International Custody Jurisdiction, Human Rights, and Legislative Change

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The Court of Appeals of Washington State recently issued an unpublished opinion that will serve as a benchmark for parents who flee certain countries with their children, seeking safe harbor in the United States (In re AlHaidari (Fearing, CJ)).

In re AlHaidari

Bethany AlHaidari, a U.S. citizen, married Ghassan AlHaidari, a Saudi citizen, in Saudi Arabia in 2013. Their child was born in Saudi Arabia in late 2014. In January 2019, Saudi courts granted the parties a divorce. They awarded custody of their child to Bethany.

A few months later, Ghassan argued that Bethany should no longer have custody of the child due to her conduct. Specifically, he alleged that she had engaged in “gender mixing, adultery, and insulting Islam and Saudi Arabia.” “The crimes of adultery, insulting Islam, and insulting Saudi Arabia carry a death penalty in Saudi Arabia,” the Washington State court found. Ghassan further alleged that Bethany was an unfit mother because “she had a learning disability, worked full time, and placed [their child] in school.” He asked the Saudi court for an order placing custody of the child with his mother, with whom he was then living. The Saudi judge “derided Bethany as a foreigner” and stated that the child “needed protection from Bethany’s western culture and traditions.” The Saudi court awarded custody to Ghassan’s mother. Bethany appealed.

During the course of the appeal, the Saudi head judge told the parties that “he awarded no one custody and he was closing the case.” This non-decision resulted in Ghassan retaining all parental rights as the child’s father and guardian. Bethany lacked any right to visitation. The Saudi government barred her from travel with the child, obtaining identification for the child, taking the child to the hospital, or enrolling her in school.

After losing her parental rights, Bethany feigned reconciliation with Ghassan to convince him to reach a settlement that would allow her to spend more time with their child. In the negotiation, she agreed to forfeit certain financial claims in exchange for a right to travel with their daughter. In November 2019, they reached an agreement, and while they did not sign it, there was a court stamp affixed to it. Ghassan subsequently agreed to the child traveling with Bethany to visit family in Washington State.

After arriving in Washington State, Bethany refused to return to Saudi Arabia with their child. On January 23, 2020, she filed a request, in Washington State courts, for temporary emergency jurisdiction and for a temporary restraining order and parenting plan. She was granted temporary custody of their child, and, on March 25, 2020, Bethany filed a petition for a permanent parenting plan and child support. On April 3, 2020, Ghassan sought dismissal of Bethany’s petition for lack of jurisdiction, or, in the alternative, for the Washington State court to register and enforce the Saudi custody order and the November 2019 agreement.


The outcome of Ghassan’s motion was controlled by the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), which was enacted by the Washington State legislature in 2001. This uniform act, enacted in all U.S. states except for Massachusetts, outlines the requirements for child-custody jurisdiction and provides a streamlined process for the registration and enforcement of child-custody orders from other states and countries. Section 105 of that Act (enacted in Washington State as RCW Ch. 26.27) provides guidance to U.S. state courts when confronted with a foreign custody order. Section 105 requires U.S. state courts to treat foreign countries as sister-states for purposes of applying the UCCJEA’s rules unless “the child custody law of a foreign country violates fundamental principles of human rights.” Assuming the foreign country’s child custody laws pass muster, a U.S. state court applying the UCCJEA must register and enforce the foreign court’s custody order, except for a few narrow exceptions, none of which apply in this case.

In a letter opinion, the Washington State trial court held in February 2021 that Saudi child-custody laws violate fundamental human rights. The court observed that women are not treated equally to men, that non-Muslims are not treated equally to Muslims, that non-Saudi citizens are not treated equally to Saudi citizens, and that the inferior classes of individuals are denied basic due process rights, including the right to be heard before a fair and impartial tribunal. Accordingly, it concluded that the Saudi order granting custody to Ghassan need not be recognized or enforced by the State of Washington. This also paved the way for the Washington State courts to assume jurisdiction over the child’s custody, when the courts would have otherwise deferred to the properly assumed jurisdiction of the Saudi courts.

Legislative Change

The publicity generated by In re AlHaidari prompted the Washington State legislature to amend the UCCJEA to add to the scope of the “fundamental principles of human rights” language. On April 14, 2021, the legislature amended Washington State’s version of section 105 to add that “a court of this state need not apply this chapter if the law of a foreign country holds that apostasy, or a sincerely held religious belief or practice, or homosexuality are punishable by death, and a parent or child may be at demonstrable risk of being subject to such laws.”

Bethany subsequently invoked this amendment in a new petition to the trial court. After a hearing in May 2021, the court entered an order confirming its earlier ruling. It observed that the newly enacted amendment was “an additional ground and support for the court’s [prior] ruling.”

Although Ghassan appealed, the Court of Appeals of Washington State affirmed the trial court’s decision.

What About the Hague Abduction Convention?

Saudi Arabia is not a Contracting State to the Hague Abduction Convention. Its decision not to accede to that treaty meant that Ghassan could not rely upon it in this case. Even if Saudi Arabia had acceded to that Convention and the United States accepted that accession, it is not at all certain that he would have prevailed. Article 20 of the Hague Abduction Convention states that a child need not be returned if that return “would not be permitted by the fundamental principles of the requested State [here, the United States] relating to the protection of human rights and fundamental freedoms.”

In some ways, this language is broader than the language in UCCJEA Section 105. To date, however, U.S. courts have never applied this exception in deciding not to return a child in an Abduction Convention proceeding. The closest case is a U.S. District Court in Texas in 2022 that refused to return two children to Mexico because the mother alleged that the Mexican schools refused to provide schooling to her special needs children without her physical presence in school each day, which prevented her from working to support the children. The Fifth Circuit reversed in October 2023. If the Convention were available to Ghassan, he would have been required to seek recourse in the state or federal courts of Washington State where the child was located, potentially placing the case before the same judges that decided against him under the UCCJEA.


Washington State’s recent application of the UCCJEA Section 105, and its amendment, may give other U.S. states license to reconsider their enactment of this otherwise carefully drafted statute. The UCCJEA provides a relatively streamlined tool to permit left-behind parents to seek return of their abducted children with a foreign custody order, whether or not the Abduction Convention applies. This case may open a window for arguments to courts and legislatures going forward to scrutinize the enactment of uniform laws that have gone through a rigorous, several-year, drafting process.