Child custody

As in every community, many Muslim divorce cases necessitate a custody deter­mination. Islamic family law can arise in these cases when one party asserts classical shari'a custody rules based on the age and gender of the children (Doi 1989: 37).⁸⁵ Such claims may play a large role at the informal level (mediated divorce settlement agreements, for example) in the US Muslim community, but published case law focuses mainly on the validity of overseas custody decrees from Muslim countries.

Some courts have recognized the child’s religion as a legitimate factor to be considered in a ‘best interest’ analysis, for courts in a society where religion is centrally important.

We believe it beyond cavil that a Pakistani court could only determine the best interest of a Pakistani child by an analysis utilizing the customs, culture, religion, and mores of the community and country of which the child and — in this case - her parents were a part, i.e., Pakistan... [B]earing in mind that in the Pakistani culture, the well being of the child and the child’s proper development is thought to be facilitated by adherence to Islamic teachings, one would expect that a Pakistani court would weigh heavily the removal of the child from that influence as detrimental.

Judicial consideration of the religion of the child in ‘best interest’ analyses is not limited to review of international decisions. Some courts have found it relevant as a positive factor in their own ‘best interest’ evaluation, for example, where religion has been an important part of the child’s life until that point; but, again, the importance given to this criterion varies widely from state to state.⁸⁷

Returning to Hosain, it is interesting to note that the court there viewed classical Islamic custody rules as not necessarily contrary to public policy. Said the court: ‘We would be obliged to note that we are simply unprepared to hold that this longstanding doctrine [hazanat - i.e. custody] of one of the world’s oldest and largest religions practiced by hundreds of millions of people around the world and in this country, as applied as one factor in the best interest of the child test, is repugnant to Maryland public policy’

Not all American courts are so reluctant to condemn classical Islamic custody rules outright, however. In Ali v. Ali (1994), for example, a New Jersey court rejected a Palestinian custody decree as not in the ‘best interests of the child’, commenting on the law applied by Palestinian shari'a courts in Gaza that auto­matically entitles the father to gain custody of a son at age seven in the following terms: ‘Such presumptions cannot be said by any stretch of the imagination to comport with the law of NewJersey whereby custody determinations are made based upon the “best interests” of the child and not some mechanical formula.’ Incidentally, this attitude also finds an audience in legal academia; Henderson (1997-98), for example, devotes an entire article to warning judges to be ‘circum­spect of foreign custody decrees based on Islamic law’ because it is ‘mechanical, formulaic and should not be followed’.

One final note on Americanjudicial treatment of Muslim marriage litigation as a whole: the fact that many of the cases reviewed in this section involve marriages either contracted or ended in a foreign country may at first seem not directly relevant to a study of Islamic family law in the United States. However, the complex international demographic of the Muslim population in the USA means that many do not live in the same place over their entire lifetime - they may, for example, emigrate to the USA early in life, move overseas later in life, or live a dual citizenship in more than one country. Or, perhaps, because they have overseas relatives, an individual Muslim may live in the United States full- time, but have his/her Muslim wedding ceremony overseas with extended family. Cases where the marriage is executed or dissolved overseas could all end up being litigated in the US courts. As the population of second-generation and native US Muslims grows and more Muslim marriages end up in US courts for litigation, we may see more cases where the full law-related gamut of marital life occurs here in the USA. In these cases, comity’ to other nations will not be at issue, and US judges will be faced with the question of how to treat Islamic family law in the context of litigants from one of their own domestic religious minorities.