belatedly argues that, even if she signed the Documents, it was under duress or fraud by armed individuals, and that she was not aware that she was giving up custody of her Children. Even if the Court were to concede that the circumstances involving Mother's signing of the Divorce Documents were suspect, this by no means affects the jurisdictional question of Family Court.
"Home state jurisdiction is paramount and whether to accept jurisdiction is a home state prerogative" (Matter of Gharachorloo v. Akhavan , 67 AD33 at 1013; see Matter of Navarette v. Wyatt , 52 AD3d 836 [2nd Dept. 2008], quoting Sobie, Practice Commentaries, McKinney's Cons. Laws of NY, Book 14, UCCJEA § 76, at 127). Mother contends that Yemen should not be considered a "home state" or a viable jurisdictional alternative since the child custody laws of that country, as written or applied, violate fundamental principles of human rights (see Domestic Relations Law § 75-d ). She further contends that Yemeni laws regarding women's rights and domestic violence are also on par with human rights violations. With the ensuing civil conflict, including bombing campaigns, Mother argues that access to whatever legal system exists has been even further curtailed. Moreover, she maintains that the situation in Yemen is dangerous and not safe for her Children.
Here, it is apparent that Yemen is in the process of undergoing a Civil War, and that more than likely Yemeni laws regarding domestic violence, child custody, and basic human rights do not conform to our current expectations in the State of New York. However, this would not appear to be a Hague Convention case. "The Convention done at the Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights" ( 22 USCA 9001 [a][4]; see Matter of Katz v. Katz , 117 AD3d at 1055 ). It provides that a child abducted in violation of rights of custody must be returned to "his or her country of habitual residence" unless certain exceptions apply (id. ). Countries that participate in the Hague Convention work cooperatively to ensure that children are returned to their country of habitual residence. Yemen is not a signatory to the Hague Convention. Besides Yemen, there are numerous non-Hague Convention countries which have declined to participate in the Hague's international effort to prevent the abduction of children. Regardless of whether one agrees with the values and practices prevalent in various cultures across the globe, this Court is not jurisdictionally empowered to make a broad public policy finding that Yemeni laws violate the fundamental principles of human rights and should thus not be considered a viable jurisdictional alternative or a "home state."
In any event, it is clear from this record that Father did not abscond with the Children to Yemen, but that the parties traveled to Yemen as a family. Mother has provided no proof that her stay in Yemen was supposed to be temporary or that she was unaware of the U.S. Department of State's Alerts & Warnings applicable to those traveling to Yemen. Additionally, Mother did not leave the Yemeni marital home until November 2018, which is more than two years after the couple's departure from New York. The fact remains that she left her Children behind. Thereafter, due to marital discord, and perhaps Father's decision to obtain a second wife, the couple officially separated in April 2019. According to the Divorce Documents, Father returned Mother's passport, social security card and her clothes. It also states that Father handed over Mother's dowry in the amount of $10,000 and all of her rights as required by him. Despite Mother's concerns about the validity of the Divorce Documents, it is evident that Mother immediately traveled to the United States leaving her Children behind in Yemen.
The U.S. Department of State's Yemen: Alerts & Warnings by the U.S. Passports and International Travel Department specifically provide that: "U.S. citizen women who are married to Yemeni or Yemeni-American men should be aware that their children may not be able to depart if the children are brought to Yemen. In many instances, women must obtain permission from their husbands to obtain an exit visa. They also may not be able to take their children out of Yemen without the permission of the father, regardless of who has legal custody" (http://travel.state.gov/content/passports/en/country/yemen.htlm).
Furthermore, there is no indication from the record presented that the Father has harmed the Children. While Yemen presents itself as a dangerous place to raise the Children due to the Civil War and conflict, and Mother is concerned that the oldest girls may be forced to marry in the immediate future, presumably in accordance with the local custom, there appears to be no imminent risk of harm to them. One can only be optimistic that Father will consider his daughters' best interests in deciding whether to return with them to the United States or in making any other decisions regarding their future. As such, this Court also declines to exercise temporary emergency jurisdiction (see Matter of Gharachorloo v. Akhavan , 67 AD3d at 1013 ; Domestic Relations Law § 76-c ).
In accordance with the foregoing, this Court hereby grants Father's Motions to dismiss based on the fact that New York cannot claim subject matter jurisdiction or emergency jurisdiction because Yemen is the home state of the subject Children (id. ). The Court must therefore dismiss the instant Petitions and denies Mother's related Motions for lack of subject matter jurisdiction. However, the Court retains jurisdiction only over the Family Offense proceeding, which is returnable on February 4, 2020. The foregoing constitutes the Decision and Order of the Court.