1

The Escape from Domestic Violence: Do Non-Muslim Women have the Option to Leave

with their Children from non-Hague Muslim States to Return to the United States?

Reham S. Hewedak

TEXT:

“I do not have to let you go home. You have to do whatever I say, and you are staying here.” He

pushed my shoulders, slamming me onto the bed. His screams took on a tone of insolence,

almost laughter, as though he were the gloating victor in an extended, undeclared war.1

Introduction

In 1987, American Betty Mahmoody (“Mahmoody”) published “Not Without my

Daughter” which later became a motion picture starring Sally Field.2 The true story documents

Ms. Mahmoody’s escape with her daughter from Iran, where her husband had physically and

psychologically abused her, back to the United States (U.S.).3 Domestic violence is a global

phenomenon affecting millions of women each year.4 According to Human Rights Watch,

domestic violence is one of the primary causes of women’s injuries in almost every country of

the world.5 Numerous studies also suggest that domestic violence occurs across all socio-

economic and cultural groups.6

The introduction of Islam over fourteen hundred years ago in Arab societies, in which

female infanticide and martial violence was previously the norm, aimed at affording women the

right to freedom from oppression, the right to justice, and the right to peacefulness even during

1 Betty Mahmoody, Not Without My Daughter 40 (William Hoffer, 1

st ed.1987).

2 Merle H. Weiner, International Child Abduction And The Escape From Domestic Violence, 69 Fordham L.

Rev.594, 611(2000). 3 Id. at 611; Mahmoody, supra note 1, at 40-416.

4 Lisa Hajjar, Religion, State Power, And Domestic Violence in Muslim Societies; A Framework For Comparative

Analysis 29 Law & Soc. Inquiry 1, 8(2004); Human Rights Watch Report 392 (1998), available at

http://www.hrw.org/legacy/worldreport/Back-04.htm#P643_128126 5 See Human Rights Watch Report supra note 4, at 392.

6 Murray Straus, Richard Gelles & Suzanne Steinmetz , Behind Closed Doors: Violence in the American Family (1

st

ed. 1980), quoted in Domestic Violence Resource Center, Myth and Facts (2007),

http://www.dvrc.org.au/index.php?action=view&view=33163 (last visited Nov. 11, 2012).

2

divorce.7 In verse 30:21, the Qur’an provides: “And among His signs this that, that He created

For you mates from among Yourselves that ye may Dwell in tranquility with them, and He has

put love And mercy between your (hearts)…”8 The harmony principle contained in this ayah and

repeated through the Qur’an clearly indicates the protection of women’s rights under Islamic

law.9 Moreover, in verse 2:187, the Qur’an states: “They (your wives) are your garment and you

are their garment.”10

This is a reference to spouses being each other’s sanctuary as each covers

the other’s shortcomings, and therefore, promoting tranquility and harmony within the family

unit.11

However, too frequently, women in the position of Mahmoody are abused in the name of

Islam.12

First, this note will highlight the Islamic view of domestic violence and the Muslim

states’ use of religion to justify the lack of restrictions in the laws of domestic violence. Second,

the note will address Non-Muslim women’s rights in Islamic law and the various problems Non-

Muslim women face in divorce and child custody disputes after surviving domestic violence.

Finally, this note will propose some recommendations to cure some of the legal issues faced by

American Non-Muslim women in Muslim countries in trying to leave to the U.S. with their

children to escape domestic violence.

I. Islamic Law Treatment of Women and Domestic Violence

Islamic law is based primarily on the Qur’an and Sunnah (consisting of the spoken words

of Prophet Muhammad, his conduct, or lack thereof).13

Shari’a is the Islamic code from which

7 Noooria Faizi, Domestic Violence in the Muslim Community,10 Tex J. Women & L. 209, 214 (2009).

8 Qur’an 30:21; Id. at 215.

9 Azzizah Y. al-Hibri, An Islamic Perspective on Domestic Violence, 27 Fordham Int’l. L.J. 195, 204 (2003).

10 Qur’an 2:187.

11 Al-Hibri, supra note 9, at 202.

12 See Judy Bachrach, Western Women in Muslim Lands Lose Their Rights, in WOMEN in ISLAM 27, 27 (Diane

Henningfeld, 1st ed. 2011).

13 Thomas Foley, Extending Comity to Foreign Decrees in International Custody Disputes Between Parents in the

U.S. and Islamic Nations, 41 Fam. Ct. Rev. 257, 259-260 (2003).

3

marriage, divorce, and female behavior is regulated in the majority of Muslim countries.14

The

Qur’an and Sunnah are used by Islamic jurists along with secondary sources to develop legal

rules.15

Qiyas is an Islamic jurist principal used to derive an appropriate legal rule, consistent

with the Qur’an and Sunnah, when primary sources are silent on an issue.16

When this method is

used the rule of law must be with the consensus of legal scholars, also known as Ijma.17

In this

note, the term Muslim country refers to a state legally constituted as an Islamic republic or a

country with a large majority Muslim population that has been influential in the drafting of

family laws within that nation. Family and custody laws referred to in this note will vary in

interpretations of the courts but all refer to the religion of Islam as a constant yardstick. Muslim

countries hold Christians and Jews who are married to Muslims to be subject to elements of

Islamic family law.18

Also, Muslim countries consider children of these mixed marriages to be

Muslims and citizens of their father’s country even if the children hold dual citizenship.19

Therefore, a Non-Muslim woman seeking divorce and custody of her children in a Muslim

country would need to understand and assert her rights under the Shari’a.

A. Islamic Law Treatment of Women

Fourteen hundred years ago, the Qur’an gave women the right to own property and land

titles.20

All women were also entitled to receive marital gifts as well as reasonable maintenance

and child support after divorce.21

Moreover, a woman is not obligated under Islam to contribute

to the upkeep of the household, as that is the responsibility of the husband and for that reason a

14

Id. at 260. 15

Id. 16

Id. 17

Id. 18

Danielle M. Andrews, Non-Muslim Mothers v. Egyptian Muslim Fathers: The Conflict Between Religion And

Law in International Child Custody Disputes And Abductions, 23 Suffolk Transnat’l L. Rev. 595, 608 (2000). 19

Id. at 608-609. 20

Khalida Tanvir Syed, The Qur’an Protects Women Rights, in WOMEN in ISLAM 56, 58 (Diane Hennningfeld,

1st ed. 2011).

21 Id. at 59.

4

Muslim’s woman inheritance is half of her male’s counterpart. Mahr, which is usually a

monetary marital gift from the Muslim man to his prospective wife, is also purely the woman’s

right under Islamic law.22

Divorce is also permissible in Islam but rather discouraged.23

Islam recognizes that

couples may simply not be compatible for one another, and the woman in this scenario has a

right to ask for divorce or khul’a (a type of no fault divorce relieving women of proving any

harm so long as they forfeit all financial claims from the marriage).24

Under the Shari’a,

marriage is, therefore, considered to be a contract which can be dissolved either by mutual

consent or by either party to a contract.25

It should be noted that Islam intended to give women

equal status not only in marital contracts but also in matters of divorce.26

For example, the

marital contract can provide for conditions providing for certain rights to a woman such as

monogamy and access to divorce.27

In fact, a man can delegate his right to divorce, also known

as Talaq-i-Tafwid, to his wife at the time of marriage and she can exercise this right when any of

the conditions of the marital contract are violated.28

Thus, the Qur’an very clearly recognizes a

woman’s individuality when it states: “For men is the benefit of what they earn, and for women

is the benefit of what they earn.”29

But unfortunately some Islamic jurists interpret the Shari’a by traditions and culture that

permit the undermining of the women’s position in matters of marriage and divorce.30

For

example, the Qur’an requires mediation in an attempt at reconciliation before a divorce can take

22

Al-Hibri, supra note 9, at 199. 23

Asghar A. Engineer, The Rights of Women in Islam 120 (1st ed. 1992).

24 Id. at 120; Hajjar, supra note 4, at 25.

25 Engineer, supra note 23, at 120-121.

26 Id. at 126

27 Id. at 122

28 Id. at 139

29 The Qur’an 4:32

30 Engineer, supra note 23, at 126.

5

place.31

However, the prevalent practice today is very different and divorce has become the

exclusive preserve of the husband who can just pronounce to the wife the word talaq thus sealing

the divorce between them.32

Most of the divorces between Muslims in India, for example, take

place in this manner; however, this is not the Islamic way of divorce because it leaves the women

with no legal redress against this pronouncement.33

B. Islamic Law Treatment of Domestic Violence

The Qur’an repeatedly describes the relationship between husband and wife as one of

affection and mercy.34

Further, it instructs husbands to live with their wives in kindness or leave

them amicably.35

Prophet Muhammad also disapproved of men hitting women, and he never hit

any woman or child in his life.36

Aisha who was married to Prophet Muhammad after Khadija’s

death has reported in a Hadith (saying) that: “The messenger of God has never beaten a wife nor

a servant, and has never hit anything with his hand except when fighting in the cause of God.”37

Furthermore, in his last sermon, Prophet Muhammad emphasized that men should treat their

wives well and was quoted as saying that: “The strong men is not the one who use the force of

physical strength, but the one who controls his anger.”38

In Islam, domestic violence could be used as a valid ground for divorce.39

However,

some Muslim states have set their own legal requirements by statutes for the divorce to be

31

Qur’an 4:35; Id. at 126-127. 32

See Id. at 127. 33

Id. at 127. 34

Qur’an 30:21; Al-Hibri, supra note 9, at 204. 35

See Mohamed H. Ali, Muslims Must Reject Violence Against Women, in WOMEN in ISLAM 70, 72 (Diane

Henningfeld, 1st ed. 2011); Faizi, supra note 7, at 213; Qur’an 2:229.

36 Ali, supra note 40, at 72; Faizi, supra note 7, at 213.

37 Samia Menesy, Al Mar’ah bayna al-Islam wa-alshar’I’ wa-el-Monzamat Eldawleya al-okhra 127 (1

st ed. 2012).

38 Faizi, supra note 7, at 213.

39 See Al-Hibri supra note 9, at 209.

6

granted under the domestic violence grounds.40

For example in Egypt, the substantial burden is

on the alleged victim to prove her injury.41

In order to file for divorce based on the grounds of

physical violence, the woman is required to provide the court with a medical certificate from a

government hospital outlining her condition and two witnesses (preferably not related to her)

who saw the abuse occur.42

The need for witnesses provides a huge obstacle to women seeking a

divorce on the basis of physical abuse in Egypt.43

Moreover, section 60 of the Egyptian criminal

code states: “The provisions of the penal code shall not apply to any deed committed in good

faith pursuant to a right determined by virtue of Shari’a.”44

This law applying to any act of

violence has, therefore, been interpreted to justify domestic violence in cases in which: (1) “the

beating is not severe; (2) the beating is not directed at the face; and (3) the beating is not aimed at

vulnerable fatal blow areas.” 45

Whereas in Iran, the courts perceive domestic violence to be a matter of disgrace for the

parties involved, and women, as a result, tend to not report their husbands’ abusive behavior.46

Article 165 of the Iranian Constitution states that judges must give reasons for verdicts issued by

providing reference to the laws and principles on which their verdicts are based.47

However, the

question of whether a man has the right to hit his wife is left unaddressed in law except in cases

where there are obvious signs of violence on the victim’s body.48

The law in Iran, therefore,

40

16 Human Rights Watch, Divorced from Justice: Women’s Unequal access to Divorce in Egypt 22 (2004),

available at http://www.hrw.org/sites/default/files/reports/egypt1204.pdf; See Zahra Tizro, Domestic Violence in

Iran: Women, Marriage and Islam 18 (Homa Katouzian & Mohamad Tavakoli, 1st ed. 2012); Social Institutions and

Gender Index: Saudi Arabia, The Organization for Economic Cooperation and Development,

http://genderindex.org/country/saudi-arabia#_ftn31 (last visited Nov. 11, 2012). 41

16 Human Rights Watch supra note 40, at 22. 42

Id. 43

Id. 44

Egyptian Law No. 58 (1937) Promulgating the Penal Code quoted in 16 Human Rights Watch supra note 40, at

13. 45

16 Human Rights Watch supra note 40, at 13-14. 46

Tizro supra note 40 at 18-19; 90-92. 47

Id. at 92. 48

Id.

7

allows judges to resolve domestic violence cases by referring to tradition and culture, which

tends to have major negative implications for women’s rights and addressing the violence against

women.49

Men’s leadership, which is attributable to the Shari’a, actually has its roots in culture and

customs of the time of revelation, and the Qur’an’s aim was to introduce change gradually to

society.50

Makkan men were particularly rough with women and used to hit their wives in

Jahiliyyah (also known as pre-Islamic Arabia) and they carried this practice into Islam.51

Domestic violence; however, was not sanctioned by the Qur’an because the ideals expressed in

the various verses of the holy book actually promoted harmony within the family unity.52

In one

verse the Qur’an states: “O Humans revere your Guardian Lord, Who created you from a single

nafs (soul) and created from it [the nafs] its mate, and from this scattered (like seeds) countless

men and women.”53

In light of the this verse and other similar verses, the Qur’an reflects a model

for gender relations between spouses created from the same nafs, which is intended to be

characterized by affection and mercy.54

The controversial “Chastisement Passage” in the Qur’an reads as follows:

As to those women on whose part you fear nushuz (rebellion), admonish them (first), (then)

wahjuruhunna fi’l madhaji’ (abandon them in beds), (and last) wadhrubuhunna (hit them

lightly); and if they obey you, seek not against them means (of annoyance or harm), for God is

most high, and Great (above you all).55

At first glance this verse seems to be in contrary to the harmony principle expressed in other

verses of the Qur’an.56

However, it is well known that the Qur’an adopted a gradualist

49

Id. at 91. 50

See Al-Hibri supra note 9, at 207-212. 51

Id. at 207. 52

Id. at 204. 53

Qur’an 4:1. 54

Al-Hibri supra note 9, at 202. 55

Qur’an 4:34. 56

Al-Hibri supra note 9, at 206.

8

philosophy for social change.57

One has to take into account the sociological context in which the

Qur’an was revealed for it would have been impossible to introduce a perfect Islamic society all

at once.58

For example, Arabs consumed significant amounts of alcohol in Jahiliyyah, and,

therefore, the Qur’anic prohibition against drinking alcohol was only at first advisory, next

applied only to prayers, and finally, the prohibition became comprehensive and absolute.59

Similarly, the “Chastisement Passage” was revealed in a society in which men were

particularly violent with their wives.60

They carried on this practice until one day the Prophet

heard about the problem and prohibited domestic violence by allowing the wife the right to qisas

(a form of equitable retribution).61

Shortly thereafter, the men complained to the Prophet to

revisit the issue.62

At that point, the Prophet received the Qur’anic revelation of the

“Chastisement Passage” which appeared to reverse the Prophet’s earlier ruling but in fact limited

both the act and modified the concept of “hitting” to extract it of any harmful effect.63

The social

context in which the “Chastisement Passage” was revealed must be understood and interpreted

because the rest of the Qur’an articulated a higher standard of gender interaction.64

Therefore,

due to the Qur’anic internal consistency, the so called “Chastisement Passage” leaves room for

erroneous, culturally skewed or subjective interpretations.65

The gradualism reflected in the “Chastisement Passage” was not instituted to prohibit

“hitting” women as in the case of alcohol.66

The prohibition against domestic violence was, in

fact, immediate but the approach was quite complex because the Qur’an both radically

57

Id. at 207. 58

Id. 59

Id. 60

Id. 61

Id. 62

Id. at 208 63

Id. at 208-209. 64

Id. at 204. 65

Id. at 204. 66

Id. at 208.

9

transformed the concept of hitting into a non-violent symbolic act and limited the “offense” for

which a man may hit his wife.67

The Qur’an made “hitting” an act of last resort after the husband

first goes through a serious of peaceful steps.68

The husband has to first establish that the wife

was nashiz (rebellious), and then go through several steps of conflict resolution before he is

allowed to symbolically “hit” his wife by using a miswak (a soft small fibrous twig used as a

toothbrush in the Arabian Peninsula) to express his anger or frustration.69

Also, any injury to the

wife from his actions is deemed clear grounds for divorce.70

The “Chastisement Passage” permits husbands to symbolically “hit” their wives only for

nushuz, which literally means “to rise above, or act superior to.”71

Hence, the verse has been

understood by Islamic jurists with a patriarchal perspective to cast marital life into a hierarchical

structure with interpreting nushuz to mean disobedience or rebellion by the wife against the

husband.72

However, a nashiz woman could be understood to be the opposite of a righteous wife

by the immediately preceding passage in the Qur’an.73

The passage states: “Men are the

qawwamun (protectors) of women, because God has given the one more than the other, and

because they support them from their means.”74

Therefore, the righteous women are [qanitat],

and guard in the husband's absence what God would have them guard.” The word qanitat refers

to the act of being submissive and obedient to God but medieval Islamic scholars have concluded

that since the verse was about marital relations that the obedience of the righteous women

applied to the obedience to the husband as well.75

Islamic feminists have increasingly questioned

67

Id. at 208-209. 68

Id. at 209. 69

Id. at 212. 70

Id. at 209. 71

Id. at 213. 72

Id. 73

Id. 74

Qur’an 4:34. 75

Al-Hibri supra note 9, at 213.

10

such interpretations and explained that the word qawwamun refers to a person taking the

responsibility of safeguarding the interests of another and should not be taken to mean that men

are masters to be blindly obeyed or a police force giving orders.76

As Afshar suggests: “to admit to the legitimacy of violence within marriage would be to

admit that the very foundation of the social unit in Islam is inherently flawed.”77

Feminists’

interpretation of the Qur’an which does not condone violence against women is consistent with

the next verse (after the “Chastisement Passage”), which provides: “If you fear discord between

the two (spouses), then send an arbiter from his family, and another from hers; if they wish to

repair the situation, God will reconcile them. For God has full knowledge and is expert in all

things.” 78

Otherwise, the “Chastisement Passage” contradicts the next verse, which advises

spouses experiencing marital problems to attempt at mediation and reconciliation with the help

of family relatives.79

Domestic violence will cause more than a simple discord between spouses

as it leads to the fear and oppression of women.80

Domestic violence is, therefore, most likely not

contemplated by the “Chastisement passage;” otherwise, the mediation and reconciliation

recommended in verse 4:35 of the Qur’an would be impossible to achieve.81

No interpretation of the Qur’an, however honest, can be free from the male superiority

influence of its culture because the evolution of the Shari’a itself was not devoid of human

opinion.82

For example, in Saudi Arabia today, women are still not allowed to drive vehicles,

though there is nothing to this effect in the Qur’an.83

The Shari’a, similar to common law, did

76

Id. at 213; Faizi, supra note 7, at 212; Tizro supra note 40 at 46. 77

Tizro supra note 40 at 46. 78

Qur’an 4:35. 79

Al-Hibri supra note 9, at 212. 80

Id. 81

Id. 82

Engineer supra note 23, at 3. 83

See Id. at 5; Social Institutions and Gender Index: Saudi Arabia, supra note 45.

11

not come into being all of a sudden as it went through a process of evolution over centuries.84

In

fact, the four surviving Sunni schools of jurisprudence: (1) Iman Abu Hanifa, (2) Iman Shafa’i,

(3) Imam Malik, and (4) Imam Ahmad bin Hanbbal all still differ on many questions in the

Shari’a.85

Therefore, the Muslim states use of religion to justify the lack of restriction in the

laws of domestic violence is more likely attributable to the culture and social attitudes of the

societies, which sustain or contribute to the problem of impunity, than to the religion of Islam.86

II. Non-Muslim Women are Unable to Flee Back to the U.S.

A. The Shari’a Custody Laws

Under the Shari’a, both mother and father must be physically, mentally, and morally fit

and of the age of majority to be awarded custody upon divorce.87

Physical custody of the child is

presumed in favor of the mother during the child’s “tender years.”88

Legal custody, on the other

hand, is presumed in favor of the father for the child at any age.89

Therefore, although the father

receives the ultimate legal custody of the child, in most cases, the mother is usually awarded the

physical custody during the child’s “tender years” which last until the age of seven for boys and

nine for girls.90

After this point, the burden of proof shifts and physical custody is presumed in

favor of the father to start the spiritual upbringing of the child as a Muslim.91

Any presumptions

under the Shari’a law, which arise in favor of mother or father, however, can be rebutted by

providing evidence of the other parent’s physical, mental, or moral unfitness to be awarded

custody of the child.92

84

Engineer supra note 23, at 6. 85

Id. at 8-9. 86

Hajjar, supra note 4, at 8. 87

Foley supra note 13, at 264- 265. 88

Id. at 260-261. 89

Abd Al-Hakim Ebn-Muhammad, Huquw al-Usrah fi al-Islam 242-246(1st ed. 2010).

90 Id.

91 Id.; Foley supra note 13, at 264- 265.

92 Foley supra note 13, at 264.

12

Non-Muslim women, under the Shari’a, receive the same custody rights as Muslim

women on the condition that the child is raised as a Muslim.93

A Muslim father can, however,

bring a valid claim into court requesting physical custody of the child during his/her “tender

years” if he feared that the child will not be raised as a Muslim.94

Moreover, physical custody of

the child will shift to the maternal grandmother in cases where the mother remarries.95

If the

mother’s subsequent marriage fails, her rights to physical custody of the child will revert back to

her. 96

B. The Shari’a Relocation Laws

The complexity of custody litigation becomes more acute for Non-Muslim women who

would like to return from a Muslim country with their child to the U.S. According to the Islamic

custody laws, child custody is awarded to a parent in the child’s primary place of residence.97

Therefore, if the father establishes the child’s primary place of residence in his Muslim country,

the Non-Muslim mother will be unable to legally travel with the child outside that Muslim

country without the father’s permission.

Moreover, there are two conditions by which a woman can legally move from a Muslim

country in accordance with the Shari’a: (1) the country to which the woman intends to move has

to be her country of citizenship; and (2) the marriage needs to have taken place in the country in

which she intends to move.98

If both conditions are met, a mother can relocate with her child

outside a Muslim country without the father’s permission. 99

Therefore, for a Non-Muslim

American woman who had resided with the child in the U.S. and was temporarily visiting a

93

Ebn-Muhammad supra note 89, at 242. 94

Id. 95

Id. at 242-243. 96

Id. 97

Id. at 246. 98

Id. at 246-247. 99

Id. at 247.

13

Muslim country but wrongfully retained with her child by an abusive husband, she stands a

chance at winning physical custody in some circumstance.

First, the child would need to be of the age in which she could claim physical custody

(during the child’s “tender years”) under the Shari’a. Second, she needs to assert that the child

will be raised as a Muslim during his upbringing to overcome a Muslim father’s challenge to her

custody claim. Finally, the Non-Muslim mother will need to present evidence pertaining to the

child’s primary place of residence and marriage taking place in the U.S. If the father presents

evidence of the mother taking her child to a Jewish synagogue or Christian church, for example,

it will pose a significant hurdle for the Non-Muslim mother to overcome in claiming physical

custody of the child because it is perceived to detrimentally affect a child’s Islamic

upbringing.100

C. The Hague Convention

Moreover, Non-Muslim women will face no remedy in international law if their child is

abducted or retained in a country which is not signatory to the Hague Convention on the Civil

Aspects of International Child Abduction (“The Hague Convention” or “Convention”) of 25

October, 1980.101

The Hague Convention’s purpose is “to secure the prompt return of children

wrongfully removed to or retained in any Contracting State and to ensure that rights of custody

and of access under the law of one Contracting State are effectively respected in the other

Contracting States.”102

The Hague Convention explicitly prohibits contracting states from

deciding the merits of custody disputes without first determining whether the child is to be

returned under the Convention. The remedy of return whereby a child is returned to its country

100

Ebn-Muhammad supra note 89, at 242. 101

The Hague Conference on Private International Law, 28 Convention of 25 October 1980 on the Civil Aspects of

International Child Abduction(2012), available at http://www.hcch.net/index_en.php?act=conventions.text&cid=24;

Weiner supra note 2, at 597. 102

The Hague Conference supra note 101, at Article 1.

14

of habitual residence, therefore, protects children from their wrongful removal or retention across

international borders, and provides procedures for their safe return.103

With the exception of Turkey and Burkina Faso, no predominantly Muslim country has

become party to the Hague Convention.104

The reasons being that Muslim countries derive their

family laws from the Shari’a, and, therefore, will not accept the automatic return policy of the

Hague Convention which lack any provisions concerning the child’s religious upbringing.105

Also, the Hague Convention does not consider the gender of a parent as a factor directly relevant

to international custody disputes; however, such a determination is fundamental in child custody

under the Shari’a.106

The U.S. does not share any similar conflicts with an automatic return

policy under the Hague Convention because its domestic state laws have to comply with the

Equal Protection Clause of the Fourteenth Amendment, which will bar any discrimination based

on the gender or religion of parents in determining custody disputes.107

The Hague Convention will, therefore, not be applicable in cases of Non-Muslim

American women concerned with the remedy of return for their children from Muslim countries

from which they fled to escape domestic violence.108

In cases where the Hague Convention does

not apply, the U.S. government can do very little to help its citizens if the non-signatory Muslim

country ignores requests for the child’s return.109

The U.S. government has, in fact, successfully

interfered in very few cases to ensure the safe return of children from non-Hague states to their

103

Weiner supra note 2, at 597. 104

The Hague Conference supra note 101, at Status Table. 105

Foley supra note 13, at 261. 106

See Id. 107

See Id.; Cynthia A. McNeely, Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family

Court, 25 Fla. St. U.L. Rev. 891, 923-946 (1998). 108

See Smita Aiyar, International Child Abduction involving Non-Hague Convention States: The Need for A

Uniform Approach, 21 Emory Int’l L. Rev. 277, 280 (2007). 109

Id. at 294-295.

15

American parents.110

In one case, Congress exerted pressure and successfully retuned three

children to their American mother from Egypt, where they were wrongfully abducted by their

father.111

However, in the majority of cases parents often feel helpless when the abducting parent

takes the child to a Non-Hague Muslim state.112

Unfortunately, no other choice may exist for the parent but to explore self-help remedies

such as re-abducting the child back to the U.S. with the help of activist organizations.113

For

example, The American Association For Lost Children (“AAFLC”) was recently featured on

Investigation Discovery on a show called "Who the [Bleep] Did I Marry?" Mark Miller and

Patricia Moore of AAFLC took on a daring mission out of the country and successfully retrieved

two missing children for their American mother from Lebanon.114

With the help of AAFLC,

American Nabela put her own freedom at risk and successfully returned her children to the U.S.

after her husband had taken their two children without her consent and moved to Lebanon.115

D. Extending Comity to Foreign Decrees

The American law that applies in International Child custody disputes between the U.S.

and the majority of Muslim country which are non-signatory to the Hague Convention is

contained in the Uniform Child Custody Jurisdiction Act (“UCCJA”) and, more recently, the

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).116

To date, 49 states,

110

Id. at 295. 111

Id. 112

Id. 113

See Id. at 298. 114

Jason Hughs, Who The (Bleep) Did I Marry?: Children Kidnapped to Lebanon, Huffington Post (July 19, 2012),

http://www.huffingtonpost.com/2012/07/19/who-the-bleep-did-i-marry-kidnapped-to-lebanon

video_n_1685314.html 115

Id. 116

Foley supra note 13, at 261.

16

the District of Columbia, Guam, and the U.S. Virgin Islands have all adopted the UCCJEA.117

The UCCJEA has clarified some aspects of the original and modified jurisdiction of the UCCJA

with the result that is making courts consider domestic violence to protect the rest of the family

when a parent, child, or any sibling of the child is being abused.118

When a non-Hague parent from a Muslim state is involved in an international custody

dispute in the U.S., the international doctrine that applies to recognition and enforcement of a

foreign nation’s custody decree is that of comity.119

The general reasoning behind extending

comity to foreign decrees is that the U.S. judgments will be treated similarly in courts of foreign

nations.120

However, the doctrine of reciprocity is non-binding between the U.S. and other

Muslim states.121

Therefore while the U.S. can recognize decrees of Muslim nations, there is no

guarantee that Muslim countries will give similar treatment to a custody decree from an

American court.122

The provision of the UCCJEA regarding international custody disputes is §105, which

provides that “a child custody determination made in a foreign country under factual

circumstances in substantial conformity with the jurisdictional standards of this [act] must be

recognized and enforced,” unless “the child custody law of [the] foreign country violates

fundamental principles of human rights.”123

The UCCJEA also mandates treatment of a foreign

nation equal to a “state” of the U.S.124

The comment to the UCCJEA explains that when applying

117

Uniform Law Commission, Legislative Fact Sheet-Child Custody Jurisdiction and Enforcement Act (2012),

available at http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Child Custody Jurisdiction and

Enforcement Act 118

Joan Zorza, The UCCJEA: What Is It and How Does It Affect Battered Women in Child-Custody Disputes, 27

Fordham Urb. L. J. 909, 918 (2000). 119

See Foley supra note 13, at 262. 120

Id. at 263. 121

Id. 122

Id. 123

Unif. Child Custody Jurisdiction And Enforcement Act §1-105 (1997) [hereinafter UCCJEA]. 124

Id.§105(a).

17

§105(c) in regards to human rights violations, the court should be focused only on the child

custody law of the foreign nation and not on other aspects of their legal system.125

Moreover, the

comment states that §105(c) should be invoked only in the most “egregious

cases.”126

Accordingly, the threshold question before U.S. courts ruling on whether to extend

comity to a child custody decree from a Muslim nation, absent a human rights violation,

becomes whether the foreign court exercised jurisdiction “in substantial conformity with the

jurisdictional standards” of the UCCJEA. 127

Under the UCCJEA, unless an emergency situation is involved, a court has jurisdiction to

make an initial child-custody determination only in the presence of certain factual

circumstances.128

The four types of jurisdiction under the UCCJEA are: (1) “home state;” (2)

“significant connection;” (3) “appropriate forum;” and (4) “no other state.”129

The state is the

child's “home state” for six months after a child leaves, regardless of why the child had left,

provided that a parent continues to live in the “home state.”130

A period of temporary absence

from the state, however, does not affect determination of the home state.131

Case law in international custody disputes between parties from the U.S. and Islamic

nations have been remarkably limited on the issue of whether the Shari’a laws contravene

fundamental principles of human rights under the UCCJEA §105(c) standard.132

Most parties

opposing enforcement has simply failed to raise the issue.133

The issue was recently raised in one

case, In re Marriage of Donboli, in which an Iranian national man sought to enforce a foreign

125

Id. §1-105; See Foley supra note 13, at 263. 126

UCCJEA §1-105; See Foley supra note 13, at 263. 127

UCCJEA §1-105(b)-(c). 128

Zorza supra note 118 at 915. 129

UCCJEA §2-201. 130

Id.; Zorza supra note 118 at 915. 131

Zorza supra note 118 at 915. 132

Jeremy D. Morley, International Family Law Practice §7:23 (August 2012). 133

Id.

18

custody order issued by a court in Iran.134

The married couple had lived throughout their

marriage in Washington State where their child was born.135

They went to Iran for an extended

family visit, intended to be for just four months, but the husband then refused to leave Iran and

prevented his wife from doing so.136

He filed for divorce in Iran and the wife was legally served

with the documents. Eventually, after more than six months in Iran, the wife finally succeeded in

leaving Iran with the child and filed an action for divorce and custody in Washington.137

The

Iranian court then issued a custody order in favor of the husband.138

Surprisingly, the U.S. court

did not rely on UCCJEA §105(c) but instead employed a general concept of “strong public

policy” to avoid the obligation of enforcing the Iranian custody decree.139

The court relied in part on In re Custody of R., which was decided pursuant to the

UCCJA rather than UCCJEA.140

Thus, Donboli stands for the proposition that not only does the

human rights clause §105(c) of the UCCJEA preclude enforcement of foreign custody orders

based on custody laws that violate human rights, but also that courts possess the power not to

extend comity to foreign orders if they violate the forum state's strong public policy.141

It is

important to note that the, former law, UCCJA only allowed for the recognition and enforcement

of foreign custody decrees issued by “legal institutions similar in nature” to the U.S. “if

reasonable notice and opportunity to be heard were given to all affected persons.”142

Under the

UCCJA, some courts found fundamental differences between the Shari’a and state laws because

134

In re Marriage of Donboli , No. 53861-6-I, 2005 WL 1772328 (Wash App. July 18, 2005). 135

Id.at 1-5. 136

Id. 137

Id. 138

Id. 139

Morley supra note 132. 140

In re Custody of R., 947 P.2d 745 (Wash. App. Div. 2 1997). 141

Morley supra note 132. 142

Uniform Child Custody Jurisdiction Act § 23 (1968).

19

it denied consideration of the child’s “best interests,” thus offending public policy.143

However,

the UCCJEA does not contain the “best interests” of the child standard, and, therefore, U.S.

courts will be less likely to consider the Shari’a in substance to determine whether to extend

comity to a foreign custody decree under the newer UCCJEA.144

Also, a court’s finding of a

human rights violation will be reserved to the most “egregious cases” 145

under the newer

UCCJEA. Therefore, the UCCJEA will likely pose a greater obstacle for some Non-Muslim

American women seeking to be heard in U.S. courts, after fleeing domestic violence from

Muslim countries, in which they resided for more than six months, and their abusers had won

custody of their children.

In fact, some Muslim countries do not allow women the opportunity to travel outside

their borders without their husband’s permission.146

Moreover, in some Muslim countries, a

foreign woman is automatically granted citizenship of her husband’s nationality by virtue of their

marriage.147

Ms. Mahmoody, for example, had to illegally escape from Iran (where she was

automatically granted the Iranian citizenship by virtue of her marriage to an Iranian citizen) with

her daughter after her husband attempted at turning their two-week vacation into a permanent

relocation of the family.148

The case of Mahmoody illustrates how Non-Muslim victims of

143

See Foley supra note 13, at 266-268. 144

UCCJEA (1997). 145

Id. at §105 comment. 146

Mohammed Jamjoom and Tricia Escobedo, Saudi woman activist demands right to travel, CNN (July 10, 2009),

available at http://edition.cnn.com/2009/WORLD/meast/07/10/women.saudi/index.html; Roya Karimi and Daisy

Sindelar, Iran Deputies To Mull Draft Law Restricting Women's Right To Travel, Radio Free Europe Radio Liberty

(Nov. 17, 2012), available at http://www.rferl.org/content/iran-draft-law-restricting-womens-right-to-

travel/24772571.html; Nina Burleigh, Egypt and the Universal Rights of Women, Huffington Post World (Feb.5,

2011), available at http://www.huffingtonpost.com/nina-burleigh/egypt-and-the-universal-r_b_819178.html 147

Iranian Nationality Law Book 2, Article 976 (6), available at

http://www.princeton.edu/irandataportal/legislation/institutionsgovernance/nationality-law/; Saudi Arabian

Nationality Regulations Resolution 25/1/1374 H(4)16, available at

http://www.unhcr.org/refworld/pdfid/3fb9eb6d2.pdf; Libyan Nationality Law No.(24) 2010/1374, available at

http://www.unhcr.org/refworld/type,LEGISLATION,,LBY,4e2d8bf52,0.html 148

Mahmoody supra note 1.

20

domestic abuse often do not have the option to legally leave from Muslim countries to escape

their abusive relationship for the fear of losing custody of their children under the Shari’a.

III. Recommendations

A. Criminal Prosecution of Child Abduction

The self-help option of re-abducting a child either alone or with the help of activist

organizations is usually a final option for Non-Muslim women seeking the return of their child

from a non-Hague Muslim state.149

However, the Department of State has properly strongly

dissuaded parents from utilizing this self-help option of re-abducting children from abroad

because it may greatly expose American citizens to the risk of criminal sanctions in a foreign

country.150

The death penalty, for example, may be imposed in some Muslim countries for

parents who attempt at re-abduction.151

Congress also enacted the International Parental Kidnapping Crime Act of 1993

(“IPKCA” or “Act”) to fill the void when a child is abducted or wrongfully retained in a non-

Hague contracting country.152

IPKCA provides that “whoever removes a child from the U.S., or

attempts to do so, or retains a child outside the U.S. with intent to obstruct the lawful exercise of

parental rights shall be fined under this title or imprisoned not more than three years, or both.”153

The Act itself recognizes that the Hague Convention provides the best remedy for left behind

parents in the U.S. who face child abduction by the other parent.154

However, IPKCA still

provides an avenue for the left behind parents facing international abduction of their child to

vindicate their rights through the federal criminal justice system in the U.S.155

Every state has its

149

Andrews supra note 18, at 599. 150

Aiyar supra note 108, at 298. 151

Id. 152

18 U.S.C.S § 1204 (2003). 153

Id. 154

Id. 155

Id.

21

own unique criminal parental kidnapping statute as well, which could be used for prosecuting

international kidnappings.156

Unfortunately, only a few cases have been decided under the Act because the Act was

passed to facilitate extradition of the abductor from countries with whom the U.S. has extradition

treaties.157

Also, the return of the abductor is contingent on that the country to which the

abductor has fled specifically recognizing the felony offense of parental kidnapping.158

Therefore, in most cases, IPKCA will only work where the abducting parent voluntarily returns

to the U.S. but it does not provide for any enforceable mechanisms to either extradite the

abducting parent to the U.S. or force the return of the abducted child from a Muslim country.159

One case which illustrates the success of IPKCA is Unites States v. Amer.160

The case

involved a father who moved himself with his three children back to Egypt from the U.S. without

his wife’s knowledge.161

The married couple had lived for eight years and had two of their

children in the U.S.162

When the father attempted at re-entering the U.S., the following year, he

was arrested and convicted under the IPKCA.163

The court imposed a sentence of 24 months'

imprisonment and a one-year term of supervised release, with the special condition that the

father returns the three children to the U.S.164

Although the mother could not use the Hague

Convention to return her children from Egypt, IPKCA was successfully used to reunite her with

her children in the U.S.165

156

Susan Kreston, Prosecuting International Parental Kidnapping 15 Notre Dame J.L. Ethics & Pub. Pol'y 533, 550

(2001). 157

Id. at 551. 158

Id. 159

Aiyar supra note 108, at 297. 160

U.S. v. Amer, 110 F.3d 873, 876 (2d Cir. 1997); Id. at 296. 161

Amer, 110 F.3d 873 at 876; Aiyar supra note 108, at 296. 162

Amer, 110 F.3d 873 at 866-877. 163

Id. 164

Id. at 877 165

Aiyar supra note 108, at 296.

22

Because many Muslim Americans and residents still have family members in Muslim

countries, foreign travel with minor children poses the greatest risk in child abduction.166

Moreover, it is estimated that one in five parental kidnapping involves taking a child across

international borders.167

Therefore, prosecutors will increasingly find themselves confronted with

international child abduction cases and should become familiar with methods to secure the safe

return of children in cases involving non-Hague contracting states.168

Federal prosecutors and

law enforcement should play a vital role in enforcing IPKCA to its full extent.169

The need for

specialized knowledge is required in giving the investigation and prosecution of international

parental kidnapping a priority, and discrediting the myth that parental kidnapping should be dealt

exclusively as a civil matter in states’ family courts.170

A less than certain outcome should not preclude formal charges under the IPKCA

because if the evidence is legally sufficient, a reasonable probability of conviction supports

proceeding with prosecution.171

It therefore should be the policy of the U.S. to vigorously

prosecute international parental kidnapping especially in cases involving non-Hague contracting

states where the left behind parent suffer the addition trauma of having to navigate the foreign

culture, legal system, and having no remedy in return of their children under the Hague

Convention.172

Federal prosecutors will need to be aware of available options for prosecuting the

166

Warren Camp, Child Custody Disputed in Families of Muslim Tradition, 49 Fam. Ct. Rev. 582, 585 (2011). 167

Allison M. Scott, From a State-Centered Approach to Transnational Openness: Adapting the Hague Convention

with Contemporary Human Rights Standards as Codified in the Convention on the Rights of the Child, 11 Ind. J.

Global Legal Stud.233 (2004). 168

See Kreston supra note 156, at 592. 169

Id. 170

See Id. 171

Id. at 553. 172

Id.

23

perpetrator to ensure meaningful access to justice for the left behind parents and abducted

children victimized by this crime.173

B. Bilateral Treaties

Another realistic solution to international child custody disputes reside in the possibility

of reaching bilateral treaties between the U.S. and non-Hague Muslim states.174

The government

of the U.S. and Muslim countries must work together to achieve a consistent remedy that parents

can effectively use to protect their children from the detrimental effects of domestic violence and

international child abduction.175

The difficulty with this proposal lies in the fact that Muslim

countries differ greatly with the U.S. in culture, religion, and law.176

However, both the U.S. and

other Muslim countries need to compromise in order to achieve legitimate results to protect

children within their borders against the devastating effect of parental child abduction. 177

Some non-Hague Muslim states have already shown some potential for compromise.

Egypt, for example, allows Non-Muslim spouses and their children under the age of seven to

travel outside its borders without obtaining their Muslim spouses’ permission and prohibits

Egyptian fathers from kidnapping children of the same age who live abroad with their Non-

Muslim mothers.178

On the other hand, the State Department has indicated that they have

initiated discussions to explore options of establishing bilateral treaties on the subject with

various countries in the Middle East.179

In fact, bilateral treaties involving non-Hague Muslim

states resolving international child custody disputes have emerged for nearly three decades and

173

Id. at 534. 174

Andrews supra note 18, at 629. 175

See Id. 176

Id. 177

See Id. at 629. 178

Id. 179

Aiyar supra note 108, at 294.

24

currently include: Belgium/Morocco, Belgium/Tunisia, Canada/Lebanon, France/Algeria and

Australia/Egypt.180

In 2009, several judges and custody experts from both Western and Muslim delegations

met at the Third Malta Conference on Cross Frontier Family Law Issues (“Conference”) for

discussions on addressing the difficulties posed by international child abduction between the

nations concerned.181

The joint declaration recognized the need for establishment of a network of

Central Authorities and the development of trans-border mediation services in cases of child

custody disputes.182

Participating countries in the Conference included: Australia, Bangladesh,

Belgium, Canada, Egypt, France, Germany, India, Israel, Jordan, Malaysia, Malta, Morocco,

Netherlands, Oman, Pakistan, Qatar, Spain, Sweden, Switzerland, Tunisia, Turkey, the United

Kingdom, and the U.S., which indicates a global trend towards cooperation between Hague and

Non-Hague state parties.183

The proposed treaty between the U.S. and a Muslim country should contain a provision,

which allows for representatives from both nations to meet and discuss possible remedies for

cases involving domestic violence and children wrongfully abducted or retained in either

country.184

Also, a narrowly tailored domestic violence provision should be adopted to ensure

that victims’ children would not be subject to the remedy of return because in no case should

states privilege forum shopping accomplished through force by a batterer over a forum

180

Id. 181

Id. 182

The Hague Conference on Private International Law, Third Malta Judicial Conference on Cross-Frontier Family

Law Issues Declaration (March 2004), available at

http://www.hcch.net/index_en.php?act=events.details&year=2009&varevent=161 183

Id. at 1. 184

See Andrews supra note 18, at 629.

25

incidentally selected by his victim.185

Such proposed provisions can protect survivors of spousal

abuse from having to return to an unsafe jurisdiction in order to litigate custody.186

The Shari’a leaves room for some negotiations to occur between the U.S. and non-Hague

Muslim nations on resolving international child custody disputes in a way that is respectful to the

cultures and religions of both the West and East.187

It is important to realize that the gender

presumptions under the Shari’a are not absolute and that the presumption can be rebutted by a

showing of the other parent’s physical, mental, or moral unfitness.188

The U.S. could in turn

provide assurances of providing access to eligible non-citizens parents within its border to

exercise parenting time in compromising to reach a resolution on a bilateral treaty, which will be

a “win-win” for both nations involved.

C. Amend The Hague Convention to Provide for a Uniform Approach for Dealing

with Non-signatory States.

Today, there remains a clear divergence in the different approaches taken by state courts

in the U.S. in addressing non-Hague cases.189

This creates more of an incentive for potential

abductors to remove their children to Muslim countries over others.190

A possible solution would

encompass amending the Hague convention to provide for a uniform approach in dealing with

child custody disputes involving non-Hague contracting states.191

In drafting an amendment, it is important to consider that the Hague Convention

addresses jurisdictional matters but does not consider the child custody standards of the various

legal systems.192

Therefore, the Hague Convention uses a “state-centered” approach which

185

See Weiner supra note 2, at 706. 186

Id. 187

See Foley supra note 13, at 264. 188

Id. 189

Aiyar supra note 108, at 314. 190

Id. at 314-315. 191

Id. 192

Id. at 315.

26

provides less protection to children because a “transnational” universal standard of human rights

is not being enforced.193

In contrast, the Convention on the Rights of the Child (“CRC”), which

was adopted by the United Nations in 1989, recognizes the international human rights of

children.194

The CRC operates based on the standard of the “best interests of the child,” which

encompass the child’s civil, political, economic, social, cultural, and humanitarian rights, while

allowing for cultural and local interpretations of these universal rights.195

The CRC also

guarantees children’s social rights in protection from abduction, and cultural rights in

participation in their own cultures and freedom to practice their own religions.196

The CRC,

therefore, provides a “transnational approach” and an amendment to the Hague Convention is

needed to emulate that same approach.197

First, the amendment would require the contracting states to the Hague Convention to act

in accordance to the welfare of the individual child when dealing with non-Hague cases in their

courts.198

Second, the language used in the amendment need to reflect that the “best interests” of

the child would be the main consideration in international child custody disputes involving non-

Hague states.199

Instead of purely relying on the principles of comity, courts’ decisions in the

U.S. would, therefore, turn on whether returning a child to a non-Hague state would be in the

child’s “best interests.” 200

There is a strong argument against applying the Hague principles in cases involving non-

Hague contracting states because it gives no incentive for Muslim countries to join the Hague

convention if their children are returned to them without them having to return other children to a

193

Id. 194

Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 43 [hereinafter CRC]. 195

Id; Andrews supra note 18, at 601. 196

Andrews supra note 18, at 601. 197

Aiyar supra note 108, at 315. 198

Id. at 316-317. 199

Id. at 315-316. 200

Id. at 316-317.

27

culture, which is completely different than their own.201

However, the proposed amendments

would seek to develop a uniform approach in addressing non-Hague cases being heard in

signatory states in a manner that would support the foundational principles of the CRC without

directly applying the Hague Convention to non-signatory Muslim states.202

While the amendment may not be able to develop a fixed concept of what will constitute

the “best interests” of a child, a checklist could be used as a reference in applying the “best

interests” of the child standard in non-Hague Convention cases.203

By developing tangible

objective criteria, international courts can consistently apply the standard into a variety of

environments without being hampered by judgments based on local or subjective views.204

Unfortunately, the “best interests” of the child standard has not been defined under the CRC.205

However, the U.K. Children’s Act of 1989 provides a workable solution to defining the “best

interests” standard based on the following criteria.206

Section 1(13) of the children’s act

considers:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his

age and understanding);

(b) the child’s physical, emotional and educational need;

(c) the likely effect on the child of any change in his circumstances;

(d) the child’s age, sex, background and any characteristics of his which the court considers

relevant;

(e) any harm which the child has suffered or is at risk of suffering; and

(f) how capable each of his parents, and any other person in relation to whom the court

considers the question to be relevant are of meeting his needs.207

Utilizing this checklist as a basis for the Hague Convention amendment is advisable because it

considers both the mental and physical health of the parent which is relevant where the parent

201

See Id. at 317. 202

See Id. 317-318. 203

Id. at 316. 204

Id. 205

See CRC supra note 194. 206

Children Act, 1989, c. 41(U.K.); Aiyar supra note 108, at 317. 207

See Children Act §1(3)

28

has been a victim of domestic violence. Such an approach will likely assure Non-Muslim

victims of domestic violence escaping to a Hague Convention country, as the U.S., that they

could assert their rights without having to return to an unsafe jurisdiction in order to litigate

custody.208

Moreover, section 1(15) of the U.K. Children’s Act prevents Convention courts from

making an order in non-Hague cases, unless the “best interests” of children call for such

action.209

Therefore, the amendment encourages courts to examine whether foreign courts would

give equal importance to the child’s welfare if returned. This means that there will be instances

in which a child would be returned from a Hague state to a non-Hague contracting state under

the proposed amendment. Thus, the proposed amendment in application only aims at avoiding

the inconsistencies in approaches being applied by Hague Convention states in non-Hague cases

which may endanger the very children who ought to be protected under the Hague Convention,

even if they belong to non-Convention countries.210

Conclusion

A solution is needed for the Ms. Mahmoody’s of this world-- those women whose

batterers force them to live in a non-Hague state and are unable to return to the U.S. with their

children due to the Shari’a custody laws. Moreover, these Non-Muslim American women are

unable to use the Hague Convention remedies to return their children from Muslim countries

after fleeing from domestic violence to the U.S.211

While the automatic return policy of the

Hague Convention has little chance of gaining acceptance by Muslim countries, the U.S. should

208

See Weiner supra note 2, at 706. 209

Children Act supra note 194; Aiyar supra note 108, at 318. 210

Aiyar supra note 108, at 319. 211

Id. at 291.

29

respect Muslim countries religious and cultural reasons for such a denial and establish bilateral

treaties to improve the existing situation.212

Bilateral treaties remain to be one of the only viable

options that have the capability of resolving international child custody disputes between Non-

Muslim mothers and Muslim fathers, and therefore, countries involved should make major

efforts at allowing for a consistent procedure in dealing with these conflicts.213

In no case should countries privilege forum shopping accomplished through force by a

batterer over a forum incidentally selected by his victim in a non-Hague state.214

Amending the

Hague Convention to adopt a uniform approach for dealing with non-signatory states provides a

solution, which can remove the incentive for potential abductors to remove their children to

Muslim states over others.215

Moreover, the proposed amendment to the Hague convention

should require the contracting states to act in accordance to the welfare of the individual child

when dealing with non-Hague cases to protect children, even if they belong to non-Convention

cases.216

American Non-Muslim survivors of domestic violence should be able to assert their

rights to justice without having to return to unsafe jurisdictions and IPKCA provides an avenue

for left behind parents facing international child abduction to vindicate their rights through the

federal criminal justice system in the U.S.217

While IPKCA has its limitations, it should be the

policy of the U.S. to vigorously prosecute international parental kidnapping cases involving non-

Hague contracting states where the left behind parent suffer the addition trauma of having to

navigate the foreign culture, legal system, and having no remedy in return of their children under

the Hague Convention.218

212

Andrews supra note 18, at 629. 213

See Id. at 629. 214

See Weiner supra note 2, at 706. 215

Aiyar supra note 108, at 319. 216

See Id. 217

See Kreston supra note 156, at 533. 218

See Id.

30