Case Update (14 Nov 2023): In re Alhaidari; Washington State use of UCCJEA “escape clause” upheld in regards to Saudi Arabia
This unprinted Court of Appeals case in Washington State is an interesting application of the UCCJEA’s “escape clause.” The UCCJEA is a child-custody jurisdiction law, drafted and adopted by the Uniform Law Commission in 1997, and enacted in every single U.S. state, except for Massachusetts. The UCCJEA provides that foreign countries are, essentially, equal to sister-U.S. states so long as the child-custody laws of the foreign country do not violate fundamental principles of human rights. Therefore, if a foreign country issues a child-custody order in substantial conformity with the jurisdictional predicates of the UCCJEA, and there was sufficient notice, the U.S. state that has enacted the UCCJEA must enforce that foreign child custody order. As one can imagine, this is an extremely high burden - the child-custody laws (and not other parts of the law of the other country) must violate not just human rights, but fundamental principles of human rights. In other words, it must “utterly shock” the conscience.
As with any uniform law, the state that enacts it may modify it from its original verbiage. Some states have done so, specifically in regard to the “escape clause” language (the human rights language). Washington State is one of them. Washington State added another sentence after the human rights language in the UCCJEA that says, “A court of this state need not apply this chapter [of the UCCJEA] if the law of a foreign country holds that apostasy, or a sincerely held religious belief or practice, or homosexuality are punishable by death, and a parent or child may be at demonstrable risk of being subject to such laws. For purposes of this subsection, “apostasy” means the abandonment or reununciation of a religious or political belief. (RCW 26.27.051). Note, the Washington State legislature amended the UCCJEA in the middle of this case.
And, so comes the Alhaidari family. Bethany and Ghassan married in Saudi Arabia in November 2013 and their child, ZA, was born in Saudi in December 2014, and holds dual citizenship. The couple engaged in litigation in Saudi Arabia for divorce and then custody. It was complicated when Bethany’s permission to legally reside in Saudi Arabia expired. Ultimately, in January 2019, a Saudi judge granted their divorce and gave custody of ZA to Bethany. A few months later, Ghassan re-engaged the courts, asking for visitation and for the court to award custody of the child to his mother, with whom he was living.
It was around this time that Ghassan started making certain allegations against Bethany, posted a video of her practicing yoga on social media, and showed a photo of her in a bikini to the Saudi judge in the custody case. He accused her of gender mixing, adultery, and insulting Islam and Saudi Arabia, with some of these crimes punishable by death. The court ultimately awarded custody to the grandmother, with Bethany having no legal rights to the child. In addition, apparently after further allegations by Ghassan, the Saudi government issued an arrest warrant for Bethany and a 10-year travel ban prohibiting her from leaving the country. It was at this time that Bethany feigned reconciliation with Ghassan to convince him to afford her certain rights. She negotiated with him certain rights to the child including a right to travel with the child to the United States, and they entered into an agreement around November 2019. Upon arriving in Washington State, on January 23, 2020, she initiated a child custody proceeding, seeking temporary emergency jurisdiction. Ghassan asked the Washington State court to dismiss Bethany’s suit, or, in the alternative, to enforce the Saudi custody order and their subsequent agreement November 2019 agreement.
On February 2021, the Washington State trial court ruled that Saudi child-custody laws violate fundamental principles of human rights, and therefore it need not recognize Saudi as equal to a sister-state and therefore it could assume jurisdiction over the matter, and not enforce the Saudi custody order. On April 14, 2021, the Washington State legislature amended the UCCJEA to add in the language related to an apostasy, referenced above. On the date of that amendment, Bethany asked the Superior Court in Washington to rule in her favor on the terms in the newly amended provisions of the UCCJEA. On May 5, 2021, the trial court confirmed its earlier ruling, and used the amended UCCJEA as additional grounds of support for its ruling.
