From Al Namani v. Watson, decided last year by Judge Daniel Klau (Conn. Super. Ct.), but just posted on Westlaw:
General Statutes § 46b-115ii bars a Connecticut family court from enforcing a foreign court judgment that is "repugnant to the public policy of this state." Citing this statute, the respondent (Mother) opposes the registration and anticipated enforcement of a foreign child custody determination of the United Arab Emirates (UAE judgment). The UAE judgment states that the petitioner (Father) shall have custody of the parties' two minor child because the Father and the children are Muslim, but the Mother is Christian….. [T]he court agrees with the Mother that the UAE judgment is repugnant to Connecticut public policy and, therefore, cannot be registered or enforced….
The following facts are offered solely for background purposes. The Mother, an American citizen, met the Father in Oman in 2008. The parties married in Tanzania in 2009 and then lived in the UAE. They have two children: Sabriya and Adil, born in the UAE in 2009 and 2011, respectively. Under UAE law, the children are deemed Muslim because the Father is Muslim.
The parties separated in April 2012. Each offers different reasons for the separation. There is no dispute, however, that the children remained with the Mother, who filed for divorce in the UAE in December 2012. The court granted a default divorce in October 2013, after the Father failed to appear. The court awarded custody of the children to the Mother. She subsequently remarried and had another child with her new husband, who was from the UAE. She returned to the United States in December 2018 for a new job. However, the parties' two children remained temporarily in the UAE with the Mother's new husband because the Father obtain ex-parte travel bans. The children eventually moved to the United States in August 2019. They now live with the Mother in Connecticut….
[The UAE] judgment succinctly sets forth the UAE court's reasons for granting the Father custody:
As per the documents and papers, daughter, Sabriya who was born [in 2009], is 11 years old and son, Adil who was born [in 2011] is 9 years old. The plaintiff is still Christian as per the statement of claim; the custody right is for the benefit of the child. The personal Status [apparently referring to the UAE On Personal Status law -EV] 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 Sabriya and Adil, 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….
Unlike judgments of United States courts, which are enforceable in other states pursuant to the full faith and credit clause of the federal constitution, judgments of courts of foreign countries are not automatically enforceable in the United States. However, such judgments "are recognized in the United States because of the comity due to the courts and judgments of one nation from another. Such recognition is granted to foreign judgments with due regard to international duty and convenience, on the one hand, and to rights of citizens of the United States and others under the protection of its laws, on the other hand. This principle is frequently applied in divorce cases."
In addition to the doctrine of comity, Connecticut … General Statutes § 46b-115ii provides: "A court of this state shall treat a foreign child custody determination made under factual circumstances in substantial conformity with the jurisdictional standards of this chapter, including reasonable notice and opportunity to be heard to all affected persons, as a child custody determination of another state under sections 46b-115 to 46b-115t, inclusive, 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." …
[I]t is the clearly defined public policy of our state [as reflected in statute and caselaw] that family courts must make child custody determinations according to the best interests of the child….
The question, then, is whether the UAE judgment is repugnant to this public policy. To answer this question, the court must resolve a threshold issue: May the court consider only the express terms of the UAE judgment itself? Or may the court look beyond the four corners of the judgment to consider the UAE system of child custody law generally? … [Section 46b-115ii] authorizes our state courts to enforce a foreign child custody determination unless it was: (1) "rendered under child custody law which violates fundamental principles of human rights" or (2) "unless such determination is repugnant to the public policy of this state." Thus, when a party challenges a child custody determination because it allegedly violates fundamental principles of human rights [a matter that the court otherwise doesn't consider in this decision -EV], the plain language of the statute requires the court to decide whether the "child custody law" under which the determination was rendered violates fundamental principles of human rights. Accordingly, the court may, and perhaps must, look beyond the four corners of the judgment.
By contrast, when a party challenges a foreign custody determination on public policy grounds, the statutory text requires the court to decide whether the custody determination itself is repugnant to our state's public policy. This language strongly suggests, if not necessarily implies, that a court should only consider the express terms of the foreign child custody judgment, not the general body of foreign child custody law pursuant to which the judgment was rendered….
There is an additional, prudential reason why a court should confine its legal analysis to the four corners of a foreign custody determination, in the first instance at least. As a general proposition, a state court should be reticent to make broad judgments 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. Sometimes a state court cannot avoid doing so under the UCCJEA and, particularly, § 46b-115ii. But if a state court decides that the express terms of the foreign judgment are repugnant to state public policy or violate fundamental principles of human rights, prudence dictates that the court avoid rendering a broader opinion on the foreign court's system of law….
The court now addresses the principal question in this case: Is the UAE judgment repugnant to the public policy of the state of Connecticut? … [T]he UAE court based its custody determination on the following factors [see the block quote above -EV]: (1) the children's ages; (2) the children's religion; and (3) the parents' religions, particularly the Mother's status as Christian vis a vis the children's and Father status as Muslims.
Thus, the Mother contends that, far from basing the child custody determination on the "best interests of the children," as Connecticut law and public policy requires, the UAE judgment rests exclusively on the fact that she is Christian, not Muslim. She contends that the UAE judgment discriminates against her on account of her religion.
The Father makes two counterarguments. First, he contends that UAE child custody law includes a best interests of the child consideration. The court rejects this argument because it requires the court to look outside the four corners of the UAE judgment.
Second, at oral argument the Father analogized the UAE court's consideration of the parents' religions vis a vis the children's religion to considering a "child's cultural background," which is a factor under General Statutes § 46b-56 (c) (13). Father's counsel offered an example of a child born to Jewish parents who practiced Hasidism, a movement within Orthodox Judaism. One of the parents subsequently disavows Hasidim, leaves the Hasidic community and files for divorce. Counsel argued that § 46b-56 (c) (13) would permit a Connecticut court to consider the cultural background of the child, i.e., the fact that the child had been born and raised as a Hasidic Jew in a Hasidic community, as part of a "best interest of the child" analysis.
For this opinion, the court agrees with the last statement in the preceding paragraph. But the Father's analogy is not persuasive. First, the UAE judgment speaks only about the religions of the parties and the children; it is silent regarding the children's cultural background. Second, the cultural background of the child is but one of many statutory factors under § 46b-56 that bear on a child's best interests. Third, although a child's religion and religious upbringing contribute to his cultural background, the Father's argument conflates religion with cultural background.
In sum, while the court agrees that it is permissible to consider a child's cultural background in a custody decision, Connecticut law and public policy do not permit a court to deny a parent custody for no reason other than that her religion is different from the religion of the other parent and the children….
The Father contends that the Mother waived her argument that the UAE judgment is repugnant to Connecticut public policy because she voluntarily submitted to the jurisdiction of the UAE when she sought and obtained a divorce and custody of the children in 2012/2013…. [But a] state court's own independent interests are at stake when it is asked to enforce a foreign judgment. Even if the opposing party has waived her right to object to a foreign judgment because she knowingly and voluntarily submitted to the foreign court's jurisdiction and laws, that waiver does not bind the state court. The court is entitled, nay obligated, to resist the invitation to become the instrument by which a party seeks to enforce a judgment that is repugnant to public policy….
Here is more from the UAE judgment, which the court quoted at length:
Regarding the [Wife's] request to grand [sic] her custody of their children Sabriya and Adil as stated in Case number 1625/2012 personal status of Muslims and regarding his request to cancel her right in custody because she is not honest, their religion is different from her religion and she married to someone else and his request to be custodial parent of their children Sabriya and Adil to complete their education and upbringing and to take care of them and a woman of his relative is available to help him to take care of the children as stated in case number 1329/2019 personal status of Muslims, article number 144 of UAE Federal Law number (28) of 2005 On Personal Status stipulates that "In addition to the conditions mentioned in the above Article, the fosterer must: 1) If a woman: a) Be not married, in a consummated marriage, to a man not related to the fostered child, unless the court decides otherwise in the interest of the child, b) Be of the same religion as the fostered child, with due compliance with Article (145) of this Law. 2) If a man: a) He must have around him a woman able to be a fosterer. b) Be related to the fostered girl with such close kinship prohibiting him to marry her. c) Be of the same religion as the fostered child."
Article number 145 of the above-mentioned law stipulates that "Should the fosterer be a mother of a different religion than that of the fostered child, her fosterage shall be forfeited unless the judge deems otherwise in the interest of the fostered child provided the period of a fosterage ends upon his completing the age of five whether the child is a boy or a girl."
Article number (156) of the above-mentioned law stipulates that "1. The right of women to fosterage of a child shall end upon his reaching the age of eleven years, if a male, and thirteen years, if a female, unless the court deems that extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest. 2. Unless the interest of the fostered child otherwise require, the women fosterage shall continue in case the child is of unsound mind or suffering of a disabling illness."
Article number 145 of regulatory memorandum of the above-mentioned law stipulates that "custody is based on compassion and tenderness and the interest of the child and the different [sic] between the custodial parent's religion and the child religion does not have an effect unless there is a danger on the child's religion that he has to be more than five years old and began to be affected by his custodial parent religion which is different from his religion and he/she has to follow the better religion of his parents.
Article number (156) of UAE Federal Law number (28) of 2005 On Personal Status stipulates that "1. The right of women to fosterage of a child shall end upon his reaching the age of eleven years, if a male, and thirteen years, if a female, unless the court deems that extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest." 2. Unless the interest of the fostered child otherwise require, the women fosterage shall continue in case the child is of unsound mind or suffering of a disabling illness."
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