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"[5] Failure of a judge to recognize that there is a range of discretion for judicial action may constitute a reviewable error of law. Long v. George, 296 Mass. 574, 578 (1937). Peterson v. Cadogan, 313 Mass. 133, 134-135 (1943). Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 601 (1985). Commonwealth v. Ramos, 402 Mass. 209, 216 (1988). See also Commonwealth v. Ruiz, 400 Mass. 214, 215 (1987), and cases there cited.
[6] The 1984 custody case then continued (392 Mass. at 735-736), "We would grant that we might not enforce a foreign custody determination made in an arbitrary or capricious manner, even if the applicable foreign law were comparable. Here, however, we see no indication of arbitrary or capricious action.... Finally, as the Appeals Court said, the foreign order must be based on a determination of the best interests of the child. This is a corollary to the requirement that the foreign substantive law must be reasonably comparable to ours. Here the Australian judge expressly recognized that standard (`welfare of the child as the paramount consideration' ...)...." (Emphasis supplied.) The 1984 custody case (at 733) referred to c. 209B, § 2(d), as not applicable to the case then before the court, but gave the caution that the 1984 court "read § 2(d) as telling Massachusetts judges not to act when custody proceedings are pending in another State and the circumstances described in... [§ 2(d)] exist." We recognize that there is probably doubt about (1) how far this admonition is to be applied, (2) whether it has application where broader problems and considerations exist, and (3) whether the Massachusetts proceeding in the present case preceded in time the foreign (and as yet undecided) Israeli proceeding. Although the 1984 custody case involved a preexisting order of a foreign court, it is relevant to an inquiry whether a Massachusetts court would or should recognize any order which might be entered by the Sharia Court." (found in the fine print at the bottom from the link provided)
****
At least the author of the pdf was familiar with the case before they gave their opinion. ( Not Without My Daughter - Wikipedia, the free encyclopedia ) PS: the movie, that's how I knew, you had not done the homework.
Now you are citing to a Sally Field movie?
ROFL
Your other links prove my point, in that the system worked as intended.
In 1984.
Again, this is nothing new.
This is the problem with people who have no legal education cutting and pasting stuff.
Your other links prove my point, in that the system worked as intended.
In 1984.
Again, this is nothing new.
This is the problem with people who have no legal education cutting and pasting stuff.
Read the post---one more time. There is a problem but it is not in my post, my post does have a case of Sharia law in it. Oh and by the way that debunk you did, it was not a debunk, you never read the cases as you haven't even read the one I brought to you. Because you're not looking, not reading, not doing anything, but being a pain.
PS: ~ I shakes my head ~ Don't bother.
Last edited by Ellis Bell; 10-31-2011 at 01:58 PM..
Reason: PS
Read the post---one more time. There is a problem but it is not in my post, my post does have a case of Sharia law in it. Oh and by the way that debunk you did, it was not a debunk, you never read the cases as you haven't even read the one I brought to you. Because you're not looking, not reading, not doing anything, but being a pain.
PS: ~ I shakes my head ~ Don't bother.
Really you shouldn't bother, since you obviously don't know how to read a case.
It was reversed and remanded.
The case supports my position and DC's, not yours.
Just because a case includes the word "Sharia" in it doesn't mean it represents creeping Sharia. Hells Bells, it wasn't even reversed on those grounds.
From your case: No expert testimony or evidence (other than the father's admissions) appears to have been presented to the judge about what principles of family law would be applied in the Sharia 813*813 Court to Moslems living in Israel, to what extent those principles would be governed by Moslem religious law applied by Moslem or Israeli judges, and to what extent those principles (whatever may be the composition of the Sharia Court personnel) would be substantially consistent with the governing principles of Massachusetts law regarding child custody (in addition to due process requirements concerning such procedural matters as notices, representation by counsel, and opportunity to be heard).
International custody cases deal with this stuff ALL THE TIME. Besides being older than the average poster here, it's in that category of cases already described to you as those in which it is correct and permissible (and ALWAYS HAS BEEN) to consider foreign law if it doesn't conflict with US law, or conflict with welfare of the children, which is paramount in a custody case. That is not the same as applying or adopting Sharia. You do not seem to understand this critical distinction.
FFS, just stop it. You lost this argument pages ago. You are in way over your head.
Jeez, did you not understand that this case was about jurisdiction, since one parent had dual citizenship and the other was Jordanian? Not to mention that the children "[A]re citizens of Jordan and have been residents of Israel."
Really you shouldn't bother, since you obviously don't know how to read a case.
It was reversed and remanded.
The case supports my position and DC's, not yours.
Just because a case includes the word "Sharia" in it doesn't mean it represents creeping Sharia. Hells Bells, it wasn't even reversed on those grounds.
From your case: No expert testimony or evidence (other than the father's admissions) appears to have been presented to the judge about what principles of family law would be applied in the Sharia 813*813 Court to Moslems living in Israel, to what extent those principles would be governed by Moslem religious law applied by Moslem or Israeli judges, and to what extent those principles (whatever may be the composition of the Sharia Court personnel) would be substantially consistent with the governing principles of Massachusetts law regarding child custody (in addition to due process requirements concerning such procedural matters as notices, representation by counsel, and opportunity to be heard).
International custody cases deal with this stuff ALL THE TIME. Besides being older than the average poster here, it's in that category of cases already described to you as those in which it is correct and permissible (and ALWAYS HAS BEEN) to consider foreign law if it doesn't conflict with US law, or conflict with welfare of the children, which is paramount in a custody case. That is not the same as applying or adopting Sharia. You do not seem to understand this critical distinction.
FFS, just stop it. You lost this argument pages ago. You are in way over your head.
Jeez, did you not understand that this case was about jurisdiction, since one parent had dual citizenship and the other was Jordanian? Not to mention that the children "[A]re citizens of Jordan and have been residents of Israel."
Okay
In review of previous posts:
DC's assertion: I can assert that Sharia law that violates US legal code has never been imposed in the United States.
Strel's assertion: "Sharia law is not, "creeping into America" and debunked, Shariah in American Courts, ( Introduction | Shariah in American Courts ) on the cases that have been filed citing #9 as example, "Another comity issue, but with added unprofessional and biased commentary by the author - inserting his personal opinion without any authority"".
My assertion: Sharia law has been imposed on US citizens in violation of US legal code. And the study Introduction | Shariah in American Courts ) says, "some judges are making decisions deferring to Shariah law even when those decisions conflict with Constitutional protections."
No expert testimony or evidence (other than the father's admissions) appears to have been presented to the judge about what principles of family law would be applied in the Sharia 813*
[6]Massachusetts court would or should recognize any order which might be entered by the Sharia Court. *816 (my bold for emphasis)
******
The mother is a United States Citizen, as well as the children, also, the best interest of the children was never addressed by this court, in whole or in part, in spite of the mother's complaint, that there is something hinky about the father as well as additional problems concerning the children's education, their desire to stay with the mother, etc. The judge dismissed the complaint, with (not without) prejudice.
The judge should not have dismissed her concerns, but rather ordered a complete background check of the Jordanian father. That is how custody cases are handled where as the, best interest of the children, are served by means of extensive interviews, documents, etc. I know this because I wrote my government term paper on it and in so doing, I had to quote the U.S penal code and all of its previsions.
This Tazziz v. Tazziz, is a child custody case, in which jurisdiction later played a role in the decision of the court.
Now tell me, how well did the laws of the United States protect this mother and her children, in that Sharia Law was not allowed to play a role?
PS: Foot note: The father of the minors in his brief prior to the arguments in September, 1988, contended that the Probate and Family Court clearly had no jurisdiction at all under G. L. c. 209B in this situation.
Last edited by Ellis Bell; 10-31-2011 at 08:53 PM..
Reason: ps
[6]Massachusetts court would or should recognize any order which might be entered by the Sharia Court. *816 (my bold for emphasis)
First of all, footnotes are dicta, not holding. They are simply commentary.
Secondly, it is entirely appropriate to consider foreign law in international custody disputes, which this is, as long as that law does not conflict with US law and where the childrens' best interest are preserved. The only thing the court did here is tell the judge to do more homework, because she obviously punted. They corrected her decision to punt. That's it. That's what the case is about. It is not, and never was, about creeping Sharia. Looking to what the OTHER court in ISRAEL did is appropriate and sets NO precedent vis-a-vis Sharia for other cases. These custody cases are all extremely fact-dependent. There's no danger of "creeping Sharia" any more than there being a danger of creeping French civil law or anything else.
It's a paper tiger. This sort of thing has been done in international custody cases since the beginning of the nation. It's not new, and it's nothing to worry about.
Quote:
The mother is a United States Citizen, as well as the children, also, the best interest of the children was never addressed by this court, in whole or in part, in spite of the mother's complaint, that there is something hinky about the father as well as additional problems concerning the children's education, their desire to stay with the mother, etc. The judge dismissed the complaint, with (not without) prejudice.
Jurisdictional dismissals are always with prejudice. Again, the only thing that happened here is the judge punted improperly, the mother appealed, and the appellate court directed the judge to go back and hear the case. Sharia really doesn't have anything to do with this decision, it's merely mentioned. Because you don't know how to read a case (something ALL law students have to be taught in their first semester), and don't know the difference between holding and dicta, you think that the mere appearance of the word "Sharia" has some significance.
DC's assertion: I can assert that Sharia law that violates US legal code has never been imposed in the United States.
Strel's assertion: "Sharia law is not, "creeping into America" and debunked, Shariah in American Courts, ( Introduction | Shariah in American Courts ) on the cases that have been filed citing #9 as example, "Another comity issue, but with added unprofessional and biased commentary by the author - inserting his personal opinion without any authority"".
My assertion: Sharia law has been imposed on US citizens in violation of US legal code. And the study Introduction | Shariah in American Courts ) says, "some judges are making decisions deferring to Shariah law even when those decisions conflict with Constitutional protections."
No expert testimony or evidence (other than the father's admissions) appears to have been presented to the judge about what principles of family law would be applied in the Sharia 813*
[6]Massachusetts court would or should recognize any order which might be entered by the Sharia Court. *816 (my bold for emphasis)
******
The mother is a United States Citizen, as well as the children, also, the best interest of the children was never addressed by this court, in whole or in part, in spite of the mother's complaint, that there is something hinky about the father as well as additional problems concerning the children's education, their desire to stay with the mother, etc. The judge dismissed the complaint, with (not without) prejudice.
The judge should not have dismissed her concerns, but rather ordered a complete background check of the Jordanian father. That is how custody cases are handled where as the, best interest of the children, are served by means of extensive interviews, documents, etc. I know this because I wrote my government term paper on it and in so doing, I had to quote the U.S penal code and all of its previsions.
This Tazziz v. Tazziz, is a child custody case, in which jurisdiction later played a role in the decision of the court.
Now tell me, how well did the laws of the United States protect this mother and her children, in that Sharia Law was not allowed to play a role?
PS: Foot note: The father of the minors in his brief prior to the arguments in September, 1988, contended that the Probate and Family Court clearly had no jurisdiction at all under G. L. c. 209B in this situation.
And my assertion stands. This case supports my assertion. The Massachusetts court did not entertain Sharia law at any point in their deliberations. They did note an interest in what a court in ISRAEL, where the children were residents and which would consider Sharia, would rule, since the father had filed his suit in ISRAEL before coming to the United States with the family's oldest minor.
This is like if Gwyneth Paltrow flew back to the United States and filed for sole custody of Apple. She's a citizen of the United States and of England. Her husband is a citizen of England. She flies to Connecticut and files for custody. In the meantime, her husband files for custody in England, then flies to the United States to contest her suit in Connecticut. The Connecticut court notes that the husband has filed his suit in ENGLAND, and considers what the ENGLISH court ruling would be, and why it would so rule. Because it's an INTERNATIONAL custody lawsuit, involving a child that has been residing in ENGLAND.
Do you understand that AMERICAN courts involved in the custody hearings of children who live abroad, even if they are AMERICAN citizens, will note that there are custody hearings going on in the home country of the children, and will note what those foreign courts may consider in their rulings? Why? Because if the foreign court rules differently than the American court, then the children, American citizens, will be affected. They may have their ability to travel abroad compromised by conflicting court rulings, for instance, that could impact their freedom and welfare. And their welfare is the first consideration and was the first consideration in this case.
But but but I saw the word "Sharia" in a court document!
That means the Moooslims are takin' over!
BLAAAAAAARGH!!!!
It doesn't even have to be the word, "Sharia".
For instance, following actonbell's link, and reading the Arizona case cited, all the defendants are Christians, but one couple resided in Morocco. The case hinged on whether an asset, and later a debt, was community property for purposes of garnishment (owned by both husband and wife) or the sole property of the husband. The funds to purchase came from a joint account, but the deeds and paperwork were solely in the name of the husband. At some point Moroccan law governing communal property was discussed. Morocco is a Muslim nation, and some of their laws regarding communal property are based on Sharia. The Arizona court decided its case solely on US laws, but this "analysis" (and I put that in quotes because their "analysis" is so broad that a defendant with an Arabic-sounding name could be considered an example of Sharia "creeping" into US courts), has the temerity to include it as an example of Sharia threat.
So let me tell you a story about Pamela a U.S Citizen who married a mussleman named Ismail Tazziz. They resided in Jordan Israel for 22 years and they had 6 children together. Pamela is a U.S. citizen and therefore her children are given their birthright to also be U.S. citizens. (liken to that of the movie, "Not Without My Daughter") Pamela takes her minor children Hytham, a son sixteen years old; Amanda and Melinda, daughters, respectively fifteen and twelve years old; and Amar, a ten year old son; leaves Jordon and takes up residency in Massachusetts, Barnstable on or about May 28, 1988.
On June 9th, 1988 Pamela files for custody of her minor children, in a trial court (which is a lower level court than that of an appeals court) in the state of Massachusetts. The court contacts the father about the proceedings and he arrives. Before he left Jordon however, he sets up proceedings in a Sharia Court in Jordon Israel. (all though if he actually did, this is unconfirmed by the U.S. trial court judge)
At the hearing, the judge ruled that Massachusetts did not have jurisdiction over the case; and that the Sharia Court did, even though the case was filed in the residency of the mother which is in Massachusetts. (the Trial Court upheld Shariah) Requiring mother of four children to bring family to Shariah hearing. The judge based that decision on this bases [1] The father of the minors in his brief prior to the arguments in September, 1988, contended that the Probate and Family Court clearly had no jurisdiction at all under G.L.c. 209B in this situation. (of the The Uniform Child-Custody Jurisdiction and Enforcement Act https://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf )
Pamela then takes her custody case to the next level of court, to the Appeals court. or (appellate court n. a court of appeals which hears appeals from lower court decision...) The court proceeds from September 14th - 28th 1988. The appeals court, reversed the decision of the trial court, guarantee of the U.S. Constitution that protects its citizens. [3]The father has been directed to submit his passport to the Probate Court and is restrained from removing the children from Massachusetts until the further order of the court. Temporary visitation rights have been stipulated.
Now, At what level of the American court system does the United States Constitution begin to protect it's citizens? At all levels, yes? Why was the mother not protected at the trial level, why did she have to appeal it? Because the daddy shows up and throws Shariah into the mix at the trial level of court proceedings.
Strel, if I need to further simplify this, I'm sure you will let me know.
Quote:
First of all, footnotes are dicta, not holding. They are simply commentary.
[Note Star] This case was originally decided by memorandum and order on September 22, 1988, under Rule 1:28 of the Appeals Court. See post 1112 (1988). It later was represented (in behalf of the Chief Justice of the Probate and Family Court) to the panel which had decided this matter, that the decision would be helpful if published as an opinion. It was decided that the suggestion was proper. This opinion in general follows the original rule 1:28 memorandum and order with an appendix added and with minor revisions. -- REPORTER.
Strel, do you need for me to show the cases where this opinion has been cited and has had bearing on multiple cases?
For instance, following actonbell's link, and reading the Arizona case cited, all the defendants are Christians, but one couple resided in Morocco. The case hinged on whether an asset, and later a debt, was community property for purposes of garnishment (owned by both husband and wife) or the sole property of the husband. The funds to purchase came from a joint account, but the deeds and paperwork were solely in the name of the husband. At some point Moroccan law governing communal property was discussed. Morocco is a Muslim nation, and some of their laws regarding communal property are based on Sharia. The Arizona court decided its case solely on US laws, but this "analysis" (and I put that in quotes because their "analysis" is so broad that a defendant with an Arabic-sounding name could be considered an example of Sharia "creeping" into US courts), has the temerity to include it as an example of Sharia threat.
Which one are you talking about? There is more than one case.
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