Tag: religion and family law

Islamic Triple Talaq Divorce and the UCCJEA

Under Islamic law a husband can get a divorce pretty easily. It’s called the “triple talaq” and involves merely saying the word “talaq” three times. Will enforcement of the triple talaq in the U.S. under the UCCJEA be enforced? A married couple from India is battling the triple talaq divorce in Louisiana.

Triple Talaq UCCJEA

No Place Like Home

Khan and Azeez are citizens of, and were married in, India. However, they moved and have been residing in the United States since 2007.  They have two children. When they traveled to India in 2018, Khan deserted his wife and took her passport. He was granted a divorce under Islamic law by saying the word “talaq” (divorce) three times. However, triple talaq divorces were declared illegal and unconstitutional in India in 2019. This was made retroactive to 2018 under the Muslim Women Protection of Rights on Marriage Act.

When Azeez eventually got a new passport and was able to return to the United States in 2019, she immediately filed a petition for dissolution of marriage in Illinois. In his answer, Khan objected to the Illinois family court taking jurisdiction over his case because he was already divorced in India by saying “talaq” three times.

The Illinois trial court denied Khan’s exception under the Uniform Child Custody Jurisdiction and Enforcement Act, and basic principles of human rights. The trial court held that the divorce by talaq and any subsequent child custody determinations were invalid.

In 2019, the Illinois court rendered a judgment finding the India divorce judgment based on triple talaq was invalid. The Illinois court dissolved the marriage, set child custody, and awarded spousal and child support under Illinois law.

Then in 2023, Khan filed a petition in Louisiana seeking to have his Indian divorce judgment recognized under Louisiana law. Azeez filed an exception of res judicata. The Louisiana trial court granted Azeez’s exception and dismissed Khan’s claims and Khan appealed.

Florida and the UCCJEA

I have written about the UCCJEA and the issues of religion and divorce before. The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters.

The UCCJEA also promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child.

The UCCJEA helps to facilitate enforcement of custody decrees – even when the custody decrees come from a foreign country – and has the aspirational goal of promoting uniformity of the laws governing custody issues. Under the UCCJEA, a foreign country should be treated as a US state for the purposes of applying the UCCJEA.

However, a U.S. court does need not always recognize a foreign country’s order under the UCCJEA. For example, if the child custody law of a foreign country violates fundamental principles of human rights, the foreign final judgment may not be recognized here.

Triple Talaq Trouble

Khan argued on appeal that the Illinois proceeding was never made executory, and the divorce decree admitted into evidence by the Louisiana court was incompetent and inadmissible evidence because it was not admitted via an ordinary proceeding which would allow Khan to present evidence.

Generally, foreign judgments are entitled to full faith and credit in Louisiana. In fact, courts in the U.S. are required to give full faith and credit to judgments of courts of other states under the U.S. Constitution. The UCCJEA is applicable to foreign judgments, and sets forth specific rules regarding the recognition, modification, and enforcement of child custody determinations. The statute applies to international cases as well as domestic cases.

The purpose of the UCCJEA is to “provide clearer standards for which States can exercise original jurisdiction over a child custody determination. The UCCJEA permits registration of an out of state custody determination. The use of the word may in the statute indicates that registration of the judgment is permissive.

Under the UCCJEA, a court has a duty to recognize and enforce an out-of-state child custody determination if the other state exercised jurisdiction in compliance with the UCCJEA or the determination was made under factual circumstances complying with the jurisdictional standards of the UCCJEA and the determination has not been modified.

Here, Khan argued that every foreign judgment afforded full faith and credit by this state must first have a full evidentiary hearing in order to make the judgment “executory.”  But the former wife in this case was not seeking to execute the Illinois judgment. Thus, the only question before the court was whether the trial court’s finding that the Illinois judgment was entitled to full faith and credit was erroneous.

The former wife successfully proved that a valid judgment was executed in Illinois; thus, res judicata applied to prohibit litigation of the same issues arising out of the same facts.  Accordingly, the trial court did not err in granting full faith and credit to the Illinois judgment.

The appellate opinion is here.

Family Law, Free Speech, and Religious Discrimination

Free speech and family law clash again after a court tries to prohibit religious discrimination by ordering the parents not to criticize the other parent’s religion. How does the First Amendment balance family court orders that try to keep the peace and protect the rights of free speech?

Religion Family Law

Sleepless in Seattle

In the Washington case, the parents were previously married and share two sons. Both children have complex special medical and educational needs. They agreed to their original parenting plan in 2016, which contained joint decision-making responsibility.

Then in March 2020, both parents asked to change the parenting plan, and each sought sole decision-making authority. After trial, the family court awarded the Mother sole decision making authority, and among other things, ordered:

“No parent will put down Christianity to or in front of the children, or allow other members of their household to put down either parents’ spirituality.”

The Father argues the family court’s wording of the religious upbringing provision violates the First Amendment, and he appealed.

Florida Religion and Family Law

I’ve written about the intersection of religion and family law before. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases. One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

But left unsaid is whether a court can restrict a parent’s right to free speech under the First Amendment if the speech relates to the other parent’s religion.

The Battle in Seattle

The family law order prohibiting a parent from disparaging Christianity to or in front of the children, or allow other members of their household to put down either parents’ spirituality was not discussed until a post-trial hearing.

The Mother identified herself as “a practicing Christian,” and the father stated, “I don’t identify with any particular religion.” The mother just wanted to be sure that the father does not have the ability to block her from teaching the children about her religion.

The mother was concerned:

“[M]y only concern is that my children have expressed that they have been told denigrating things about Christianity in their dad’s house. … I have no concern about raising my children with a respect for all religions and beliefs and non-beliefs.”

On appeal the court noted that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. The parental right to determine the child’s religious upbringing derives both from the parents’ right to the free exercise of religion and to the care and custody of their children.

A parent’s right to direct the religious upbringing of a child may be subject to limitation “if it appears that parental decisions will jeopardize the health or safety of the child or have a potential for significant social burdens.

In other states, for example in Massachusetts, courts upheld a prohibition that a parent “shall not share his religious beliefs with the children if those beliefs cause the children significant emotional distress or worry about their mother or about themselves.

The Washington Court of Appeals found that, as written, the order limited religious topics the parents may discuss with the children in potentially undefined and subjective ways, and is not specific to non-disparagement of the respective parents’ spirituality.

The Court of Appeals of Washington opinion is here.