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Qaisi v. Alaeddin

Court of Appeals of Kentucky

July 12, 2019

SHAHRAZAD D. QAISI APPELLANT
v.
ANIS YOUSEF ALAEDDIN APPELLEE

          APPEAL FROM HARDIN CIRCUIT COURT FAMILY COURT, DIVISION I HONORABLE PAMELA ADDINGTON, JUDGE ACTION NO. 16-CI-00519

          BRIEFS FOR APPELLANT: J. Russell Lloyd Louisville, Kentucky.

          BRIEF FOR APPELLEE: Mary Eleanor Burnett Elizabethtown, Kentucky.

          BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND TAYLOR, JUDGES.

          OPINION

          TAYLOR, JUDGE:

         Shahrazad D. Qaisi appeals from a January 26, 2017, Findings of Fact, Conclusions of Law and Order of the Hardin Circuit Court, Family Court Division, declining to register documents from courts in Dubai, United Arab Emirates (U.A.E.). After careful review, we affirm.

         Qaisi and Appellee Anis Yousef Alaeddin were married and lived in Dubai with their two minor children. In 2013, a Dubai court issued a document styled a "divorce certificate."[1] That same year, the court issued a document memorializing an agreement between the parties whereby "[t]he custody of the children . . . shall be proved for the Second Party [Qaisi]." Dubai Courts Document 37/2013 at 1. The document does not explain the precise meaning of custody being "proved for" Qaisi, nor did the parties cite Dubai, U.A.E., authority to explain the phrase. In early 2016, a Dubai court issued a document approving an amended agreement between the parties whereby the children were designated to live with Qaisi while Alaeddin "shall not claim custody until the sons reach the legal age." Dubai Courts Document 154/2015 at 2. The document does not specify the "legal age," nor have the parties cited clarifying Dubai, U.A.E., authority.

         In March 2016, Qaisi, who had moved from Dubai to Kentucky, filed a petition asking the Hardin Family Court to register those three Dubai documents described above. Presumably, the petition was filed to enforce the custody and support provisions therein. Alaeddin made a limited appearance to object to the petition. Thereafter, the family court scheduled a hearing for October 2016. No testimony was presented at the hearing; instead, the trial court ordered the parties to submit briefs on whether the Dubai documents could properly be registered in Kentucky as a foreign decree. Without citing to any authority to buttress his position, Alaeddin's brief below asserted that "in Dubai, a mandate exists that small children initially are in the custody of their mother, but when a male child turns 8, custody is then automatically transferred to the father to finish his rearing."[2] In Qaisi's reply brief below, she disagreed - again without citation to relevant authority - arguing that "Dubai does follow the . . . 'best interest of the child' standard. . . . No blanket law exists about custody transferring to the father at a particular age."[3]

         On January 26, 2017, the family court issued Findings of Fact, Conclusions of Law and Order declining to register the Dubai documents. The court noted the documents did not contain an express grant of custody nor did the record show whether the Dubai court had considered the best interest of the children. Thus, the court concluded "there is insufficient evidence for this Court to conclude that this document [sic] utilized the . . . best interest standard, [so] this Court finds that this is a violation of the fundamental principles of human rights under the laws of the Commonwealth of Kentucky . . . ." Findings of Fact, Conclusions of Law and Order at 4-5. This appeal followed.

         Recognition of a child custody determination from a foreign country is governed by Kentucky Revised Statutes (KRS) 403.806, which is part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). KRS 403.806 provides in its entirety as follows:

(1) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Articles 1 and 2 [of the UCCJEA].
(2) Except as otherwise provided in subsection (3) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of KRS 403.800 to 403.880 shall be recognized and enforced under Article 3 [of the UCCJEA].
(3) A court of this state need not apply KRS 403.800 to 403.880 if the child custody law of a foreign country violates fundamental principles of human rights.

         As the party seeking relief, Qaisi bore the burden to show that the Dubai court documents: a) contained a child custody determination, b) which was made "in substantial conformity with the jurisdictional standards of KRS 403.800 to 403.880" and, c) the Dubai, U.A.E., child custody decision did not violate fundamental principles of human rights. See, e.g., 31A C.J.S. Evidence §195 (2019) ("In general, the party invoking the judicial process in its favor bears the burden of production and persuasion . . . . The burden of proof in a civil proceeding generally rests on the party requesting relief or the moving party.") (footnotes omitted); Colovo's Adm'r v. Gouvas, 108 S.W.2d 820, 822 (Ky. 1937) ("The burden in the entire action lies upon the party ...


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