A Douglas County judge did not follow state law during divorce proceedings when he placed restrictions on a father’s ability to travel abroad with his children, Colorado’s second-highest court decided last week.

In finalizing the divorce between Basil Badawiyeh and Michelle Mary Badawiyeh, District Court Judge Andrew Baum ordered that the passports of Basil Badawiyeh and his minor children be held by a third party and required Basil Badawiyeh to put up $50,000 as bond whenever he wanted to continue the longstanding family trips to the Middle East.

Baum characterized the conditions as “abduction prevention” measures to deter Basil Badawiyeh from fleeing the country with the couple’s children.

But a three-judge panel for the Court of Appeals overturned the travel restrictions, noting there are more than a dozen factors judges must consider under state law in deciding whether a “credible risk” of child abduction is present. Baum had not cited any of the factors other than Basil Badawiyeh’s likelihood of taking his children to the United Arab Emirates.

“The district court here not only failed to make a specific finding that father posed a credible risk of abducting the children, but it also relied on little more than the UAE’s status as a nonsignatory to the Hague Convention,” wrote Judge Matthew D. Grove, referring to the treaty that addresses child abduction across international borders.

More than 100 parties have signed on to the Hague Convention, including the United States. The treaty commits countries to returning children to their country of origin who are wrongfully removed.

In 2007, Colorado lawmakers also enacted the Uniform Child Abduction Prevention Act, which allows the participants in child custody cases or judges themselves to pursue abduction prevention measures. The list of factors judges are required to consider includes whether somebody has already threatened to flee with a child, has sold their home, or has strong ties to another state or country.

The likelihood of taking a child to a country that has not signed the Hague Convention is another factor.

Basil and Michelle Badawiyeh were married for 22 years when he filed for divorce. The couple had four children, and the entire family – except for Michelle Badawiyeh – had dual American and Jordanian citizenship.

The divorce was acrimonious, with Basil Badawiyeh alleging his wife had mental health issues and Michelle Badawiyeh alleging her husband was physically abusive. One issue for Baum to sort out was the annual trips the family had taken to the United Arab Emirates, and specifically to Dubai to see Basil Badawiyeh’s family.

“These trips were incredibly important to the family because many members of father’s family reside in Dubai, and the trips allowed for the parties’ children see their extended family and to explore their Arabic heritage, including by practicing Islam and developing their ability to read religious texts,” wrote Basil Badawiyeh’s attorneys.

Michelle Badawiyeh was concerned her husband would remain in the United Arab Emirates with the children, where the Hague Convention would not facilitate their return. She told Baum that the “fear is definitely in me.” Basil Badawiyeh testified in response that he would never flee the country, as it would be against his “character, culture and religion.”

In an order issued in September 2021, Baum addressed many financial and parenting aspects of the divorce, but also imposed the anti-abduction restrictions. He required the passports of Basil Badawiyeh and his children to be in the custody of a neutral third party, and for Basil Badawiyeh to post $50,000 bond before traveling to any country with his children, including those that have joined the Hague Convention. The money would be used to help Michelle Badawiyeh get her children back in the event they did not return as planned.

Basil Badawiyeh asked Baum to reconsider the conditions, but Baum stood by his decision. He wrote that he agreed with Michelle Badawiyeh and the parental evaluators who testified that there was a “risk of husband absconding with the children if he was allowed unrestricted international travel and access to their passports.”

Baum added that the conditions were less restrictive than the other idea of requiring Michelle Badawiyeh’s permission for the children to travel with their father.

Basil Badawiyeh turned to the Court of Appeals, arguing there was never a credible risk that he would flee with his children, and Baum had only imposed the restrictions to assuage his ex-wife’s fears. His lawyers also argued the restrictions infringed on his “constitutional right to exercise his religion and control the religious upbringing of his children,” given that a purpose of the trips was to allow the children to learn about Islam in the Middle East.

The Court of Appeals did not decide whether the abduction prevention measures amounted to a constitutional violation because Baum had never found under state law that there was a credible risk of abduction in the first place.

“And aside from observing that father’s plans would – as they had in the past – include travel to a country that is not party to the Hague Convention, the court did not address any of the remaining statutory factors,” Grove wrote in the Jan. 12 opinion.

Grove also pointed out that while Baum’s written order stated he agreed with Michelle Badawiyeh about the risk to her children, Baum had previously acknowledged he did “not necessarily share” the concern about international abduction.

The appellate panel ordered the reconsideration of whether a credible risk of abduction exists for the Badawiyehs’ two children who remain under 18.

The case is In re the Marriage of Badawiyeh.