947 P.2d 745 (1997)

The couple had a son out of wedlock in 1987 before marrying in Malaysia under Islamic law. In 1995, the parties separated while living in the wife’s home country of the Philippines. The wife then filed for an annulment and custody of their son in the Regional Court in the Philippines. Soon after, the husband obtained a divorce and custody of the son in the Shari’a Court of the Philippines and filed to dismiss the wife’s claim in the Regional Court on the basis that the Shari’a Court had already made a ruling. However, the Regional Court determined that its jurisdiction governed over that of the Shari’a Court and the wife was awarded custody of the son. The husband filed for reconsideration but the Regional Court denied his request.

Subsequently, the wife moved to the United States with her son and filed a temporary order of protection against the husband with the Superior Court. This order prevented him from being in contact with his son or knowing his whereabouts.  After locating his son, the husband filed a writ of habeas corpus, seeking custody of his son under the Shari’a Court’s ruling. During the emergency hearing, the wife’s attorney argued that the Regional Court had jurisdiction over the matter because the wife had filed with the Regional Court before the husband filed with the Shari’a Court. When asked for certified copies of the Regional Court’s order, the wife’s attorney requested extra time to obtain the documents.  The Superior Court Judge denied the request but allowed the husband to present his certified copies of the Shari’a Court order. The Judge awarded custody to the husband.

Whether the trial court erred when it enforced the Shari’a Court’s custody decree without giving the opposing party a meaningful opportunity to contest the jurisdiction of the Shari’a Court.

The Appellate Court determined that the Superior Court erred in granting the husband a writ of habeas corpus because he failed to make a prima facie case that he had  a “legal right to custody”  as required when making this request. The Court noted that the wife attempted to show that the husband did not have a “legal right to custody” but was prevented from doing so because the Superior Court Judge did not permit the wife’s attorney to present an uncertified copy of the Regional Court’s documents stating that the Shari’a Court of the Philippines lacked jurisdiction over this case or grant a continuance so that the attorney could have obtained a certified copy.

The Court noted that unlike the husband, the wife was not afforded an equal opportunity to present the certified copies of the Regional Court’s documents. Additionally, the Court pointed to two facts that raised doubts that the Shari’a Court had jurisdiction over this case: “(1) The couple’s son had never resided in the jurisdiction of the Shari’a Court or appeared before that court; and (2) he was born out-of-wedlock, rendering Mr. Noordin’s paternity questionable, if not nonexistent, under Muslim law.”

The Appellate Court noted that even if the Shari’a Court had jurisdiction over this case in the Philippines, the Superior Court would still need to determine whether it should grant comity to this foreign order. Thus, the Appellate Court instructed the Superior Court to apply a test that has been used in Maryland to determine whether comity should be granted.  On remand, the wife had the burden of proving that either “(1) the foreign court did not apply the “best interest of the child” standard, or that (2) in making its decision, the foreign court applied a rule of law or evidence or procedure so contrary to public policy as to undermine confidence in the outcome of the trial.”


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