ANNAPOLIS – A Baltimore County judge acted correctly in leaving alone the child-custody decision of a Pakistani court, even though the foreign court looked to Islamic teaching in determining the child’s “best interests,” the Maryland Court of Special Appeals ruled Wednesday.
The 6-2 ruling by a panel of eight judges came in what the court characterized as a “long and bitter” custody dispute between Joohi Q. Hosain of Towson and her former husband, Anwar Malik of Karachi, Pakistan.
The two have been fighting for six years over the fate of their daughter, 12-year-old Mahak Malik.
It started when the couple separated in Pakistan, and the father filed for custody of their child. Claiming her husband was abusive, the mother fled to the United States with her daughter.
Two years later, the father used detectives to find his daughter and former wife living with another man. But before he could enforce the custody rights he had since won in Pakistan, and return his daughter to that country, the mother asked Baltimore County Circuit Judge Christian M. Kahl to intervene and grant her custody.
Kahl initially ruled in the mother’s favor, but reversed himself after the father successfully appealed the decision.
In Wednesday’s ruling, the appeals court affirmed Kahl’s second ruling to leave alone the decision of the Pakistani court.
The foreign court took into consideration, among other things, that the mother was living with a man who was not her husband in a non-Islamic society. The Pakistani court also followed an ancient Islamic preference for paternal custody in such cases.
Taking those factors into consideration, the mother’s attorney argued on appeal, was “contrary to Maryland public policy” and gave the Baltimore County judge good reason to overrule the Pakistani court.
But the appeals court said it is to be expected that a court would consider such factors in a country where a child’s proper development is believed tied to Islamic teaching.
The appeals court said it, too, would have given weight to the impact of “tearing a child away from his/her cultural and religious moorings.”
And it found nothing “repugnant or foreign” about a court considering a parent’s adultery in determining a child’s best interests. In Pakistan, the mother was considered an apostate because she was living with her fiance and had an illegitimate child, according to a brief in the case.
As for the paternal preference, the appeals court said that was similar in some respects to Maryland’s former practice of preferring mothers in custody cases. Although maternal preference is now deemed discriminatory in Maryland, the state nevertheless continues to enforce custody orders from states where mothers are still preferred, the appeals court noted.
The court said it was “simply unprepared to hold that this longstanding doctrine of one of the world’s oldest and largest religions practiced by hundreds of millions of people around the world and in this country … is repugnant to Maryland public policy.”
In a dissenting opinion, two judges held that the Pakistani court had not properly considered the welfare of the child because it did not address the mother’s allegations of alcohol and wife abuse by the father.
The dissenting judges also said that the Baltimore County judge should not have ruled in the absence of the child’s court- appointed attorney. The mother’s attorney, Natalie H. Rees of Towson, said she had not seen the opinion and could not say whether her client would appeal. If the mother does not prevail on appeal, Rees said, the father will take the child back to Pakistan. -30-