SHARIAsource

FACTS

The couple had a son out of wedlock in 1987 and married in Malaysia under Islamic law in 1988. They moved to Brunei and British Columbia before returning to the wife’s home country of the Philippines. Subsequently the parties separated in 1995. The husband assaulted the wife and threatened to take away their son. As a result, the wife filed for an annulment and custody of their son in the Regional Court. Soon after, the husband obtained a divorce and custody of the son in a Sharīʿa Court and filed to dismiss the wife’s claim in the Regional Court on the basis that the Sharīʿa Court had already made a ruling. However, the Regional Court determined that its jurisdiction governed over that of the Sharīʿa Court and the wife was awarded custody of the son. The husband filed for reconsideration but the Regional Court denied his request.

Subsequently, the wife moved to the United States with her son and filed a temporary order of protection against the husband with the Superior Court. This order prevented him from contacting his son or knowing his whereabouts.  After locating his son via an Interpol report, the husband filed a writ of habeas corpus, seeking custody of his son under the Sharīʿa Court’s ruling. During the emergency hearing, the wife’s attorney argued that the Regional Court had jurisdiction over the matter because the wife had filed with the Regional Court before the husband filed with the Sharīʿa Court. When asked for certified copies of the Regional Court’s order, the wife’s attorney requested extra time to obtain the documents because the courts in the Philippines were closed due to the time difference. However, the Judge of the Superior Court denied the request and allowed the husband to present his certified copies of the Sharīʿa Court order. The Judge awarded custody to the husband, stating to the wife, “I don’t like what you did. You took his son with the intent of never telling him where he was. We don’t like that as judges.”

On appeal, Ms. Abdulla contends that (1) the trial court erred in denying her request for a continuance to challenge the jurisdiction of the Sharīʿa Court; and (2) the trial court erred when it failed to apply the best interest of the child standard. Ms. Abdulla also requests that Judge Aubrey be disqualified from hearing the case on remand and that she be awarded attorney fees.

Mr. Noordin argued that Ms. Abdulla is precluded from contesting the validity of the Sharīʿa Court's order because she recognized the Sharīʿa Court divorce and has since remarried.

ISSUE

Whether denying wife additional time to produce foreign documents to show that the Sharīʿa court lacked jurisdiction and that the husband didn’t have a legal right to use the Sharīʿa Court order was a reversible error.  

RULING

The Appellate Court reversed the granting of the writ of habeas corpus to the husband and remanded the case to the Superior Court.

The Appellate Court determined that the Superior Court erred in granting the husband a writ of habeas corpus because he failed to make a prima facie case that he had a “legal right to custody” as required when making this request. The Court noted that the wife attempted to show that the husband did not have a “legal right to custody” but was prevented from doing so because the Superior Court Judge did not permit the wife’s attorney to present an uncertified copy of the Regional Court’s documents stating that the Sharīʿa Court lacked jurisdiction over this case or grant a continuance so that the attorney could have gotten a certified copy.

Most notably, the Appellate Court determined that the case should be remanded to the Superior Court because the wife did not have the opportunity to prove that the Sharīʿa court lacked jurisdiction over the case in the Philippines. The Court noted that unlike the husband, the wife was not afforded an equal opportunity to present the certified copies of the Regional Court’s documents. Additionally, the Court pointed to two facts that raised doubts that the Sharīʿa Court had jurisdiction over this case: “(1) The couple's son had never resided in the jurisdiction of the Shari'a Court or appeared before that court; and (2) he was born out-of-wedlock, rendering Mr. Noordin's paternity questionable, if not nonexistent, under Muslim law.”

The Appellate Court noted that even if the Sharīʿa Court did have jurisdiction over this case in the Philippines, the Superior Court would still need to determine whether it should grant comity to this foreign order. Thus, the Appellate Court instructed the Superior Court to apply a test that has been used in Maryland to determine whether comity should be granted: on remand, the wife had the burden of proving that either “(1) the foreign court did not apply the ‘best interest of the child’ standard, or that (2) in making its decision, the foreign court applied a rule of law or evidence or procedure so contrary to public policy as to undermine confidence in the outcome of the trial.”

Lastly, the Court noted that the wife’s remarriage did not prevent her from contesting the Sharīʿa Court’s jurisdiction, as jurisdiction is not determined by consent. The Court also found that the Superior Court Judge that heard the case was biased and granted the wife’s request for another Judge to hear the case.