Under Pakistani family law, which is based on Islamic law, the father controls virtually all aspects of his family”s life. He decides where his wife and children will live, how the children are to be educated and whether or where they may travel. Courts rarely, if ever, give custody of children to a woman who is not a Muslim, who will not raise the children as Muslims, does not plan to raise them in Pakistan, or has remarried. In all probability, even if the mother wins custody, the children would still need the father’s permission, to leave the country. Any matter of custody in Pakistan can only be resolved through the appropriate local judicial system.
Currently, the only treaties which have any application to abductions of children from the United States are the Hague Convention on the Civil Aspects of International Child Abduction and the extradition treaties which the United States has with individual countries. Pakistan is not a party to the Hague Convention, and there is no bilateral treaty in effect between the U.S. and Pakistan which would cover parental child abduction.
While the courts of Pakistan may take into account the laws of other countries, custody orders from other countries are viewed simply as evidence in a Pakistani proceeding. Possession of a custody order, even in the absence of such an order by the Pakistani spouse, will not automatically result in the return of an abducted child. That parent would have to appeal to the family court in order to try to obtain an order for custody.
Pakistan will recognize decrees of other countries, whether or not there are any formal treaties with them. Abduction by a father is considered abduction by Pakistani authorities (the implication being that it is considered to be an illegal action). However, a foreign-born mother with U.S. custody orders still is not automatically allowed to take possession of her children and depart the country. She would have to retain an attorney and appeal to the High court. The high court acts like a post office in such cases. They send the case to the appropriate district judge for execution. The District Court reviews the papers and then calls in the concerned parties for a hearing. In spite of the illegal action (the abduction), and even though the foreign-born mother has a court order, there is still a great possibility the mother will not be given custody of the child. Moreover, if she is granted custody, the father can appeal to the Supreme Court on a matter of law , which means there was some legal point which was not adhered to during the course of the hearing. If the Supreme Court grants custody (no cases have gone that far yet in this district), there is no further recourse for the father or mother. If the foreign-born mother is granted custody and the father does not comply with the court order, the children can be taken by force. In addition, other civil actions can be taken such as attaching the father s property or arresting him. If a foreign born mother were granted full custody of her child, the father has the right to refuse to allow the mother and child to depart if the court order does not specifically allow her to remove the children from Pakistan.
Although appeal to the courts may seem difficult to a mother seeking custody of her children, it is recommended that parents be urged to appeal to the courts or other legal resources available. If a foreign-born mother has the only court order (U.S. or other) in effect regarding the custody of her child, it is also recommended that in addition to appealing to the courts, she should seek assistance in effecting that order from other local authorities (i.e. from local police or school officials).
Parents seeking legal assistance in Pakistan should be advised that local attorneys in Pakistan do not reseach or investigate cases. Therefore, she must bring as much documentary evidence as she can when she comes to Pakistan. She may be able to hire a local investigator (attorneys also do not use the services of independent investigators) to gain whatever evidence she needs from Pakistan. At this point, it would probably be best for the mother to be present in Pakistan, at least part way through the investigation, to check on the actual progress being made and to try and minimize the possiblity that the investigator will be bribed to alter his findings.
The mother might wish to have a U.S. attorney review all collected evidence for advice on what may be useful and what may not. Once all evidence is collected, a Pakistani attorney should be retained. Constitutionally, courts are bound to resolve such cases within six months. But in reality, such cases could take more than one year if there are appeals. Since Pakistani attorneys do not do investigations, the costs incurred are purely for court-related costs and are therefore likely to be affordable, running as low as 10,000 Pakistani Rupees (U.S. Dollars $400.00) to 50,000 Pakistani Rupees (U.S. Dollars 2,000.00)
There are major family court sections in the civil courts in Rawalpindi, Lahore, Karachi, and Peshawar. In smaller towns, any judge could hear such a case.
In Pakistan, most mothers do not earn an income. The courts keep this is mind in determining what is in the best interests of the child. A father is legally bound to take care of his children no matter what since he is the income earner. A mother is not so bound. That is why, in most cases, the father is granted custody.
Laws protecting the rights of mothers are written into the Quran (Koran). Under Islamic law, a woman has the right to keep a boy child up to the age of seven years and a girl child up to the age of twelve. The Guardian and Wards Act of 1890 can be used to help American citizens in two categories of juvenile cases. It can be used to gain custody of a child for adoption purposes and it can be used to justify granting custody of a child to one parent or the other. According to the Act, a person who is granted custody of a child is given the responsibility to take care of the child and any property or other inheritance that may belong to that child. Since any inheritance is most likely to come through the father, the father would most likely prevail in such a situation.
The Extradition Treaty of 1931 was signed under the British mandate and could be used as a basis of cooperation in child custody cases. The Extradition Act of 1972 was not made with the U.S., but it could be extended in the interest of an American claimant. However, extradition has not been a recourse to which the U.S. Government has resorted in child custody cases.