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Mother’s Motion To Relocate Child To Pakistan Was Properly Denied

Posted on Wednesday, April 10, 2019

A trial court correctly rejected a mother’s motion to change the domicile of the parties’ minor child to Pakistan because Pakistan is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, the Michigan Court of Appeals has ruled.

In Safdar v Aziz (Docket No. 344030), the defendant mother, a Pakistani citizen, filed a motion pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) to change the domicile of the parties’ daughter to Pakistan. The Hague Convention is a treaty that provides a method to return a child who is internationally abducted by a parent from one member country to another. 

The Oakland County Circuit Court denied the defendant mother’s motion to move the child to Pakistan.

The Court of Appeals affirmed in a published opinion written by Judge Christopher M. Murray. Judge Michael J. Riordan joined the decision.

In its ruling, the Court of Appeals examined the language of Michigan’s Child Custody Act, specifically MCL 722.27a(10), which says: “Except as provided in this subsection, a parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. This subsection does not apply if both parents provide the court with written consent to allow a parent to exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.”

Based on the language in MCL 722.27a(10), a trial court cannot enter an order allowing for the exercise of parenting time in a country that is not a party to the Hague Convention, the Court of Appeals explained. “Because the United States has not accepted Pakistan’s accession to the Convention, Pakistan is not a ‘party’ to the Convention for purposes of MCL 722.27a(10),” the Court stated.

Judge Douglas B. Shapiro concurred in a separate opinion. Although he agreed with the majority’s conclusion, he disagreed that the issue could be resolved by parsing the language in MCL 722.27a(10). “To the contrary, if this case had to be decided solely on the bare words of the statute, I would conclude that it mandates the opposite result,” he said. “However, the intent of the Legislature is clear regardless of any imperfections in the text of the statute.”

Motion To Change Domicile

The plaintiff father and the defendant mother are both Pakistani citizens. They were married in Pakistan in 2011 and relocated to the United States, where the plaintiff resided with an employment visa. In 2015, the defendant moved to Michigan to live with her aunt, while the plaintiff continued to live in Maryland. The couple’s daughter was born in Michigan. The parties divorced in 2016 and, pursuant to the divorce judgment, they shared joint legal custody of the child, with the defendant having sole physical custody. The divorce judgment included a provision prohibiting the exercise of parenting time in any country that is not a party to the Hague Convention. The prohibition specifically applied to Pakistan. The defendant appealed the divorce judgment, challenging only the trial court’s denial of her motion for attorney fees.

In March 2017, while the appeal was pending, the defendant filed a motion to change the child’s domicile to Pakistan. The defendant asserted that Pakistan had completed the necessary steps to become a party to the Hague Convention since the divorce judgment was entered. The plaintiff objected to the motion, claiming the trial court did not have authority to set aside or amend the divorce judgment while the defendant’s appeal from the divorce judgment was pending. The trial court agreed with the plaintiff and dismissed the defendant’s motion for change of domicile without prejudice, finding that it did not have jurisdiction under MCR 7.208(A).

The defendant appealed. The Court of Appeals reversed in a published opinion. According to the Court of Appeals, the trial court erred by finding that it did not have authority to consider the defendant’s motion for change of domicile and to modify the divorce judgment while the defendant’s appeal was pending. The plaintiff appealed to the Michigan Supreme Court. In lieu of granting leave to appeal, the Michigan Supreme Court held that MCL 722.27(1) “authorizes the continuing jurisdiction of a circuit court to modify or amend its previous judgments or orders” and “is an exception to MCR 7.208(A) ‘otherwise provided by law.’” The Michigan Supreme Court vacated the Court of Appeals decision and remanded the matter to the trial court for further proceedings.

Shortly before the Michigan Supreme Court issued its ruling, the defendant filed a new motion for change of domicile in the trial court. The defendant alleged that Pakistan had become a party to the Hague Convention, which eliminated any restriction imposed by MCL 722.27a(10). She also claimed the move to Pakistan would improve the quality of life for her and the child because 1) a secure home, an excellent international school system and free health care would be available; 2) her immediate and extended family would be close; and 3) she would have greater job opportunities and a more affordable cost of living. The plaintiff opposed the defendant’s motion, rejecting the assertion that Pakistan was now a party to the Hague Convention for purposes of MCL 722.27a(10).

The trial court held a hearing on the motion. The trial court pointed to the United States’ failure to recognize Pakistan as a treaty partner, finding this constituted “a concern.” The trial court, nevertheless, determined that an evidentiary hearing was necessary to resolve the change in domicile motion. At the evidentiary hearing, witnesses testified for both sides. The trial court ultimately issued a written order, finding that a change in domicile was not in the child’s best interest.

The defendant appealed.

Pakistan Not A Party To Hague Convention

The defendant argued on appeal that because Pakistan had acceded to the Hague Convention, it is a party for purposes of MCL 722.27a(10).

The Court of Appeals disagreed. “We do not think it is as simple as that,” the Court wrote. “Instead, when examining the meaning of ‘party’ under the statute, as well as how a nation becomes obligated to another nation for purposes of the Convention, it is clear that Pakistan is not a party to the Convention.”

To determine whether Pakistan is a party to the Hague Convention with the United States, the Court of Appeals examined how a nation becomes bound to the Hague Convention rules and procedures. “In doing so, we conclude that Pakistan’s accession to the Convention – without the United States’ acceptance – does not make Pakistan a party to the Convention for purposes of state law.”

According to the Court of Appeals, it was not disputed that Pakistan had acceded to the Hague Convention by depositing its instrument of accession to the Convention, which was entered into force in 2017. “However, the United States has not recognized Pakistan’s accession to the Convention,” the Court said. “As a result, the clear and important legal effect of the United States not accepting Pakistan’s accession to the Convention is that Pakistan is not bound to all the benefits and obligations imposed by the Convention when it comes to parenting-time orders arising out of the United States ….”

The Court of Appeals emphasized that to accept the defendant’s argument would “render hollow” the meaning of the word “party.” The Court explained that any nation, person or entity that has not bound itself to comply with a contract’s provisions is not a “party” to the contract. “To conclude otherwise would render the term meaningless and would allow a circuit court to enter a parenting time order without offending MCL 722.27a(10), despite there being no legal protections that the foreign nation would be bound to the Convention’s terms.”

In conclusion, the Court of Appeals stated: “The protective procedures and rules of the Convention are not binding between the United States and Pakistan, and as a result, Pakistan is not a ‘party’ to the Convention as contemplated by MCL 722.27a(10). Therefore, the prohibitions of that statute remain applicable. For that reason, the trial court properly denied the motion to change domicile ….”

Concurring Opinion

Judge Shapiro agreed the purpose behind MCL 722.27a(10) is to ensure that parenting time is not permitted in countries where a Michigan custody order may not be enforced. However, he disagreed that the issue presented was resolved by looking at the plain language of the statute.

According to Judge Shapiro, MCL 722.27a(10) does not say the country must be a party to a treaty with the United States, nor does it refer to parties to the Hague Convention whose accession has been accepted by the United States. “The word ‘party’ is modified only by the phrase that follows it, i.e., ‘to the Hague Convention,’” he wrote. “Thus, the statute’s plain language allows relocation to Pakistan if Pakistan is a ‘party to the Hague Convention,’ which it surely is. Pakistan acceded to the Convention, becoming a party to it, several years ago.”

Judge Shapiro further acknowledged that the United States has not accepted Pakistan as a treaty partner. However, “the statute does not refer to a requirement that the United States accept Pakistan’s ascension nor to some relationship between the United States and Pakistan arising out of the treaty,” he pointed out.

According to the judge, the words of the statute have only one requirement: that Pakistan become a party to the Hague Convention.

“I respectfully suggest that the Legislature’s intent (which is ultimately what controls) is clear even if the language of the statute is imperfect,” Judge Shapiro observed. “The Legislature’s intent was to prevent the possibility that a child could be relocated to a country that is not required to enforce an order concerning custody issued by a court in the United States.”

While the words in the statute may be unclear or may not fully accomplish the intended purpose, “[r]ather than trying to get the words to mean something other than they do, I would conclude that it is proper here to discern the meaning of the statute by considering its clear purpose,” Judge Shapiro said.

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