Published on:

Court Discusses Doctrine of Comity

A New York Family Lawyer said the Mother and the Respondent Father are both Egyptian nationals and were married in Egypt and have one daughter born in January, 1987. The parties were divorced on July 11, 1987, in a court of competent jurisdiction. Pursuant to the divorce decree, the Father agreed to pay pounds sterling> E. 350 monthly in addition to school, treatment and child custody expenses for the daughter. The Father paid this amount for the month of June, 1987, only. Thereafter, he fled to the United States, without giving notice to the Mother and has not paid his Egyptian child support obligation since. The Mother obtained a judgment for child support in the appropriate Egyptian Court, for a sum of pounds sterling E. 100 to be paid monthly, from November 8, 1987, to the present. Both the Mother and Father appealed this decision and the Egyptian Appellate Court sustained the initial judgment of pounds sterling E. 100 monthly for child support. The Court issued the judgment upon the Father’s salary in Egypt and stated that the amount of support could not be increased until his affluence and change in financial status was proven with American financial statements. The Mother has no way of obtaining the necessary proof in Egypt because the Father is not in Egypt and refuses to give her the appropriate documentation. The Father appealed the judgment of pounds sterling E. 100 monthly, and the court held that the amount was appropriate to the Father’s financial status in Egypt and that the father owes a non-delegable duty of child support to his daughter under Egyptian civil and religious law. The Father was held in contempt for his failure to pay child support in 1995 when he returned to Egypt. The Father would be held in contempt again, should he return to Egypt, for his willful failure to support his child. His child support obligation, based on the current value of the Egyptian pounds sterling E., equals around $29.41 monthly. Thus, his total arrears resulting from the Egyptian judgment is $13,763.88 to date.

A New York Child Custody Lawyer said the Mother entered the United States on a student visa and filed a petition for child support in Albany County Family Court. The Mother resided in Towson, Maryland, until the middle of May, 1996, when the visa expired and she returned to Egypt with her daughter. The Mother currently resides in Alexandria, Egypt. The Mother appeared in person on May 2, 1996, for a hearing in Albany County Family Court. The Father resides in Albany, New York and appeared personally at the same hearing. Thus, the Court has personal jurisdiction over both parties.

A Suffolk County Family Lawyer said the Mother filed a set of objections with service of process to the Order of the Hearing Examiner. The Mother objected to the dismissal of her complaint and stated that the failure to provide a Family Court Act (FCA) affidavit when the Hearing Examiner was on notice that the Mother had returned to Egypt was an unreasonable request and abuse of discretion. The Father filed a Rebuttal with service of process and claimed that since the Mother had re-alleged each and every objection submitted to the Court, the Mother has opened the door to rebut those objections and, therefore, the previous request deemed untimely is now resubmitted and should be deemed timely. The Father states that the dismissal of the Mother’s petition was proper and consistent with FCA. The Court will consider the Father’s argument that the court had the power and authority to construe the Mother’s petition as one for enforcement and modification. Furthermore, the Father correctly states that, with a foreign support order in hand, the Mother may come to a New York court and bring an action for enforcement or modification of the foreign support order.

The New York County Family Court held that, as a matter of comity, the Court would recognize and give effect to an Egyptian divorce where both the husband and wife were Egyptian nationals. In this case, both the Mother and Father were Egyptian nationals, were married in 1985 in Egypt in conformity with the customs of that country and the Islamic faith, and were divorced in Egypt. Both the Mother and the Father personally appeared in Egypt at both the lower court and the appellate review level. Thus, a Suffolk County Child Custody Lawyer said under the doctrine of comity, the Mother’s Egyptian divorce will be enforced.

Despite the doctrine of comity, the Mother’s valid judgment would be enforced if she were to bring an Egyptian judgment stating the full amount of arrears the Father owes to an American court. The American Court would recognize the foreign judgment and enforce the arrears where the Father is domiciled. Thus, even if the doctrine of comity was not addressed, the Mother would still have a remedy as to arrears. Without a judgment stating the full amount of arrears, the Court is powerless to enforce the Egyptian judgment here.

The Mother may bring a petition under Article Four of the Family Court Act. Any parent or guardian or other person acting in loco parentis may originate a proceeding for child support. There is no requirement that the parent be a resident of or personally be present in the State of New York. The non-custodial parent has a moral obligation to support his child until the age of twenty-one and this duty does not change if the child lives in a foreign country. The venue to bring a support proceeding is the county in which the one of the parties is residing or is domiciled at the time of the filing of the petition for child support. Thus, Article Four of the Family Court Act offers the Mother more options, including the possibility of modifying a prior award.

Under traditional conflicts of law analysis, to determine the appropriate loss distribution and possibility of recovery, the New York Court of Appeals held that the foreign statute would be applied in a New York action where the foreign domiciliary was injured by a New York resident in the foreign country.

If the law of the state in which the accident takes place helps out its citizen, then that state’s law will apply. Although the Mother and Father are domiciled in different places, the foreign judgment took place in Egypt but did not help the Father out because he was still required to pay his support obligation, even though the sum was reduced.

The Mother does not have another forum to address her claim. The Courts in Egypt have told the Mother that it cannot enforce a judgment against the father unless he returns to Egypt because it cannot be proved that he has increased his standard of living without financial information from his place of employment in the United States. Furthermore, the Mother has appealed her case to the highest court in Egypt and been denied a remedy for that reason.

Hence, the Mother’s Objections to the recognition of her Egyptian Divorce under the doctrine of comity are denied and the Mother may return to this Court with a money judgment from Egypt, stating the full amount of arrears owed by the Father, so that the court may enforce her judgment.

Based on the foregoing, the Orders of the Hearing Examiner entered are reversed regarding the dismissal and the Mother’s Objections to the Final Order are denied in part and remanded to the Hearing Examiner for determination of child support consistent with this decision.

Children rely on their parents to provide for their needs and when parents neglect their obligation, the kids suffer the most. A New York City Family Attorney together with a New York Child Support Lawyer can help you fight for your children’s rights. A NYC Child Custody Attorney from Stephen Bilkis and Associates will also be willing to help you if are in need of their services.

Contact Information