by Jeremy D. Morley
A Connecticut court has refused to enforce a custody order of the United Arab Emirates on the ground that the order is repugnant to Connecticut public policy. The UAE court awarded custody of two children to their father because they and the father are Muslim while the mother is Christian. Al Namani v. Watson, Superior Court, Hartford, Connecticut, May 31, 2022 (unreported).
Specifically, the UAE court summarized the reasons for its decision as follows:
“As per the documents and papers, daughter … is 11 years old and son … is 9 years old. The plaintiff is still Christian as per the statement of claim. The Personal Status Law stipulates that the custodial patent's [sic] religion shall be the same as the child's religion and her custody shall be until the child becomes five years old whether a male or female. Accordingly, the court cancels her right of child custody of [the children], the father shall be the custodial parent and all alimony and child support shall be cancelled effective from the date of granting him the custody.”
After judgment was issued, the mother removed the children from the UAE without their father's consent and brought them to her family home in Connecticut. The father then sought to register and enforce the UAE order in Connecticut pursuant to Connecticut's version of the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), Connecticut General Statutes, §46b-115 et seq. He argued that, because the children had been living in the UAE for more than six months immediately preceding the commencement of a case in that country for divorce and then a case for custody, the UAE was the children's home state. He further argued that the UAE courts had continuing and exclusive child custody jurisdiction, since he continued to live there. Accordingly, he asserted that the UCCJEA required the Connecticut courts to register and enforce the UAE custody order, and that they had no right to modify it.
The mother opposed registration pursuant to General Statutes, §46b-115ii. That section provides that a court in Connecticut must treat a foreign child custody determination “as a child custody determination of another state … unless such determination was rendered under child custody law which violates fundamental principles of human rights or unless such determination is repugnant to the public policy of this state.”
Significantly, Connecticut's statutory provision is unique to that state, despite the fact that Connecticut generally adopted the standard version of the UCCJEA that was promulgated by the Uniform Law Commissioners. That version provides that, “A court of this State need not apply this [Act] if the child custody law of a foreign country violates fundamental principles of human rights.” When it adopted the Act, Connecticut chose to expand the so-called “escape clause” by adding a second and distinct basis for a refusal, which is that of repugnance to state public policy of enforcing a foreign custody order.
In his ruling, Judge Daniel J. Klau determined the public policy of Connecticut concerning child custody matters by reviewing the Connecticut statutes and case law on that issue. He cited the statutory provisions (General Statutes §46b-56(b) and (c), which require the application of the “best interests of the child” and extensive caselaw establishing “the clearly defined public policy of our state that family courts must make child custody determinations according to the best interests of the child.”
The judge then reviewed the UAE custody order and ruled that it was repugnant to Connecticut public policy because it expressly stated that its decision was based on the mother's status as a Christian, whereas the father and the children were Muslims,. The fact that the UAE child custody statute contained a provision which mentioned the best interests of the child was not significant because the judgment, as written, was based solely on religion.
The father's claim that the mother waved the public policy argument by having initiated a divorce case in the UAE several years prior was held to be unpersuasive because any such waiver by a litigant would not and could not bind the state court, which is “entitled, nay obligated to resist the invitation to become the instrument by which party seeks to enforce a judgment that is repugnant to public policy.”
In several cases in other states that do not have a public policy exception in their state statutes, courts have nonetheless relied on public policy to preclude recognition of foreign country custody rules. Merely by way of example, see: In re Marriage of Donboli, 128 Wash. App. 1039 (2005) (barring recognition of Iranian order that did not consider child's best interest). J.A. v. A.T., 404 N.J. Super. 132, 960 A.2d 795 (App. Div. 2008) (barring recognition of a Greek order that did not properly consider child's best interest); and H.L.K. v. F.A.A., 2015 WL 5971123 (Pa. Super. Ct., 2015) (Saudi order based on age, gender, and religion was inherently violative of Pennsylvania public law).
For more on this issue, see Jeremy D. Morley, International Family Law Practice, § 7.28.
The Connecticut case is also significant for its analysis of the meaning of the “escape clause” provision that a foreign country order must be enforced “unless such determination was rendered under child custody law which violates fundamental principles of human rights.” Other courts have held that that language limits a court to analyzing the foreign law as it is written, rather than the law as it is applied in the foreign country, even if the law reads well but is applied in a manner violative of fundamental human rights. That position is supported by the official comment to the relevant section of the UCCJEA, which states that “the court's scrutiny should be on the child custody law of the foreign country and not on other aspects of the other legal system.” Indeed, in Matter of Yaman, 105 A.3d 600, 611 (N.H. 2014), the Supreme Court of New Hampshire held that “[t]he comments to the UCCJEA . . . clarify that the analysis is meant to focus on the foreign jurisdiction's substantive law, and not its legal system or how the law is implemented.” 105 A.3d at 611.
However, Judge Klau disagreed. He cited with approval the case of Coulibaly v. Stevance, 85 N.E.3d 911 (Ind. Ct. App. 2017). There, the Indiana Court of Appeals had insisted that, “we do not believe that the UCCJEA limits the courts of this state to considering the foreign jurisdiction's law only on its face, without regard to whether that law was applied in a manner violative of fundamental human rights. One can imagine multiple circumstances in which a foreign jurisdiction's custody law is unobjectionable as written, but applied in a manner that clearly violates a parent's or child's fundamental human rights.”
Judge Klau concurred with Coulibaly since, “to hold otherwise would make the court a party to the enforcement of a judgment which, on its face, violates public policy or fundamental human rights.” Judge Klau then supported that argument with an appropriate caution. He sensibly opined that courts should “be reticent to make broad judgment about whether a foreign country's laws violate fundamental principles of human rights or are repugnant to the public policy of the court's state. It is one thing for a state court to opine on a particular judgment of a foreign court. It is another thing entirely for a state court to opine on a foreign country's system of law in general.”
In conclusion, the Al Namani v. Watson case demonstrates a sensible application of the use of public policy and common sense to prevent the otherwise-automatic obligation to enforce most foreign country custody orders issued by a home state court that are based on norms that offend human rights or the standards of the forum state.
 Mr. Morley is a New York lawyer who concentrates on international family law and consults with attorneys and clients globally on international family law matters, always with local counsel as appropriate and necessary. He may be reached at ww.interational-divorce.com
 The author provided substantial assistance on the case to defendant's counsel, Dara P. Goings of West Hartford, Connecticut.