Loophole could still allow father to take her there

From – St. Louis Post-Dispatch

June 5, 2001

After two years of legal battles, Sandra Lowery-Rice has won a court decision to prevent her former husband from taking their daughter Maggie to visit his native Iran.

But the woman from rural Greenville, IL is celebrating only so much.

That’s because of a remaining legal loophole.

Through it, her ex-husband, Hossein Alibaikzadeh of Glen Carbon, could put the 7-year- old girl on an Iranian passport as an Iranian citizen to leave the country – and there is nothing the United States can do about it.

“I live with the constant fear, until she’s 18 and able to make her own decision, that he’ll try to take her,” Lowery-Rice, 40, said.

A federal law effective July 2 will, for the first time, require both parents’ signatures on a child’s passport – but it applies only to US passports.

If Maggie ever winds up in Iran, there is nothing the United States can do then, either.  Though her father would be violating a US court order, there are no extradition treaties between the two countries.  The United States and Iran have had no diplomatic relations for two decades.

In addition, Iran, unlike the United States, is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which is intended to reduce international abductions by insisting that custody cases be decided in the child’s country of habitual residence.

Those were among the facts Lowery-Rice learned – and presented to judges – as her legal battle with Alibaikzadeh went from Bond County Circuit Court in Greenville to the 5th District Appellate Court in Mount Vernon, Ill., and back again.  The end came May 9, when Associate Judge Ralph Mendelsohn, citing the child’s best interests as the standard to be followed, denied Alibaikzadeh’s petition to remove Maggie from Illinois.

Alibaikzadeh, speaking from his home in Glen Carbon, was reluctant to talk about the cast.

“I really don’t know what to tell you.  The court said no, and no means no,” he said.  “I’m really disappointed in what they said.

“I tried under the best of my ability to let the judge know my intention was for three weeks of visitation for my daughter to take her to Iran so she can see her family, because that’s part of her heritage.”

Alibaikzadeh, 44, said he considers the case a private matter between parents.  He declined to comment further, saying he feared anything he said could be used to harm Maggie.

In court documents submitted to Mendelsohn before the trial, Alibaikzadeh’s attorney, Edwardsville lawyer Erin Reilly, made his case.  She noted that her client has lived in the United States for 23 years – all of his adult life.  He is nearing completion on an engineering degree.

Reilly argued that placing geographical boundaries on visitation constitutes a restriction that requires a showing of serious endangerment to the child. She said Alibaikzadeh is not a flight risk, noting that he has surrendered his passport to her and has always gone through the courts when asking to take Maggie on a three-week vacation to Iran to meet his family.

Whether the passport is American or Iranian is unclear.  Lowery-Rice said Alibaikzadeh has an Iranian passport; Reilly did not return phone calls.  But Alibaikzadeh cannot obtain the passport that Reilly holds without going before a judge.

Other specialists in family law agree with Mendelsohn’s decision.

Leigh Joy Carson, a family lawyer from Clayton who has written on international child abductions said, “I think it’s a fantasy to think the mother has any realistic expectation of having the child returned.”

Carson said a child has a right to know his or her heritage, “but there’s a greater right in both parents having access to the child.”

Margo Green, a Clayton lawyer who once represented a St. Louis mother who tried to win back her daughter from a husband in Saudi Arabia, said her reading of the decision indicates Mendelsohn was correct in not modifying the original custody or visitation orders.

“However, because his country is not a member of the Hague Convention,” she said of Alibaikzadeh, “the court wanted to be cautious in protecting the rights of the child in making sure the child would remain in America.”

Green found the requirement of getting court permission to take Maggie out of Illinois as being burdensome on both parents, but “if the test the courts are supposed to use is the best interests of the child, then imposing a geographical boundary was the best thing in this case.”

Maggie said shyly that she was happy with the outcome.  “I didn’t want to be away from Mommy,” she said.

Lowery-Rice and Alibaikzadeh married in November 1989 and divorced in August 1995.  She got custody; he received standard visitation rights that included three weeks every summer.  The court battle began after Lowery-Rice rejected Alibaikzadeh’s first request for a trip to Iran.

In June 1999, then-Associate Judge Wendell Durr ruled in Alibaikzadeh’s favor on the trip, requiring him to post the titles to his home and car as surety. Lowery-Rice was pakicked, and she and her attorney, Patrick Schaufelberger of Greenville, obtained a stay from the appeals court to halt the trip.

In February 2000, the appellate judges sent the case back to Bond County, ruling that Durr had not considered the best interests of the child and had made his decision without holding a full trial.  Because Durr retired at the end of 1999, the case was assigned to Mendelsohn.  The trial was held on various dates over the course of six months, concluding in early April.

Now that the two years of battles are over, Lowery-Rice’s focus is on the next 10 – getting Maggie to adulthood as safety as possible.

“I’m not trying to keep her from his grandparents or her heritage – that’s something she’ll eventually need to explore,” Lowery-Rice said.  “But at her age, there’s no guarantee she’ll come back.”