Indiana Case Law
SHADY v. SHADY, 53A01-0605-CV-222 (Ind.App. 12-11-2006)
SAMER M. SHADY, Appellant-Respondent, v. SHEANIN SHADY,
Appellee-Petitioner. No. 53A01-0605-CV-222. Court of
Appeals of Indiana. December 11, 2006.
Appeal from the Monroe Circuit Court, The Honorable Stephen
R. Galvin, Judge, Cause No. 53C06-0310-DR-653.
ATTORNEY FOR APPELLANT: KAREN A. WYLE, Bloomington,
Indiana.
ATTORNEYS FOR APPELLEE: KARL L. MULVANEY, NANA QUAY-SMITH,
KELLY R. ESKEW, Bingham McHale, LLP, Indianapolis, Indiana.
OPINION – FOR PUBLICATION
FRIEDLANDER, Judge.
On April 4, 2006, the trial court dissolved the marriage of
Samer M. Shady (Samer) and Sheanin F. Shady (Sheanin),[fn1]
awarded Sheanin physical and legal custody of A.S., awarded
Samer supervised parenting time of A.S., and ordered Samer
to pay $47 per week for child support. Samer now appeals,
and presents the following restated issues for review:
(1) Did the trial court abuse its discretion by admitting
certain evidence, qualifying Sheanin’s witness as an
expert, or relying upon Sheanin’s expert’s conclusions?
(2) Did the trial court abuse its discretion by failing
to consider certain statutory factors?
(3) Were the trial court’s findings and conclusions
clearly erroneous?
(4) Did the trial court manifestly abuse its discretion
in its parenting time order?
We affirm.
The issues presented are fact sensitive and, therefore, we
will provide a detailed recitation of the facts viewed in a
light most favorable to the ruling. Samer was born in Egypt
on January 3, 1970, as an Egyptian citizen.[fn2] Sheanin is
an American citizen. In 1994, Sheanin traveled to Egypt in
order to study at The American University in Cairo. While
in Egypt, Sheanin met Samer. Samer’s father died in Egypt
in July 1994. Shortly thereafter, Sheanin and Samer married
in a civil ceremony in Cairo, Egypt on October 9, 1994, and
married in an Islamic ceremony a short time later.
Following their marriage, Sheanin and Samer remained in
Egypt until sometime in 1995, at which point they moved to
Bloomington, Indiana. Sheanin and Samer lived with
Sheanin’s parents in Bloomington for the duration of their
marriage.
Samer became a naturalized U.S. citizen on July 27, 2000.
On January 28, 2001, A.S., Sheanin and Samer’s only child,
was born. On October 31, 2003, Sheanin filed a petition for
dissolution of the marriage. Also in October 2003, Samer’s
brother moved from Egypt to Quincy, Massachusetts. On June
18, 2004, Sheanin filed a motion for an emergency order
prohibiting Samer from adding A.S. to his Egyptian passport
and removing A.S. from Monroe County, Indiana. Sheanin
filed the motion because “[a]fter [Samer] was [n]aturalized
he mentioned a number of times bringing [A.S.] overseas. .
. .” Transcript at 99. Further, Sheanin enrolled A.S. in
the U.S. Department of State’s passport watch program.
Sheanin took these measures because she was concerned that
if Samer took A.S. to Egypt, he would not allow A.S. to
return to the U.S. On June 29, the trial court issued an
order that prohibited Samer from both adding A.S. to his
Egyptian passport and removing A.S. from Monroe County.
On September 27, 2004, the trial court issued an order
directing Richard Lawlor, Ph.D., to conduct a custody
evaluation. Dr. Lawlor submitted his evaluation on November
19, 2004, which revealed the following: Dr. Lawlor met with
Sheanin, Samer, A.S., Sheanin’s parents, Larry and Hilda
McConnaughy, and Sheanin’s brother, Sheahan McConnaughy, on
October 4, 2004. Dr. Lawlor interviewed Sheanin and Samer
individually, Sheanin and A.S. together and Samer and A.S.
together, and Larry, Hilda, and Sheahan. Dr. Lawlor
administered the Minnesota Multiphasic Personality
Inventory-2 (the MMPI-2) test to both Sheanin and
Samer.[fn3] The MMPI-2 test results indicated, in relevant
part, that:
Sheanin ha[d] two scales, Scales 1 and 2, out of normal
range. [Dr. Lawlor did] not think this reflect[ed] any
psychiatric diagnosis, but rather significant personality
traits.
A 12/21 code type (two highest scales) is a pattern on
the [MMPI-2] typically found in individuals who are
anxious, tense and nervous. They tend to be high strung
and to worry about many things. . . . They are . . . also
suspicious and untrusting. They . . . harbor hostility
toward people who are perceived as not offering enough
attention or support. Sheanin [] present[ed] as below
average in ability to deal with stress and frustration. .
. . She also ha[d] a high average sense of social
responsibility.
The psychological testing on Sam[er]. . . present[ed]
[that] . . . he [] seem[ed] to be a person with a low
sense of self-esteem or self-concept. He ha[d] all scales
within normal range but one scale, Scale 6, approaching
significance. His highest scale[s] [were] Scale 6 and
Scales 4. . . .
People with profiles where Scales 4 and 6 are the two
highest scales tend to be immature, narcissistic, and
self[-]indulgent individuals. . . . They resent demands
made of them. . . . Repressed hostility and anger are
characteristics of people with this code type and they are
often irritable, argumentative, and are described as
“generally obnoxious.” They resent authority. People with
this pattern deny serious psychological problems and they
rationalize and transfer blame for problems onto others.
They do not accept responsibility for their own
behaviors. They also tend to be somewhat unrealistic and
grandiose in their self-appraisals. If a psychiatric
diagnosis is warranted it is usually that of
passive-aggressive personality disorder.
. . . [W]ithin the context of custody or visitation
disputes[,] . . . when the elevations are highest on these
two scales there are typically problems of pride,
willfulness, unreleased resentments and jealousy. Because
of that there is potential for problems in the area of
temper control as well as [] attempting to control others
with threats of losing one[‘]s temper. Individuals with
this pattern have an inability to forgive and forget and
because of that are described often as trapped in the
past. Insults to the person’s public role, and hurts
that have been inflicted, must be atoned for and
compensated for. Even fairly normal range elevations on
Scale 6 are problematic. They tend to denote rigidity or
fixity of one’s judgments. This often entails developing
over-identifying alliances with a child or children but
being severe when high parental standards and
expectations are not met.
Sam[er] present[ed] as far below average in his ability
to deal with stress and frustration and he tend[ed] to
over[-]control hostility to an extreme degree. This
pattern is consistent with the likelihood of
passive-aggressive behaviors. . . .
SUMMARY AND CONCLUSIONS: . . . Sam[er] made the
interesting observation . . . of him not being [the kind
of person] who [would] abduct[] children and go[] back to
[another] country after a divorce. . . . However, . . .
[Dr. Lawlor thought] that [Samer] ha[d] [the] potential
for being th[at] type of person. . . .
[A.S.] has an excellent relationship with both parents
and . . . it is important that she have as much contact as
is possible with Sam[er]. However, . . . whatever
safeguards are recommended by the State Department, as
well as by experts in this particular area of
International Law, need to be put in place before [A.S.]
is allowed to visit with her father outside of Monroe
County. . . . [T]hese restrictions should stay in place at
least until [A.S.] is old enough to understand what might
be going on and would be able to resist on her own
should there ever be an attempt to take her outside of the
United States without the awareness of [Sheanin].
Appellant’s Appendix at 49-51 (emphases in original). Dr.
Lawlor also noted there were no allegations of serious
domestic violence.
On December 13, 2004, Sheanin filed a “Motion for Order of
Supervised Visitation and Notice of Engagement of Expert
Witness in Risk Assessments in International
Custody-Visitation Cases.” Id. at 52. In this motion,
citing Dr. Lawlor’s evaluation, Sheanin renewed her request
that the trial court limit Samer’s access to A.S. to
supervised visitations because of her ongoing fear that
Samer would abduct A.S. and abscond to Egypt. Sheanin also
notified the trial court that she retained Maureen Dabbagh,
a purported expert in the field of international parental
child abduction. The trial court, over Samer’s objection,
granted Sheanin’s motion and ordered Samer’s visitations
with A.S. to be supervised pending a final dissolution
decree and parenting-time order.
On August 18, 2005, the trial court conducted a hearing in
order to determine whether Dabbagh was an expert. Dabbagh’s
formal, post-secondary education consists of “two (2) years
of [c]ommunity [c]ollege in the nursing field.” Transcript
at 24. Dabbagh has worked in international child abduction
since 1994. During that time, she has worked with Interpol,
the U.S. F.B.I., the U.S. Department of State’s Office of
Children’s Issues, the U.S. Department of State’s
Diplomatic Security, various U.S. embassies and agencies,
and the U.S. Department of Justice. Dabbagh has “also given
presentations in the United Nations and Geneva upon
invitation. [She has been] [p]art of panels and
[C]ongressional testimony in Washington. [She was also]
[a]sked to participate in ABA funded research on this
topic.” Id. at 25. Further, Dabbagh
yearly . . . attend[s] continuing education both [in the
U.S.] and abroad on a wide variety of issues from changes
in international law to psychiatr[y] or . . . alienation
issues. [She] just finished up one [continuing education
course in] DNA forensics. . . . It’s like ten (10) years
of this and it’s the only way you can get a formal
education that’s documented in th[e] field [of
international child abduction].
Id. at 24. The training Dabbagh has received, however, “has
solely been in regard to international child abduction
recovery.” Id. at 39
Dabbagh has been involved in over 400 cases of
international child abduction. She is the founder and
president of “P.A.R.E.N.T.,” an “international parent
advocacy group. . . . [It is] the first and largest
international coalition of agencies that lends support
resources and information to parents and professionals as
well as law enforcement issues regarding international
child abduction.” Id. at 30, 31. Although Dabbagh’s
training has been solely in recovery of abducted children,
she also provides risk assessments in custody disputes. At
the conclusion of the hearing, the trial court certified
Dabbagh as an expert on international child abduction.
The trial court conducted hearings on November 17, 2005 and
February 3, 2006. Sheanin and Samer agreed on property
division and that Sheanin would have primary physical
custody of A.S. The relevant remaining issues decided at
the hearing were legal custody of A.S. and parenting time.
In this regard, Sheanin’s, Samer’s, and Dabbagh’s
testimonies primarily addressed whether Samer was still a
dual American-Egyptian citizen, the requirements of
renouncing one’s Egyptian citizenship, A.S.’s citizenship
status, the effect of Samer’s citizenship status upon
A.S.’s citizenship status, ABA risk profiles used to assess
whether one poses a potential risk of abducting his child,
and whether Samer posed a risk to abduct A.S. The following
is a summation of the testimony and documentary evidence
adduced at the hearing.
Samer was a reservist in the Egyptian Army, but never
served on active duty. Samer is no longer subject to
prescriptive military service in Egypt by virtue of his
age. Samer attempted to renounce his Egyptian citizenship
by submitting his Egyptian birth certificate and passport
to the Egyptian consulate. Samer’s understanding of
Egyptian law was that the Egyptian Minister of the Interior
possessed the authority to validly abolish his Egyptian
citizenship. In support of his contention that he validly
renounced his Egyptian citizenship, Samer submitted a
photocopied letter addressed to “The General/Assistant
Minister of Interior Department of Passport, Immigration,
and Nationality,” translated from Arabic into English,
which bore an indiscernible seal, that stated Samer
submitted a request to renounce his Egyptian citizenship.
The Exhibits at Exhibit B.[fn4] Samer also submitted a
second photocopied letter to “The Consulate General of Arab
Republic of Egypt in New York,” also translated from Arabic
to English, which did not possess a seal of the Egyptian
government or any of its agencies, that stated the Egyptian
Ministry of the Interior recognized him as a citizen of the
U.S. and no longer recognized him as a citizen of the Arab
Republic of Egypt. Id.
Dabbagh testified that A.S. automatically received
Egyptian citizenship because she is the biological child of
a male Egyptian national, despite being born in the U.S.
Dabbagh testified that A.S. does not need a passport to
travel with Samer to Egypt because she can “piggy-back[]”
onto his passport. Transcript at 326. Dabbagh further
stated, “[A.S.] continues to be an Egyptian Citizen and
entitled to an Egyptian passport regardless of [Samer’s]
nationality. In other words, [A.S.] still has access to an
Egyptian passport. [A.S.] will still enjoy the privileges .
. . of being an Egyptian [c]itizen because she [wa]s not
the one renouncing her citizenship.” Id. at 336. Dabbagh
testified that even if an Egyptian national renounces his
citizenship and his renunciation is authorized by a
presidential decree, the Egyptian national may renew his
citizenship. “You just go ask for it. . . . [A]ctually it’s
very easy to get back.” Id. at 338.
Dabbagh then addressed her assessment of the risk that
Samer would abduct A.S. and abscond to Egypt. Dabbagh
testified that “because of Doctor Lawlor’s report [Dabbagh]
was able to take [Dr. Lawlor’s] observations and his
diagnosis and compare them with findings from the ABA
research on psychological components. And that’s where the
[] ABA research has shown that parental abduction is
motivated by revenge and control.” Id. at 353. Dabbagh
testified that Exhibit B was an official request by Samer
to renounce his citizenship, but that there was no
demarcation on the papers, i.e., a presidential seal, that
indicated it constituted an officially recognized
renunciation. Dabbagh further stated that “research shows
that if a child is young and vulnerable sometimes their
[sic] even older and vulnerable, that they don’t rebel
against that authority or don’t have the skill[s] to say
[‘]no I don’t want to go[‘] and . . . stop the process [of
abduction].” Id. at 356.
Dabbagh identified the following risks based upon the ABA
risk factors for international child abduction: (1) “if the
child was taken, the more difficult it is to get a child
back the greater the risk[,]” id. at 357; (2) “[t]he minor
child in this case is young and vulnerable [to] influence[]
. . .[,]” id.; (3) Samer “does have a support system in
place in Egypt [that] would allow him to abduct[,]” id.; (4)
Samer has significant family connections in Egypt; (5) this
is a “bi-cultural marriage that has dissolved. That in and
of itself is not a risk[.] [H]owever, if that element
exists and then underneath that you have a number of
specific risk factors then you have that particular profile
in play for abduction[,]” id. at 358; (6) marital
instability; (7) lack of parental cooperation; and (8)
[d]isenfranchisement. [Samer] is disenfranchised from a
legal system here in the United States that offers him
what the legal system offers him in Egypt. In the United
States we do not have a legal system that has a set of
laws different for a male then [sic] . . . for a female. .
. . [I]n our judicial system we apply the law equally
regardless of . . . gender . . . or religion. Whereas in
Egypt . . . there [are] different laws for Christians,
there is a different law for Shiites, . . . there is a
different law for females and there is a different law for
males. In [Samer]’s situation he would have the
advantage in an Islamic Court [in Egypt] by virtue of . .
. his gender.
Id. at 358-59. With regard to Samer’s “significant
connections,” Dabbagh stated:
[w]hen we’re looking at significant connections often
times we will look in cases where a dual national or an
individual has lived in one place and grown up and then
transferred to another place[.] [] [W]e look . . . to
determine where [one’s] significant connections are. So we
look at the demographics and we look at the history of
both places. So if [Samer] hasn’t invested here, in other
words, . . . he didn’t go to school here, he doesn’t own
real estate here, he doesn’t have a business here, and
we’re looking at the things that make a person a permanent
part of the community. We then look at the other place,
you know, well what w[ere] the significant connections
there also? So we . . . look at job history. . . . [H]ave
they been at the same job for twenty-five (25) years? Are
they vested? . . . [I]s it an existence where they can
just pick up and leave[?] . . . [S]o we look at all these
different things and in this particular case I was able
to identify the fact that there was no regular job status
or property owned or no business owned or . . .
enroll[ment] in school[.] . . . [T]here doesn’t seem to be
any permanency.
Id. at 364.
Dabbagh also testified about The Hague Convention On The
Civil Aspects of International Child Abduction. The U.S. is
a signatory to this convention, but Egypt is not. Pursuant
to this convention, signatory countries agree to extradite
abducted children back to the country from which they were
abducted when certain conditions are met. Dabbagh testified
that
[i]n situations where a child is a dual national and the
risk [of abduction] is to a Non-Hague country[,] the
specific problem[] . . . is that there really aren’t any
real effective safeguards except supervised visitation.
Things like passport controls or putting up civil bonds .
. . can work in other types of risk cases[,] but
unfortunately . . . they literally are not effective in
these types [of cases] and the ABA has recommended
supervised visitation and that was my recommendation.
Id. at 366.
Based upon her understanding of international law, Egyptian
law, her experience in abduction cases, and her analysis
pursuant to the ABA risk profiles of the risk that Samer
would abduct A.S., “Dabbagh identified risks [and] added
those up and there were a few [] that fell into the grave
risk and when [Dabbagh] added them up on the ABA
recommendations it said, you know, this is grave risk
category.” Id. at 366. Dabbagh concluded, “[t]he majority
of the kids that [she] go[es] after or the cases that [she]
get[s] of abduction, the children were taken during
visitation[,]” id. at 367, and “children abducted or
retained in Egypt usually never see their other parent
again.” Id. at 363.
On April 4, 2006, the trial court issued its findings of
fact and conclusions of law in which it stated, in relevant
part:
7. Sheanin fears that Samer will abduct [A.S.] Samer has
threatened, on multiple occasions, to take [A.S.] to Egypt
and not to return the child to [Sheanin]. Sheanin is
asking that parenting time between Samer and [A.S.] be
supervised until [A.S.] is old enough to actively resist
any attempt to remove her from the [U.S.]
8. In analyzing [Sheanin’s] request, the [trial] [c]ourt
must consider: (1) the risk of abduction; (2) the
obstacles to locating and recovering [A.S.] if an
abduction were to occur; and (3) the potential harm [A.S.]
would likely suffer if abducted.
9. In Jurisdiction in Child Custody and Abduction Cases:
A Judge’s Guide to the UCCJA, PKPA, and the Hague Child
Abduction Convention, the American Bar Association notes
six “risk profiles” for child abduction. While these
profiles must be used with caution as a predictive device,
two clearly have application to the case at bar:
a. Profile 1. When there has been a prior threat of or
actual abduction. As set forth above, Samer has threatened
to remove [A.S.] to Egypt.
b. Profile 5. When one or both parents are foreigners
ending a mixed-culture marriage. “Parents who are citizens
of another country (or who have dual citizenship with the
U.S.) and also have strong ties to their extended family
in their country of origin have long been recognized as
abduction risks. . . . Often in reaction to being rendered
helpless, or to the insult of feeling rejected and
discarded by the ex-spouse, a parent may try to take
unilateral action by returning with the child to [his]
family of origin. This is a way of insisting that [his]
cultural identity b[e] given preeminent status in the
child’s upbringing.
Although Samer’s mother and father are deceased, he has
substantial ties to his brother, who is an Egyptian
national living in the United States. He also has extended
family in Egypt.
* * *
10. The Hague Convention on the Civil Aspects of
International Child Abduction is an international treaty
that governs the return of children from member nations.
Significantly, Egypt is not a signatory to the Hague
Convention. Consequently, there is no standard legal or
diplomatic mechanism for securing [A.S.]’s return should
Samer remove her to Egypt. Once [A.S.] is in Egypt, her
relationship with her mother would be governed by Islamic
law. Islamic law does not recognize a civil divorce
granted to a female. After the issuance of this Decree of
Dissolution, Sheanin will remain, in the eyes of the
Egyptian authorities, the wife of Samer. In Egypt, he
will maintain absolute control over her ability to see
her child, or even to leave the country once she enters.
[A.S.] could not leave the country without his permission
until she is 21. Effectively, if Samer follows through on
his threats to remove the child to Egypt, all future
contact between [A.S.] and her mother will cease.
11. The government of Egypt considers all children born
to Egyptian fathers to be citizens of Egypt. Thus, [A.S.]
is a dual citizen of the United States and Egypt. [A.S.]
may travel on her father’s passport, as long as he
provides proof that he is her father. She may also travel
on the passport of a male relative. (Samer’s brother is
an Egyptian citizen.) During an unsupervised visit, it
would not be difficult to remove [A.S.] to Egypt.
12. Samer has attempted to renounce his Egyptian
citizenship. He state[d] that his passport has been
destroyed. However, Egypt does not recognize this
renunciation. Absent a specific order by the Egyptian
President, [Samer] remains free to obtain a new Egyptian
passport.
13. [A.S.] is only 5 years of age. She could not be
expected to take action to prevent her forced removal to
Egypt.
14. Removal to Egypt would be devastating for [A.S.] As
has been stated, she would be separated, perhaps
permanently, from her mother and her mother’s family. Her
mother has been her primary caregiver for the first five
years of [A.S.]’s life. Additionally, [A.S.] would be
placed in a culture that is substantially different from
that which she has known. The legal rights and cultural
expectations for women in the United States differ
markedly from those of women in Egyptian society. It is
clear that [A.S.] would face a tremendous adjustment that
she would be forced to endure without [Sheanin]’s aid.
Samer [] has not visited regularly with [A.S.], and could
not be expected to fill the void left by the absence of
[Sheanin].
15. Having considered: (1) the risk of abduction; (2) the
potential harm [A.S.] would likely suffer if abducted; and
(3) the obstacles to locating and recovering [A.S.] if an
abduction were to occur, the [trial] [c]ourt finds that
deviation from the Indiana Parenting Time Guidelines is
warranted, and strict prevent[a]tive measures are needed
to insure the wellbeing of [A.S.] Visits between Samer and
[A.S.] must be supervised.
Appellant’s Appendix at 12-14. Samer now appeals. Additional
facts will be included as necessary.
1.
Samer contends the trial court abused its discretion by
allowing the ABA risk profiles to be used as evidence.[fn5]
We understand Samer’s argument to be that the trial court
abused its discretion by admitting Sheanin’s Exhibit 13,
the ABA’s Jurisdiction in Child Custody and Abduction
Cases: A Judge’s Guide to the UCCJA, PKPA, and the Hague
Child Abduction Convention, because Sheanin “offered almost
no evidence, from her expert witness or otherwise, as to
the methodology used by the ABA in the research that
produced the `risk profiles’.” Appellant’s Brief at 15.
After Sheanin offered Petitioner’s Exhibit 13, the
following exchange occurred:
The Court: . . . Do you object to “13”, exhibit number
“13”? . . .
* * *
Thomas McDonald: No. . . .
The Court: Okay. Then I will show “13” . . . admitted
without objection.
Transcript at 323. In order to preserve for review a claim
that the trial court erroneously admitted evidence, a
specific and timely objection must be made. Tate v. State,
835 N.E.2d 499 (Ind.Ct.App. 2005), trans. denied. In the
absence of a specific and timely objection, a claim
regarding the admission of evidence is not available on
appeal unless it constituted fundamental error. Troxell v.
State, 778 N.E.2d 811 (Ind. 2002). Nowhere in his brief
does Samer claim the admission of this evidence constituted
fundamental error. His claim, therefore, is waived. Cf.
Willey v. State, 712 N.E.2d 434 (defendant’s claim not
waived on appeal even though no objection was made at trial
because he asserted the admission of evidence constituted
fundamental error).
Samer further contends “[t]o the extent the trial court
relied on [Dabbagh’s] assessment of [Samer] as a potential
abductor, that reliance was [] erroneous. . . .”
Appellant’s Brief at 16. Within the context of Samer’s
argument, we take this to mean that the trial court abused
its discretion when it relied upon Dabbagh as an expert
witness. Under Ind. Evidence Rule 702(a), a witness may be
qualified as an expert by virtue of her “knowledge, skill,
experience, training, or education. . . .” Only one of the
enumerated characteristics is necessary to qualify an
individual as an expert. Hobson v. State, 795 N.E.2d 1118
(Ind.Ct.App. 2003), trans. denied. A witness may qualify as
an expert, therefore, on the basis of her practical
experience alone. Id. It is within the trial court’s sound
discretion to determine whether a person qualifies as an
expert witness. Id.
Sheanin attempted to, and the trial court did, certify
Dabbagh as an expert on the subject of international child
abduction, to which Samer objected. Samer’s primary
objection to the trial court’s decision to allow Dabbagh to
testify as an expert witness was her lack of formal
education. Dabbagh attended only two years of post-secondary
school, in which she studied nursing. Ending the inquiry
into Dabbagh’s qualifications as an expert in international
child abduction there would grossly understate her
involvement in the field.
Dabbagh is the proprietor of Dabbagh & Associates, a
consulting firm that provides services for clients
interested in the recovery of abducted children and the
assessment of the risk of future abduction. By her
estimates, Dabbagh has worked on in excess of four-hundred
such cases. Dabbagh has testified before the U.S. Congress,
Committee on Government Reform, and is the founder and
president of P.A.R.E.N.T. International, a non-profit
organization involved in international parental child
abduction. Dabbagh has testified as an expert on
international child abduction in cases in Arkansas,
California, Idaho, Illinois, Kansas, Maryland, Michigan,
New Hampshire, New Jersey, Ohio, Tennessee, and Texas.
Dabbagh is a board member with the Missing Children’s
Investigation Center, was a faculty member at the 13th
annual Children’s Rights Council International Conference
in Washington, D.C., and is a board member with SOS France,
a French Justice Department-funded non-governmental
organization that works in the field of international child
abduction. Additionally, Dabbagh has authored, contributed
to, and presented papers on international child abduction.
Dabbagh clearly qualifies as an expert on international
child abduction because of her knowledge, training, and
practical experience. The trial court, therefore, did not
abuse its discretion by qualifying her as an expert
witness. See Hobson v. State, 795 N.E.2d at 1123 (“[the
expert’s] testimony shows that he had practical experience
in shooting firearms, and that factor alone is sufficient
to qualify him as an expert under [Evidence] Rule
702”).[fn6]
Samer also contends the trial court abused its discretion
by relying upon Dabbagh’s conclusions because “those
conclusions . . . were . . . based on crucially incomplete
information.” Appellant’s Brief at 20. We first observe
that Samer has failed to cite any legal authority in
support of his argument. Further, as Samer notes, “[t]he
trial court’s findings did not explicitly refer to Dabbagh.
. . .” Id. Samer’s argument is essentially a challenge to
the weight to be given, not the admissibility of, Dabbagh’s
testimony regarding the risk that Samer would abduct A.S.
Upon appeal, however, we do not reweigh the evidence. Cf.
Green v. Green, 843 N.E.2d 23, 26 (Ind.Ct.App. 2006)
(“[w]hen reviewing a trial court’s determination to modify
custody, we may not reweigh the evidence or judge the
credibility of the witnesses”). Thus, we decline Samer’s
invitation to re-evaluate the weight to be given Dabbagh’s
conclusions.
2.
Samer contends the trial court abused its discretion in its
parenting time determination by failing to consider certain
statutory factors in Ind. Code Ann. § 31-17-2-8
(West, PREMISE through 2006 2nd Regular Sess.). Samer
states “I.C. 31-17-2-8 sets forth those factors the trial
court must consider before entering an order determining
custody and visitation12.” Appellant’s Brief at 21
(emphasis supplied, footnote in original). Samer’s argument
fails in several respects.
Initially, we observe that I.C. § 31-17-2-8 is
entitled “Custody order.” Contrary to Samer’s
characterization of I.C. § 31-17-2-8, that statute
sets forth only the factors that a trial court must consider
in making a custody determination, and states, in relevant
part, “[t]he [trial] court shall determine custody and
enter a custody order in accordance with the best interests
of the child.” Samer asserts that “[f]ailure to consider
any of these factors constitutes an abuse of discretion.”
Appellant’s Brief at 21 (citing Green v. Green, 843 N.E.2d
23). Green, however, does not involve a parenting-time or
visitation order, but merely a review of a petition to
modify a custody order. In further support of his argument
that a trial court is required to consider the factors set
forth in the custody statute in making a parenting-time
determination, Samer states:
I.C. 31-17-2-8 refers specifically to “custody orders”.
However, custody and visitation are interrelated,
particularly at the time of the initial dissolution decree
determining both. See, e.g., Taylor v. Buehler, 694 N.E.2d
1156, 1160 (Ind.Ct.App. 1998)[, trans. denied],
describing the predecessor statute’s list of factors as
“the factors [that] must have been considered with
regard to the initial custody-visitation determination.”
See also In re Banning, 541 N.E.2d 283, 284[] fn.2
(Ind.Ct.App. 1989); Pence v. Pence, 667 N.E.2d 798, 801
(Ind.Ct.App. 1996).
Appellant’s Brief at 21 n. 12. Samer’s reliance upon
Taylor, Banning, and Pence, however, is misplaced.
Taylor involved a review of a trial court’s order modifying
parental visitation. In that case, we discussed the
differing standards for modifying a visitation order under
I.C. §§ 31-1-11.5-24(b) (repealed by Public
Law 1-1997, Sec. 157) and 31-6-6.1-12(b) (repealed by
Public Law 1-1997, Sec. 157). As the citations indicate,
those statutes no longer govern a trial court’s
parenting-time determination. Taylor, therefore, is
inapposite, as is Banning. Samer relies upon our discussion
in In re Banning, in which we stated:
the Indiana Supreme Court, in State ex rel. Jemiolo v.
LaPorte Circuit Court, [442 N.E.2d 1060, 1062 (Ind.
1982)], stated that:
Although visitation rights and custody rights are not
synonymous I.C. 31-1-11.5-24, they are sufficiently
interrelated, [sic] In re Marriage of Ginsberg, [425
N.E.2d 656, 659 (Ind.Ct.App. 1981)], that a petition to
determine visitation rights filed after a determination
of custody is in the nature of proceedings supplemental.
See State ex rel Greebel v. Endsley, [379 N.E.2d 440, 441
(Ind. 978)].
Thus, Res judicata would not appear to be applicable.
In re Banning, 541 N.E.2d at 284 n. 2. Banning, like
Taylor, is of no help to Samer. Pence is equally
inapposite. See Pence v. Pence, 667 N.E.2d 798 (trial
court’s order temporarily terminating parent’s visitation
rights was reversed because the parent’s due process rights
were violated).
I.C. § 31-17-4-1 (West, PREMISE through 2006 2nd
Regular Sess.), the statute that currently governs a trial
court’s decision to award or deny parenting time, does not
require the trial court to consider prescribed factors.
Rather, it states, in relevant part, that “[a] parent not
granted custody of the child is entitled to reasonable
parenting time rights unless the [trial] court finds, after
a hearing, that parenting time by the noncustodial parent
might endanger the child’s physical health or significantly
impair the child’s emotional development.” Whatever the
value of a trial court considering the factors listed in
I.C. § 31-17-2-8, if any, in making a parenting time
determination, it is clear that such is not required, and,
therefore, the trial court did not abuse its discretion by
failing to consider those factors.
3.
Samer contends several of the trial court’s findings and
conclusions were clearly erroneous. When, as here, the
trial court enters findings of fact and conclusions of law,
its findings and conclusions shall not be set aside unless
clearly erroneous. Nowels v. Nowels, 836 N.E.2d 481
(Ind.Ct.App. 2005). “A finding or conclusion is clearly
erroneous when a review of the evidence leaves us with the
firm conviction that a mistake has been made.” In re
Z.T.H., 839 N.E.2d 246, 249 (Ind.Ct.App. 2005). We review
the judgment by determining whether the evidence supports
the findings and whether the findings support the judgment.
Nowels v. Nowels, 836 N.E.2d 481. We consider only the
evidence favorable to the judgment and all reasonable
inferences to be drawn from that evidence. Id. We neither
reweigh the evidence nor assess witness credibility. Id.
Samer argues the trial court’s Finding 12 is clearly
erroneous because the evidence does not support the finding
that he remains an Egyptian citizen or a dual citizen of
the U.S. and Egypt. Finding 12 states, “Samer has attempted
to renounce his Egyptian citizenship. He states that his
passport has been destroyed. However, Egypt does not
recognize this renunciation. Absent a specific order by the
Egyptian President, [Samer] remains free to obtain a new
Egyptian passport.” Id. at 13.
Dabbagh testified that she is familiar with Egyptian law.
Dabbagh stated that, according to her understanding of
Egyptian law, in order to render the renunciation of one’s
citizenship effective and authentic, one is required to
procure “[Egyptian] President Mubarric’s [sic] seal and
personal signature.” Transcript at 337. Dabbagh further
stated that if one renounces his Egyptian citizenship, he
may regain it later. “You just go ask for it. You just like
say well, you know, I only did it because, you know, I was
trying to get this job or, you know, what ever, a moment of
insanity or what ever. It’s much, actually it’s very easy
to get back. It’s very difficult to renounce.” Id. at 338.
The trial court acted within its discretion when it adopted
Dabbagh’s and rejected Samer’s contrary understanding of
Egyptian law. There was evidence to support the finding
that Samer is either an Egyptian citizen or a dual citizen
of the U.S. and Egypt. The trial court’s finding, therefore,
was not clearly erroneous.[fn7]
Samer next argues the trial court’s Finding 9(b) is clearly
erroneous because the evidence does not support the finding
that he has strong family ties in Egypt. Finding 9(b)
states, in relevant part, that:
[Risk] Profile 5. When one or both parents are foreigners
ending a mixed-culture marriage. “Parents who are citizens
of another country (or who have dual citizenship with the
U.S.) and also have strong ties to their extended family
in their country of origin have long been recognized as
abduction risks. . . . Often in reaction to being rendered
helpless, or to the insult of feeling rejected and
discarded by the ex-spouse, a parent may try to take
unilateral action by returning with the child to [his]
family of origin. This is a way of insisting that [his]
cultural identity b[e] given preeminent status in the
child’s upbringing.”
Although Samer’s mother and father are deceased, he has
substantial ties to his brother, who is an Egyptian
national living in the United States. He also has extended
family in Egypt.
Appellant’s Appendix at 12.
Regarding Samer’s family ties in Egypt, Dabbagh stated:
he was born [in Egypt], he was raised there, that’s his
home country, that’s where [h]is family is from, that’s
where he continues to have family and friends, so where
you have significant connections you have a support system
and the support system also includes individuals that
share the same like ideology, the same like belief system,
they would . . . be supportive of [his] action or
decisions that [he] had made in regarding abduction.
Transcript at 356-57.
Samer testified that his mother and father are deceased,
and his brother, sister-in-law, niece, and nephew live in
Massachusetts. Samer has relatives that live in Egypt,
including three uncles, one aunt, several half-brothers and
half-sisters, and cousins, although Samer stated he does
not “have any affiliation with them actually.” Id. at 409.
Samer also has a “Godmother” in Egypt with whom he was
close, id. at 417, but stated, “[s]he’s feebly old” and he
does not “know if she is still living or not.” Id. at 418.
Based upon this evidence, the trial court found that Samer
met the description of a potential abductor characterized
in “Profile 5[,]” i.e., he is a citizen of a foreign
country or has dual citizenship and has “strong ties to
[his] extended family in [his] country of origin. . . .”
Appellant’s Appendix at 12. There was evidence to support
the trial court’s finding, and, therefore, its finding was
not clearly erroneous.
Samer further argues the trial court’s Finding 11 is
clearly erroneous because the evidence does not support the
finding that A.S. remains an Egyptian national regardless
of Samer’s Egyptian citizenship status. Finding 11 states,
in relevant part, “[t]he government of Egypt considers all
children born to Egyptian fathers to be citizens of Egypt.
Thus, [A.S.] is a dual citizen of the United States and
Egypt.” Id. at 13. Dabbagh testified that, under Egyptian
law, “[i]ndividuals of Egyptian decent [sic] automatically
. . . inherit their [f]ather’s Egyptian nationality where
ever they’re born geographically.” Transcript at 325.
Dabbagh further stated:
[A.S.] continues to be an Egyptian [c]itizen and entitled
to an Egyptian passport regardless of her [f]ather’s
nationality. In other words, the child still has access to
an Egyptian passport. [A.S.] will still enjoy the
privileges and pleasures of being an Egyptian [c]itizen
because she is not the one renouncing her citizenship.
Id. at 336. Dabbagh testified that in order for A.S. to
renounce her Egyptian citizenship, she, like Samer, was
required to secure Egyptian President Mubarak’s seal and
personal signature. Based upon Dabbagh’s testimony, the
trial court found, contrary to Samer’s conflicting
assertions, that A.S. remained a dual citizen of the U.S.
and Egypt. The trial court’s finding was not clearly
erroneous because there was evidence to support it.[fn8]
4.
Samer contends the trial court manifestly abused its
discretion in its parenting time order because it permitted
Sheanin or someone of her designation to supervise Samer’s
parenting time with A.S. Upon review of a trial court’s
determination of a parenting time issue, we reverse only
when the trial court manifestly abused its discretion. J.M.
v. N.M., 844 N.E.2d 590 (Ind.Ct.App. 2006), trans. denied.
The trial court does not abuse its discretion if there is a
rational basis in the record supporting its determination.
Id. Upon appeal, we neither reweigh the evidence nor judge
the witnesses’ credibility. Id. In all parenting time
controversies, courts are required to give foremost
consideration to the best interests of the child. Id.
Samer argues that allowing Sheanin or her appointee to
supervise his visits with A.S. will have a detrimental
impact upon his relationship with A.S. because “[Sheanin’s]
distrust of and hostility toward [Samer] is apparent[, and
Sheanin’s] . . . parents’ and brother’s attitude[s]
toward[] [Samer] [are] [] negative.” Appellant’s Brief at
23. Samer concludes, therefore, that “[i]t is hardly likely
that [Samer’s] and [A.S.’s] relationship can continue to
flourish under such hostile conditions[,]” id. at 23-24,
which, he asserts, violates the Indiana Parenting Time
Guideline’s “premise that it is usually in a child’s best
interest to have frequent, meaningful and continuing contact
with each parent.” Ind. Code Ann. Title 34, Preamble For
Indiana Parenting Time Guidelines (West, PREMISE through
Amendments received through June 1, 2006).
We first note that Sheanin’s or her appointee’s supervision
of Samer’s parenting time with A.S. has no impact upon the
frequency or continuation of A.S.’s contact with Samer. We
further note that Samer was not denied parenting time.
Rather, his parenting time was ordered to be supervised
within certain parameters designed to protect A.S.’s best
interests based upon the trial court’s finding that
“deviation from the Indiana Parenting Time Guidelines is
warranted, and strict preventive measure[]s are needed to
insure the wellbeing of [A.S.]” Appellant’s Appendix at 14.
In light of the facts as set forth above, the trial court
did not manifestly abuse its discretion when it concluded
deviation from the Indiana Parenting Time Guidelines was
warranted. Samer’s argument, therefore, fails. See J.M. v.
N.M., 844 N.E.2d 590 (trial court did not manifestly abuse
its discretion when it ordered supervised parenting time
because the father’s behavior continued to scare the child
and was detrimental to the child’s well being).
Judgment affirmed.
CRONE, J., and DARDEN, J., concur.
[fn1] Sheanin is also referred to as “Sheanin McConnaughy,”
which is her pre-marital and post-dissolution name.
Appellant’s Appendix at 14.
[fn2] We use the terms “national” and “citizen”
interchangeably.
[fn3] Dr. Lawlor’s evaluation stated the MMPI-2 “is a
comprehensive personality test [that] [] is useful in
[child custody] cases on two levels. First, it is a good
psychometric supplement to interviewing [subjects because
one can] [] look[] at the mental health of the parties. On
a second level this test [] sometimes give[s] useful
information regarding personality states or traits that
could have an effect on parenting.” Appellant’s Appendix at
41.
[fn4] Samer did not paginate The Exhibits. Thus, we refer to
exhibits by their trial-marked label.
[fn5] In his appellate brief, Samer seems to argue the trial
court abused its discretion by admitting Petitioner’s
Exhibit 13, the ABA’s Jurisdiction in Child Custody and
Abduction Cases: A Judge’s Guide to the UCCJA, PKPA, and
the Hague Child Abduction Convention, which contained the
ABA Risk Profiles. In his reply brief, however, Samer
states that “[Sheanin’s] brief asserts that [Samer] is
appealing [the] admission of the ABA Judge’s Guide
(Mother’s Exhibit 13). . . . In fact, [Samer] is appealing
the admission of the ABA Risk Profiles as part of Dabbagh’s
report and testimony, and any reliance thereon by the trial
court.” Appellant’s Reply Brief at 7. We note that Dabbagh’s
report, Petitioner’s Exhibit 17, was admitted without
objection. Samer’s claim that the trial court abused its
discretion by admitting Petitioner’s Exhibit 17, therefore,
is waived. Cf. Willey v. State, 712 N.E.2d 434 (Ind. 1999)
(defendant’s claim not waived on appeal even though no
objection was made at trial because he asserted the
admission of evidence constituted fundamental error).
Further, the “ABA Risk Profiles” appear in the appellate
record only as part of the “ABA Judge’s Guide” and as
referenced in Dabbagh’s report regarding her assessment of
the risk that Samer would abduct A.S. Samer separately
included in the appellate record neither the “ABA Risk
Profiles” nor the document in which it was first published,
Linda K. Girdner & Janet R. Johnston, Early Identification
of Parents At Risk For Custody Violations and Prevention of
Child Abductions, 36 Family Ct. Rev. 392 (1998). Samer,
therefore, has provided an insufficient basis upon which to
review his claimed error. Davidson v. State, 825 N.E.2d 417
(Ind.Ct.App. 2005), trans. granted, 849 N.E.2d 591 (Ind.
2006), rev’d on other grounds. In light of this omission,
we are unable to discern how Samer would have us conduct a
review of the “ABA Risk Profiles” apart from their
inclusion in Petitioner’s Exhibit 13, i.e., the “ABA
Judge’s Guide.”
[fn6] Samer asserts Dabbagh did not qualify as an expert
under Evidence R. 702(b), which states, “[e]xpert
scientific testimony is admissible only if the court is
satisfied that the scientific principles upon which the
expert testimony rests are reliable.” Contrary to Samer’s
assertion, Dabbagh was not a “scientific expert,” nor was
the subject matter of her testimony “scientific.”
[fn7] We grant Sheanin’s “Motion To Strike Addendum to
Appellant’s Brief.” In her motion to strike, Sheanin
states, “[t]he Addendum contains a single document, namely
what purports to be `Egyptian Gazette of 26 May 1975,
Edition No. 22, Law No. 26 of 1975 issue[d] on 29 May 1975,
Concerning Egyptian Nationality,’ apparently in Arabic as
well as in an uncertified English translation that Samer
allegedly obtained.” Among the other concerns about what
Samer purports to be Egyptian law, our primary concern, and
the basis upon which we grant Sheanin’s motion to strike,
is that “[t]his document . . . was not before the trial
court in this matter . . . and, therefore, could not have
been used by the trial court in rendering the decision that
Samer is appealing.” Appellee’s Motion to Strike at 2. We
do note, however, that if the document Samer submitted upon
appeal accurately reflects prevailing Egyptian law, it
casts serious doubt upon Dabbagh’s testimony regarding the
requirements for renouncing one’s Egyptian citizenship and,
consequently, her assessment, and the trial court’s findings
to the extent they are based upon that assessment, of the
risk Samer poses to abduct A.S. We further note that a
trial court’s parenting time determination may be modified.
See I.C. § 31-17-4-2 (“[t]he court may modify an
order granting or denying parenting time rights whenever
modification would serve the best interests of the child”).
[fn8] We note that if the document Samer submitted upon
appeal accurately reflects prevailing Egyptian law, the
trial court’s finding that A.S. remains a dual citizen of
the U.S. and Egypt also is cast into serious doubt. We
reiterate, however, that such evidence was not before the
trial court.