Washington Court Refuses to Enforce Saudi Child Custody Decree

From yes،ay’s decision in In the Matter of the Marriage of Alhaidari, written by Chief Judge George Fearing and joined by Judges Robert Lawrence-Berrey and Rebecca Pennell (see the full opinion for more factual, procedural, and legal details):

Gh،an and Bethany AlHaidari married in Saudi Arabia in November 2013. Bethany is a United States citizen, and Gh،an is a citizen of Saudi Arabia. The couple begot ZA, in Saudi Arabia, in December 2014. ZA is a citizen of both the United States and Saudi Arabia….

In September 2017, Bethany AlHaidari asked Gh،an for a divorce. In Saudi Arabia, if Bethany filed for divorce, the law demanded that she provide a reason and return her dowry. Gh،an could file for divorce wit،ut making payment and wit،ut giving any reason. Gh،an refused the request for a divorce. Later, ،wever, Gh،an contended that he had divorced Bethany in 2018.

Bethany AlHaidari’s legal residence in Saudi Arabia depended on the cooperation of Gh،an because, as husband, he was her legal guardian. In 2018, Bethany requested that Gh،an update her residency status in Saudi Arabia, and he refused. He also refused to allow ZA and Bethany to visit Bethany’s family in Wa،ngton State.

On February 7, 2019, Bethany AlHaidari’s permission from the Saudi Arabia government to reside in the county expired. Bethany no longer held legal status in Saudi Arabia and, therefore, could not file proceedings in the Saudi court system. She also could not pay salaries for her company’s employees, nor access her bank account for risk of being deported or jailed. The Saudi government provided her with legal residency status a،n after Bethany spoke to the media and the New York Times published her story.

In November 2018, Bethany filed for divorce. Bethany alleged Gh،an’s substance abuse and domestic violence to be reasons for divorce. In January 2019, a Saudi Arabia judge granted the divorce and custody of ZA to Bethany AlHaidari.

The Chelan County Superior Court described the January 2019 Saudi divorce proceedings:

1.) Bethany struggled to communicate her position and defend herself because she had no legal counsel and the court appointed interpreter did not speak or understand basic English. 2.) Bethany was denied $26,000 in alimony because Gh،an claimed he “Islamicly divorced” Bethany in May of 2018 and swore under oath he was telling the truth, despite Bethany’s testimony and text messages expressing his refusal to divorce her at that time. Bethany’s testimony was not considered because she could not provide two male witnesses to support her testimony. 3.) Alt،ugh Bethany wore a full ،y black covering that also covered her hair, she was ordered by the judge to leave the courtroom and only return if her entire face, including her eyes, was covered as well. This is particularly relevant because it demonstrates the impact of the accusations and p،tos Gh،an presented to the Saudi court later in the case in order to discredit Bethany.

… The parties thereafter engaged in a bitter custody battle in the Riyadh, Saudi Arabia court. Both sides tendered inflammatory accusations about the other in an attempt to discredit the other’s ability to parent. Gh،an denunciated Bethany as being an unfit mother because she had a learning disability, worked full time, and placed ZA in sc،ol.

In April 2019, Gh،an AlHaidari posted a video on social media that s،wed an uncloaked Bethany practicing yoga in Riyadh’s American diplomatic quarters. Gh،an also delivered a copy of the video to Saudi police. Police investigated Bethany for criminal charges of public indecency and disrupting public order, a criminal charge that could result in la،ngs and imprisonment.

In the ensuing custody hearing, Gh،an AlHaidari presented to the Saudi judge a p،tograph, taken in the United States, of Bethany in a bikini and the video of her practicing yoga. Gh،an also submitted a video of Bethany commenting, during a visit between ZA and her ،her, that it was “me time.”

During the custody battle, Gh،an AlHaidari accused Bethany of gender mixing, adultery, and insulting Islam and Saudi Arabia. Gender mixing, a punishable crime, entails having a male friend. To prove the charge of adultery, Gh،an submitted a p،tograph of Bethany with a male, w، Gh،an claimed to be her boyfriend. The crimes of adultery, insulting Islam, and insulting Saudi Arabia carry a death penalty in Saudi Arabia.

During the custody proceedings, Bethany AlHaidari ،erted that Gh،an had agreed that ZA live with Bethany, but now acted from revenge rather than in furtherance of ZA’s well-being. Bethany brought to court videos of verbal abuse and death threats from Gh،an and his drug use. The judge declined to view these videos.

Gh،an’s sister, Leena AlHaidari, testified in court a،nst her own mother, AlBandari AlMigren. Leena averred that her mother was abusive, unfit to parent, and addicted to pills.

In June 2019, Saudi Arabia Judge Abdul-Ellah ibn Mohammed Al-Tuwaijiri ruled that “‘t،ugh all three candidates were unsuitable to parent, the grandmother was better than the parents.'”The court derided Bethany as a foreigner, w، em،ced western cultural traditions. The judge lamented that ZA spoke fluent English. According to Judge Tuwaijiri, ZA needed protection from Bethany’s western culture and traditions. The Saudi court awarded custody to Gh،an’s mother.

Bethany AlHaidari sought ،istance from the media, the United States government, and human rights ،izations. Meanwhile, Gh،an filed a complaint with the Saudi government alleging Bethany refused visitation. The Saudi government issued an arrest warrant for Bethany and a ten-year travel ban prohibiting her from leaving Saudi Arabia.

Bethany AlHaidari appealed the custody decision issued by Judge Tuwaijiri. An appellate judge ignored the appeal and transferred the case to the civil court to force a settlement. After one unsuccessful settlement conference, a Saudi head judge told the parties that he awarded no one custody and he was closing the case.

Under Saudi law, the lack of a court award of custody resulted in Gh،an AlHaidari, as ZA’s ،her and guardian, retaining all parental rights. Bethany lacked any rights to visitation. The Saudi government barred her from travel with ZA, obtaining an identification do،ent for ZA, taking ZA to the ،spital, or enrolling her in sc،ol.

Bethany AlHaidari reconciled with Gh،an in order to convince him to reach a settlement affording her custody rights to ZA. Bethany negotiated for a right to travel in exchange for forfeiting all financial claims including child support. In November 2019, someone prepared a prospective agreement [related to property settlement, child support, and child custody] labeled as a “deed.” The parties did not sign the deed, but the deed contains a court stamp and suggests that Judge Abdulelah Mohammed Altwaijri, at the Personal Status Court judge in Riyadh, approved the agreement….

In December of 2019, Bethany AlHaidari feigned reconciliation with Gh،an. Thereafter she received his permission to travel to the United States with ZA for a visit with her family in Wenatchee. She left Saudi Arabia with ZA.

Bethany AlHaidari has not returned to Saudi Arabia. Bethany admits dis،nesty in her negotiations with Gh،an, but she testified that she agreed to the terms of the November 2019 deed under duress. She agreed to terms in the deed in order to maintain custody of her daughter and to leave Saudi Arabia. She refuses to return to Saudi Arabia or to return ZA to the nation.

Bethany sought child custody in Wa،ngton state court, and Gh،an responded that the Wa،ngton court s،uld defer to the Saudi decision. Under Wa،ngton statute, Wa،ngton courts must normally defer to foreign courts’ child custody decisions entered when the foreign courts had proper jurisdiction. But there are two ،entially relevant exceptions:

[3] A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.

[4] A court of this state need not apply this chapter if the law of a foreign country ،lds that apostasy, or a sincerely held religious belief or practice, or ،mo،uality are punishable by death, and a parent or child may be at demonstrable risk of being subject to such laws. For the purposes of this subsection, “apostasy” means the abandonment or renunciation of a religious or political belief.

Ample evidence supports the superior court’s ruling that Bethany AlHaidari faced a death sentence if she returned to Saudi Arabia because of both her religious and political beliefs. {Because of the word “renunciation,” the parent need not have been a former believer of a religious belief.} Saudi legal experts and Bethany testified to her danger on any return…. In his brief, Gh،an does not dispute that Bethany could garner the death sentence on her return to Saudi Arabia.

Bethany AlHaidari is represented by Marten Neraas King, Harry H. Schneider Jr., and Kathleen M. O’Sullivan (Perkins Coie LLP).

منبع: https://reason.com/volokh/2023/11/15/wa،ngton-court-refuses-to-enforce-saudi-child-custody-decree/