By
Prof. Gabriel Sawma
In recent years, I have been getting calls from mothers with US citizenships, seeking help in bringing back their children who have been kidnaped by their fathers. In other cases, the mother fears that the father plans to take the children to Jordan and never brings them back to the United States.
In a case that was brought before the Court of Allegheny, Pennsylvania, the client sought my legal advice on case involving a custody order issued by a Shari’a court in Saudi Arabia, in which the father was given right to custody of his two daughters who live with their mother in the State of Pennsylvania. As a result of my testimony, and taking into consideration ‘the best interest of the child’ doctrine, the Court of Allegheny acquired jurisdiction over the custody and ordered that the children stay with their mother in the United States. A copy of the Court judgment is available at request.
Jordan is another country in the Middle East whose laws permit the father to obtain a custody order from the court of that country in the event that he decides to take the child from the United States to Jordan and never return him or her back. This article deals with the law of custody in Jordan in contrast with the law of the United States.
Introduction
The Hashemite Kingdom of Jordan is situated at the junction of the Levantine and Arabian areas of the Middle East. The country is bordered on the north by Syria, to the east by Iraq, and by Saudi Arabia on the east and south. To the west is Israel and the West Bank.
The country is a constitutional monarch with representative government. The reigning monarch is the head of state, the chief executive authority delegated to the prime minister and the Council of Ministers, or cabinet. The cabinet is responsible before the elected House of Deputies which, along with the House of Notables (i.e. Senate), constitutes the legislative branch of the government. The judicial branch is an independent branch of the government.
Article 2 of the Constitution states that “Islam is the religion of the State and Arabic is its official language.” (See Constitution of The Hashemite Kingdom of Jordan, 1952 at this link: http://www.wipo.int/wipolex/en/text.jsp?file_id=227813
Article 99 of the Constitution divides the court into three categories: civilian, religious, and special courts. The civilian courts exercise their jurisdiction in respect to civil and criminal matters in accordance with the law, and they have jurisdiction over all persons in all matters, civil and criminal. The civilian courts include Magistrate Courts, Courts of First Instance, Courts of Appeal, High Administrative Courts and the Court of Cassation (the highest court).
The religious courts include shari’a courts, which apply Islamic law for the Muslim community, and non-Muslim tribunals for other religious communities, namely those of the Christian community living in the country. All religious communities in the kingdom have primary and appellate courts and deal only with matters involving family law such as marriage, divorce, inheritance and custody of the children.
The Shari’a Courts and Application of Islamic law
Article 105 of the Constitution states that “The Sharia Courts shall in accordance with their own laws have exclusive jurisdiction in respect of the following matters: (i) Matters of personal status of Muslims; (ii) Cases concerning blood money (Diya) where the two parties are Muslims or where one of the parties is not a Muslim and the two parties consent to the jurisdiction of the Shari’a Courts; (iii) Matters pertaining to Islamic Waqfs.” (Waqf is an Arabic term used to point to the real estate property owned by the religious communities in Jordan).
Article 106 states that: “The Shari’a Courts shall in the exercise of their jurisdiction apply the provisions of the Shari’a law.” (See unofficial English translation of the Constitution of Jordan at this link: http://www.med-media.eu/wp-content/uploads/2015/08/wcms_125862.pdf
Thus, the Shari’a courts are vested with exclusive jurisdiction in matters related to personal status of the Muslim community such as marriage, divorce, succession, guardianship, inheritance, as well as matters that are related to Muslim religious charitable endowments, and all other matters that are considered Islamic by nature.
The Shari’a courts comprise of courts of First Instance, and courts of appeal. Appeals from the latter is made to the Court of Cassation, which is the highest court of the land. Members of the trial and appeal courts are recruited from the judges who are experts in Islamic law. One judge, called “qadi”, sits in each Shari’a court and decides cases on the basis of Islamic law.
Custody of Children in Jordan
Disputes involving marriage, divorce and custody of children for the Muslim community in Jordan is governed by the Personal Status Law # 36, 2010, published in the Official Gazette, October 10, 2010. The rules applied to the custody of Muslim children are stated in Section 3. Article 173 (1) states that the custody of children belongs to the mother until the child reaches the age of fifteen. This means the rule governing Muslim children in Jordan is based on the age of the child. After the child reaches the age of fifteen, he or she is given a choice to stay with the mother until the age of maturity, which is 18.
Article 176 states that if the child is a Jordanian citizen, his mother cannot travel with him or her for permanent residency without permission of the wali (guardian).
A mother can lose her primary right to custody of the child if the Shari’a court determines that she is incapable of safeguarding the child or of bringing the child up in accordance with the appropriate religious Islamic standards.
According to Article 172(b), the wife loses her right to custody when the child reaches the age of seven if the mother is not Muslim. In other words, the age fifteen stated in article 173(1) for custody assumes that the mother belongs to the Islamic faith. If, however, the wife is not Muslim, then her custody ends when the child reaches the age of 7. This clause is based on Islamic Shari’a; it does not take into account the best interest of the child.
Jordan Does Not Recognize U.S. Custody Orders
The general rule is that Islamic Shari’a does not recognize a civil marriage, civil divorce or custody order issued by a US court. Under the Jordanian Personal Status Law, which is based on Islamic law for the Muslim community, the Shari’a courts will not recognize US judgments of custody. A US custody order issued at the request of an American mother will not be enforceable in Jordan.
Abduction of children is a major offense in Jordan. An American mother may face serious legal difficulties if she attempts to take her children out of Jordan without written permission of the father.
If a Jordanian father chooses to take the children to Jordan and leave them there, the U.S. Embassy cannot force the father or the Jordanian government to return the child to the United States, nor is it possible in most cases to extradite a Jordanian father to the United States for parental child abduction. American citizens planning a trip to Jordan with dual national children should bear this in mind.
Jordan Entered Islamic Reservations to the Convention on the Rights of the Child (CRC)
Upon ratification of the CRC, Jordan entered reservation to the Convention stating: “The Hashemite Kingdom of Jordan expresses its reservation and does not consider itself bound by articles 14, 20 and 21 of the Convention, which grant the child the right to freedom of choice of religion and concern the question of adoption, since they are at variance with the precepts of the tolerant Islamic Shari’ah.” So what do articles 14, 20 and 21 cover?
Article 14 reads: (1) State Parties shall respect the right of the child to freedom of thought, conscience and religion. (2) States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (3) Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.”
According to article 14, children have the right to think and believe what they want and to practice their religion, as long as they are not stopping other people from enjoying their rights. Parent should guide their children in these matters. The Convention respects the rights and duties of parents in providing religious and moral guidance to their children. Religious groups around the world have expressed support for the Convention, which indicates that it in no way prevents parents from bringing their children up within a religious tradition. At the same time, the Convention recognizes that as children mature and are able to form their own views, some may question certain religious practices or cultural traditions. The Convention supports children’s right to examine their beliefs, but it also states that their right to express their beliefs implies respect for the rights and freedoms of others.
Jordan entered reservation to article 20 of the Convention which states that children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language. This provision seems to be in violation of Islamic Shari’a which regards children born of Muslim fathers are considered to be Muslims and have to be raised by Muslim families.
Jordan entered reservation to Article 21 which talks about adoption of children. According to article 21, children have the right to care and protection if they are adopted or in foster care. The first concern must be what is best for them. The same rules should apply whether they are adopted in the country where they were born, or if they are taken to live in another country.
When Jordan entered Islamic reservations to the CRC and specified what provision the Kingdom is reserving to, the reservations do not indicate a refusal to be bound by the most central provisions of the Convention. That is, Jordan is not indicating a rejection of the overall goal of improving the wellbeing of children. Jordan singled out adoption and freedom of religion as indicated above, both of which violate percepts of Islamic law as traditionally interpreted.
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law, mainly the law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
- Professor of Middle East Constitutional and Islamic law,
- Expert Consultant on Islamic divorce in US Courts and Canada,
- Expert Consultant on Hindu divorce in U.S. courts,
- Expert Consultant on Iranian Shi’a divorce in USA,
- Expert Consultant on Islamic finance.
Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.
Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;
Speaks, reads and writes several languages including Arabic, English, French and others.
Interviewed by:
BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm
CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html
CBN: http://www.youtube.com/watch?v=fdwReohaIcs
FDU: http://view.fdu.edu/default.aspx?id=7899
Contact Information:
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Tel. (609) 915-2237
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