Custody Dispute Reaches International Levels

Change of Circumstances

At issue on appeal was whether there was a change of circumstances sufficient to alter the custody agreement on the basis of the best interests of the children.

'While great deference is typically accorded to the findings made by Family Court, they must be set aside here because they lack a sound and substantial basis in the record,' Justice Karen K. Peters wrote for the unanimous court. 'Despite the change in custody contemplated by the parties' agreement, the desires of the children (expressed after years under respondent's control) and the law guardian's recommendation, we find it clear that the best interests of these children warrant an award of sole custody to petitioner.'

Justice Peters observed that the father attempted to remove the mother permanently from her children's lives, and that he went behind her back to obtain an Islamic court order ' even after submitting to the jurisdiction of New York courts. In contrast, she said, the mother 'presented a willingness, despite respondent's abhorrent behavior, to continue to provide him with access to the children.' Under the Third Department's order, the father is entitled to 8 weeks of visitation annually in the U.S. The mother was represented by Donna E. Wardlaw of Wardlaw Associates in Saratoga Springs, NY. Kurt D. Schrader of Pope, Tait & Murphy, Binghamton, NY, appeared for the father. F. Daniel Casella of Binghamton was the law guardian.

John Caher is a reporter for The New York Law Journal.

Courts in Texas and New York became embroiled in an international child custody squabble in which New York's Appellate Division, Third Department, awarded sole custody to the mother, rejecting the lower court, the law guardian, the wishes of the children and a prior custody agreement. An appellate panel in Albany, NY, overturned a Family Court judge in a case in which a Muslim man took his children to Saudi Arabia and obtained an ex parte custody order from an Islamic court.

Matter of Ahmad v. Naviwala, 92611, involves a devout Muslim couple with four children. Samia N. Ahmad and Iqbal M. Naviwala were married in 1986 and divorced in 1999. Mrs. Ahmad received an order of sole custody. Under the agreement, the noncustodial parent would receive 3 months of continuous visitation annually. However, after consulting Islamic law scholars, the couple agreed that sole custody would be transferred to Mr. Naviwala in 2000. In June 2000, before Mr. Naviwala was given sole custody, he brought the children to Saudi Arabia, where he now lives, for his 3-month visitation.

While there, he apparently obtained a sole custody decree from an Islamic court, kept the children in the Middle East and denied the mother any contact with them. Two years later, Mrs. Ahmad learned her former husband and children were planning a trip to Texas. She obtained an order from Broome County (NY) Family Court, and the children were seized in Texas and returned to New York. At a subsequent custody hearing, Mr. Naviwala testified that he had reneged on the negotiated agreement because the mother was not properly schooling the children, because they were thriving in their new environment, and because his new wife was the equal of the old one. He was willing to afford the mother 4 weeks of visitation every 2 years. Supporting her position, Mrs. Ahmad offered the testimony of a forensic psychologist, an attorney specializing in international child custody disputes, and an expert in child abductions involving Middle Eastern countries. Regardless, Broome County Family Court Judge Herbert B. Ray awarded custody to the father. Judge Ray noted that Saudi Arabia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, and that there was no way for Mrs. Ahmad to enforce any visitation rights when the children were at their father's home.

Change of Circumstances

At issue on appeal was whether there was a change of circumstances sufficient to alter the custody agreement on the basis of the best interests of the children.

'While great deference is typically accorded to the findings made by Family Court, they must be set aside here because they lack a sound and substantial basis in the record,' Justice Karen K. Peters wrote for the unanimous court. 'Despite the change in custody contemplated by the parties' agreement, the desires of the children (expressed after years under respondent's control) and the law guardian's recommendation, we find it clear that the best interests of these children warrant an award of sole custody to petitioner.'

Justice Peters observed that the father attempted to remove the mother permanently from her children's lives, and that he went behind her back to obtain an Islamic court order ' even after submitting to the jurisdiction of New York courts. In contrast, she said, the mother 'presented a willingness, despite respondent's abhorrent behavior, to continue to provide him with access to the children.' Under the Third Department's order, the father is entitled to 8 weeks of visitation annually in the U.S. The mother was represented by Donna E. Wardlaw of Wardlaw Associates in Saratoga Springs, NY. Kurt D. Schrader of Pope, Tait & Murphy, Binghamton, NY, appeared for the father. F. Daniel Casella of Binghamton was the law guardian.

John Caher is a reporter for The New York Law Journal.