IN RE MARRIAGE OF LONG v. Ardestani

• Decision Date: 25 January 2001
• Docket Number: No. 00-1429.,00-1429.
• Citation: 2001 WI App 46,624 N.W.2d 405,241 Wis.2d 498
• Parties: IN RE the MARRIAGE OF: Lori LONG f/k/a Lori Ardestani, Petitioner-Appellant, v. Mohammad ARDESTANI, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

241 Wis.2d 498

2001 WI App 46

624 N.W.2d 405

IN RE the MARRIAGE OF:

Lori LONG f/k/a Lori Ardestani, Petitioner-Appellant, v. Mohammad ARDESTANI, Respondent-Respondent.

No. 00-1429.

Court of Appeals of Wisconsin.

Oral argument December 18, 2000.

Decided January 25, 2001.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Lynn M. Rider of Czajkowski & Rider, S.C. of Prairie du Chien.

On behalf of the respondent-respondent, the cause was submitted on the brief of Michael B. Apfeld of Godfrey & Kahn, S.C. of Milwaukee.

A brief was filed by the guardian ad litem, Gregory S. Bonney of Johns, Flaherty & Rice, S.C. of La Crosse.

Before Vergeront, Roggensack and Deininger, JJ.

¶ 1. VERGERONT, J.

Lori Long appeals a trial court order denying her motion to prohibit her former husband, Mohammad Ardestani, from traveling to Iran with their minor children to visit his family. She contends the trial court erroneously exercised its discretion when it refused to grant a continuance to permit a key witness to testify, erred by placing the burden on her to prove that it was likely that Ardestani would not return with the children, and erred by failing to consider the best interests of the children. She and the guardian ad litem ask this court to rule, as a matter of law, that, if a parent objects to the other parent taking their children to visit a country with which the United States does not have diplomatic relations and which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the parent may not take the children to that country to visit.¹ ¶ 2. We conclude the trial court did not erroneously exercise its discretion in refusing to grant a continuance; properly placed the burden on Long, as the moving party, to show that it was not in the children's best interests to travel to Iran with their father to visit his family; and properly considered the children's best interests in ruling on the motion. We decline to adopt the proposed ruling of law because we conclude that the existing standard of the best interests of the child, applied by trial courts in the exercise of their discretion, already allows for full consideration of all relevant concerns. Because the trial court properly exercised its discretion in its application of the best interests standard, we affirm.

BACKGROUND

Motion to Prohibit Travel

¶ 3. Ardestani was born in Iran and moved to the United States in 1978 when he was twenty-eight years old. He and Long were married in 1980 and have four children: Shiva, d/o/b 5/24/82; Maria, d/o/b 10/22/84; Farshaun, d/o/b 7/02/88; and Kamran, d/o/b 4/01/90. Pursuant to the stipulated judgment of divorce, entered on July 22, 1999, in Crawford County, the parties have joint legal custody of the four children. Long has primary physical placement, with Ardestani to have placement every other weekend, every Tuesday and Thursday from 3:00 p.m. to 7:00 p.m., three to six weeks in the summer depending on the children's wishes, and certain holidays. The judgment of divorce also provided, pursuant to the parties' stipulation:

H. In the event the respondent desires to take the minor children outside of the United States, he shall give sixty (60) days' notice of his intention to petitioner who then has thirty (30) days to move the Crawford County Circuit Court for an order prohibiting the trip or requiring the respondent to post a bond. In the event respondent desires to take the children to Iran for a summer vacation visit, respondent may have physical placement of the children up to six (6) weeks regardless of the respondent's placement entitlement under paragraph I.B.4. above provided, however, respondent shall not be entitled to any additional physical placement during the summer during which the Iranian visit occurs. If the Iranian vacation uses less physical placement time than the respondent is ordinarily entitled to under paragraph I.B.4., respondent shall receive the additional placements to which he is entitled.

¶ 4. In November 1999 after Ardestani told Long he intended to take the minor children to Iran to visit, Long moved the court for an order prohibiting Ardestani from removing the minor children from the United States. She asserted as grounds for the motion that Ardestani had repeatedly stated his intentions to take the children to Iran with him and not allow them to return; that, as a woman who was not a Moslem and not a citizen of Iran, she would not have standing in an Iranian court to demand the return of the children; and her remedies under international law were severely limited because the United States does not have diplomatic relations with Iran.

¶ 5. At the May 5, 2000 hearing on the motion, Long, represented by counsel, presented two witnesses who testified on Iranian law as follows. Iran is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and does not have diplomatic relations with the United States. Under Iranian law, which is based on the Koran, the mother's custody of children is restricted to the age of two for boys and seven for girls and, above those ages, the father has custody; the mother has no claim to custody.² If a mother has custody and physical placement of a child under an order of a court in the United States and the child is taken to Iran, the Iranian court does not give any weight to the United States court order, particularly if the mother is not a Moslem; if the father does not give permission to the child to leave Iran, the mother would not be permitted to take the child from Iran back to the United States. Boys need their father's permission to leave Iran up to a minimum age of eighteen, and girls need it regardless of age as long as they are unmarried. This would apply to Long's and Ardestani's children if they were in Iran, even though they are United States citizens and even though Ardestani is a United States citizen. Ardestani is still an Iranian citizen, the children are also Iranian citizens by virtue of their father's relation to Iran, and the children would be considered Iranian by Iranian authorities. If Ardestani were to die or become incapacitated or were not able to be contacted, his authority under Iranian law with regard to the children would transfer to the next male of authority within his family line.

¶ 6. Kristine Uhlman testified that a boy between the ages of twelve and fourteen can be drafted into the Iranian army, and this might interfere with a boy that age being able to leave Iran. According to Uhlman, Iranian families, in an effort to avoid having their boys drafted into the army, have sent them out of the country for education. She also testified that there is no existing legal mechanism that addresses the return of an abducted child if the child were taken to Iran. She agreed that, if Ardestani took the children to Iran, having the children returned would depend upon his good faith.

¶ 7. Long testified that she feared Ardestani would not return the children because, when she asked him for a divorce in May 1998 he said, "You know what will happen. And you haven't seen nothing yet." This meant to her that he would take the children to Iran and she would never see them, because in 1981 when she was pregnant with their first child and asked if she could have the child baptized, he made that threat explicitly saying, "If you don't raise them [sic] Moslem I will take the baby back to Iran and you'll never see it again." He also repeated that threat another time. Thereafter, during the course of their marriage when he wanted to control her he would say, "you know what will happen," and she understood he meant he would take the children and she would never see them. For this reason, when he said this in May 1998, she destroyed his American and Iranian passports and took other documents from his briefcase. During their marriage Ardestani also told her that men had sole custody of children in Iran and the mothers were never given custody. In 1997 he took the two girls, Shiva and Maria, for a visit to Iran, and when he came back he talked about some day moving to Iran: it was getting better, more open, he said. In the period just before the divorce, he said if they were divorced, he was going to leave. He has told her he "has to save face," and he wants revenge.

¶ 8. Long acknowledged that Ardestani took Farshaun to Iran in 1991, when he was three, and the two girls in 1997, and there was no problem with him bringing them back. She is aware that Kamran wants to go with his father to Iran. She would encourage Ardestani to bring his parents to the United States, she would help him do this, and she would give him more time with the children then.

¶ 9. Ardestani, representing himself, testified as follows. He moved to Prairie du Chien in 1981 and began employment at 3M. He is still employed there, now working as an operator, and has a pension plan. He denied that he ever told Long that if they got a divorce, he would take the children away. He described himself as a citizen of this country who lives and works here and helps the community. His brother and sister-in-law live here and own real estate as part of their business, and they have a child. He is trying to help his sister come here. He wants his children to see their grandparents, aunts, uncles, and cousins; his mother is ill and that is why he wants to take the children now, especially Kamran, who has not seen her. Ardestani stated he would like to take all the children, if they wanted to go, and he had four weeks of vacation time which he would like to spend there.

¶ 10. Ardestani testified that he would not separate his children from their mother or from this country. Ardestani agreed it would be devastating to the children if they were taken to Iran and not allowed to return. He will do whatever is necessary to guarantee that they will come back safely,...