Topic:
DIVORCE; CUSTODY OF CHILDREN; DOMESTIC VIOLENCE;
Location:
DIVORCE;
Scope:
Court Cases; Connecticut laws/regulations;

OLR Research Report


October 2, 2003 98-R-0192

TO:

FROM: George Coppolo, Chief Attorney

RE: Custodial Interference

You asked us to review the attached materials and indicate whether legislation should be considered.

SUMMARY

The attached materials describe a situation involving an Iranian couple and their minor child who became embroiled in a custody, visitation, and domestic violence dispute while visiting relatives in Connecticut. The unusual set of circumstances culminated when the husband took the child out of the country without his wife's knowledge or consent.

The legislative change you may wish to consider is amending the custodial interference criminal statutes to include the situation where a parent who has visitation rights takes the child without the other parent's consent even though either no custody order has ever been issued by the court to the other parent or such an order has expired.

In this case the mother had a restraining order and a temporary custody order and the father had a visitation order. Unfortunately, the restraining order and temporary custody order had expired just prior to the time the husband took his daughter back to Iran. Thus, at least in the opinion of one Superior Court judge, the custodial interference law did not apply since both parents had custody at the time the father removed the child from the United States.

Even if the father had violated the custodial interference law in this case it would not have mattered since apparently he was able to leave the country less than 24 hours after he took his daughter and the United States does not have diplomatic relations with Iran. According to Barbara Green, the mother's attorney, if almost any other country had been involved, the mother would have legal recourse.

FACTS

The following information is based on newspaper accounts of the situation and a discussion we had with attorney Barbara Green who represented the mother in a portion of the custody proceedings.

Ovang Farbiz and Leyla Mirjauadi, Iranian citizens, were married in Tehran, Iran on November 14, 1990. Their first and only child, Saba, was born on March 9, 1994. They came to the United States September 14, 1995 to visit family members and stayed with Mirjauadi's brother Zia Mirjauadi in Stamford. Around one month later, on October 15, Leyla moved out of her brother's Stamford home with her daughter Saba and moved into her sister's Stamford home.

On October 15, 1995 she applied for a restraining order in Superior Court barring Farbiz from contact with her. She also sought an order of temporary custody. The order was in effect for less than two weeks when a judge denied the application after the court reviewed the case. Apparently, in her application, Leyla alleged that her husband physically and verbally abused her. Farbiz denied abusing his wife. He claimed that she wanted to get a divorce so she could get a green card and stay in the United States. He also claimed that that they had argued because he did not want to get a divorce. Farbiz informed the court that he had a profitable computer business in Iran, and after gathering information about computer technology in the United States, had planned to return to Iran with his wife and daughter. Apparently neither party was represented at the hearing.

A little over one month later on December 4, 1995, Fabriz filed a motion in Superior Court seeking “liberal, frequent, and reasonable visitation.” He claimed he tried to call his wife to see his daughter but she would not accept her calls. Judge Dennis Harrigan granted the application for visitation on February 5, 1996, but ordered that visitation be supervised by a third party. Specifically, the court allowed Fabriz to see his daughter for five hours every Sunday at his brother-in-law's (Zia Mirjauadi) house in Stamford. This arrangement only lasted for three weeks. Leyla and Zia claimed Farbiz refused to cooperate, made death threats, and used obscene language. Farbiz denied this alleging that he was harassed, threatened, and denied meaningful visitation with his daughter. Both sides called the police to complain.

Subsequently, attorneys representing both parties brought in Stamford therapist Barbara Ivler to supervise the visitation. From early April into July, Farbiz paid $80 an hour to be with his daughter once a week at the therapist's office. Apparently because Fabriz was doing so well, the therapist recommended that the visitation arrangement be changed because meeting in a therapist's office was so unnatural.

At the suggestion of Fabriz's attorney, visitation supervision was turned over to Maria Varone, a local legal services attorney. The parties agreed that the visitation would occur at the Stamford town center, a large shopping mall. This arrangement worked from late July through September 1996.

On October 6, 1996, during a scheduled visitation, Fabriz managed to take his daughter from the mall while his uncle Anthony Vakilzadeh distracted Varone. After leaving the mall, Fabriz and his daughter took a limo to JFK Airport and caught a flight to Iran where they are presently living. Leyla had applied for political asylum in the United States around one month after she left her husband. She subsequently was granted it and thus she can remain in the United States as a legal resident. During December of 1996, Judge Horrigan awarded her full legal and physical custody of her daughter.

Leyla maintains that she cannot return to Iran because she will be arrested. According to a December 17, 1996 Stamford Advocate story regarding this matter, under Iranian law, a man can divorce his wife any time he wishes; but a woman may do so only under exceptional circumstances and with the court's permission. Also, according to this story, abuse is regarded as a husband's prerogative, there is no social support to women who leave their husbands, and a woman cannot leave Iran without her husband's permission.

The police arrested the uncle, Anthony Vaklzadeh, a civil engineer who resides in New Jersey, on December 7, 1996 and charged him with second degree kidnapping. In addition to distracting the visitation supervisor, police believe he arranged for transportation on the day Fabriz took his daughter out of the state and country. Police subsequently charged him with first degree custodial interference.

Subsequently, Judge Harold Dean dismissed the criminal charges against the uncle. The prosecutor had sought to have him prosecuted for first degree custodial interference and conspiracy to commit first degree custodial interference. The prosecutor, James Bernardi, argued that the visitation order of February 5, 1996 gave the mother physical custody of her daughter, effectively stripping Fabriz of his custodial rights. But defense attorney Michael Sherman asserted that at the time of the abduction, no custody order was in effect.

In dismissing the charges, apparently Judge Dean relied on a state Supreme Court decision (Marshak v. Marshak, 226 Conn. 652, (1993)) where the court overturned a civil liability award against people for aiding one parent to abduct his children because at the time of the abduction, the parents had joint legal custody. The Marshak court concluded that the criminal custodial interference law was not violated when a parent who has custody abducts his children from the other parent who also has custody. In the absence of a court ruling as to custody, the father and mother of every minor child are joint guardians of the minor and the powers, rights, and duties of the father and mother regarding the minor are equal (CGS 45a-606).

The mother apparently had hoped the criminal case against Fabriz's uncle would pressure him to return her daughter to this country. According to Douglas Wells, the mother's attorney, since the United States has no formal diplomatic relations with Iran it may be impossible to force Fabriz to return his daughter to her mother.

CUSTODIAL INTERFERENCE

CGS 53a-98 makes it a class A misdemeanor for a relative to take or entice a child under 16 years of age from his lawful custodian with the intention of holding the child permanently or for a protracted period of time and with the knowledge that he has no legal right to do so. It also makes it a class A misdemeanor to refuse to return a child under age 16 after the child's custodian asks him to return the child when he knows he has no legal right to keep the child. This offense becomes a class D felony if the offender takes or entices the child to leave the state or if the child is exposed to a risk that his safety will be endangered or his health materially impaired (CGS 53a-97). A class A misdemeanor is punishable by imprisonment for up to one year or a fine of up to $2,000, or both; a class D felony is punishable by imprisonment of up to five years or a fine of up to $5,000, or both.

RESTRAINING ORDER LAW

Leyla Mirjuadi sought a restraining order and a temporary custody order under the procedures established by CGS 46b-15. This statute permits spouses and other family or household members who have been subjected to a continuous threat of present physical pain or physical injury by another family or household member to apply to the Superior Court for relief.

The application for relief must include a sworn affidavit, which includes a brief statement of the conditions from which relief is sought.

If an application alleges an immediate and present physical danger to the applicant, the court may issue an ex parte order granting such relief as it deems appropriate. The court must order a hearing on the application within 14 days of the date of any order.

The statute authorizes the court, in its discretion, to make whatever orders it deems appropriate to protect the applicant and such dependent children or other people the court deems appropriate. The order may include temporary child custody or visitation rights. It may also include an order prohibiting the respondent from (1) imposing any restraint on the applicant; (2) threatening, harassing, assaulting, molesting, sexually assaulting or attacking the applicant; or (3) entering the family dwelling or the applicant's dwelling. Court orders may not exceed six months but the court may extend it upon the applicant's motion for whatever additional time it deems necessary.

GC:lc