On February 25, 2021, the Superior Court of Pennsylvania affirmed a trial court ruling that found the District Attorney was wrong when they disapproved/dismissed Mr. Ajaj’s private complaint, which he filed against his Wife for “interference with custody of children” and “concealment of whereabouts of children.”
Mr. Ajaj, his Wife and two children, all U.S. citizens, traveled to Iraq to visit family in August 2017. When in Iraq, the Wife and her uncles took the children to an undisclosed location, and refused to return to the US. Mr. Ajaj consulted the Office of American Citizen Services in the U.S. Embassy in Baghdad, with no success. He returned to the U.S., retained a lawyer, and contacted the U.S. Department of State’s passport center, Diplomatic Security Service, and Office of Children’s Issues (OCI). A case file was open with the OCI and his Country Officer provided him with a list of resources, which included suggestions to file for custody in the U.S., file for custody in Iraq, consult with law enforcement, etc. In September 2018, Mr. Ajaj secured an emergency custody order for sole legal and physical custody from the Court of Common Pleas in Pennsylvania. The court eventually issued a bench warrant for his Wife’s arrest when she did not appear, and ultimately issued a final order granting Mr. Ajaj sole legal and physical custody. In May 2019, Mr. Ajaj filed his private criminal complaint, seeking criminal charges as noted above. In June 2019, the District Attorney disapproved the complaint, citing “evidentiary issues.” At the evidentiary hearing, the DA also brought up “public policy” arguments to why they disapproved the Complaint. The trial judge reversed the disapproval of the private complaint, and the DA appealed.
As for the evidentiary reasons for disapproving the Complaint, the DA argued that Mr. Ajaj outlined conduct of the mother’s uncle, and did not provide sufficient evidence of the mother’s intent; he provided no evidence to overcome the affirmative defenses that the mother abducted their children to protect them from domestic violence or child abuse; and most of the evidence, witnesses, documents and other information is in Iraq, including a pending Iraqi custody case. Setting aside the tardiness of the public policy arguments, the DA argued that its office does not approve private complaints alleging a felony, and that it must exercise caution in criminalizing the acts of estranged parents.
Ultimately, the Superior Court concluded that the issues could have been and were raised in the Pennsylvania custody proceedings. The judge in that case found it appropriate, after examining the children’s best interests, to award their father sole custody and issue a bench warrant for the mother. The court further noted that the FBI and State Department made indications to Mr. Ajaj that “he would have little chance of getting their best efforts to secure the capture of the mother and the return of the children” unless he filed charges and got a warrant. The court also concluded that it was absurd that the DA would not approve private complaints for felonies, which would eliminate consideration of some of the most serious classic crimes. Finally, the court noted that this is no normal domestic case – the judge in the custody case felt compelled to issue a warrant and call upon law enforcement to seek the children’s return.