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Hamdalla v. Ismail

Superior Court of Connecticut, Judicial District of Tolland, Rockville

September 14, 2015

Mai Hamdalla
v.
Emad Ismail

MEMORANDUM OF DECISION ON MOTION TO RELOCATE

Linda Pearce Prestley, J.

In the instant case, the defendant mother seeks to relocate to Cairo, Egypt with the minor child. A hearing was held on September 10, 2015. This court has considered all of the evidence including exhibits and testimony and applied the applicable law and makes the following findings.

FINDINGS OF FACT

The parties are the parents of Nadia Ismail, born November 15, 2008. She is six years of age. The plaintiff/father lives in South Windsor, Ct. The defendant/mother now resides in Cairo, Egypt with her parents and other family members.

Both parties hail from the country of Egypt. They are both dual citizens of Egypt and the United States. The father came to the United States when he was sixteen years of age. He is well educated and holds two master's degrees in the fields of mechanical engineering and in business administration. He has been employed at Pratt and Whitney for many years. His extended immediate family resides in the state of Virginia.

The mother came to the United States in 2006 after contracting with the Egyptian government to pay for her advanced education here. The terms of the contract are that she must return to Egypt after obtaining her degree or pay back the entire amount that was paid by the government. She now has a PhD in Computer Science and per the terms of the contract, she returned to Egypt to fulfill her obligation in January 2015. She is currently employed at Helwin University in Cairo as an Assistant Professor. She must work for several years before her debt to the government is forgiven. Her obligation to the Egyptian Government is approximately $140, 000 in school costs and her father is the guarantor on that debt.

The parties met in the United States and returned to Egypt to marry in 2007. The child, Nadia Ismail, was born on November 15, 2008 in the United States. During the marriage, in addition to paying the school expenses, the government of Egypt subsidized the family by paying their health insurance and by providing stipends for each of the parties and a separate stipend for the child. Because the parties were employed during much of that time, some of the proceeds were saved by the wife and some was sent to her family in Egypt.

In June of 2009, the mother filed for dissolution of marriage. On August 23, 2010, the dissolution was granted and the mother was held responsible for the payback of the debt to the Egyptian government. The court found that the husband caused the marriage to break down due to his jealousy, anger, and controlling behavior where he mentally and verbally abused his wife until she acceded to his demands. In March of 2009, the father was arrested after an incident of domestic violence and a partial protective order was issued in the mother's favor. In May of 2009, the wife obtained a restraining order with a residential stay away after a second incident occurred. That restraining order remained in place until January of 2010. The mother had requested permission to relocate to Egypt with the child at the time of dissolution but the court deemed the request premature and did not rule on it since the mother had another year to be in the United States, the family relations study was over nine months old and there was no guardian ad litem appointed to opine regarding the child's best interests on that issue.

After considering all of the evidence, the parties were awarded joint legal custody of the minor child, primary residence to the mother and sole decision making to the mother in the event of an impasse. The father's access was to be every other weekend and Wednesday overnights. This court found the mother's testimony on the parenting practices both pre and postjudgment to be credible and can find the following: that the mother was the primary caregiver of this child for her first six years of life; that she moved out of the family home when the baby was four months old, after the father hit her and the police were involved; that the child had some special needs and the mother had met those needs while feeling culturally isolated, away from her family and while trying to finish her degree; that on several occasions when the mother asked him to take the child, the father would agree on the condition that the mother send a babysitter and a cook because he believed " that is the mother's job"; that if he took the child longer than he was scheduled to, he would not take the child for weekends after; that after the divorce, the father sought less time with the child, not more; that during the marriage and prior to the second request to relocate, the child would visit Egypt with the mother several times during the year and often for months at a time in the summer; that despite this history, when the mother needed to return to Egypt in the summer of 2014 for several months to visit her family and to process paperwork for her job and asked to take the child with her, the father refused necessitating that he temporarily have the child in his care; and that while the mother was away for those two months, he unilaterally and over the mother's objections, changed the child's school from public school to a private strict Islamic school.

The mother began her academic position in Cairo in February 2015 while this matter was pending. Through no fault of the parties, the family relations study was not issued until June, one hearing was continued for Muslim religious holidays during the summer and another hearing date could not be scheduled during September. The mother had no choice but to leave her daughter in the care of the father from January 2015 to the summer of 2015 although she returned several times to visit the child during that period. Over the summer, the child lived with the mother in Cairo and returned in August to begin school in public school in South Windsor where she has been enrolled.

RELOCATION

Connecticut General Statutes § 46b-56d(a)(3) provides that the best interests of the child must always govern decisions involving custody and relocation. Ford v. Ford, 68 Conn.App. 173, 188, 789 A.2d 1104 (2002). Connecticut General Statutes § 46b-56(c)(3) states that the court should give consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference. Falk v. Falk, No. FA040411322S, 2005 Conn. Super. LEXIS 2169, 2005 WL 2210648 (Conn.Super.Ct. Aug. 17, 2005). Connecticut General Statutes § 46b-56d(a) allocates the burden of proof to the relocating parent and expands the best interest of the child standard adopted through case law by providing specific factors that the court is to consider. Taylor v. Taylor, 119 Conn.App. 817, 822, 990 A.2d 882 (2010). The party wishing to relocate must demonstrate that the relocation is for a legitimate purpose, that the proposed location is reasonable in light of such purpose, and that the relocation would be in the best interest of the child. Conn. Gen. Stat. § 46b-56d(a).

During the hearing, the mother established that not only does she have a contractual obligation to fulfill with the Egyptian Government and her university but that being in the United States has caused her to feel isolated and without any family or support system to rely on. She was frank with the court in stating that she has not done well here emotionally and that she needs to be doing well to be good for the child. It is clear to the court that this request to relocate was no surprise to the father. He was well aware of the contractual obligation that the mother had to her university when he met her, when he courted her, when he married her and when they decided to have a child. The plan of the parties had always been to go to Egypt when she finished her education and that plan changed for him when the mother filed for divorce. This court finds that the mother therefore has several legitimate purposes for relocating to Egypt and that the relocation is reasonable in light of that purpose.

This court notes that in the last few minutes of the hearing, the father offered first to assume one half of the mother's debt to the Egyptian government and then offered to pay the entire amount in order to stop the relocation of the child to Egypt. While the court appreciates his willingness, albeit at the 11th hour, to do whatever he could to keep the child here in Connecticut, the fact remains that the mother's need for family supports and a consideration of the ...


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