After Sept. 11, New Frustrations in Child Custody Disputes
By Erica Lehrer Goldman
Texas Lawyer
Achieving a harmonious child custody arrangement during divorce is
seldom easy. But some Texans believe the terrorist attacks on America
one year ago may have given rise to new fears, biases and frustrations
in the context of child custody disputes between Muslims and
non-Muslims. Out of a reported 13 such cases nationwide, Texas has at least four custody suits
that resonate on a post-Sept.11 frequency, says Laurie Jaghlit, civil
rights coordinator for the Washington, D.C.-based Council on
American-Islamic Relations (CAIR), which tracks such cases. That's high
compared to the year before Sept. 11, 2001, Jaghlit says; that year,
there were three reported cases nationwide addressing child custody
concerns in the context of Muslim/non-Muslim relationships.
One recent Harris County case, In the Matter of the Marriage of Sami A.
Kabbani and Teresa J. Lauderdale, addressed a mother's fears of child
abduction to the Middle East by her husband, an American citizen born in
Syria, after their relationship soured. But the husband's lawyer, Jolene
Wilson-Glah, says "there is absolutely no evidence of any interest in,
plan to or attempt to abduct these children."
On Aug. 16, following a three-month trial, Judge Georgia Dempster of the
308th Family District Court in Harris County signed a final decree of
divorce in the case. The decree deviated from the presumption under
§153.131 of the Texas Family Code that parents should be appointed joint
managing conservators of their children.
In the decree, Dempster appointed the mother sole managing conservator.
Dempster ordered that all visitation between the father and his two
children be supervised by an armed guard qualified by the SAFE
Supervised Visitation Program in Houston until such time as Kabbani
either secured an authenticated agreement signed by the Syrian Ministry
of Justice and the U.S. Department of State guaranteeing the return of
the Kabbani children should they ever be in Syria, or Syria signed the
Hague Convention and complies for one year with its provisions regarding
the return of children. The decree also references the possible use of a
child-friendly nonremovable tracking device with monitored alarm
service, approved by the National Center for Missing and Exploited
Children or a similar organization, should such a device become
available.
Armed guards may sound a bit extreme, but such supervised visitation is
not unheard of in the context of custody cases where there is a concern
of abduction, says Houston family law attorney Teresa J. Waldrop of
Robinson Waldrop, who is not involved in the case. The problem is
exacerbated when one party is from a country that is not a member of the
Hague Convention or
with whom the United States has no comparable treaty, adds Waldrop,
because "once the children are gone, you can't get them back." Waldrop
says that the issue of appropriate safeguards has been an ongoing
problem in the United States, with "cross-international border" issues
especially prevalent in a city such as Houston because of the oil
industry and international population.
Generally, the presumption in custody cases is that both parents will be
appointed joint managing conservators, says Waldrop, but that
presumption can be overcome with evidence. "Family law courts are some
of the most powerful courts in the land," Waldrop says. "They can take
your kids away. They can restrict you from seeing your kids - as in this
case." The judge
hears the evidence during trial and, based on her findings of fact, can
vary the guidelines or put whatever restrictions she finds appropriate,
Waldrop says.
An Emotional Climate?
Indeed, in her findings of fact and conclusions of law attached as an
exhibit to the decree, Dempster stated that a standard possession order
delineating customary visitation was inappropriate and not in the best
interest of the children based on a number of factors.
According to the findings of fact and conclusions of law, these included
findings that Kabbani: is "capable of acts disruptive to the children's
lives and . . . of abducting the children"; had threatened to take the
children to Syria to be raised by his mother and sisters; had told
Lauderdale that if he took the children to Syria she would never see
them again; stated that he had "his
ducks in a row" and could have taken their one daughter at the time to
travel to Syria on a Syrian passport; wrote a will in Arabic, which was
admitted into evidence, giving his mother guardianship of the children;
that under Syrian law, the children are automatically dual citizens of
the United States and Syria; that, if in Syria, they would be subject to
Syrian law; and that
Syria is not a member of the Hague Convention, nor does the Syrian legal
system provide an enforceable procedure to return abducted children, who
are U.S. citizens, from Syria.
"I disagree with the findings by the court that there is credible
evidence to support the majority of those findings which were signed and
entered by the court on Aug. 16," says Wilson-Glah of Wilson-Glah &
Carter in Houston.
Wilson-Glah alleges Lauderdale used the emotional climate arising from
the events of Sept. 11 as an opportunity to strengthen her position
vis-a-vis the custody dispute by playing up a perceived abduction risk
and making pointed allegations concerning Kabbani's political views and
ethnic background. "She parlayed all that information into a presumption
that Kabbani would abduct his children," alleges Wilson-Glah.
Lauderdale, for her part, says in an interview with Texas Lawyer that
regardless of Sept. 11, her immediate concern at all times has been for
the physical safety of her children and herself. Moreover, Lauderdale
says, the record reflects that she documented her concerns regarding
Kabbani's political views in August 2001 in response to interrogatories.
"So if there is any allegation that I am using 9/11, I can rebut that,"
she says.
Lauderdale's attorney, Thomas R. Conner of Houston's Conner & Lindamood,
concurs, saying, "This is not a 9/11 case."
Wilson-Glah says she plans to make a motion on Sept. 11 to reform the
judgment or, in the alternative, move for a new trial. Her rationale:
that the divorce decree violates Kabbani's civil rights, violates the
U.S. Constitution and that the rulings were based on race, religion and
national origin.
"I want to give the judge one last opportunity to look at this before we
have to appeal," Wilson-Glah says. "And I don't know whether she will or
she won't."
Other Texas custody battles on CAIR's radar screen include one case in
which a woman's primary custody of a child was challenged by her
ex-husband after she converted to Islam and married a man from Morocco,
and two cases involving grandparents seeking custody of the children of
women who have converted to Islam and married Muslims, Jaghlit says.
"It's hard to know how many cases are really out there," Jaghlit says.
"But we know they are out there. And we know that many of them have been
fueled by the events of Sept. 11."
e-mail address: egoldman@houston.rr.com