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BlogsPublications | March 16, 2017
3 minute read

COA: In order to have physical child custody, parent must live in country signed onto child abduction treaty

Michigan courts may not grant physical custody to a parent who lives in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, said the Michigan Court of Appeals in Elahham v. Al-Jabban, Nos. 326775 and 331438. Based on a plain-language reading of the Child Custody Act and an interpretation of the phrase “parenting time,” the Court affirmed the trial court’s refusal to award physical custody of the parties’ minor child to the plaintiff mother, Lamis Elahham (Elahham).

The case arose from a divorce proceeding that began in 2013. In late 2012, Elahham left the marital home in Michigan and moved into the apartment in Egypt she jointly owned with the defendant father, Mohamad Al-Jabban (Al-Jabban). Elahham took their minor child with her and filed for divorce in January 2013.  The trial court held a bench trial in late 2014 to address several issues, including child custody, child support, spousal support, and property division. As to the issue of child custody, the court found that Michigan’s Child Custody Act precluded an award of physical custody to Elahham as long as she lived in Egypt.

The Court of Appeals agreed. MCL 722.27a(10) provides that a parenting time order must bar the exercise of parenting time in a country that is not party to the Hague Convention of the Civil Aspects of International Child Abduction, unless the other parent provides written consent to such an arrangement. On its face, the statute does not state that the prohibition applies only to the noncustodial parent. The Court reiterated the trial court’s reasoning that each parent exercises “parenting time” whenever he or she spends time with the child, regardless of which parent has physical custody of the child, and accordingly affirmed the trial court’s decision.

The Court also affirmed the trial court’s decisions on five other issues. First, it concluded that Al-Jabban could not challenge the trial court’s award of attorney fees to Elahham because he waived the issue when he agreed to pay her attorney fees at the outset of the case. Second, it approved the lower court’s division of marital property based on the nine-factor test prescribed by Richards v. Richards. Third, it upheld the trial court’s original order of spousal support and later modification because it properly conducted its analysis under Michigan’s fourteen-factor test and reserved the court’s right to later modify that award based on Elahham’s remarriage or gainful employment. Next, the Court affirmed the trial court’s decision to impose discovery sanctions against Al-Jabban at the times and in the amounts that it did. Finally, it agreed with the lower court’s decision that Elahham’s Islamic marriage contract with a man in Egypt did not amount to a valid and legal marriage in Michigan because Elahham and her betrothed did not take the final step of registering the document with the Egyptian government.