By: Samuel Jay
It would be absurd to declare that a religion violates fundamental principles of human rights, but that’s where section 105(C) of the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) puts courts in the United States of America.[1] Under this section of the UCCJEA, a court can refuse to recognize a foreign country’s jurisdiction if that country’s child custody laws violate fundamental principles of human rights.[2] Forty-nine states and the District of Columbia have adopted the UCCJEA.[3] This section of custody law is problematic when deciding custody cases involving Muslim countries; particularly Pakistan whose child custody law is a mix of English common law and Islamic Shari’ah law.[4] So how do courts of the United States decide whether or not Shari’ah law violates fundamental principles of human rights?
Pakistan adopted English child custody law in 1890 under the Guardian and Wards Act which contained a similar standard to the best interest of the child.[5] Under the UCCJEA, the primary consideration must be the best interest of the child; however, to understand if the best interest of the child standard is the primary consideration in Pakistan, the court must look to how the law is interpreted and applied. [6] Pakistan’s Federal Shariat Court was established in 1980 and grants the court the power to overrule court decisions and override any provision of the constitution.[7] Further in 1991, Pakistan passed the Enforcement of Shari’ah Act which declared that laws will be interpreted consistently with Islamic principles.[8] The Guardian and Wards Act cannot be viewed in a vacuum because courts are mandated to interpret the law in accordance with Shari’ah law and a court’s decision is subject overrule by the Federal Shariat Court.[9]
One of the most relevant Pakistan child custody cases in the U.S. is Hosain v. Malik, but the Maryland Special Appeals Court decided it under the more permissive “substantial conformity” standard of the UCCJEA’s predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA).[10] In Malik, a father obtained legal custody of the child-in-common in Pakistan and the mother brought suit for custody in the United States.[11] The Maryland court found under the UCCJA that Pakistan’s Guardian and Wards Act was in substantial conformity with Maryland law.[12] However, the court in Malik never considered the Shari’ah Enforcement Act or the Federal Shariat Court.[13] In an unpublished case Faisal Al-Ali v. Suad Al-Saba, the Kentucky Court of Appeals found a Jordanian custody decree invalid because the determination was based solely upon Islamic law.[14] These cases indicate that even under the UCCJA’s permissive standard there could be a trend to find that Shari’ah law’s primary consideration is not the best interest of the child.
The UCCJEA replaced the UCCJA with a higher standard that requires courts to look further into foreign custody law.[15] Some American courts have interpreted the UCCJEA § 105(C) to apply only in the most egregious of cases, but have also opined it would violate the UCCJEA if a foreign jurisdiction does not hold the best interest of the child standard as the primary consideration in custody determinations.[16] Courts of the United States must decide whether the permeation of Shari’ah law by the Federal Shariat Court and the Shari’ah Enforcement Act make the best interest of the child a subordinate consideration, and thus a violation of human rights and the UCCJEA, in Pakistan.[17] A court could best avoid the danger of declaring Shari’ah law and Islam a violation of fundamental human rights by focusing on whether the primary focus of the foreign jurisdiction’s child custody law is the best interest of the child and if that jurisdiction considers factors unrelated to the best interest of the child. This approach has the benefit of avoiding the perception of Islamophobia and staying within the present law and case precedent.[18]
[1] Uniform Child Custody Jurisdiction Enforcement § 105 (C) (1997), https://www.uniformlaws.org/shared/docs/child_custody_jurisdiction/uccjea_final_97.pdf.
[2] See id.; see also D.C. Code § 16-4601.04(c) (adopting § 105 (C) of the UCCJEA).
[3] D.C. Code § 16-4601.04(c).
[4] Guardian and Wards Act § 17.(1) (1890) (Pak.); Islamic Republic of Pakistan [Pak.][constitution] 1973, part VII, Chapter 3A § 203DD (1)-(3) (Pak.).
[5] See Guardian and Wards Act § 17.(1) (1890) (Pak.) (setting for the welfare of the child is the primary consideration).
[6] See D.C. Code § 16-914(a)(1)(A) (mandating the best interest of the child shall be the primary consideration).
[7] See Islamic Republic of Pakistan [Pak.][constitution] 1973, part VII, Chapter 3A § 203DD (1)-(3) (Pak.).
[8] See Enforcement of Shari’ah Act, § 3-4. (1991) (Pak.).
[9] See Islamic Republic of Pakistan [Pak.][constitution] 1973, part VII, Chapter 3A § 203DD (1)-(3) (Pak.).
[10] See 108 Md. App. 284, 288 (Md. Ct. Spec. App. 1996); see also Md. Family Law Code. Ann. § 9-204, 9-213 (1974) (adopting the UCCJA “substantial conformity” standard)
[11] See 108 Md. App. at 288
[12] See 108 Md. App. at 291, 1004 ; see also Guardian and Wards Act of 1890 § 17.(1).
[13] See generally 108 Md. App. at 1004.
[14] See Faisal Al-Ali v. Suad Al-Saba, No. 93-CA-2297-MR, slip op. at 1 (Ky. Ct. App. Mar. 10, 1995); see also Monica E. Henderson, U.S. State Court Review of Islamic Law Custody Decrees- When Are Islamic Custody Decrees in the Child’s Best Interest?, 36 Brandeis J. Fam. L. 423, 434 (1998).
[15] See Uniform Child Custody Jurisdiction Enforcement § 105 (C) (1997), https://www.uniformlaws.org/shared/docs/child_custody_jurisdiction/uccjea_final_97.pdf.
[16] See Dyce v. Christy, 17 So.3d 892, 893 (Fla. Dist. Ct. App.) (taking the UCCJEA to mean that when the foreign law does not consider the best interest of the child, the courts of the United States may decline to recognize the judgment).
[17] See D.C. Code § 16-4601.04(c).
[18] Hosain v. Malik, 108 Md. App. 284, 288 (Md. Ct. Spec. App. 1996); Faisal Al-Ali v. Suad Al-Saba, No. 93-CA-2297-MR, slip op. at 1 (Ky. Ct. App. Mar. 10, 1995); Dyce v. Christy, 17 So.3d 892, 893 (Fla. Dist. Ct. App.).