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Saheb v. Kyhazal

November 13, 2007

IN RE MARRIAGE OF DHEY ABDUL SAHEB, PETITIONER-APPELLEE,
v.
ALIXIO KHAZAL, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County. Nos. 05 D 1733, 05 D 5633 & 05 CH 22625 Honorable Jeanne R. Cleveland Bernstein, Judge Presiding.

The opinion of the court was delivered by: Justice Robert E. Gordon

Published opinion

Respondent Alixio Khazal*fn1 and petitioner Dhey Abdul Saheb are the father and mother, respectively, of six-year-old Basma Ali Khazal. The father appeals from the modified joint parenting order entered by the circuit court of Cook County on October 12, 2006, which was incorporated into the judgment for dissolution of marriage entered on the same day. The father appeals from the order only to the extent that it grants visitation to petitioner in the United Arab Emirates where she resides, instead of in Illinois where respondent and the minor child reside. For the reasons stated below, we affirm.

BACKGROUND

The father, then 34 years old, and the mother, then 24 years old, were married on February 20, 2000,*fn2 in the United Arab Emirates (UAE), where the marriage was registered. One child was born during the marriage, namely a daughter, Basma Ali Khazal, on June 20, 2001, in Chicago, Illinois. On May 20, 2005, the mother filed a petition in Chicago for dissolution of marriage, which claimed that the parties had been living separate and apart since November 2004.

Dr. John M. Palen, who has a doctorate in social work, was appointed by the court on June 9, 2005, to evaluate the parties and the minor child and made the following findings in a report dated December 12, 2005. The parties spent half their married life living apart from each other. From the date of their marriage until the mother 's return from the UAE to Chicago in May 2005, the parties had spent a total of 2 1/2 years away from each other, in order for the mother to finish her medical school studies in the UAE. From the time of the child's birth in June 2001 until she returned with her mother in May 2005, the child spent two of her then four years away from her father.

Dr. Palen stated in his report:

"Each parent's version of the marriage, description of Alex's relationship with Basma, and recollection of the circumstances leading to Dhey's return from the United Arab Emirates are polar opposites of the other. It is not possible to definitively sort out fact from fiction."

Dr. Palen found that the parties disagreed about the circumstances of the mother's return to Chicago. It is undisputed that mother and child left for the UAE in December 2004 with the father's consent so that the mother could prepare for a United States medical licensing exam and that the father visited the UAE in both January and March 2005. The father claimed to Dr. Palen that the mother arrived in the UAE in December 2004 with no intent of returning and that she pushed back the date of her medical exam in order to prolong her stay indefinitely. The mother denied to Dr. Palen any plan to deprive the father of access to their daughter and did return in May 2005.

Dr. Palen's report listed documents reviewed by him, which included: an order issued by a court in the UAE on March 17, 2005, at the father's request to prevent the child from traveling until further notice; and a cancellation of the travel ban, dated May 16, 2005. The father sought the travel ban out of a fear that the mother would travel to Iraq to live with a cousin there. The mother admitted that she obtained visas in March 2005 to travel to Iraq. After the circuit court in Cook County issued an order on May 2, 2005, requiring the mother's and child's return to Chicago prior to May 25, 2005, the father apparently sought cancellation of the UAE travel ban.

Dr. Palen recommended in his report that the mother have primary residential custody and that the parents share legal custody pursuant to a modified joint custody order, which allocated medical decisions to the mother and educational decisions to the father.

Prior to the court hearing on June 26, 2006, the parties indicated their intent to reside in different countries, with the father residing in Illinois and the mother residing in the UAE. Prior to the hearing, the parties agreed to most of the terms contained in the subsequently-issued joint parenting order, namely, that they would share joint legal custody, that the child would reside primarily with the father in Chicago, that the father would have residential custody and that the mother would have visitation. However, the parties could not agree on whether the mother's visitation would take place in Illinois or in the UAE.

On April 11, 2006, the father filed a motion to require the guardian ad litem to investigate issues "relating to the Hague Convention." At a pretrial conference on June 26, 2006, with all counsel present, Michael Zaslavsky, the guardian ad litem, recommended that the trial court permit visitation in the UAE even though the UAE was not a party to the Hague Convention and that the court set a cash bond to guarantee the child's return.

At a hearing on June 26, 2006, both parents testified. The mother agreed to pay airfare for biannual visits by the child to the UAE with an accompanying adult and to post a bond to secure the child's return. The mother admitted that she had obtained visas in March 2005 to travel with the child to Iraq and that she had objected in early 2005 to the father returning to Chicago without her and with the child. The mother testified that she was a Canadian citizen in the process of becoming a United States citizen, and intended to take a United States medical licensing exam. The mother testified that the child would only be eligible for a visa issued by the UAE which permitted the child to stay a maximum of 60 days in the UAE.

The mother testified that she wanted parenting time in the UAE instead of the United States for the following reasons:

"First of all, I don't have any family here, any friends, I don't have car, I don't have income. Even if I come here, I want to have fun with my daughter. And over there in the United Arab Emirates, I have car, I'm going to have everything there, and having family, friends, we can go everywhere we can, we're going to have fun there."

When the trial court asked the mother, "[H]ow do we know you're committed to returning her[?]" the mother replied:

"I don't know how to say it, but if I want to do this, I'm going to do it from the beginning. Why I came here and have all these problems and just stay near because I want to obey the law and be with the law, I don't want to just go and run away and have miserable life for my daughter, I want to be on the same side."

At the June 26 hearing, the father testified that he purchased the airline tickets for the mother and child to travel to the UAE in December 2004 and that the round-trip tickets had an open-ended return date for six months. The father testified that, in January 2005, he flew to the UAE and the mother refused to let him bring the child back to the United States. When he returned to the United States, he contacted several offices in an attempt to bring the child back to the United States. The offices included the United States embassies in Kuwait and the UAE, the "Washington D.C. Department of children issue," and the office of Senator Dick Durbin.

On February 18, 2005, the father obtained an emergency order of protection from the circuit court of Cook County directing the mother to return the child to Chicago.

The father further testified that he returned to the UAE in March 2005 and initiated a UAE court proceeding to return the child to the United States He claimed that the emergency order of protection was unenforceable in the UAE but that on March 16, 2005, he did obtain an order from a UAE civil court prohibiting the child from leaving the UAE. He testified that he later learned that, coincidentally on the same day, March 16, 2005, the mother had obtained a visa for her and the child to travel to Iraq. He claimed that the trip was for the purpose of the mother entering into an arranged marriage in Iraq. The father testified that, while he was in the UAE in March 2005, he obtained a second United States passport for the child.

The circuit court of Cook County extended the emergency order of protection until May 2, 2005. On May 2, 2005, the trial court issued an order stating that the mother was still in the UAE due to a travel restriction and that the mother and child shall return for a court appearance on May 26, 2005, which they did.

In the modified joint parenting order, dated October 12, 2006, the trial court ordered visitation in the UAE during the child's winter and summer breaks from school. The winter visit is two weeks long; and the summer visit starts one week after school lets out for the summer and ends one week before school starts again in the fall. The order provided that the father or another agreed-upon adult shall accompany the child to and from the UAE on all airline flights, and that the mother shall pay for the airline tickets for the child and the accompanying adult. If the father accompanies the child, then he has the right to retain her passport during the visit. If another adult accompanies the child, then he or she must deposit the child's passport with the American embassy in Dubai for the duration of the visit. In ...


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