Sticky: Saifee Mahal - The Inside Stories

The one and only free public forum for Bohras. The focus of this forum is the reform movement, the Dawoodi Bohra faith and, of course, the corrupt priesthood. But the discussion is in no way restricted to the Bohras alone.
mufaddali53
Posts: 56
Joined: Wed Dec 31, 2014 1:25 pm

Re: Saifee Mahal - The Inside Stories

#91

Unread post by mufaddali53 » Tue Jan 13, 2015 12:53 am

Taizoon's latest post -
Post 25 - The Arrogant Shehzadas -http://taizoonshakir.wordpress.com/2015 ... shehzadas/



mufaddali53
Posts: 56
Joined: Wed Dec 31, 2014 1:25 pm

#92

Unread post by mufaddali53 » Wed Jan 14, 2015 11:26 pm




mufaddali53
Posts: 56
Joined: Wed Dec 31, 2014 1:25 pm

#93

Unread post by mufaddali53 » Thu Jan 15, 2015 2:34 pm

Email received by Taizoon :

Name: S.Amin
Email: staramin15@yahoo.com
Comment: Hello;

Can I marry your wife and adopt your son as my own? Also, you father has a lot of money and properties so I am gonna ask him to give them to me (and to your wife who i'll marry and to your son who i'll adopt)

Also, you had a good thing going being qasre aali and all but I guess you love KQ and TB too much to see the real truth.

Oh well, your loss is my gain.

Time: January 15, 2015 at 5:03 pm
IP Address: 208.84.233.253
Contact Form URL: https://taizoonshakir.wordpress.com/about/
Sent by an unverified visitor to your site.



mufaddali53
Posts: 56
Joined: Wed Dec 31, 2014 1:25 pm

#94

Unread post by mufaddali53 » Fri Jan 16, 2015 12:41 am

Over 36,000 hits on Taizoon's blog in 14 days.



subcon111
Posts: 35
Joined: Tue Jan 21, 2014 12:12 pm

#95

Unread post by subcon111 » Fri Jan 16, 2015 3:49 am

Hi! Does anyone know if Juzer Shakir who is very busy in Qasreali circles related to Taizoon bs Shakir.



Kaka Akela
Posts: 389
Joined: Wed Apr 27, 2005 4:01 am

#96

Unread post by Kaka Akela » Fri Jan 16, 2015 1:18 pm

No, they are not any immediate relations. Taizoon is Qasr e Aali and Juzar is Bait e Zaini. Juzer is the son of Yusuf bhaisab Shakir who works in kothar and juzer is a lawyer who is a chamcha of QJ.
Taizoon's father Hatim is the nephew of Yunus Hamiduddin (son in law of SMB). Hatim used to use Hamiduddin but SMB told him not to as it was his father's title not his and gave him the Shakir name.



Reporter
Posts: 223
Joined: Thu Mar 17, 2011 11:34 am

#97

Unread post by Reporter » Mon Jan 26, 2015 4:39 pm

The following are the judgments of California court in the cases involving the custody of Qasr e Aali children. The names of the children are initialized to protect their privacy. The judgments can be accessed here:
http://www.kern.courts.ca.gov/home.aspx ... CH&p1=Left
Family Law Case Information
Search Parameters:
Case Category: FamilyLaw
Case Number: S-1501-FL-627601
Last Name: saifuddin
Click Case Number to view the case details.
Click Column Header to Change Sort Order of this page
Family Law Case Information (3 total records, displaying 1-3 records.)
Case Number Party Name Party Type Case Title Case Type Filing Date
S-1501-FL-627601 MINOR'S COUNSEL, MINOR PARTY SAIFUDDIN VS SAIFUDDIN DISSOLUTION OF MARRIAGE 1/30/2014
S-1501-FL-627601 SAIFUDDIN, ARWA TAHA. PETITIONER SAIFUDDIN VS SAIFUDDIN DISSOLUTION OF MARRIAGE 1/30/2014
S-1501-FL-627601 SAIFUDDIN, TAHA MUFADDAL. RESPONDENT SAIFUDDIN VS SAIFUDDIN DISSOLUTION OF MARRIAGE 1/30/2014

___________________________________________________________

For a background on the issue read this Mumbai Mirror report: US court gives joint custody of kids to feuding Bohra kin
____________________________________________________________

California Court judgment – Case 1

The Court issues this Statement of its Tentative Decision consistent with the provisions of Code of Civil Procedure section 632. The Tentative Decision will be the Statement of Decision unless within ten (10) days any party files and serves a document that specifies controverted issues or makes proposals not covered in the Tentative Decision as provided by California Rules of Court, Rule 3.1590(c). Pending further order, this Tentative Decision constitutes the temporary orders of the Court. The parties are the parents of five minor children: S. T. Saifuddin (born July 30, 1999); M. T. Saifuddin (born July 20, 2001); T. T. Saifuddin (born August 20, 2004); M. T. Saifuddin (born March 3, 2006); and M. T. Saifuddin (born August 3, 2009). On January 30, 2014, Petitioner filed her request for a temporary restraining order pursuant to the Domestic Violence Prevention Act (“DVPA”; Family Code1 section 6200 et seq.) and for custody and visitation orders related to the minor children.

On January 30, 2014, the Court issued temporary orders on an ex parte basis and included personal conduct orders and a stay away order that basically restrained Respondent from contacting Petitioner or the minor children. An order was also made that Petitioner would have sole legal and sole physical custody of the minor children and Respondent would have no visitation.2 Respondent filed his Response to the request for a DVPA restraining order on May 2, 2014. On May 7, 2014, Respondent filed his request for an order requesting, inter alia, that the Court exercise temporary emergency jurisdiction pursuant to Section 3424 and make orders regarding custody and visitation. On August 27, September 23, November 14, 18 and 25, and December 3, 2014, the Court conducted a hearing on the merits of the Petitioner’s request for a DVPA restraining order and on Respondent’s request for the Court to exercise its temporary emergency jurisdiction and return custody of the minor children to him.3 After consideration of the evidence presented and the arguments made, the Court makes the following decisions.
  1. Request for DVPA Restraining Order. The purposes of the DVPA are to prevent a recurrence of domestic violence and to provide for the separation of the persons involved. (§§6220, 6300.) A restraining order may be issued if the information provided shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. (§6300.) In pertinent part, the DVPA defines domestic violence as “abuse” perpetrated against a spouse. (§6211(a).) Among other things, “abuse” means placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another or engaging in behavior that could be enjoined pursuant to Section 6320. (§6203.) Behaviors included in Section 6320 include attacking, threatening, harassing, destroying personal property, contacting by mail or otherwise, or disturbing the peace of the other party. (§6320(a).)

    The decision whether to impose a domestic violence restraining order rests in the discretion of the trial court after consideration of the particular circumstances of each case. In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495. In the present case, the parties had resided in Mumbai, India prior to Petitioner leaving India on January 17, 2014 and coming to Bakersfield, California where her brother lives. The incidents that Petitioner relies on to support her request for a restraining order all occurred while the parties resided in India.4 To understand the dynamics of this case, the events of January 17, 2014 and those leading up to that date are important. The parties are members of the Dawoodi Bohra faith, a sect of the Muslim religion. The spiritual leader of the Dawoodi Bohra is known as the Syedna. On January 17, 2014, the 52nd Syedna passed away. Because of their family relationships with the Syedna, Petitioner and Respondent are considered part of the royal family leading their sect.5

    Upon his death, there was a dispute over who should be the rightful successor to the Syedna. Petitioner believes it should be her father. Respondent believes it should be his father. Respondent testified that the 52nd Syedna had appointed his father as the successor Syedna two years prior to his death. Following the designation of Respondent’s father as the successor, he and Petitioner did not have any discussion about who each thought should be the rightful successor. At the time of the 52nd Syedna’s death, Respondent and his cousin, Ibrahim Ezzudin (the Respondent in a companion DVPA case brought by his wife, the sister of the Petitioner in this case), were on a religious trip to Sri Lanka. Upon learning of the Syedna’s death, they immediately returned home.

    Unbeknownst to them, Petitioner and her sister had both left India for the United States with their respective children. On January 20, 2014, shortly after their arrival in California, Petitioner posted on You Tube a video of her oldest son, Mohamed, and his cousin Murtaza Ezzudin, pronouncing their maternal grandfather as the rightful Syedna. On January 30, 2014, Petitioner filed her request for a temporary DVPA order. Ex parte orders were granted providing for personal conduct and stay away orders and no visitation for Respondent with the minor children. Based on the testimony presented at the hearing, Petitioner’s reasons for requesting a DVPA order consist generally of the following:
    1. She was repeatedly raped by Respondent during the three-year period prior to her leaving India.
    2. Respondent locked her in a room and would not let her leave.
    3. Respondent threw her cell phone against the wall and broke it.
    4. Respondent would punch his fist into the wall or bang his head against the wall if Petitioner did not want to engage in sex with Respondent.
    5. Respondent threatened to burn M with a lit match when he was angry.
    6. Respondent dragged S out of bed by her hair when he was angry.
    Other than the above allegations, Petitioner’s testimony indicated that she believed she had undergone emotional abuse during the marriage because Respondent would give her the “cold shoulder” or be emotionally distant from her if he was angry with her.6 Some of the family disagreements were over Petitioner’s relationship with her family. She claims Respondent was prejudiced against her father and would not allow her or the children to participate in certain ceremonies or events related to her family. The Court finds that these allegations, even if believed, do not rise to the level of domestic violence as defined by the statute. The Court notes that there were allegations in her declaration in support of the temporary DVPA restraining order related to threats received from followers of Respondent threatening her and her safety. No evidence was presented to substantiate these allegations. Petitioner in her declaration in support of the temporary DVPA restraining order alleged that Respondent had physically assaulted the minor children.

    On cross-examination, Petitioner admitted that Respondent has never hit the children. The only incident alleged by Petitioner related to any possible physical abuse of the children is limited to Respondent grabbing S by the hair. The only incident alleged by Petitioner related to any threat of physical abuse of the children is limited to Respondent threatening M with a match. Petitioner provided extensive testimony regarding the physical abuse she suffered at the hands of Respondent during the last three years they lived together.7

    She claims to have been raped by Respondent repeatedly during that period of time. Respondent denied that he raped Petitioner or threatened to rape her. However, in her deposition testimony read into the record at the hearing, Petitioner stated that Respondent had merely threatened to do so. When asked whether he ever raped her she stated: “I don’t remember. He almost did at times.” The testimony of the witness Umaima Al-Harazi was also inconsistent with Petitioner’s claim Respondent had raped her. Ms. Al-Harazi, who Petitioner described as a very close friend, testified that she and Petitioner exchanged confidences about their personal lives and communicated with each other almost daily.

    In early summer of 2013, Ms. Al-Harazi testified that she had been raped by her husband and had immediately confided in Petitioner about this. When she asked Petitioner if anything like this had happened to her, Petitioner said it had not. Petitioner was also inconsistent in her testimony regarding the number of alleged rapes that occurred in the six-month period prior to leaving India. At the August 27, 2014 hearing, she testified on direct examination that it was maybe two or three times. At the September 23, 2014 hearing, she testified on cross-examination that it could have been approximately ten to twelve times.

    The Court also notes that Petitioner did not allege Respondent had raped her in the declaration in support of the temporary DVPA restraining order. There is only a generic allegation that Respondent had “physically assaulted” her in contrast to more specific allegations of abuse elsewhere in the declaration. It is difficult to believe she would have omitted such a serious charge of sexual assualt from her declaration, denied that there was any rape in her deposition and her statements to her close friend had the events described in her trial testimony actually occurred.

    Given the evidence presented, the Court does not find the Petitioner is credible with respect to her allegations that she was raped by Respondent. Given the lack of credibility regarding such a material portion of her testimony, the Court does not find Petitioner credible in her other testimony as well. The Court has also taken into consideration in assessing the credibility of the Petitioner, statements made concerning her reasons for leaving India. In her deposition taken on May 22, 2014, Petitioner indicated the main reason she left India and Respondent was because of her religious beliefs, i.e. whether her father or the Respondent’s father would succeed as the next Syedna.

    In response to a question from Ms. Al-Harazi about whether she would go back to Respondent “if he believes in your father too” Petitioner stated: “Why do you ask Umaima . . . Of course I would have stayed . . . If [Taha] believed [in Petitioner’s father] I know this for sure, that I would never have gone away with the children like this.” (Respondent’s Exhibit F.) In another message to Ms. Al-Harazi, Petitioner stated: “I’ve told you and I want to tell you again that it was only for imaan and haq that I left the way I did.” (Respondent’s Exhibit H.) Finally, the Petitioner posted the video of her son and her nephew speaking out on the issue of the successor to the Syedna almost immediately upon her arrival in Bakersfield. These statements are all contradictory to the statement contained in the declaration in support of the DVPA restraining order that Petitioner fled India since the domestic violence had “escalated to the point that my children and I grabbed only a few personal belongings, and fled from India for our safety and in fear of being harmed.”

    Because the Court does not find Petitioner’s rendition of the events to be credible, the Court is limited to the testimony of Respondent to determine whether there is a sufficient basis to issue the DVPA restraining order. Respondent during his testimony admitted that certain events testified to by Petitioner occurred (although the particulars of those events differs from those described by Petitioner): he grabbed S by the hair when she refused to get out of bed and get ready to go to school; he threatened to burn M’s tongue with a match for swearing; he threw Petitioner’s cell phone against the wall on one occasion; on another occasion he locked the door to the bedroom to keep Petitioner from going to a workshop; and, he banged his head and/or hand against the wall or side of the bed if frustrated by Petitioner’s lack of interest in having sex.

    With respect to the first event, the Respondent testified that generally he was responsible for getting the children out of bed in the morning and ready for school. One morning in 2013, S did not get up when Respondent first went to her room to get her up. She continued to stall and had not gotten out of bed, Respondent went to her room and grabbed her hair for two or three seconds. S then got up and got dressed for school. On August 12, 1014, the Court heard from S pursuant to Family Code section 3042 regarding her views with respect to custody and visitation issues. The Court had a lengthy conversation with S and at no time did S express any fear of Respondent. In fact, S repeatedly asked that she be allowed to go back to India to live with Respondent.

    With respect to threatening M, Respondent testified that M, seven years old at the time, had been using the “F” word at the dinner table in the presence of the other children. Respondent told M that he should not use that word and asked him to stop. After M continued to repeat the word for about thirty minutes, Respondent grabbed M who was running from him and he told M if he continued to say that word he would put a matchstick in his mouth. Petitioner and Respondent both testified that Respondent has never put a match (lit or otherwise) to any of the children’s tongues. This incident appears to be Respondent’s angry reaction to his son’s continued use of profanity after being told to stop. The Court considers the statement to be the equivalent of threatening to wash a child’s mouth out with soap or the other threats that parents use when children test them through the use of bad language. It is clear that M was not afraid of Respondent based on any prior interactions between father and son, since he continued to use profanity even after being told not to do so. Further, while the Court would not tolerate any parent burning his or her child’s tongue with a lit match, that did not and has not happened.

    Given the context in which these events occurred, the Court does not find that these two events involving the children constitute “abuse” and therefore do not provide a basis for granting a DVPA restraining order. Respondent also conceded that in 2013 he locked the door to the couple’s bedroom when he wanted to have privacy to talk with Petitioner. When Petitioner attempted to leave the room, Respondent prevented her from doing so by standing in front of the door. This resulted in some physical contact between them when they pushed each other. When Petitioner said she wanted to leave, Respondent allowed her to do so. Respondent admitted that he threw Petitioner’s cell phone on one occasion. He had come home from work and Petitioner was sitting on the floor using her computer and also talking on the phone. Respondent wanted to talk to her and she was ignoring him. As a result, he took the phone out of her hand and threw it against the wall.

    Finally, Respondent testified that during the last several years of the marriage there were times when he was interested in sex but Petitioner was not. On occasion, he would tap his head or his hand against the wall in frustration. One time Respondent hit the side of the bed with his fist. In determining whether these incidents support the issuance of a restraining order, the Court has considered the stated purpose of a restraining order to prevent the recurrence of domestic violence. The Court has also considered the nature and seriousness of the acts that Respondent concedes have occurred and whether it warrants the issuance of a DVPA restraining order. The conduct described does not appear to be coercive or of a nature that would be recurring.

    The Court also believes the Petitioner left Respondent not because of any domestic violence that had occurred, but solely because of her strongly held religious belief regarding the proper successor to the Syedna. While Respondent has responded in an immature way in attempting to resolve some of the marital issues, the Court does not believe a restraining order is warranted by the conduct described. Therefore, the Court denies the request for a DVPA restraining order.
  2. Exercise of Emergency Jurisdiction Pursuant to Family Code section 3424. Prior to January 17, 2014, the parties and the minor children had been living in India. No custody orders have been made prior to the Court making the ex parte orders on January 30, 2014. Section 3421, part of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) adopted by California, limits this Court’s original jurisdiction to make an initial “child custody determination”8 unless certain conditions are met. The first consideration is whether California is the children’s “home state.” Section 3402(g) defines “home state,” as is relevant here, to be the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” Section 3405 requires this Court to consider a foreign country as if it were a state of the United States for purposes of applying the UCCJEA.

    Therefore, the Court has treated India as if it were a state of the United States and determined India is the “home state” of the minor children for purposes of determining its jurisdiction to make an initial child custody determination.9 Having determined India, and not California, is the home state for the minor children, the Court’s potential for jurisdiction is limited to exercising temporary emergency jurisdiction pursuant to Section 3424. Subsection (a) of Section 3424 provides: “A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.”

    The law strongly discourages a parent’s exercise of self-help remedies in disputes over children. Conflicts between parents are to be remedied by resort to the courts. Moffat v. Moffat (1980) 27 Cal.3d 645, 652; In re Marriage of Comer (1996) 14 Cal.4th 504, 530. In In re Marriage of Fernandez-Abin (2011) 191 Cal.App.4th 1015, 1043, the court discussed the exercise of UCCJEA emergency jurisdiction in the context of a DVPA order issued by the trial court. The court of appeal found that the trial court had jurisdiction under section 3424(a) where one parent had abducted the couple’s children and the husband had engaged in domestic violence: [W]e are not persuaded that Judge Schall was precluded under the facts presented from revisiting the issue of emergency jurisdiction in April 2009, after the California court found that husband engaged in domestic violence against wife that was witnessed by the children and found that husband took the children from wife without an order from any court and prevented wife from seeing them for more than three months. [Footnote omitted.]

    In this case, Petitioner, unhappy with the selection of Respondent’s father (as opposed to her father) as the next Syedna, has taken the children from their home in India and brought them to the United States without the benefit of a court order or any notice to Respondent until after their arrival in California. She did this when Respondent was traveling outside the country. Respondent was unable to have any contact with the children for several months. Once in the United States, Petitioner posted a video of her son and her nephew reading a script prepared by her and her sister proclaiming their belief that Petitioner’s father and not Respondent’s father is the rightful Syedna, placing these children in the middle of the parent’s religious conflict.

    The Court finds these facts sufficient to exercise emergency jurisdiction with respect to custody and visitation. Accordingly, the Court finds that the facts described necessitate the return of the children to the custody of the Respondent forthwith. The Court awards joint legal custody to both parents, with sole physical custody to Respondent. Petitioner shall have visitation with the minor children in India upon 48 hours’ notice to Respondent. Visitation shall occur in the city of residence of the minor children and may be up to one week in length each thirty days. Petitioner shall have reasonable telephone or other electronic contact with the minor children and the children shall have unlimited, unmonitored telephone or other electronic contact with the Petitioner. Section 3424(b) provides that in the event there is no previous child custody order to be enforced under the UCCJEA and a child custody proceeding has not been commenced in a court of a state having original jurisdiction, this Court’s child custody determination shall remain in effect until an order is obtained from a court of a state having jurisdiction under the relevant statutes. No evidence was presented that there is such an order. Consequently, the Court’s order will remain in effect until a court of a state having jurisdiction under sections 3421 to 3423, inclusive, makes orders regarding the minor children. Respondent shall prepare an order for signature by the Court. Minor’s counsel shall be relieved upon entry of the order.
__________________________________________________________

1 All further statutory references are to the Family Code unless otherwise specified.

2 The Court has subsequently made a series of orders granting visitation with the children to Respondent subject to certain conditions.

3 This case was heard together with Ezzuddin v. Ezzuddin, Kern County Superior Court Case No. S-1501-FL-627599.

4 Respondent had requested that this Court apply the law of India to its consideration of the DVPA request. The Court has declined to do so. Pursuant to Reich v. Purcell (1967) 67 Cal.2d 551, the court must examine the governmental interests or purposes served by the applicable statute or rule of law of each of the affected jurisdictions to determine whether there is a true conflict of law. If such conflict exists, the court must analyze the jurisdictions’ respective interests to determine which jurisdiction’s interest would be more severely impaired if that jurisdiction’s laws were not applied in the particular context presented by the case. Respondent’s request to apply the laws of India did not contain any statement of the law of India so that this Court could make a comparative analysis of the law of each jurisdiction to determine if there is a true conflict that would require a further analysis.

5 The 52nd Syedna was Petitioner’s uncle and Respondent’s grandfather.

6 At one point in the testimony Petitioner described her fear of the repercussions that would follow from not doing what Respondent wanted would be “that he would withhold any emotional expression of care towards in in that he would treat me badly. He would be angry at me. He would interact with me in a very negative manner.” Reporter’s Transcript, August 27, 2014, p. 31, lines 21-24. She also testified that Respondent had told her, “If you do not obey me, I will not talk to you or I will not be with you.” Reporter’s Transcript, August 27, 2014, p. 36, lines 8-9.

7 The Court notes that the declaration submitted by Petitioner generally alleges Respondent “physically assaulted” her. There was no credible testimony of any physical abuse of Petitioner.

8 “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Fam. C.§3402(c).

9 Given the Court’s determination that India is the children’s “home state” and there is no evidence India has declined to exercise jurisdiction, the remaining potential bases for asserting jurisdiction under Section 3421 are inapplicable

____________________________________________________________________

California Court judgment – Case 2

The Court issues this Statement of its Tentative Decision consistent with the provisions of Code of Civil Procedure section 632. The Tentative Decision will be the Statement of Decision unless within ten (10) days any party files and serves a document that specifies controverted issues or makes proposals not covered in the Tentative Decision as provided by California Rules of Court, Rule 3.1590(c). Pending further order, this Tentative Decision constitutes the temporary orders of the Court.

The parties are the parents of four minor children: K. Ezzuddin (born July 17, 1998), M. Ezzuddin (born February 15, 2002), N. Ezzuddin (born October 6, 2004) and H. Ezzudin (born December 15, 2008). On January 30, 2014, Petitioner filed her request for a temporary restraining order pursuant to the Domestic Violence Prevention Act (“DVPA”; Family Code1 section 6200 et seq.) and for custody and visitation orders related to the minor children. On January 30, 2014, the Court issued temporary orders on an ex parte basis and included personal conduct orders and a stay away order that basically restrained Respondent from contacting Petitioner or the minor children. An order was also made that Petitioner would have sole legal and sole physical custody of the minor children and Respondent would have no visitation.2

Respondent filed his Response to the request for a DVPA restraining order on May 2, 2014. On May 7, 2014, Respondent filed his request for an order requesting, inter alia, that the Court exercise temporary emergency jurisdiction pursuant to Section 3424 and make orders regarding custody and visitation. On August 27, September 23, November 14, 18 and 25, and December 3, 2014, the Court conducted a hearing on the merits of the Petitioner’s request for a DVPA restraining order and on Respondent’s request for the Court to exercise its temporary emergency jurisdiction and return custody of the minor children to him.3 After consideration of the evidence presented and the arguments made, the Court makes the following decisions.
  1. Request for DVPA Restraining Order. The purposes of the DVPA are to prevent a recurrence of domestic violence and to provide for the separation of the persons involved. (§§6220, 6300.) A restraining order may be issued if the information provided shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. (§6300.) In pertinent part, the DVPA defines domestic violence as “abuse” perpetrated against a spouse. (§6211(a).) Among other things, “abuse” means placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another or engaging in behavior that could be enjoined pursuant to Section 6320. (§6203.) Behaviors included in Section 6320 include attacking, threatening, harassing, destroying personal property, contacting by mail or otherwise, or disturbing the peace of the other party. (§6320(a).) The decision whether to impose a domestic violence restraining order rests in the discretion of the trial court after consideration of the particular circumstances of each case. In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.

    In the present case, the parties had resided in Mumbai, India prior to Petitioner leaving India on January 17, 2014 and coming to Bakersfield, California where her brother lives. The incidents that Petitioner relies on to support her request for a restraining order all occurred while the parties resided in India.4 To understand the dynamics of this case, the events of January 17, 2014 and those leading up to that date are important. The parties are members of the Dawoodi Bohra faith, a sect of the Muslim religion. The spiritual leader of the Dawoodi Bohra is known as the Syedna. On January 17, 2014, the 52nd Syedna passed away. Because of their family relationships with the Syedna, Petitioner and Respondent are considered part of the royal family leading their sect.5 Upon his death, there was a dispute over who should be the rightful successor to the Syedna. Petitioner believes it should be her father. Respondent believes it should be his uncle. Two years prior to his death, the 52nd Syedna had appointed Respondent’s uncle as the successor Syedna. Following the designation of Respondent’s uncle as the successor, he and Petitioner did not have any discussion about who each thought should be the rightful successor. At the time of the 52nd Syedna’s death, Respondent and his cousin, Taha Saifuddin (the Respondent in a companion DVPA case brought by his wife, the sister of the Petitioner in this case), were on a religious trip to Sri Lanka. Upon learning of the Syedna’s death, they immediately returned home.

    Unbeknownst to them, Petitioner and her sister had both left India for the United States with their respective children. On January 20, 2014, shortly after their arrival in California, Petitioner helped put together a video that was posted on You Tube showing her oldest son, Murtaza, and his cousin Mohammed Saifuddin, pronouncing their maternal grandfather as the rightful Syedna. On January 30, 2014, Petitioner filed her request for a temporary DVPA order. Ex parte orders were granted providing for personal conduct and stay away orders and no visitation for Respondent with the minor children.

    The declaration in support of the DVPA restraining order is generally framed in general conclusions regarding the basis for the claim of domestic violence, contending Respondent is “mentally and emotionally abusive” or that Respondent subjected Petitioner and the children to “psychological and mental torture.” Based on the testimony presented at the hearing, Petitioner’s reasons for requesting a DVPA order consist generally of the following:
    1. She and Respondent had loud arguments during their marriage. At times, Respondent was shouting loud enough to be heard by persons on the street below the parties’ fifth floor residence where the argument occurred. Petitioner conceded that she and Respondent had many arguments during the marriage and there were occasions when she yelled at the Respondent.
    2. Respondent forced Petitioner to choose between him and her mother, forcing Petitioner to have to see her mother secretly. Respondent also was upset if Petitioner was in contact with her sister so that she had to communicate secretly with her and use code words if Respondent was present.
    3. Respondent was prejudiced against Petitioner’s father and would say derogatory things about him that Respondent found hurtful.
    4. Respondent would come from the mosque late at night and turn the lights on to berate her about things that had not been done for the household.
    5. Respondent, during an argument with Petitioner, slammed a bathroom door when Petitioner was standing in the doorway. Based on the testimony, it appears that the Petitioner followed Respondent to the bathroom when he went there during the argument, and she was in the doorway. Respondent slammed the door shut when she was in the doorway with her hand on the door jamb. She pulled her hand away to avoid having her fingers caught in the closing door. The Court does not believe that Respondent was intending to strike or cause any injury to the Petitioner by his action. Rather, he was simply slamming the door in spite of Petitioner being in the doorway. Petitioner also conceded that she, on occasion, slammed doors.
    6. Approximately five years ago, Respondent bit her cheek. On cross examination, Respondent’s deposition testimony was admitted which indicated that Respondent had a very vague recollection of the incident and could not remember many of the details.
    7. Respondent hit a hotel room wall and injured his hand when he and the Petitioner were having an argument. This occurred approximately five years ago.
    8. Respondent testified to several incidents where she believed Respondent was making unreasonable demands on her. For example, on one occasion in 2013, he told her to cook chick peas for dinner. She was unable to do so because they were unavailable. As a result, Respondent became angry. In response to questions about how these events made her feel, Petitioner stated that she variously felt humiliated, like a slave, belittled, suffocated or hurt. Respondent, during his testimony, did not deny any of the events occurring. Petitioner did not allege that Respondent had struck or physically abused the children.
    In her testimony, she did state that on one occasion the Respondent held H tightly and would not let him go to Petitioner. On another occasion, respondent became angry when the parties’ daughter was singing when the family was going to the mosque. Respondent was upset that she was not focusing on memorizing the Quran. In determining whether these incidents support the issuance of a restraining order, the Court has considered the stated purpose of a restraining order to prevent the recurrence of domestic violence. The Court has also considered the nature and seriousness of the acts that Respondent concedes have occurred and whether it warrants the issuance of a DVPA restraining order. The conduct described does reflect an unhappy marriage where the parties appear to have a fundamental disagreement over their respective roles in the marriage and many of their disagreements lead to loud arguments.

    Petitioner clearly feels she is not treated as an equal in the marriage and Respondent becomes angry when he is unhappy with how things are done at the home. But an argumentative, dysfunctional marriage does not necessarily equate to a basis for the issuance of a restraining order. The Court has also considered the allegations of physical violence. Here, Respondent punched a wall during an argument approximately five years ago. Petitioner also alleged Respondent bit her on the cheek approximately five years ago, although could not remember any significant details of the incident. Given the Court’s view that the arguments that occurred between the parties is insufficient to warrant issuance of a restraining order, these two incidents do not add anything to Petitioner’s claim for a restraining order.

    While a single incident of abuse can lead to the issuance of a restraining order, the Court finds the wall-punching incident to be remote in time and a singular occurrence that does not support the issuance of a DVPA restraining order. The Court does not find the testimony of Petitioner regarding the cheek biting incident to be credible and it is lacking any meaningful detail in order to allow the Court to evaluate the nature of the action. Moreover, the Court believes the Petitioner left Respondent not because of any domestic violence that had occurred, but solely because of her strongly held religious belief regarding the proper successor to the Syedna. Petitioner admitted as much during her direct examination. In deposition testimony admitted at the hearing, Petitioner indicated the she indicated she left India because “I want my kids to be on Haq with me.” Under cross examination, Petitioner stated that it was her belief that unless her children believed in and supported her father, they will not be able to go to heaven.

    Given the Court’s view of the reason Petitioner left India with the children, the Court does view with skepticism the Petitioner’s testimony concerning the arguments that occurred between the parties and the relative role each had in those arguments. In response to the question concerning her primary reason for leaving India on January 17, 2014, she indicated because “Syedna passed away” and she was afraid her children would be taken from her. In later testimony she explained that she was afraid Respondent would throw her out of the house if she didn’t pay allegiance to his uncle, whom he considers the leader of their community. This was the “harm” she feared from the Respondent when she left India. Additionally, in response to questions asked by the Court, Petitioner indicated that the threats she received prior to leaving India had not come from Respondent nor was there any evidence they were made on behalf of the Respondent.6

    The Court has also considered the parties meeting at a park and at a Walmart subsequent to the issuance of the temporary restraining order. The meeting at the Walmart lasted for approximately two hours and involved the parties hugging and kissing. This conduct undercuts any testimony by Petitioner that she feared Respondent. This evidence, coupled with the overwhelming evidence of the actual reason for Petitioner leaving India with the children, further indicates a restraining order is not warranted. Therefore, Court does not believe a restraining order is warranted by the conduct described and denies the request for a DVPA restraining order.
  2. Exercise of Emergency Jurisdiction Pursuant to Family Code section 3424. Prior to January 17, 2014, the parties and the minor children had been living in India. No custody orders have been made prior to the Court making the ex parte orders on January 30, 2014. Section 3421, part of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) adopted by California, limits this Court’s original jurisdiction to make an initial “child custody determination"7 unless certain conditions are met. The first consideration is whether California is the children’s “home state.” Section 3402(g) defines “home state,” as is relevant here, to be the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.”

    Section 3405 requires this Court to consider a foreign country as if it were a state of the United States for purposes of applying the UCCJEA. Therefore, the Court has treated India as if it were a state of the United States and determined India is the “home state” of the minor children for purposes of determining its jurisdiction to make an initial child custody determination.8 Having determined India, and not California, is the home state for the minor children, the Court’s potential for jurisdiction is limited to exercising temporary emergency jurisdiction pursuant to Section 3424. Subsection (a) of Section 3424 provides: “A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.”

    The law strongly discourages a parent’s exercise of self-help remedies in disputes over children. Conflicts between parents are to be remedied by resort to the courts. Moffat v. Moffat (1980) 27 Cal.3d 645, 652; In re Marriage of Comer (1996) 14 Cal.4th 504, 530. In In re Marriage of Fernandez-Abin (2011) 191 Cal.App.4th 1015, 1043, the court discussed the exercise of UCCJEA emergency jurisdiction in the context of a DVPA order issued by the trial court. The court of appeal found that the trial court had jurisdiction under section 3424(a) where one parent had abducted the couple’s children and the husband had engaged in domestic violence: [W]e are not persuaded that Judge Schall was precluded under the facts presented from revisiting the issue of emergency jurisdiction in April 2009, after the California court found that husband engaged in domestic violence against wife that was witnessed by the children and found that husband took the children from wife without an order from any court and prevented wife from seeing them for more than three months. [Footnote omitted.]

    In this case, Petitioner, unhappy with the selection of Respondent’s uncle (as opposed to her father) as the next Syedna, has taken the children from their home in India and brought them to the United States without the benefit of a court order or any notice to Respondent until after their arrival in California. She did this when Respondent was traveling outside the country. Respondent was unable to have any contact with the children for several months. Once in the United States, Petitioner posted a video of her son and her nephew reading a script prepared by her and her sister proclaiming their belief that Petitioner’s father and not Respondent’s uncle is the rightful Syedna, placing these children in the middle of the parent’s religious conflict. The Court finds these facts sufficient to exercise emergency jurisdiction with respect to custody and visitation. Accordingly, the Court finds that the facts described necessitate the return of the children to the custody of the Respondent forthwith. The Court awards joint legal custody to both parents, with sole physical custody to Respondent. Petitioner shall have visitation with the minor children in India upon 48 hours’ notice to Respondent.

    Visitation shall occur in the city of residence of the minor children and may be up to one week in length each thirty days. Petitioner shall have reasonable telephone or other electronic contact with the minor children and the children shall have unlimited, unmonitored telephone or other electronic contact with the Petitioner. The Court notes that the parties’ child Khadija has been under a doctor’s care at UCLA Medical Center. The Court’s orders regarding return of the children to Respondent’s custody will require any travel by Khadija to be consistent with any of her doctor’s recommendations. Section 3424(b) provides that in the event there is no previous child custody order to be enforced under the UCCJEA and a child custody proceeding has not been commenced in a court of a state having original jurisdiction, this Court’s child custody determination shall remain in effect until an order is obtained from a court of a state having jurisdiction under the relevant statutes. No evidence was presented that there is such an order. Consequently, the Court’s order will remain in effect until a court of a state having jurisdiction under sections 3421 to 3423, inclusive, makes orders regarding the minor children. Respondent shall prepare an order for signature by the Court. Minor’s counsel shall be relieved upon entry of the order.
____________________________________________________________

1 All further statutory references are to the Family Code unless otherwise specified.

2 The Court has subsequently made a series of orders granting visitation with the children to Respondent subject to certain conditions.

3 This case was heard together with Saifuddin v. Saifuddin, Kern County Superior Court Case No. S-1501-FL-627601.

4 Respondent had requested that this Court apply the law of India to its consideration of the DVPA request. The Court has declined to do so. Pursuant to Reich v. Purcell (1967) 67 Cal.2d 551, the court must examine the governmental interests or purposes served by the applicable statute or rule of law of each of the affected jurisdictions to determine whether there is a true conflict of law. If such conflict exists, the court must analyze the jurisdictions’ respective interests to determine which jurisdiction’s interest would be more severely impaired if that jurisdiction’s laws were not applied in the particular context presented by the case. Respondent’s request to apply the laws of India did not contain any statement of the law of India so that this Court could make a comparative analysis of the law of each jurisdiction to determine if there is a true conflict that would require a further analysis.

5 The 52nd Syedna was Petitioner’s uncle and Respondent’s grandfather.

6 In Petitioner’s deposition testimony admitted during the hearing, Petitioner was asked whether there were any statements or writings from Respondent in the six months prior to her leaving India that indicated Respondent would persecute her if she did not support his uncle. Her answer was: “He has not specifically told me anything.”

7 “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Fam. C.§3402(c). 8 Given the Court’s determination that India is the children’s “home state” and there is no evidence India has declined to exercise jurisdiction, the remaining potential bases for asserting jurisdiction under Section 3421 are inapplicable.



Reporter
Posts: 223
Joined: Thu Mar 17, 2011 11:34 am

#98

Unread post by Reporter » Mon Feb 23, 2015 11:16 am

Proposed Statement of Decision

The Summary and Key Part: An observation
The Court has also considered the potential merits of an appeal by Petitioner. The sole issue that drives the immediate concerns by Petitioner is the Court’s determination to exercise its temporary emergency jurisdiction under section 3424 and ordering the change in the custody of the children. This narrow issue is one that should be addressed quickly and easily through the Court of Appeal. Accordingly, the Court grants Petitioner a 20-day stay of the enforcement of the Court’s orders in order to seek review in the Court of Appeal. In other words, the children shall be returned to the custody of Respondent at 5:00 p.m. on the twentieth day from the date the Court signs the orders contemplated in Section 2 above, absent any further stay or other order issued by the Court of Appeal. The Court had tentatively granted the request of Respondent for the children to remain with him during the period of the stay, with appropriate orders in place to preclude travel outside of the State of California without court order. However, given that the Court is granting a stay of the orders it intended to make, the immediate change in custody would be contrary to the notion of a stay of the enforcement of those orders. However, the Court will grant Respondent visitation with the children from the date of execution of the Court’s orders until the tenth day, at 5:00 p.m., from the date of execution of the Court’s orders. Respondent shall surrender his passport to his counsel during the period of visitation. Respondent shall prepare an order for signature by the Court. Minor’s counsel shall be relieved upon entry of the order.
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The full statement of the court:
5 Most Recent Minute Orders
Date
Action
2/6/2015
RULING. PROPOSED STATEMENT OF DECISION WITH RESPECT TO PETITIONER’S REQUEST FOR DOMESTIC VIOLENCE PREVENTION ACT RESTRAINING ORDER AND WITH RESPECT TO RESPONDENT’S REQUEST FOR ORDERS REGARDING ASSERTION OF TEMPORARY EMERGENCY JURISDICTION BY THE COURT APPEARANCE TIME: 8:00 AM
COURTROOM: B
BAILIFF: NONE
REPORTER: NONE
COURT CLERK: LINDAK
HEARING JUDGE: STEPHEN D SCHUETT

The Court issues this Proposed Statement of Decision consistent with the provisions of Code of Civil Procedure section 632. Any party may, within 15 days after this Proposed Statement of Decision is served, serve and file objections this Proposed Statement of Decision.

The parties are the parents of four minor children:

On January 30, 2014, Petitioner filed her request for a temporary restraining order pursuant to the Domestic Violence Prevention Act (“DVPA”; Family Code section 6200 et seq.) and for custody and visitation orders related to the minor children. On January 30, 2014, the Court issued temporary orders on an ex parte basis and included personal conduct orders and a stay away order that basically restrained Respondent from contacting Petitioner or the minor children. An order was also made that Petitioner would have sole legal and sole physical custody of the minor children and Respondent would have no visitation.

Respondent filed his Response to the request for a DVPA restraining order on May 2, 2014. On May 7, 2014, Respondent filed his request for an order requesting, inter alia, that the Court exercise temporary emergency jurisdiction pursuant to Section 3424 and make orders regarding custody and visitation. On August 27, September 23, November 14, 18 and 25, and December 3, 2014, the Court conducted a hearing on the merits of the Petitioner’s request for a DVPA restraining order and on Respondent’s request for the Court to exercise its temporary emergency jurisdiction and return custody of the minor children to him.

On January 21, 2015, the Court issued its Tentative Statement of Decision. On February 2, 2015, the Court held a hearing on Petitioner’s request for a stay of the effectiveness of the Court’s orders pending resolution of any appeal of the Court’s decision. After consideration of the evidence presented and the arguments made, the Court makes the following decisions.

1. Request for DVPA Restraining Order. The purposes of the DVPA are to prevent a recurrence of domestic violence and to provide for the separation of the persons involved. (§§6220, 6300.) A restraining order may be issued if the information provided shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. (§6300.) In pertinent part, the DVPA defines domestic violence as “abuse” perpetrated against a spouse. (§6211(a).) Among other things, “abuse” means placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another or engaging in behavior that could be enjoined pursuant to Section 6320. (§6203.) Behaviors included in Section 6320 include attacking, threatening, harassing, destroying personal property, contacting by mail or otherwise, or disturbing the peace of the other party. (§6320(a).) The decision whether to impose a domestic violence restraining order rests in the discretion of the trial court after consideration of the particular circumstances of each case. In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495. In the present case, the parties had resided in Mumbai, India prior to Petitioner leaving India on January 17, 2014 and coming to Bakersfield, California where her brother lives. The incidents that Petitioner relies on to support her request for a restraining order all occurred while the parties resided in India.

2. To understand the dynamics of this case, the events of January 17, 2014 and those leading up to that date are important. The parties are members of the Dawoodi Bohra faith, a sect of the Muslim religion. The spiritual leader of the Dawoodi Bohra is known as the Syedna. On January 17, 2014, the 52nd Syedna passed away. Because of their family relationships with the Syedna, Petitioner and Respondent are considered part of the royal family leading their sect.5 Upon his death, there was a dispute over who should be the rightful successor to the Syedna. Petitioner believes it should be her father. Respondent believes it should be his uncle. Two years prior to his death, the 52nd Syedna had appointed Respondent’s uncle as the successor Syedna. Following the designation of Respondent’s uncle as the successor, he and Petitioner did not have any discussion about who each thought should be the rightful successor. At the time of the 52nd Syedna’s death, Respondent and his cousin, Taha Saifuddin (the Respondent in a companion DVPA case brought by his wife, the sister of the Petitioner in this case), were on a religious trip to Sri Lanka. Upon learning of the Syedna’s death, they immediately returned home. Unbeknownst to them, Petitioner and her sister had both left India for the United States with their respective children. On January 20, 2014, shortly after their arrival in California, Petitioner helped put together a video that was posted on You Tube showing her son, and his cousin, pronouncing their maternal grandfather as the rightful Syedna.

3. On January 30, 2014, Petitioner filed her request for a temporary DVPA order. Ex parte orders were granted providing for personal conduct and stay away orders and no visitation for Respondent with the minor children. The declaration in support of the DVPA restraining order is generally framed in general conclusions regarding the basis for the claim of domestic violence, contending Respondent is “mentally and emotionally abusive” or that Respondent subjected Petitioner and the children to “psychological and mental torture.” Based on the testimony presented at the hearing, Petitioner’s reasons for requesting a DVPA order consist generally of the following:

a. She and Respondent had loud arguments during their marriage. At times, Respondent was shouting loud enough to be heard by persons on the street below the parties’ fifth floor residence where the argument occurred. Petitioner conceded that she and Respondent had many arguments during the marriage and there were occasions when she yelled at the Respondent.
b. Respondent forced Petitioner to choose between him and her mother, forcing Petitioner to have to see her mother secretly. Respondent also was upset if Petitioner was in contact with her sister so that she had to communicate secretly with her and use code words if Respondent was present.
c. Respondent was prejudiced against Petitioner’s father and would say derogatory things about him that Petitioner found hurtful.
d. Respondent would come from the mosque late at night and turn the lights on to berate her about things that had not been done for the household.
e. Respondent, during an argument with Petitioner, slammed a bathroom door when Petitioner was standing in the doorway. Based on the testimony, it appears that the Petitioner followed Respondent to the bathroom when he went there during the argument, and she was in the doorway. Respondent slammed the door shut when she was in the doorway with her hand on the door jamb. She pulled her hand away to avoid having her fingers caught in the closing door. The Court does not believe that Respondent was intending to strike or cause any injury to the Petitioner by his action. Rather, he was simply slamming the door in spite of Petitioner being in the doorway. Petitioner also conceded that she, on occasion, slammed doors.
f. Approximately five years ago, Respondent bit her cheek. On cross examination, Respondent’s deposition testimony was admitted which indicated that Respondent had a very vague recollection of the incident and could not remember many of the details.
g. Respondent hit a hotel room wall and injured his hand when he and the Petitioner were having an argument. This occurred approximately five years ago.
h. Respondent testified to several incidents where she believed Respondent was making unreasonable demands on her. For example, on one occasion in 2013, he told her to cook chick peas for dinner. She was unable to do so because they were unavailable. As a result, Respondent became angry. In response to questions about how these events made her feel, Petitioner stated that she variously felt humiliated, like a slave, belittled, suffocated or hurt. Respondent, during his testimony, did not deny any of the events occurring. Petitioner did not allege that Respondent had struck or physically abused the children. In her testimony, she did state that on one occasion the Respondent held Child tightly and would not let him go to Petitioner. On another occasion, respondent became angry when the parties’ daughter was singing when the family was going to the mosque. Respondent was upset that she was not focusing on memorizing the Quran.

In determining whether these incidents support the issuance of a restraining order, the Court has considered the stated purpose of a restraining order to prevent the recurrence of domestic violence. The Court has also considered the nature and seriousness of the acts that Respondent concedes have occurred and whether it warrants the issuance of a DVPA restraining order. The conduct described does reflect an unhappy marriage where the parties appear to have a fundamental disagreement over their respective roles in the marriage and many of their disagreements lead to loud arguments. Petitioner clearly feels she is not treated as an equal in the marriage and Respondent becomes angry when he is unhappy with how things are done at the home. But an argumentative, dysfunctional marriage does not necessarily equate to a basis for the issuance of a restraining order. The Court has also considered the allegations of physical violence. Here, Respondent punched a wall during an argument approximately five years ago. Petitioner also alleged Respondent bit her on the cheek approximately five years ago, although could not remember any significant details of the incident. Given the Court’s view that the arguments that occurred between the parties is insufficient to warrant issuance of a restraining order, these two incidents do not add anything to Petitioner’s claim for a restraining order.

While a single incident of abuse can lead to the issuance of a restraining order, the Court finds the wall-punching incident to be remote in time and a singular occurrence that does not support the issuance of a DVPA restraining order. The Court does not find the testimony of Petitioner regarding the cheek biting incident to be credible and it is lacking any meaningful detail in order to allow the Court to evaluate the nature of the action. Moreover, the Court believes the Petitioner left Respondent not because of any domestic violence that had occurred, but solely because of her strongly held religious belief regarding the proper successor to the Syedna. Petitioner admitted as much during her direct examination. In deposition testimony admitted at the hearing, Petitioner indicated the she indicated she left India because “I want my kids to be on Haq with me.” Under cross examination, Petitioner stated that it was her belief that unless her children believed in and supported her father, they will not be able to go to heaven. Given the Court’s view of the reason Petitioner left India with the children, the Court does view with skepticism the Petitioner’s testimony concerning the arguments that occurred between the parties and the relative role each had in those arguments.

4. In response to the question concerning her primary reason for leaving India on January 17, 2014, she indicated because “Syedna passed away” and she was afraid her children would be taken from her. In later testimony she explained that she was afraid Respondent would throw her out of the house if she didn’t pay allegiance to his uncle, whom he considers the leader of their community. This was the “harm” she feared from the Respondent when she left India. Additionally, in response to questions asked by the Court, Petitioner indicated that the threats she received prior to leaving India had not come from Respondent nor was there any evidence they were made on behalf of the Respondent.

5. The Court has also considered the parties meeting at a park and at a Walmart subsequent to the issuance of the temporary restraining order. The meeting at the Walmart lasted for approximately two hours and involved the parties hugging and kissing. This conduct undercuts any testimony by Petitioner that she feared Respondent. This evidence, coupled with the overwhelming evidence of the actual reason for Petitioner leaving India with the children, further indicates a restraining order is not warranted. Therefore, Court does not believe a restraining order is warranted by the conduct described and denies the request for a DVPA restraining order.

6. Exercise of Emergency Jurisdiction Pursuant to Family Code section 3424. Prior to January 17, 2014, the parties and the minor children had been living in India. No custody orders have been made prior to the Court making the ex parte orders on January 30, 2014. Section 3421, part of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) adopted by California, limits this Court’s original jurisdiction to make an initial “child custody determination” unless certain conditions are met.

The first consideration is whether California is the children’s “home state.” Section 3402(g) defines “home state,” as is relevant here, to be the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” Section 3405 requires this Court to consider a foreign country as if it were a state of the United States for purposes of applying the UCCJEA. Therefore, the Court has treated India as if it were a state of the United States and determined India is the “home state” of the minor children for purposes of determining its jurisdiction to make an initial child custody determination.

Having determined India, and not California, is the home state for the minor children, the Court’s potential for jurisdiction is limited to exercising temporary emergency jurisdiction pursuant to Section 3424. Subsection (a) of Section 3424 provides: “A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.”

The law strongly discourages a parent’s exercise of self-help remedies in disputes over children. Conflicts between parents are to be remedied by resort to the courts. Moffat v. Moffat (1980) 27 Cal.3d 645, 652; In re Marriage of Comer (1996) 14 Cal.4th 504, 530. In In re Marriage of Fernandez-Abin (2011) 191 Cal.App.4th 1015, 1043, the court discussed the exercise of UCCJEA emergency jurisdiction in the context of a DVPA order issued by the trial court. The court of appeal found that the trial court had jurisdiction under section 3424(a) where one parent had abducted the couple’s children and the husband had engaged in domestic violence: [W]e are not persuaded that Judge Schall was precluded under the facts presented from revisiting the issue of emergency jurisdiction in April 2009, after the California court found that husband engaged in domestic violence against wife that was witnessed by the children and found that husband took the children from wife without an order from any court and prevented wife from seeing them for more than three months. [Footnote omitted.]

In this case, Petitioner, unhappy with the selection of Respondent’s uncle (as opposed to her father) as the next Syedna, has taken the children from their home in India and brought them to the United States without the benefit of a court order or any notice to Respondent until after their arrival in California. She did this when Respondent was traveling outside the country. Respondent was unable to have any contact with the children for several months. Once in the United States, Petitioner posted a video of her son and her nephew reading a script prepared by her and her sister proclaiming their belief that Petitioner’s father and not Respondent’s uncle is the rightful Syedna, placing these children in the middle of the parent’s religious conflict. The Court finds these facts sufficient to exercise emergency jurisdiction with respect to custody and visitation. Accordingly, the Court finds that the facts described necessitate the return of the children to the custody of the Respondent forthwith, subject to the stay granted below. The Court awards joint legal custody to both parents, with sole physical custody to Respondent. Petitioner shall have visitation with the minor children in India upon 48 hours’ notice to Respondent. Visitation shall occur in the city of residence of the minor children and may be up to one week in length each thirty days. Petitioner shall have reasonable telephone or other electronic contact with the minor children and the children shall have unlimited, unmonitored telephone or other electronic contact with the Petitioner.

The Court notes that the parties’ Child--- has been under a doctor’s care at …. The Court’s orders regarding return of the children to Respondent’s custody will require any travel by Child to be consistent with any of her doctor’s recommendations. Section 3424(b) provides that in the event there is no previous child custody order to be enforced under the UCCJEA and a child custody proceeding has not been commenced in a court of a state having original jurisdiction, this Court’s child custody determination shall remain in effect until an order is obtained from a court of a state having jurisdiction under the relevant statutes. No evidence was presented that there is such an order. Consequently, the Court’s order will remain in effect until a court of a state having jurisdiction under sections 3421 to 3423, inclusive, makes orders regarding the minor children.

Request for Stay pursuant to Code of Civil Procedure section 917.7 and 918. Code of Civil Procedure section 917.7 states in relevant part: The perfecting of an appeal shall not stay proceedings as to those provisions of a judgment or order which award, change, or otherwise affect the custody, including the right of visitation, of a minor child in any civil action, in an action filed under the Juvenile Court Law, or in a special proceeding, or the provisions of a judgment or order for the temporary exclusion of a party from a dwelling, as provided in the Family Code. However, the trial court may in its discretion stay execution of these provisions pending review on appeal or for any other period or periods that it may deem appropriate. Code of Civil Procedure section 918 also permits the Court to stay the enforcement of any order or judgment. This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed. Petitioner argues that the change of custody as ordered by the Court will essentially deprive her of the children regardless of the outcome of any appellate remedy she may pursue. The children’s home state is India and India is not a signatory to the Hague Convention with respect to the enforcement of child custody and visitation orders. Petitioner argues that the return of the children to their father in India will deprive the Court of any jurisdiction to make orders in the event she prevails on appeal. The Court has balanced the possibility of Petitioner not having the ability to enforce orders from a California court with the Petitioner’s removal of the children from India without notice to Respondent or the benefit of a court order. The Court has also considered the potential merits of an appeal by Petitioner. The sole issue that drives the immediate concerns by Petitioner is the Court’s determination to exercise its temporary emergency jurisdiction under section 3424 and ordering the change in the custody of the children. This narrow issue is one that should be addressed quickly and easily through the Court of Appeal. Accordingly, the Court grants Petitioner a 20-day stay of the enforcement of the Court’s orders in order to seek review in the Court of Appeal. In other words, the children shall be returned to the custody of Respondent at 5:00 p.m. on the twentieth day from the date the Court signs the orders contemplated in Section 2 above, absent any further stay or other order issued by the Court of Appeal. The Court had tentatively granted the request of Respondent for the children to remain with him during the period of the stay, with appropriate orders in place to preclude travel outside of the State of California without court order. However, given that the Court is granting a stay of the orders it intended to make, the immediate change in custody would be contrary to the notion of a stay of the enforcement of those orders. However, the Court will grant Respondent visitation with the children from the date of execution of the Court’s orders until the tenth day, at 5:00 p.m., from the date of execution of the Court’s orders. Respondent shall surrender his passport to his counsel during the period of visitation. Respondent shall prepare an order for signature by the Court. Minor’s counsel shall be relieved upon entry of the order.


1 All further statutory references are to the Family Code unless otherwise specified.
2 The Court has subsequently made a series of orders granting visitation with the children to Respondent subject to certain conditions.
3 This case was heard together with Saifuddin v. Saifuddin, Kern County Superior Court Case No. S-1501-FL-627601.
4 Respondent had requested that this Court apply the law of India to its consideration of the DVPA request. The Court has declined to do so. Pursuant to Reich v. Purcell (1967) 67 Cal.2d 551, the court must examine the governmental interests or purposes served by the applicable statute or rule of law of each of the affected jurisdictions to determine whether there is a true conflict of law. If such conflict exists, the court must analyze the jurisdictions’ respective interests to determine which jurisdiction’s interest would be more severely impaired if that jurisdiction’s laws were not applied in the particular context presented by the case. Respondent’s request to apply the laws of India did not contain any statement of the law of India so that this Court could make a comparative analysis of the law of each jurisdiction to determine if there is a true conflict that would require a further analysis.
5 The 52nd Syedna was Petitioner’s uncle and Respondent’s grandfather.
6 In Petitioner’s deposition testimony admitted during the hearing, Petitioner was asked whether there were any statements or writings from Respondent in the six months prior to her leaving India that indicated Respondent would persecute her if she did not support his uncle. Her answer was: “He has not specifically told me anything.”
7 “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Fam. C.§3402(c).
8 Given the Court’s determination that India is the children’s “home state” and there is no evidence India has declined to exercise jurisdiction, the remaining potential bases for asserting jurisdiction under Section 3421 are inapplicable


THE DECISION IS MAILED TO ALL PARTIES AS STATED ON THE ATTACHED DECLARATION

http://www.kern.courts.ca.gov/home.aspx ... CI&p1=Left



Justbeliever
Posts: 18
Joined: Fri May 08, 2015 1:26 am

#99

Unread post by Justbeliever » Tue Jun 30, 2015 6:02 am

Forwarded as received
Inside story of Saifee mahal.pdf
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