Hamdan v. Freitekh

• Decision Date: 19 May 2020
• Docket Number: No. COA19-929,COA19-929
• Citation: 844 S.E.2d 338,271 N.C.App. 383
• Parties: Mamoun Ali Mohammad HAMDAN, Petitioner, v. Nafiseh Ali Asad FREITEKH, Respondent.
• Court: North Carolina Court of Appeals

271 N.C.App. 383

844 S.E.2d 338

Mamoun Ali Mohammad HAMDAN, Petitioner,

v.Nafiseh Ali Asad FREITEKH, Respondent.

No. COA19-929

Court of Appeals of North Carolina.

Filed: May 19, 2020

Passenant & Shearin Law, Charlotte, by Brione B. Pattison, and Miles & Stockbridge P.C., by Kelly A. Powers, for petitioner-appellee.

James, McElroy & Diehl, P.A., Charlotte, by Preston O. Odom, III, for respondent-appellant.

ZACHARY, Judge.

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.

Background¹

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 children in Ramallah, Palestine.

A hearing on the matter was held in Union County District Court on 28 May 2019, the Honorable Stephen V. Higdon presiding. On 21 June 2019, the trial court entered an order finding that the Shar'ia Court had jurisdiction under the UCCJEA to enter the Child Custody Order, and that Mother was provided with adequate notice and opportunity to be heard on the matter in the Shar'ia Court. The trial court granted Father's petition for UCCJEA registration of the Shar'ia Court's child-custody determination, and confirmed that it was registered in accordance with the UCCJEA.

Two weeks later, Father filed a "motion for enforcement of UCCJEA confirmed child[-]custody determination[.]" On 13 August 2019, the trial court granted the motion, ordering that Mother "return the minor children ... to the jurisdiction of the Shar'ia Court ... by 31 August[ ] 2019." The trial court instructed Mother to notify Father's counsel whether she would be returning with the children by 16 August 2019. When Mother failed to do so, Father's counsel filed notice of "noncompliance with UCCJEA order[.]"

On 22 August 2019, Mother filed notice of appeal to this Court from (1) "the UCCJEA order enforcing [the] confirmed child[-]custody determination"; (2) "the UCCJEA order confirming registration and enforcing the child[-]custody determination"; and (3) "the UCCJEA order regarding [the children's] passports, travel documents and scheduling [the] expedited enforcement hearing[.]"

On 23 August 2019, Father filed a motion with "proposed alternative travel arrangements" in light of Mother's failure to comply with the trial court's enforcement order. By order entered 30 August 2019, the trial court approved of the alternative travel arrangements. On 4 September 2019, Mother again filed notice of appeal to this Court, appealing the same orders listed in her 22 August 2019 notice of appeal, and adding the UCCJEA order approving of the alternative travel arrangements.

Discussion

Mother contends that (1) the trial court lacked subject-matter jurisdiction to register and enforce the Shar'ia Court's "default custody order"; (2) the trial court erred by registering and enforcing the "default custody order"; and (3) both the enforcement order and travel-approval order are void or otherwise unenforceable. The jurisdictional issue is dispositive.

I. The UCCJEA

The UCCJEA provides a uniform set of jurisdictional rules and guidelines for the national and international enforcement of child-custody orders. See Creighton v. Lazell-Frankel , 178 N.C. App. 227, 230, 630 S.E.2d 738, 740 (2006) ; N.C. Gen. Stat. § 50A-105 (2019). The Act aims "to prevent parents from forum shopping their child[ ]custody disputes and assure that these disputes are litigated in the state with which the child and the child's family have the closest connection." In re Q.V. , 164 N.C. App. 737, 742, 596 S.E.2d 867, 870-71 (citation omitted), cert. denied , 358 N.C. 732, 601 S.E.2d 859 (2004).

As adopted by the North Carolina General Assembly, the UCCJEA provides broad definitions of a "child-custody determination" and a "child-custody proceeding." See generally N.C. Gen. Stat. § 50A-102(3) & (4). A "child-custody determination" is defined as "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child." Id. § 50A-102(3) ; see also id. cmt. (noting that a child-custody determination under the UCCJEA "encompasses any judgment, decree or other order which provides for the custody of, or visitation with, a child" (emphasis added)).

Part 2 of the UCCJEA addresses jurisdiction. Section 50A-201 addresses the issue of whether North Carolina courts have jurisdiction over initial child-custody determinations. Id. § 50A-201. If there exists a home state—"the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding"—then that state may make an initial child-custody determination. Id. §§ 50A-102(7) and - 201(a). The home state retains "exclusive, continuing jurisdiction over the determination" until either (1) there is no longer a significant relationship between any of the parties and the state, and there is no longer any substantial evidence available in the state "concerning the child's care, protection, training, and personal relationships," or (2) none of the parties reside in the state. Id. § 50A-202(a)(1)-(2). "[A] trial court...