USA – WI – LONG – 2001 LONG v ARDESTANI. The mother appeals a decision of the lower court denying her motion to prohibit her former husband from traveling to Iran. The lower court decision is affirmed. NOTE FROM KRISTINE UHLMAN “the judge had first required that all 4 children travel to Iran – on appeal, the judge said that only if the children wanted to travel to Iran they could go – only 1 of the 4 children wanted to go to Iran (to see the sick grandmother) – the youngest child, age 9 – and the father took him, we held our breath – and then the dad returned after 2 weeks with the boy”.
Long v. Ardestani (Wisconsin App. 2001)624 N.W.2d 405
11 International Abduction [USA 2001]
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STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT IV
No. 00-1429
25 Jan 2001
IN RE THE MARRIAGE OF:
LORI LONG F/K/A LORI ARDESTANI,
PETITIONER-APPELLANT,
V.
MOHAMMAD ARDESTANI,
RESPONDENT-RESPONDENT.
Before Vergeront, Roggensack and Deininger, JJ.
The opinion of the court was delivered by: Vergeront, J.
APPEAL from an order of the circuit court for Crawford
County: MICHAEL KIRCHMAN, Judge.
Affirmed.
001 Lori Long appeals a trial court order denying her
motion to prohibit her former husband, Mohammad Ardestani,
from traveling to Iran with their minor children to visit
his family. She contends the trial court erroneously
exercised its discretion when it refused to grant a
continuance to permit a key witness to testify, erred by
placing the burden on her to prove that it was likely that
Ardestani would not return with the children, and erred by
failing to consider the best interests of the children. She
and the guardian ad litem ask this court to rule, as a
matter of law, that, if a parent objects to the other parent
taking their children to visit a country with which the
United States does not have diplomatic relations and which
is not a signatory to the Hague Convention on the Civil
Aspects of International Child Abduction, the parent may not
take the children to that county to visit. FN01
002 We conclude the trial court did not erroneously
exercise its discretion in refusing to grant a continuance;
properly placed the burden on Long, as the moving party, to
show that it was not in the children’s best interests to
travel to Iran with their father to visit his family; and
properly considered the children’s best interests in ruling
on the motion. We decline to adopt the proposed ruling of
law because we conclude that the existing standard of the
best interests of the child, applied by trial courts in the
exercise of their discretion, already allows for full
consideration of all relevant concerns. Because the trial
court properly exercised its discretion in its application
of the best interests standard, we affirm.
BACKGROUND
Motion to Prohibit Travel
003 Ardestani was born in Iran and moved to the United
States in 1978 when he was twenty-eight years old. He and
Long were married in 1980 and have four children: Shiva,
d/o/b 5/24/82; Maria, d/o/b 10/22/84; Farshaun, d/o/b
7/02/88; and Kamran, d/o/b 4/01/90. Pursuant to the
stipulated judgment of divorce, entered on July 22, 1999, in
Crawford County, the parties have joint legal custody of the
four children. Long has primary physical placement, with
Ardestani to have placement every other weekend, every
Tuesday and Thursday from 3:00 p.m. to 7:00 p.m., three to
six weeks in the summer depending on the children’s wishes,
and certain holidays. The judgment of divorce also provided,
pursuant to the parties’ stipulation:
H. In the event the respondent desires to
take the minor children outside of the United
States, he shall give sixty (60) days’ notice
of his intention to petitioner who then has
thirty (30) days to move the Crawford County
Circuit Court for an order prohibiting the
trip or requiring the respondent to post a
bond. In the event respondent desires to take
the children to Iran for a summer vacation
visit, respondent may have physical placement
of the children up to six (6) weeks regardless
of the respondent’s placement entitlement
under paragraph I.B.4. above provided,
however, respondent shall not be entitled to
any additional physical placement during the
summer during which the Iranian visit occurs.
If the Iranian vacation uses less physical
placement time than the respondent is
ordinarily entitled to under paragraph I.B.4.,
respondent shall receive the additional
placements to which he is entitled.
004 In November 1999 after Ardestani told Long he
intended to take the minor children to Iran to visit, Long
moved the court for an order prohibiting Ardestani from
removing the minor children from the United States. She
asserted as grounds for the motion that Ardestani had
repeatedly stated his intentions to take the children to
Iran with him and not allow them to return; that, as a woman
who was not a Moslem and not a citizen of Iran, she would
not have standing in an Iranian court to demand the return
of the children; and her remedies under international law
were severely limited because the United States does not
have diplomatic relations with Iran.
005 At the May 5, 2000 hearing on the motion, Long,
represented by counsel, presented two witnesses who
testified on Iranian law as follows. Iran is not a signatory
to the Hague Convention on the Civil Aspects of
International Child Abduction (Hague Convention) and does
not have diplomatic relations with the United States. Under
Iranian law, which is based on the Koran, the mother’s
custody of children is restricted to the age of two for boys
and seven for girls and, above those ages, the father has
custody; the mother has no claim to custody. FN02 If a
mother has custody and physical placement of a child under
an order of a court in the United States and the child is
taken to Iran, the Iranian court does not give any weight to
the United States court order, particularly if the mother is
not a Moslem; if the father does not give permission to the
child to leave Iran, the mother would not be permitted to
take the child from Iran back to the United States. Boys
need their father’s permission to leave Iran up to a minimum
age of eighteen, and girls need it regardless of age as long
as they are unmarried. This would apply to Long’s and
Ardestani’s children if they were in Iran, even though they
are United States citizens and even though Ardestani is a
United States citizen. Ardestani is still an Iranian
citizen, the children are also Iranian citizens by virtue of
their father’s relation to Iran, and the children would be
considered Iranian by Iranian authorities. If Ardestani were
to die or become incapacitated or were not able to be
contacted, his authority under Iranian law with regard to
the children would transfer to the next male of authority
within his family line.
006 Kristine Uhlman testified that a boy between the ages
of twelve and fourteen can be drafted into the Iranian army,
and this might interfere with a boy that age being able to
leave Iran. According to Uhlman, Iranian families, in an
effort to avoid having their boys drafted into the army,
have sent them out of the country for education. She also
testified that there is no existing legal mechanism that
addresses the return of an abducted child if the child were
taken to Iran. She agreed that, if Ardestani took the
children to Iran, having the children returned would depend
upon his good faith.
007 Long testified that she feared Ardestani would not
return the children because, when she asked him for a
divorce in May 1998 he said, “You know what will happen. And
you haven’t seen nothing yet.” This meant to her that he
would take the children to Iran and she would never see
them, because in 1981 when she was pregnant with their first
child and asked if she could have the child baptized, he
made that threat explicitly saying, “If you don’t raise them
[sic] Moslem I will take the baby back to Iran and you’ll
never see it again.” He also repeated that threat another
time. Thereafter, during the course of their marriage when
he wanted to control her he would say, “you know what will
happen,” and she understood he meant he would take the
children and she would never see them. For this reason, when
he said this in May 1998, she destroyed his American and
Iranian passports and took other documents from his
briefcase. During their marriage Ardestani also told her
that men had sole custody of children in Iran and the
mothers were never given custody. In 1997 he took the two
girls, Shiva and Maria, for a visit to Iran, and when he
came back he talked about some day moving to Iran: it was
getting better, more open, he said. In the period just
before the divorce, he said if they were divorced, he was
going to leave. He has told her he “has to save face,” and
he wants revenge.
008 Long acknowledged that Ardestani took Farshaun to
Iran in 1991, when he was three, and the two girls in 1997,
and there was no problem with him bringing them back. She is
aware that Kamran wants to go with his father to Iran. She
would encourage Ardestani to bring his parents to the United
States, she would help him do this, and she would give him
more time with the children then.
009 Ardestani, representing himself, testified as
follows. He moved to Prairie du Chien in 1981 and began
employment at 3M. He is still employed there, now working as
an operator, and has a pension plan. He denied that he ever
told Long that if they got a divorce, he would take the
children away. He described himself as a citizen of this
country who lives and works here and helps the community.
His brother and sister-in-law live here and own real estate
as part of their business, and they have a child. He is
trying to help his sister come here. He wants his children
to see their grandparents, aunts, uncles, and cousins; his
mother is ill and that is why he wants to take the children
now, especially Kamran, who has not seen her. Ardestani
stated he would like to take all the children, if they
wanted to go, and he had four weeks of vacation time which
he would like to spend there.
010 Ardestani testified that he would not separate his
children from their mother or from this country. Ardestani
agreed it would be devastating to the children if they were
taken to Iran and not allowed to return. He will do whatever
is necessary to guarantee that they will come back safely,
including signing over his pension, and his brother would
also come to court and guarantee. He, Ardestani, has his
retirement and career here, ten years left to work, and he
is not going to give them up.
011 In response to the guardian ad litem’s questions,
Ardestani explained that he has looked into bringing his
parents to the United States. However, they would have to
apply for a permanent residency and they do not want to live
here because they are old. Also, he has to have a certain
amount of income for each family member he wants to bring
here, and he has only enough for one person. He talked about
it with his family and they decided it made more sense to
take the children to Iran so they could see the whole
family, rather than bringing just one person here to see the
children. In response to a question on the possibility of
his parents meeting his children in a third country,
Ardestani testified that his parents could not travel on
their own to a third country; it would be too expensive; and
he wants the children to see his culture, where he was born
and where he lived. Farshaun was too young to remember and
Kamran has never been there.
012 The therapist who had been meeting with Farshaun and
Kamran since November 1999 also testified. (She had also met
with Ardestani and with Long.) The boys’ concern about their
father’s expressions of anger had been alleviated for a
number of reasons, they were doing well, and they probably
needed no more counseling except a session for closure. She
had discussed a possible trip to Iran with them. Kamran was
excited to go; Farshaun said he did not know if he wanted to
be gone that long from his friends and activities, which the
therapist described as a typical reaction for an eleven year
old. The boys told her that some people believe their father
would not bring them back, but Kamran said if something
happened and they could not get back with their father, he
believed their uncle, who lives in Prairie du Chien, would
come to get them. Both boys are close to their uncle.
013 The therapist testified that she has no reason to
believe that Ardestani would want to separate the children
from their mother. Her view was that Ardestani has the
ability now to concentrate on what is best for his children
and to set aside the feelings he had about their mother and
the divorce. The therapist’s concern, she explained, is what
would happen if a tragedy occurred in Iran, given that it
has no diplomatic relations with the United States. However,
because Ardestani has a brother here, and four younger
siblings in Iran, there would probably be family who would
help the children come back to their mother. She agreed that
it would be emotionally devastating to the children if their
relationship with their mother were severed because
Ardestani decided to keep them in Iran.
014 After the evidence, the guardian ad litem recommended
that the children and Ardestani be accompanied to Iran by a
trusted adult male relative, preferably their uncle who
lives in Prairie du Chien, and that the trip be limited to
three weeks.
016 The court first decided that because Shiva was soon
to be eighteen, it was up to her if she wanted to go with
her father to Iran: the court would neither require nor
prohibit that. The court then ruled that the burden was on
Long, the moving party, to show that Ardestani should be
prohibited from taking the other children to Iran. Next, the
court determined that if Ardestani took the children to Iran
and decided not to return, there would be little that could
be done to return the children to the United States. The
court acknowledged the serious harm that would result should
this occur. The court found that Long really was afraid that
Ardestani might keep the children in Iran, and she was not
acting to harm or get even with Ardestani. However, the
court decided that in order for Long to prevail on her
motion, she had to do more than show she had a genuine fear
that Ardestani would keep the children in Iran and that the
harm if he did keep them, because of her lack of recourse,
would be great. The court identified the critical question
as the likelihood that Ardestani would keep the children in
Iran, and it then reviewed the evidence going to that
question.
016 The court described Ardestani’s statements that were
the basis for Long’s fears as “not very specific in recent
years,” and as generally concerning his authority as the
father and husband. The court found that much of Ardestani’s
conduct and statements upon which Long’s belief was based
were part of the culture from Iran that Ardestani still
carried with him, and were not evidence he was going to take
the children from their mother. Against that conduct and
statements, the court weighed Ardestani’s statements made
“numerous times” that he has no intention of fleeing the
country with the children and no motive to do so. The court
also referred to psychological evaluations of Ardestani,
which did not provide a basis for concerns about his
personality or psychology in relation to the issue before
the court, and to the therapist’s testimony that she did not
have a concern that Ardestani would try to keep the children
from their mother. For these reasons, the court determined
Long had not proved there was a likelihood Ardestani would
not return the children. However, the court did permit Long
to exercise some type of control over Ardestani’s pension,
if she chose.
017 The written order entered by the court on May 22,
2000, denied Long’s motion and directed that, upon her
request, Ardestani was to provide and sign all documents
with respect to his pension and retirement benefits
necessary to provide Long with security to insure the return
of the children. FN03 Three days later Ardestani filed a
performance bond with the court, assigning his entire
interest in his 3M pension, retirement, and voluntary
investment program benefits to the Crawford County Clerk of
Courts for the benefit of Long; the assignment was to
terminate when he returned the children and, if he did not,
distribution was to be made to Long as if he were deceased
and she his sole beneficiary.
Motion for Reconsideration
018 Long appealed the trial court’s order and asked the
trial court, pending appeal, to prohibit Ardestani from
taking the children out of the United States. The court
denied the motion, and Long sought the same relief in this
court. At oral argument on her motion in this court, Long
argued, among other points, that the trial court did not
consider the evidence presented at the May 5 hearing on the
conscription of twelve- to fourteen-year-old boys by the
Iranian government. The guardian ad litem informed us that,
based on the information about the draft, which he did not
remember from the May 5 hearing, his recommendation had
changed and he now recommended that neither of the boys
travel to Iran. Since the court reporter had not yet had
time to prepare the transcript from the May 5 hearing, we
were unable to determine what testimony had been presented
on conscription at the May 5 hearing. FN04 Long presented
to this court an affidavit from Uhlman averring it was her
understanding that boys twelve and older were routinely
drafted into the military by the Iranian government, and the
United States citizenship of a boy would not protect him
from the draft. This affidavit had not been presented to the
trial court.
019 On June 19, 2000, we remanded the matter to the trial
court to allow Long to bring a motion for reconsideration so
the trial court could consider evidence on conscription into
the Iranian army and consider the guardian ad litem’s
changed recommendation. We imposed a short time period for
bringing the motion and for preparation of the May 5
transcript, and ordered Ardestani not to remove the children
from the country until further order from this court.
020 At the June 23, 2000 hearing on remand, Ardestani,
still proceeding pro se, presented testimony by telephone
from K. Alipour. Alipour testified he was in charge of legal
affairs of the Iranian Interests Section in the Pakistani
Embassy. He was born and raised in Iran and served in the
Iran military. According to the Iranian law and
constitution, Iranian male citizens are eligible for the
draft at age eighteen if they are not continuing their
education. This has been the law since the end of the
Iran-Iraq war. During that war, 1980-87, young males below
eighteen voluntarily served in the military. Ardestani’s
sons are not eligible for the draft until they are eighteen,
and until that age, they can travel freely in and out of
Iran. Alipour was aware of no law that would allow the
Iranian government to detain children between the ages of
twelve and fourteen so that they would not leave the country
prior to being eligible for military service and he was
aware of no practice of doing that. If something happened to
Ardestani while he was in Iran with his children, their
mother could go to get them or a close relative could send
them back to the United States. The Iranian Interests
Section issues visas in the United States for travel to Iran
that contain stamps granting permission to leave Iran
without getting authorization in Iran. Many American
citizens are now traveling to Iran on such visas.
0221 After Alipour’s testimony, the hearing concluded for
the day and was continued to June 28, 2000. At the beginning
of the hearing on June 28, Long’s counsel asked for a
continuance. She explained that Uhlman had been prepared to
testify on June 23, but was then scheduled to travel and
testify on another matter, and she had not heard back from
Uhlman in response to telephone calls and faxes to arrange
for her testimony on June 28. Long’s counsel did have two
dates, July 3 and July 10, on which Uhlman could testify by
telephone. Long’s counsel also explained that she was
attempting to obtain more information in response to
Alipour’s testimony, but she had not been able to complete
that effort. The guardian ad litem joined in the request for
a continuance.
022 The court denied the request for a continuance
because this court had ordered the transcript for the
hearing on remand to be filed by July 10. The trial court
stated it understood the reason this court wanted to
expedite the matter, observing that, in response to the
order entered by this court, Ardestani had to change his
plane tickets to a date uncertain at a financial cost.
023 The trial court did receive Uhlman’s affidavit as
evidence, while acknowledging it was hearsay, and did allow
Long’s counsel to make an offer of proof on what Uhlman’s
testimony would be. According to the offer of proof, Uhlman
would testify as follows. She has specific information that
there were teenagers who served in the Iranian army under
the age of eighteen. She has information or is under the
impression that boys were detained between the ages of
twelve and fourteen so they would be available for military
service at a later age. She had a case in which an
Iranian/American wanted to travel with his son at age eleven
or earlier to Iran because he would not be comfortable once
his son turned twelve. It is common practice that teenagers
are sent out of the country during their teenage years to
avoid the possibility of draft. It is possible the
constitution sets the age for draft at eighteen, but Iran
changes its law by decree, so if there were a reason to have
more young people in the military, the age could change by
decree. She knew of no specific instance in which a teenager
came to Iran for a visit in a situation such as this and was
drafted into the military service.
024 In response to the court’s questions, Long’s counsel
stated she had not asked Uhlman whether her knowledge of
boys under eighteen serving in the military was based on the
time of the Iran-Iraq war.
025 The court denied Long’s motion for reconsideration.
The court found there was not “a reasonable possibility,” it
was “not likely” and not “probable to any reasonable degree”
that Ardestani would keep the children in Iran. The court
referred to Ardestani’s pledge of his retirement benefits,
the many years he had lived here, his relatives here, and
his children that would not be going. FN05 The court
rejected the argument that, because the harm to the children
if they were retained in Iran would be so devastating, the
mere possibility of that occurrence was sufficient to
prevent Ardestani from taking the children to Iran,
regardless of the likelihood of that occurrence. With
respect to the issue of the draft, the court discussed
Uhlman’s affidavit and offer of proof and Alipour’s
testimony, as well as Long’s arguments that Alipour’s
testimony was not credible. The court determined that
Alipour’s testimony was credible and logical, observing that
Alipour provided explanations for his statements. The court
found that “during these times” there was not a reasonable
likelihood or probability that the children would be drafted
during their trip to Iran with their father.
026 With the transcripts of the May 5 hearing and the
hearing on remand before us, we entered an order granting
the relief Long sought pending disposition of the appeal,
and we expedited the briefing schedule. FN06
DISCUSSION
Continuance
027 Long contends the trial court erred in denying her
request for a continuance of the hearing on her motion for
reconsideration so that Uhlman could testify. We disagree.
028 A motion for a continuance is directed to the sound
discretion of the trial court. State v. Anastas, 107 Wis. 2d
270, 271, 320 N.W.2d 15 (Ct. App. 1982). We affirm
discretionary decisions when the trial court examines the
relevant facts, applies the correct legal standard, and uses
a rational process to reach a conclusion a reasonable judge
could reach. F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d
840 (Ct. App. 1999).
029 In its order remanding to the trial court, this court
imposed a strict time schedule for proceedings in the trial
court because we were at the same time temporarily
prohibiting Ardestani from leaving the country, even though
we had not yet decided Long was entitled to such a
prohibition pending appeal. The specific purpose of the
remand was to provide Long with an opportunity to more fully
develop the record with Uhlman’s testimony. We recognize
Long arranged for Uhlman to testify by telephone on the
first day of the hearing on remand, and it was not through
any fault of Long or Uhlman that Uhlman did not testify that
day. However, the trial court accurately understood the
importance this court placed on an expeditious proceeding on
remand. The trial court also correctly perceived that, if it
granted the continuance, it would not be able to meet the
deadline we had imposed after already granting one request
for an extension due to the court reporter’s difficulty in
meeting the first deadline we set.
030 Moreover, the trial court accommodated Long’s desire
to provide additional information from Uhlman by agreeing to
consider the contents of Uhlman’s affidavit and Long’s offer
of proof. At oral argument in this court, Long’s counsel
stated she had no information from Uhlman other than that
which was presented to the trial court by affidavit and
offer of proof. Therefore, Long has not established that a
continuance would have produced evidence from Uhlman that
the court did not already have from her affidavit and the
offer of proof.
031 Under these circumstances, we have no hesitancy in
concluding the trial court properly exercised its discretion
in denying the continuance.
Burden of Proof
032 Long next argues the trial court improperly placed
the burden of proof on her, rather than Ardestani, to prove
he should be prohibited from taking the children to Iran.
FN07 She contends the issue, properly framed, is whether it
is in the children’s best interests to go to Iran with their
father, and this issue was not litigated in the divorce
proceedings; rather, the parties stipulated to preserving
this issue for later determination by the court. Therefore,
according to Long, the court is really making an initial
determination on the best interests of the children, and
both parties have an equal burden of showing what is in the
best interests of the children. Long relies on Gochenaur v.
Gochenaur, 45 Wis. 2d 8, 172 N.W.2d 6 (1969), and Pamperin
v. Pamperin, 112 Wis. 2d 70, 331 N.W.2d 648 (Ct. App. 1993),
for her position. We conclude neither case advances Long’s
position.
033 In Gochenaur the court held that a parent moving for
custody of her children, after she stipulated to custody
with the father, did not have the burden of proving a change
of conditions because the court had not made a full inquiry
into, and a determination of, the children’s best interest.
Gochenaur, 45 Wis. 2d at 18-19. However, in Corcoran v.
Corcoran, 109 Wis. 2d 36, 42, 324 N.W.2d 901 (Ct. App.
1982), we held that Wis. Stat. 767.32(2) (1979-80),
governing modification of custody orders (and enacted after
Gochenaur was decided), did not treat stipulated custody
awards differently than custody awards after litigation.
Therefore, Gochenaur is no longer the law regarding
modifications in custody or placement orders. In any event,
Long’s motion did not seek a modification of any provision
in the divorce judgment, but was brought pursuant to one of
those provisions on an issue not decided in the judgment.
034 The statement in Pamperin on which Long relies also
is not relevant to this case. In Pamperin we stated that
when the court makes an initial determination of custody,
each party bears an equal burden to show an award of custody
to that party is in the child’s best interest. Pamperin, 112
Wis. 2d at 74-75. FN08 In this case, the initial
determination of custody and placement was already made in
the judgment of divorce.
035 The guardian ad litem, while also contending the
court erred in placing the burden of proof on Long, takes a
different position of the correct rule. The guardian ad
litem contends that, when one parent wishes to travel with
his or her children over the objection of the other parent
to a country that is not a signatory to the Hague
Convention, the parent who wishes to make the trip should
have the burden of proving the trip should be allowed.
036 Which party has the burden of proof presents a
question of law, which we review de novo. Wolfe v. Wolfe,
2000 WI App 93, 234 Wis. 2d 449, 457, 610 N.W.2d 222. We are
persuaded that the trial court correctly concluded Long had
the burden of proving that prohibiting Ardestani from taking
the children to visit his family in Iran was in the
children’s best interests.
037 The general rule is that the party seeking judicial
process to advance a position carries the burden of proof.
Id. FN09 In this case Long is seeking a court order
prohibiting Ardestani from taking the minor children to Iran
for a visit. She is doing so consistent with the procedure
the parties stipulated to, which was incorporated in the
judgment of divorce. Under that procedure Long has the
obligation to move the court to prohibit Ardestani from
taking the children to Iran; Ardestani’s only obligation
before taking the children is to notify Long sixty days in
advance of his desire to take the children. The same
stipulated provision also specifies the length of such a
visit and its effect on the placement schedule. This
indicates the parties contemplated that, if Long did not
move the court to prohibit Ardestani, he could take the
children without seeking any court approval, consistent with
the terms of the provision.
038 This procedure is similar to that in the statute
governing situations in which a parent wishes to remove a
minor child from the state of Wisconsin for a period of more
than ninety consecutive days and the other parent has
periods of physical placement. Wis. Stat. 767.327. FN10
The parent wishing to do so must give the other parent
notice at least sixty days in advance to allow the other
parent to object. Section 767.327(1). A parent wishing to
prohibit the removal must do so by motion to the court and
has the burden of proof to show prohibition is in the
children’s best interests. Section 767.327(3)(c)2.
039 There is no statutory provision prohibiting a parent
with joint legal custody and physical placement from taking
the child on a visit outside Wisconsin, including to a
foreign country, for less than ninety days. Also, in the
absence of a provision in the divorce judgment to the
contrary, there is no reason a parent with joint legal
custody may not take a child on a visit to another country
during the child’s physical placement with that parent,
without the other parent’s permission, as long as the visit
is less than ninety days.
040 We conclude that, when parents have agreed, as they
have here, that one parent must move the court to prohibit
the other from taking a particular trip with the children,
the moving party has the burden of proof-both the burden of
producing evidence and the burden of persuading the court
that prohibiting the trip is in the children’s best
interests. Although the guardian ad litem urges us to adopt
a different rule when the trip is to a country that is not a
signatory to the Hague Convention, he provides us with no
case law authority for such a rule. FN11 Moreover, in the
one article brought to our attention that addresses the
question of burden of proof-Susan L. Barone, International
Parental Child Abduction: A Global Dilemma With Limited
Relief-Can Something More Be Done?, 8 N.Y. Int’l L. Rev. 95,
n.199 (1995)-the author “proposes that the threatened parent
should have the burden of proving an abduction threat by a
preponderance of the evidence.”
Best Interests of Children
041 The best interests of the children is the dominant
concern in any decision in divorce actions affecting custody
or physical placement of children. Racine Family Court
Comm’r v. M.E., 165 Wis. 2d 530, 536, 478 N.W.2d 21 (Ct.
App. 1991). Long argues the trial court failed to consider
the best interests of the children in making its ruling. If
Long means the trial court did not apply the standard of the
best interests of the children, we disagree.
042 The parties’ arguments to the court at both the May 5
hearing and on the motion for reconsideration make clear
that the parties and the court understood the issue was
whether it was in the children’s best interests to go to
Iran with their father. There was evidence that it would be
beneficial for the children to travel with their father to
the country of his birth and visit his family with him,
assuming the children were returned, and there was no
evidence to the contrary. There was no dispute it would be
devastating to the children if they were not returned. We
agree with the trial court and Ardestani that it was
necessary for the court to consider not only the benefit to
the children of going and the harm to them if they were not
returned-neither of which were disputed-but also the
likelihood of their not returning, which was the central
factual dispute in this case. Accordingly, the evidence and
the trial court’s decision were focused on this dispute.
However, this focus does not mean the trial court was not
ultimately deciding what was in the children’s best
interests.
042 We understand Long to also argue that the trial court
erred in applying the best interest standard because it did
not give proper weight to the devastating effect on the
children if they were not returned to their mother in the
United States. Because the determination of a child’s best
interests depends on firsthand observations and experience
with the persons involved, it is committed to the trial
court’s discretion. F.R., 225 Wis. 2d at 637. We therefore
examine the trial court’s ruling to determine whether it
properly exercised this discretion. In doing so, we are
mindful that assessing the credibility of witnesses and
weighing their testimony are functions of the trial court,
not this court, and we do not reverse the trial court’s
findings of fact unless they are clearly erroneous. Wis.
Stat. 805.17(2); State ex rel. T.R.S. v. L.F.E., 125 Wis.
2d 399, 401, 373 N.W.2d 55 (Ct. App. 1985).
044 In this case the critical question of the likelihood
of the children being returned has these component
questions: (1) What is the likelihood that Ardestani will
intentionally refuse to return the children or refuse to see
that they are returned? (2) What is the likelihood that one
or both boys would be detained by the Iranian government so
that they could serve in the military? (3) What is the
likelihood that, if Ardestani through accident becomes
unable to return the children, they will be able to return
nonetheless? (4) What legal mechanisms exist to insure that
if Ardestani does intentionally refuse to return the
children or see that they are returned, and if his relatives
refuse to or are unable to see that they are returned, Long
can nonetheless secure their return?
045 The trial court carefully evaluated Long’s and
Ardestani’s testimony, and considered the other testimony
and evidence presented relevant to Ardestani’s intentions.
The trial court found Ardestani intended to bring the
children back as he said he would. This is a factual finding
highly dependent on the trial court’s assessment of the
credibility of witnesses. There is ample evidence in the
record to support such a finding, which the trial court
explained. Therefore, we will not set aside this finding.
046 The trial court’s finding that there is no reasonable
likelihood of detainment for military service in Iran or of
conscription was based on its assessment of the
persuasiveness of the testimony of Alipour as compared to
the proffered testimony of Uhlman. Again, this is an
assessment for the trial court to make, not this court, and
we will not disturb it.
047 The court also considered the evidence on the
question of what would happen if Ardestani was unable to
bring the children back himself. It heard the testimony of
the children’s therapist, who had considered this question,
and evidence that Ardestani had relatives both in Iran and
in the United States who could help bring the children home.
There was no evidence suggesting that any family member who
would have authority over the children under Iranian law if
something happened to Ardestani would not help them return
to Long.
048 Finally, the court considered the undisputed evidence
that Iran was not a signatory to the Hague Convention, it
did not have diplomatic relations with the United States,
and the courts of Iran would not recognize an order of a
court of the United States awarding Long custody of her
children. The court did not ignore this evidence, but
forthrightly addressed it: the court acknowledged that it
could not absolutely rule out the possibility that Ardestani
would act other than as he promised, and, if this occurred,
Long would be without a legal remedy and the effect on the
children would be devastating. Ultimately, the court had to
weigh the benefit to the children of going to Iran with
their father against the likelihood that they would not be
returned, along with the harm to them if they were not
returned. That weighing, we conclude, is part of the
exercise of the trial court’s discretion in deciding what is
in the children’s best interests. We are satisfied the trial
court properly exercised its discretion in deciding it
should not prohibit Ardestani from taking the children to
Iran.
049 Both Long and the guardian ad litem ask that we rule
as a matter of law that a parent, even one having custody or
joint custody, may not take a child to a country that is not
a signatory to the Hague Convention if the other parent
objects, even if a court finds the parent wishing to take
the child intends to return the child and otherwise comply
with court orders. They argue such a rule is good policy
because the consequences of a failure to return the child in
such situations are so severely adverse to the child.
050 However, none of the cases brought to our attention
from other jurisdictions even hint at such a rule. Rather,
in those cases in which courts have ordered restricted
visitation in this country because of fear of abduction to
another country, FN12 or have prohibited a parent from
taking a child to, or having visitation with the child in,
another country, FN13 the courts have examined the facts and
circumstances of each case to arrive at the best interests
of the child. In some cases the trial courts have found,
based on the evidence, that there is sufficient likelihood a
parent may flee the country with the child, as the other
parent fears, to justify restrictions. FN14 In others
cases trial courts have found, based on the evidence, there
is not a sufficient likelihood of that occurring to justify
either supervised visitation in this country FN15 or a
prohibition on visitation in another country. FN16 The
appellate courts in these cases have reviewed the trial
courts’ factual findings and discretionary determinations
under deferential standards similar to those we have already
enunciated in this case.
051 While in some cases the difficulty of obtaining the
return of the child in the event of an abduction (because
the other country is not a signatory to the Hague Convention
or for other reasons) is one factor courts have considered
in imposing restrictions, see, e.g., Al-Silham v. Al-Silham,
1994 WL 102480 (Ohio Ct. App. 1994), in no case of which we
are aware is this the only factor. Indeed, the Minnesota
Court of Appeals has specifically rejected such an argument
in the context of deciding whether visitation in this
country should be supervised or not. See Al-Zouhayli v.
Al-Zouhayli, 486 N.W.2d 10, 13 (Minn. Ct. App. 1992)
(decision whether to order supervised visitation depends on
particular facts of the case and unwillingness of
non-custodial parent’s native country to enforce trial
court’s order is not controlling). In addition, none of the
articles to which the parties have directed us suggest the
adoption of a rule such as Long and the guardian ad litem
propose. FN17
052 We are satisfied that the standard of the best
interests of the child, comprehensive as it is, permits a
full consideration of concerns both about a parent’s
intention in abducting a child and about the lack of a
remedy should that occur. We are also satisfied that there
is no need to alter the deference appellate courts give to
trial courts’ decisions on a child’s best interests in order
to insure a full consideration of those concerns.
053 The guardian ad litem suggests, as an alternative to
adopting the rule of law he advances, that we provide
guidance to trial courts by listing the factors they should
take into account in deciding whether to permit one parent
to take a child to another country for a visit, and that we
remand to permit evidence on these factors. At oral argument
the guardian ad litem mentioned such factors as: the
intention of the parent to return with the child; methods of
providing security that the parent will return with the
child; the effect on the child; the desires of the child;
the reason for the visit; and the current policies, laws,
and practices of the country to which the parent wishes to
take the child for a visit. While we can readily agree these
are appropriate factors to consider in this case, and,
perhaps in many others, we see no need to establish a
definitive list of factors. The virtue of the best interests
standard is that it permits the trial court to take into
account all facts and circumstances bearing on the best
interests of the particular child, and we view an attempt to
define what those might be in a general category of cases as
neither necessary nor fruitful.
054 We also see no need for a remand in this case. The
trial court had before it evidence bearing on all the
factors the guardian ad litem suggests are relevant, and it
considered those factors in reaching its decision not to
prohibit Ardestani from traveling to Iran with his minor
sons. As we have already concluded, the trial court properly
exercised its discretion in making that decision.
By the Court. — Order affirmed.
Recommended for publication in the official reports.
Opinion Footnotes
———————————————————–
*fn1 The purpose of the Hague Convention on the Civil
Aspects of Child Abduction is “to protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
prompt return to the State of their habitual residence, as
well as to secure protection for rights of access.” Mezo v.
Elmergawi, 855 F. Supp. 59, 62 (E.D. N.Y. 1994). The Hague
Convention provisions apply only to those countries who sign
it and thereby agree to abide by its terms. Id.
*fn2 There was also testimony that the age at which transfer
of custody from the mother to the father varied in different
regions of Iran and could be older than seven, depending on
the gender of the child.
*fn3 The order also directed the minor children’s passports
to be held by the court until they reach eighteen at which
time the passports will be released to the children, with
release to either parent before then being on court order.
Release to Ardestani was specifically ordered to facilitate
the trip to Iran during the summer of 2000.
*fn4 The transcript then before us from the hearing in the
trial court on relief pending appeal showed Long’s counsel
made the argument about the conscription evidence, and both
the trial court and the guardian ad litem indicated they did
not recall that evidence.
*fn5 Although Long’s motion and the court’s order denying it
referred to “the minor children,” it appears Ardestani made
specific plans to take only Farshaun and Kamran.
*fn6 One of the issues to be decided on appeal-whether
Ardestani should be permitted to take the children to Iran,
even if he intends to bring them back, because there is no
legal mechanism to effectuate their return if something
happens to him-is an issue of first impression in Wisconsin.
We therefore appointed counsel to represent Ardestani from
the Volunteer Pro Bono Program established by the Wisconsin
State Bar Appellate Division. Subsequently, we denied
Ardestani’s motion to vacate the order prohibiting him from
removing the children from this country pending disposition
of the appeal.
*fn7 In its decision on remand, the trial court stated: And
it is the petitioner who must make a showing that it is
likely. I guess it is burden of proof here is, perhaps, an
issue that was mentioned before the Court of Appeals. But
whatever the burden is, you haven’t met it because it’s not
been shown to be likely. It’s a mere possibility. As Mr.
Ardestani says it’s possible he could, someone go outside
the courtroom and be struck by a car today. It could happen.
You try to bootstrap onto that the risk is too great, that
there is any possibility that the risk is too great. I do
not believe that is correct. And, so, it is not likely. It
is not probable. Ardestani reads this statement to mean that
the trial court’s decision would be the same no matter which
party had the burden of proof. Long, as her counsel
explained at oral argument, understands the trial court to
mean that, whatever the degree of certainty Long had to meet
to fulfill her burden of proof, she had not met it. In
Long’s view, the trial court is still adhering to its
statement in its May 5 ruling that she had the burden of
proof. Because we review de novo the question which party
has the burden of proof, we need not resolve these
conflicting interpretations.
*fn8 We noted in Pamperin v. Pamperin, 112 Wis. 2d 70,
74-75, 331 N.W.2d 648 (Ct. App. 1983), that our instruction
to the trial court on the prior appeal in the same case-that
this standard should be used because the parties had
stipulated to custody-was in error in light of Corcoran v.
Corcoran, 109 Wis. 2d 36, 42, 324 N.W.2d 901 (Ct. App.
1982), but that it was nonetheless binding as law of the
case.
*fn9 In Wolfe v. Wolfe, 2000 WI App 93, 234 Wis. 2d 449,
457, 610 N.W.2d 222, we concluded that, although the father,
who had not had contact with his son, brought a motion
seeking minimal contact, the mother had the burden of
proving endangerment under Wis. Stat. 767.24(4) (1997-98).
(This section provides that a child is entitled to physical
contact with both parents unless, after a hearing, the court
finds “physical placement with a parent would endanger the
child’s physical, mental, or emotional health.”) We
concluded the mother bore the burden, even though the father
brought the motion, because, under the statute, the court
could not deny his motion unless it found endangerment, and
the mother was the party advancing that position. Wolfe, 234
Wis. 2d at 457. Whether this conclusion conflicts with our
statement in Sterlingworth Condominium Ass’n v. DNR, 205
Wis. 2d 710, 726, 556 N.W.2d 791 (Ct. App. 1996), that
“[t]he customary common-law rule [is] that the moving party
has the burden of proof, including not only the burden of
going forward but also the burden of persuasion,” is an
issue we need not decide in this case.
*fn10 Wisconsin Stat. 767.327(1)(a)2 also governs
situations in which one parent wishes to establish legal
residence with the child outside the state or within a
distance of 150 miles from the residence of the other
parent.
*fn11 We discuss the two cases the guardian ad litem cites,
Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn. Ct. App.
1992), and Soltanieh v. King, 826 P.2d 1076 (Utah Ct. App.
1992), later in this opinion.
*fn12 See, e.g., Soltanieh v. King, 826 P.2d 1076 (Utah Ct.
App. 1992); Al-Silham v. Al-Silham, 1995 WL 803808 (Ohio Ct.
App. 1995).
*fn13 See, e.g., Bergstrom v. Bergstrom, 320 N.W.2d 119
(N.D. 1982).
*fn14 See footnote 12.
*fn15 See, e.g., Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10
(Minn. Ct. App. 1992).
*fn16 See, e.g., Markus v. Markus, 427 N.Y.S.2d 625 (N.Y.
App. Div. 1980); Lolli-ghetti v. Lolli-ghetti, 556 N.Y.S.2d
324 (N.Y. App. Div. 1990) (allowing visitation in Monaco and
eliminating bond); Hatzievgenakis v. Hatzievgenakis, 434
N.W.2d 914 (Iowa Ct. App. 1988) (allowing visitation in
Greece upon posting of reduced bond).
*fn17 See Patricia E. Apy, Managing Child Custody Cases
Involving Non-Hague Contracting States, 14 J. Am. Acad.
Matrim. Law 77 (1997); Susan L. Barone, International
Parental Child Abduction: A Global Dilemma With Limited
Relief-Can Something More Be Done?, 8 N.Y. Int’l L. Rev. 95
(1995); Monica E. Henderson, U.S. State Court Review Of
Islamic Law Custody Decrees-When Are Islamic Custody Decrees
In The Child’s Best Interest?, 36 Brandeis J. Fam. L. 423
(1997-98); and Mary A. Ryan, Statement before the Committee
on International Relations United States House of
Representatives Concerning Implementation of the Hague
Convent