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Case Digests

Abouzahr v. Abouzahr, 361 N.J. Super 135 (App. Div. 2003)

June 2003

Facts

 

The parties were married in a civil ceremony in Missouri on April 11, 1986. A year later, they were married in Muslim and Catholic ceremonies. In 1992, they had a daughter and in 1998, the wife filed for divorce. With the help of separate legal counsel and a mediator, they made a property settlement agreement (PSA), which permitted the husband, a Lebanese citizen, to bring his daughter to Lebanon to visit for one month during the summer since he would be moving back permanently. This agreement, which the wife signed, was incorporated into their divorce papers. The wife claimed it was only after the divorce was finalized that she learned about the potential problems that could arise under Islamic law if the husband refused to return her daughter after the one month visit.

In August 2000, the husband came to the United States to pick up his daughter for her one month visit to Lebanon. When he arrived at the wife's home, he was served with an order to show cause and a temporary restraining order, preventing him from traveling outside New Jersey with his daughter. The husband appeared in court, seeking to dissolve the restraining order and prevent the wife from modifying the property settlement agreement.

The trial court held in favor of the husband, finding that there was no change in circumstance to justify a modification of the PSA and that it was in the best interest of the daughter to visit her father.  The trial court found that the wife was informed by counsel before signing the PSA that the wife risked losing parental rights over her daughter in Lebanon since Islamic law would be controlling.  Moreover the trial court found that no event occurred between the signing of the PSA and the husband coming to the United States to bring his daughter to Lebanon which would show cause to restrict the husband's visiting time with his daughter. The wife appealed the decision, arguing that there was a change of circumstance to justify modification of the PSA, namely that the husband became hostile after the divorce and that the wife had increased her knowledge about Islamic law and the consequences of her decision to sign the PSA.

Since Lebanon is a non signatory of the Hague Convention on the Civil Aspects of International Child Abduction, Islamic law would predominate over the issue. Under the Hague Convention, a child who was unlawfully abducted would be returned to his or her “habitual residence.” However, under Islamic law, the husband would have custody over the daughter after she turned 9 years old. Moreover, under Islamic law, the wife would lose custody if she was deemed unfit, which would likely be the case since she was raising the daughter Catholic instead of Muslim.

Issue

 

Whether a former spouse may alter the terms of a property settlement agreement (“PSA”) to prevent visitation in a country which is not a signatory of the Hague Convention on the Civil Aspects of International Child Abduction and whose laws could be employed to inhibit the return of the child to the primary custodial parent.

 

Ruling

 

The appellate court affirmed the trial court's decision. The court noted that there are several factors that a court must consider when deciding whether to permit or restrain out-of-country visitation, amongst them the fact that the country where the child will visit is a non-signatory to the Hague Convention. However, this factor alone is not determinative. The court instructed that:

[i]n addition to the laws, practices and policies of the foreign nation, a court may consider, among other things, the domicile and roots of the parent seeking such visitation, the reason for the visit, the safety and security of the child, the age and attitude of the child to the visit, the relationship between the parents, the propriety and practicality of a bond or other security and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.

In considering these factors, the court found that there was no evidence to indicate that the husband intended to keep his daughter in Lebanon, as he himself valued the life he had in the United States and wanted his daughter to reap the same benefits.  Thus, the court found that there was no change in circumstances to modify the PSA. However, as a result of heightened political tensions in the Middle East, the court did impose a requirement that the wife be notified at least four weeks prior to her daughter's visit so that she could apply to the Family Part to evaluate the daughter's safety and to reconsider the factors mentioned above.

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