Hamdan v. Freitekh, 051920 NCCA, COA19-929
|Opinion Judge:||ZACHARY, JUDGE.|
|Party Name:||MAMOUN ALI MOHAMMAD HAMDAN, Petitioner, v. NAFISEH ALI ASAD FREITEKH, Respondent.|
|Attorney:||Passenant & Shearin Law, by Brione B. Pattison, and Miles & Stockbridge P.C., by Kelly A. Powers, for petitioner-appellee. James, McElroy & Diehl, P.A., by Preston O. Odom, III, for respondent-appellant.|
|Judge Panel:||Chief Judge McGEE and Judge ARROWOOD concur.|
|Case Date:||May 19, 2020|
|Court:||Court of Appeals of North Carolina|
Heard in the Court of Appeals 5 February 2020.
Appeal by respondent from orders entered 11 March 2019, 21 June 2019, 13 August 2019, and 30 August 2019 by Judge Stephen V. Higdon in Union County District Court. No. 19 CVD 656
Passenant & Shearin Law, by Brione B. Pattison, and Miles & Stockbridge P.C., by Kelly A. Powers, for petitioner-appellee.
James, McElroy & Diehl, P.A., by Preston O. Odom, III, for respondent-appellant.
Respondent Nafiseh Ali Asad Freitekh ("Mother") and Petitioner Mamoun Ali Mohammad Hamdan ("Father") are married and have three minor children. In 2018, Mother and the children moved from the marital home in the Middle East to the United States. Father then commenced an action in North Carolina under the Uniform Child-Custody Jurisdiction and Enforcement Act seeking to enforce the provisional and final child-custody determinations issued by the Shar'ia Court of Jerusalem. Over the course of several months, the trial court issued numerous orders in favor of Father. Mother now appeals those orders. After careful review, we vacate the orders for lack of subject-matter jurisdiction.
The parties married in 2005, and three children were born to the marriage. Both parties acknowledge that Father did not reside with the rest of the family for much of the children's lives, although the reason is disputed. Father maintains that, "due to [his] political involvement in Israeli-Palestinian matters . . . the Israeli government banned [him] from entering the country." Accordingly, he lived in Ramallah, Palestine, fifteen minutes away from Mother and the children in Jerusalem, Israel. Mother, however, claims that she and the children also lived in Ramallah, Palestine, and that "[f]or much of the children's lives, [she] did not know where [Father] was living[.]" According to Mother, "Father is often incarcerated or a fugitive[.]"
On 17 September 2018, Father called Mother in the morning, as was the parties' daily custom. But when Father called again after school let out a few hours later, Mother's phone was turned off. He continued to call over "the next several" days, never successfully reaching her.
Father then learned that Mother intended to take the children to the United States. Father filed an action with the Shar'ia Court of Jerusalem seeking to prevent Mother from leaving the country with the children without obtaining Father's consent.2 On 2 October 2018, the Shar'ia Court entered an order "prohibiting the children from leaving Israel" and finding that "Mother did not have the right to leave [Israel] with the children without Father's consent." By that time, however, Mother had already left the country.
Father subsequently returned to the Shar'ia Court for a determination as to the custody of the children. On 29 November 2018, the Shar'ia Court entered its provisional order, pursuant to the terms of which "the children would live with [Mother] in Israel during the week and would stay overnight with [Father] in Palestine every weekend," adopting what Father stated was "the family's previously agreed-upon arrangements." In accordance with Israeli law, the Shar'ia Court ordered that notice of the provisional custody order be served on Mother at her last known address in Jerusalem, as well as by publication in the official newspaper. The notice provided that Mother would have "an opportunity to be heard on any timely objections to the terms of the provisional custody order becoming a final custody order." Because Mother never objected or appeared in court, the Shar'ia Court entered its final order on 10 February 2019. The parties refer to the provisional child- custody determination and the final child-custody determination collectively as the "Child Custody Order."
Father eventually located Mother in North Carolina. On 11 March 2019, he petitioned the Union County District Court, pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act ("UCCJEA"), to (1) "register and enforce on an expedited basis the . . . certified child[-]custody determination" of the Shar'ia Court; (2) "enter an emergency ex parte order to take physical custody of the passports of [Mother] and minor children during the pendency of these proceedings"; and (3) "hold a hearing on [Father's] enforcement request on the first available day on the [c]ourt's calendar after the time for [Mother's] response to this Verified Petition has expired[.]" The same day that the petition was filed, the trial court ordered, inter alia, that Mother (1) was prohibited from removing the children from the jurisdiction of the court, (2) appear on 3 April 2019 "for an expedited hearing on the merits of [Father's] Verified Petition if [she] declines to participate in a voluntary return of the children to Israel before that date[, ]" and (3) "surrender any and all passports and other travel documents in her possession[.]"
In her response to Father's petition, Mother admitted that she had moved to the United States with the children on 18 September 2018. She emphasized, however, that she "fled with the children to North Carolina . . . in order to escape the physical, verbal, and emotional abuse" by Father, as well as her fear that Father was a member of "a radical Islamic group[, ]" from whom the children were increasingly exposed to "extremist ideology[.]" Additionally, she noted that while she has an Israeli identification card, she is not an Israeli citizen, and that she had been living with the...
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