Prof. Gabriel Sawma
As this article was being written, the court of Common Pleas of Allegheny County, Pennsylvania, Family Division, issued a judgment in our favor, granting the custody of two children to the mother and denying a request by the father to take the children back to Saudi Arabia. This custody order complies with out argument before the court of Pennsylvania that the Saudi custody order should not be recognized for violation of US and international law, and it should not be recognized for violation of Pennsylvania public policy, and because Saudi Arabia is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. The court order is not published yet; I will post the link once it is published. A copy is available at the request of judges and lawyers.
In recent years, I have been getting calls from clients throughout the U.S. and Canada seeking help in bringing back their children who were kidnapped from the United States to Saudi Arabia by their fathers. Most of these cases involve a marriage of Saudi men to women of U.S. nationality. This situation becomes a frustrating task for judges and lawyers for not being able to have the government of Saudi Arabia comply with U.S. court decisions to bring back the children, or grant visa to the mother to travel to Saudi Arabia and see her children. That is because Saudi Arabia does not recognize US court orders.
In other situations, the children live in the United States with their mother, but fear that the husband can obtain Saudi passport for the children and plans to take them to Saudi Arabia with the purpose of staying there and not allowing them to come back to the United States.
This article addresses the legal issues facing women who see their children abducted to Saudi Arabia by their fathers for the sole purpose of keeping them in that country and not allowing them to return to USA. Some of the calls I receive indicate “fear of abduction” by the husband. The article also helps American women to understand the ramifications, in connection with custody of their children, when they marry Saudi men.
On its website, the U.S. Embassy in Riyadh, capital of Saudi Arabia, states the following: “The Kingdom of Saudi Arabia is not a party to The Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between Saudi Arabia and the United States dealing with international parental child abduction. American citizens who travel to Saudi Arabia are subject to the jurisdiction of Saudi courts, as well as to the country’s laws and regulations. This hold true for all legal matters including child custody. Parents planning to travel with their children to Saudi Arabia should bear this in mind.” (See Embassy of the United States in Riyadh, Saudi Arabia at: http://riyadh.usembassy.gov/ipca2.html
Saudi Arabia is a kingdom located in the Middle East between the Persian Gulf and the Red Sea. It borders Jordan, Iraq, and Kuwait to the north, Yemen to the south, and Oman, the United Arab Emirates (UAE), and Qatar to the east.
Unlike most Muslim majority countries of the Middle East, where personal status laws have been codified for the various religious communities, Saudi Arabia does not have a codified family law. The religion of Saudi Arabia is Islam and its constitution is the “Book of God Most High and the Sunna of His Prophet.” This means the rule of Saudi Arabia draws its authority from the Quran and the sayings and deeds of the Prophet of Islam. Consequently, Sharia courts apply, in cases brought before them, the rules according to the Quran, the Sunna and the interpretations of these two divine elements given by major scholars in the Hanbali School of Thought, which is the dominant school of jurisprudence in the kingdom.
Without going into details about the Schools of Thought in Sunni and Shi’i Islam, it is worth to note here that Islamic Sharia is explained within the context of Four Schools of jurisprudence in Sunni Islam and three Schools within the Shi’a community. These are known in Arabic as Madhaahib, singular Madhab. In other words, each Muslim majority county applies the rules of Islamic Sharia according to one or more of these Schools. Saudi Arabia, for example applies the rules of Hanbali jurisprudence, while Lebanon and Syria apply the rules according to Hanafi School of Thought for the Sunnis. In Indonesia, they apply the rules of Shafi’i. (For more information on the distribution of Schools of Thought in the Islamic world, see: http://veil.unc.edu/religions/islam/law/
Custody Orders Are Determined by Religion, Gender, and Age of the Child
Custody orders issued by Saudi Shari’a courts are based on religion, gender of the child, and his or her age. The most important criteria in Saudi custody orders is that the custodian father will take care of the children by bringing them up within the Islamic faith. This means that the religion of the father determines the custody of his children; a child born of a Muslim father, his or her custody goes directly to the father without taking into consideration the Western notion of the ‘best interest of the child.’
In the event of divorce, custody of girls and boys belong to the father when they reach age of seven. Girls are not given a choice to live with the mother or father, but boys are usually give that choice.
Saudi courts generally do not award custody of children to non-Saudi women. If the mother is not Arab Muslim, judges will not grant her custody of the children.
Saudi custody orders do not take into consideration the best interest of the child. Shari’a court judges do not interview the children and do not provide the opportunity for the children to make their views known.
In Saudi Arabia, the mother’s role in reproduction is, in fact, limited to childbirth, nursing, and the nurturing of young children. Beyond that stage, custody of children belongs to the father.
Under Saudi law, no woman or child can leave the country unless the ‘guardian’ approves of that. The ‘guardian’ is the husband, who has authority to deny his wife or children, whether adult or not from traveling outside the country without his permission, even if they hold U.S. citizenship.
In most cases, Saudi fathers have married their half-American daughters to other Saudi men. The U.S. Embassy can intercede with the Saudi government to request exit visas for adult U.S. women, but there is no guarantee that the visas will be issued, and obtaining an exit visa without the male guardian’s consent takes many months, if it can be obtained at all. The U.S. Embassy cannot obtain exit visas for the departure of minor children without their father’s permission.
In September 2002, the Foreign Minister of Saudi Arabia announced that any adult American woman who wishes to leave Saudi Arabia, can do so even without permission of her male guardian. The Foreign Minister did not say anything about half-American children.
Saudi Arabia does not recognize dual citizenship. The U.S. Embassy in Riyadh states that: “The Saudi government does not recognize dual nationality. Saudi authorities have confiscated the U.S. passports of U.S. citizens and U.S.-Saudi dual nationals when they have applied for Saudi citizenship or a Saudi passport.” <http://riyadh.usembassy.gov/service/passport-and-citizenship/dual-nationality.html>
In its 2016 report on Saudi Arabia, Amnesty International states the following: “Women and girls remained subject to discrimination in law and in practice. Women has subordinate status to men under the law, particularly in relation to family matters such as marriage, divorce, child custody and inheritance, and they were inadequately protected against sexual and other violence. Domestic violence remained endemic, despite a government awareness-raising campaign launched in 2013. A law criminalizing domestic violence which was adopted in 2013 remained unimplemented in practice.” (See <https://www.amnesty.org/en/countries/middle-east-and-north-africa/saudi-arabia/report-saudi-arabia/ >
In Saudi Arabia, women are prohibited from obtaining passport, marrying, traveling, or accessing higher education without the approval of a male guardian.; A father may force his female children into marriage without their consent, and underage girls may be forced to marry.
Under the Islamic rules, a Muslim man may marry up to four wives at one time, and according to the Qur’an, women should be devoutly obedient to their husbands and “men are the protectors and maintainers of women because Allah has made one of them to excel the other.” (Qur’an 4:34)
One such manifestation of obedience is wearing the hijab, which means face and head covering and all over the body, and men can end the marriage by simply stating ‘I divorce you’. The husband can divorce his wife without having to obtain a judicial order, and without having to give very much justification. On the other hand, a woman must get a judicial decree in order to get out of the marriage.
Under Islamic law, a woman’s testimony in court is equivalent to half that of a man, and a Muslim woman is prohibited from marrying non-Muslim man.
Saudi Arabia Does Not Have Equal Protection of the Law
The most influential formulation of the principle of equal protection of the law was set forth in the 1868 Fourteenth Amendment to the US Constitution is not recognized in Saudi Arabia. The Kingdom discriminates against women, whose status is more difficult than in any other country in the world, particularly with regard of freedom of movement (forbidden from driving), and may not travel without being accompanied by a male relative, freedom of speech, and freedom from dress restrictions.
Saudi Arabia Is Not Party to The Hague Convention On the Civil Aspects of International Child Abduction
Saudi Arabia is not party to The Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between the Kingdom of Saudi Arabia and the United States dealing with international parental child abduction, nor to an extradition treaty with the U.S.
Saudi Arabia Does Not Recognize U.S. Custody Orders
Saudi Arabia does not recognize U.S. court orders, including custody of children and divorce decrees, which are consequently unenforceable in Saudi Arabia.
Saudi Arabia Did Not Sign the Universal Declaration of Human Rights (UDHR) and Entered Reservations on Other International Human Rights Treaties
UDHR was adopted on December 10, 1948 by the United Nations General Assembly. Saudi Arabia never signed the Declaration, and ratified The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) by entering reservations that make Islamic Shari’a superior to the Convention, which was adopted in 1979 by the UN General Assembly.
Saudi Arabia did not ratify the International Covenant on Civil and Political Rights (ICCPR), which was adopted on December 19, 1966 by the General Assembly of the United Nations. Saudi Arabia is one of the few states that is not a party to ICCPR. Human Rights Watch confirms this fact in its report, which reads: “Despite its assertions to the contrary, Saudi Arabia, by virtue of its membership in the United Nations, is committed to uphold universal human rights standards, including those set forth in the Universal Declaration of Human Rights (UDHR), which are recognized as norms of customary international law. Other international instruments elaborate upon these rights, most notably the International Covenant on Civil and Political Rights (ICCPR), to which 138 states are party. Although Saudi Arabia is one of the few nations that is not a party, the terms of ICCPR provide guidance as to the content of the fundamental rights that Saudi Arabia is obliged to respect, based on Saudi’s participation in the United Nations and the universally binding character of such rights.” (See the Report on this link: <https://www.hrw.org/reports/1997/saudi/Saudi-07.htm>
Saudi Arabia Violates Treaty on Human Rights for The Child
In November 1989, the United Nations General Assembly adopted a human rights treaty called The Convention of the Child (CRC), or (UNCRC). It sets out the civil, political, economic, social, health and cultural rights of the children. It defines a child as any human being under the age of eighteen, unless the age of majority is attained earlier under a state’s own domestic legislation. The treaty came into force on September 2, 1990, after it was ratified by the required number of nations.
Saudi Arabia ratified the Convention on the Rights of the Child in 1996, but it entered a reservation “With respect to all such articles as are in conflict with the provisions of Islamic law.” This means, Saudi law enforcement officials, judges, and prosecutors “have very broad discretion to determine issues such as when to arrest children, how long to detain them and what punishments to impose on those deemed to have broken the law.” (See Adults Before Their Time: Children in Saudi Arabia’s Criminal Justice System, volume 20, by Human Rights Watch, 2008, p.8.) This also means that Saudi Arabia considers Islamic Shari’a superior to international human rights laws.
There is no minimum age of marriage in Saudi Arabia, a number of notorious child marriage cases have reported by the media, such as when an eight-year-old girl requested the courts in May 2009 to grant her divorce from her fifty-year-old husband. (See A Conspicuous Silence: American Foreign Policy, Women, and Saudi Arabia by Valerie Hudson, Columbia University Press, 2015, electronic version)
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law, mainly the law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
- Professor of Middle East Constitutional and Islamic law,
- Expert Consultant on Islamic divorce in US Courts and Canada,
- Expert Consultant on Hindu divorce in U.S. courts,
- Expert Consultant on Iranian Shi’a divorce in USA,
- Expert Consultant on Islamic finance.
Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.
Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;
Speaks, reads and writes several languages including Arabic, English, French and others.
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