affirming ruling of trial judge that witness lacked expertise needed to testify as an expert in Lebanese law
How later courts described this case
- affirming ruling of trial judge that witness lacked expertise needed to testify as an expert in Lebanese law
- referencing “constants,” or factors, often considered by judge in determining best interests of child
- “constants” in determining the best interests of a child in the context of a custody determination include “consideration of which parent has been the primary caretaker of, and formed the strongest bonds with, the child”
Written by the judges who cited it.
The opinion
Kafker, J.
(concurring). I write separately to emphasize that a party seeking to enforce a foreign custody decree of an unfamiliar court system must do a far better job of fulfilling his or her burden of establishing (1) that the party’s expert is qualified to opine on the foreign law at issue and (2) that the procedural and substantive law applied to the custody dispute was in substantial conformity with the laws of the Commonwealth. The father’s presentation here was inadequate on both grounds. I therefore concur in the result for the following reasons.
Based on the limited presentation of the father in this case, the probate judge did not abuse her discretion in not qualifying the father’s expert regarding the family law enforced by the Lebanese Sunnite court. See Commonwealth v. Richardson, 423 Mass. 180, 183 (1996). Contrast McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359, 362 (1996). The proposed expert’s experience with legal proceedings in the Lebanese court, as opposed to mediation proceedings associated with the court, was not well developed. The same was true of his knowledge of the substance of the family law applied by the Sunnite court. See Reporters’ Notes to Rule 44.1, Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 567 (LexisNexis 2009-2010) (“The trial judge’s attention may be directed to the law of another jurisdiction by oral testimony of a qualified witness”) (emphasis added). Given the difficulty and importance of a correct understanding of an unfamiliar legal system, I discern no error in the judge’s decision to require a clearer demonstration of expertise.
*510 In my view, the father’s limited submissions also failed to satisfy his burden of proving that the Lebanese Sunnite court decree he sought to enforce was based on procedural and substantive law in substantial conformity with Massachusetts law. See Akinci-Unal v. Unal, 64 Mass. App. Ct. 212, 221 (2005) (party seeking to enforce foreign divorce judgments did not “demonstrate that either foreign tribunal applied law reasonably comparable to our own”); Baker v. Booz Allen Hamilton, Inc., 358 Fed. Appx. 476, 481 (4th Cir. 2009) (“Rule 44.1 provides courts with broad authority to conduct their own independent research to determine foreign law but imposes no duty . . . to do so. . . . Thus, the party claiming foreign law applies carries both the burden of raising the issue that foreign law may apply in an action and the burden of proving foreign law to enable the . . . court to apply it in a particular case”); Bigio vs. Coca-Cola Co., U.S. Dist. Ct., No. 97 Civ. 2858 (S.D.N.Y Aug. 23, 2010) (same). See also Globe Newspaper Co. v. Commissioner of Educ., 439 Mass. 124, 131 (2003) (“burden of proof ordinarily falls on the party seeking relief”). As the probate judge properly determined upon review of the very limited documentation submitted, “It appears that the Lebanese decision to modify custody was made based on the sole consideration that Mother left the jurisdiction with the minor child. Such a consideration, standing alone, does not satisfy the requirements of G. L. c. 209B, § 14.” See Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220 (2002) (“a custodial parent’s removal of the child from Massachusetts, without the other parent’s consent, is alone insufficient to warrant modification of the custody order”).