New York Matrimonial Trial Handbook
The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.
The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents
Wednesday, May 16, 2018
LM v JF, 2018 WL 2171080 (Sup. Ct., 2018)[Dominican Republic] [Habitual Residence][Grave risk of harm]
In LM v JF, 2018 WL 2171080 (Sup. Ct., 2018) the Court granted the mothers Hague Convention Petition for an order directing the return of the parties son to the Dominican Republic.
The parties were never married. The Mother was a citizen of the Dominican Republic and the Father was a citizen of the United States. The parties met in 2010 in the Dominican Republic where both were enrolled in medical school. The Child was born in the Dominican Republic, was raised in the Dominican Republic and spent time each year visiting the Father’s family whom resided in Levittown, New York. Prior to the Child’s first visit to the United States the parties obtained a United States passport and United States citizenship for the Child. During a stay in New York in or about April, 2013, the parties obtained a social security card on behalf of the Child listing the Levittown, New York, address as the Child’s residence.
The Mother graduated from medical school in 2011. In August, 2014, the Mother left for Rochester, New York to begin studies for a Masters Degree while the Father remained in the Dominican Republic with the Child. The Mother visited the Child and communicated with the Child via “Skype” while in Rochester. In August of 2015, the Father learned that the Mother had become romantically involved with another man while in Rochester, New York. The Mother completed her Master’s Degree and returned to the Dominican Republic in February, 2016. Upon her return, the Mother stated that the Father did not allow her to see the Child until four days later. She sought the assistance of the Dominican Republic courts and the parties agreed to an “informal arrangement” where the Mother would be permitted to spend time with the Child. In March, 2016, the Mother filed documents with the authorities in the Dominican Republic to prevent the Father from leaving the Country with the Child without her consent. On March 15, 2016, there was an altercation between the parties wherein the Father alleged the Mother had pushed her way inside his home and physically lunged at him. The parties returned to court and obtained a reciprocal “order of protection.”
On October 19, 2016, both parties, while represented by counsel, appeared in court and agreed to an order wherein they would equally share time with the Child. On November 30, 2016, the Father, the Child and the Paternal Grandmother, traveled to the Father’s parent’s home in Levittown, New York, with no intention of returning. On December 5, 2016, the Father filed a custody petition in Family Court which granted the Father’s application for sole legal and residential custody of the Child upon the default of the Mother. The Mother commenced this proceeding on August 23, 2017 by Order to Show Cause seeking an Order directing the Child’s return to the Dominican Republic.
Supreme Court found that the Dominican Republic was the child’s habitual residence under the analysis established by Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005) as follows: “First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.”
Based upon the testimony the court concluded that, the Dominican Republic was the Child’s habitual residence. Although the Child enjoyed frequent visits to New York where he stayed in the home of the Father’s parents, the majority of his life was spent in the Dominican Republic. It was where his home was, where he attended preschool, where he attended church and where his medical doctors were. There is a distinction to be made between a child who goes somewhere for a temporary duration and a child permanently moving to a new location. A Child who goes somewhere for a temporary duration, such as summer camp, is not considered to have acquired a new habitual residence because “he already has an established habitual residence elsewhere and his absence from it—even from an entire summer—is not indication that he means to abandon it.” Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (quoting Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). There was no evidence that the Child unequivocally acclimated to a location other than the Dominican Republic so as to allow the Court to disregard the intent of the parties. The fact that Child may have acclimated to the United States from the time he was removed on November 30, 2016 until now is not the acclimation intended under this habitual resident analysis: The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. If we were to determine that by removing Thomas from his habitual residence without Mr. Friedrich’s knowledge or consent Ms. Friedrich ‘altered’ Thomas’s habitual residence, we would render the Convention meaningless.” (Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) Supreme Court also found that the Mother had rights of custody at the time the Father and Child left the country and she was exercising her custody rights when the Child was removed. It found that the Mother had met her burden and established by a preponderance of the evidence that the Child was wrongfully removed from his place of habitual residence.
Supreme Court noted that with regard to the grave risk of harm defense the parent opposing the Child’s return must show that the risk to the child is grave, not just serious, and the harm must be more than a potential harm. There must be a direct threat to the Child upon his return to the Dominican Republic in order for this exception to apply. The Court considered the testimony of the Father and the Paternal Grandmother regarding allegations that the Mother abused or neglected the Child and that the Dominican Republic authorities did not satisfactorily address these allegations.
The Father presented photographs of the Child depicting unclean fingernails, an ear infection, mosquito bites, scabbing, cuts, burns and rashes. The Father testified that was the condition the Child was in when he returned from the Mother’s care in 2016. The Father testified that he went to court representatives with the Child, to the police and to child protective services but that no assistance was provided to him. The Father did not provide any records of said reports. On cross examination, the Father testified that the child is considered to be hypersensitive to mosquito bites and that the scars on his body were caused by scratching scabies. He testified that the Child had only one ear infection and although he did not know with certainty what caused it, he concluded it was the Mother’s fault. The Child’s medical records were reviewed and the Father testified that the pediatrician’s records stated that the Child was regularly brought to his office as a healthy child who was at times afflicted by allergies to insect bites. There was no mention of any burns or any child abuse. The Father testified that since November, 2017, the Child cried, screamed and begged the Father to not make him see the Mother before the Mother’s parenting time. He testified that the Child returned from visits with the Mother angry and sad. The Father also testified that he did not believe the court in the Dominican Republic did or would do anything about his concerns. However, the Father offered no credible evidence that the courts failed to act on a legitimate threat to safety of the Child. He offered no basis for this Court to conclude that the Dominican Republic authorities had not and will not act in the best interests of the Child.
The Father offered the testimony of an expert in the field of forensic evaluations and children’s mental health who never interviewed or observed the Mother. She concluded that the Child was suffering trauma due to the relationship with the Mother but testified that the cause of that trauma could not be clinically ascertained. On cross examination, the witness testified that the trauma could be because the Child was used to being with both of his parents, or it could be because he did not see the Mother, or it could be some other reason. The Court was not convinced that the Child’s reaction to the mention of the Mother was because of abuse or neglect at the hands of the Mother. The expert agreed on cross examination that while she believed the Child’s trauma related to the Mother, it could be because of the trauma of the removal or some other reason.
The Court found that the Child’s comfort in his current environment was not a basis for the Child to remain in the United States. Whatever re-adjustment period the Child may have to undergo in the Dominican Republic is not considered a “grave harm” under the Convention. It is well established that the “harm” set forth in the grave harm exception must be “greater than would normally be expected on taking a child away from one parent and passing him to another.” Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017); Nunez–Escudero, 58 F.3d 374 (8th Cir. 1995).
The Court held that the Father had not established, by clear and convincing evidence, that the Child will be subjected to a grave risk of harm if he returned to the Dominican Republic or any other affirmative defense.
Wednesday, May 9, 2018
Done v Pichardo, 2018 WL 1930081(N.D. Georgia, 2018) [Dominican Republic] [Rights of Access] [Petition denied]
Tuesday, April 10, 2018
Kim v Ferdinand, 2018 WL 1635795 (E.D. Louisiana, 2018) [Thailand][Necessary Costs and Attorneys fees]
Wednesday, April 4, 2018
Wertz v Wertz, 2018 WL 1575830 (W.D. Virginia, 2018)[Canada] [Grave Risk of Harm] [undertakings] [Petition conditionally granted]
In Wertz v Wertz, 2018 WL 1575830 (W.D. Virginia, 2018) Tammy Mae Wertz petitioned the court for return of the parties’ minor child to that country.The child, L.E.W., age 8, was removed from Canada on December 20, 2017, without Petitioner’s consent, by Respondent Lewis Edward Wertz, III, and remained in Virginia since that time. The district court found that Petitioner met her burden of proving by a preponderance of the evidence that Respondent’s removal of L.E.W. to the United States was wrongful within the meaning of the Hague Convention. In defiance of a Canadian court order and Petitioner’s custody rights, Respondent wrongfully removed the child from Canada on December 20, 2017, where he had habitually resided his entire life. However, the court heard clear and convincing evidence that the child would be subject to a grave risk of harm were he to be returned to Canada without the implementation of certain safeguards, called undertakings, which are necessary to assure the child’s safety. Subject to the undertakings, the court conditionally granted the Verified Petition.
On February 5, 2018, Petitioner filed a Verified Petition against Respondent. The court appointed a guardian ad litem for L.E.W., and directed him to conduct an independent investigation into the facts relevant to the Verified Petition and the defenses raised by the respondents. The court sua sponte appointed counsel for Respondent.The guardian ad litem conducted in-person interviews and upon completion of his investigation, filed a report and recommendation setting forth his findings The report was provided to the parties and the court received it into evidence at the March 15 bench trial.
Petitioner and Respondent were married in Canada on November 3, 2007. The parties had one child, L.E.W., born April 3, 2009, who was a dual citizen of Canada and the United States. The family lived together in Ontario while Respondent worked as an engineering professor. The parties separated in late 2009. Petitioner left the family home and moved to public housing, where she continued to reside, with J.W. and the infant L.E.W. Respondent remained in the family home. The parties eventually divorced but continued to maintain a sporadic sexual relationship long after their initial separation. Both parents developed a close bond with L.E.W. and sought custody of him. Over the span of the ensuing eight years, the Canadian court was asked to resolve custody issues.
Petitioner’s trial testimony gave the court a full view of Petitioner’s prolific use of illegal substances over the course of two decades. Petitioner admitted to using cocaine, crack cocaine, heroin, crystal meth, and marijuana, as well as abusing a staggering list of prescription drugs—Dilaudid, Ritalin, Percocet, OxyContin, Ativan, Adderall, morphine, methadone, diazepam, suboxone, and ketamine—by various means. Petitioner testified she has used drugs while L.E.W. was at school, used cocaine, crystal meth and opiates while L.E.W. was asleep in her home, and smoked marijuana in L.E.W.’s presence. The court was not aware of any Hague Convention cases involving this level of substance abuse, and the enormity of Petitioner’s drug abuse, while the child was in the home, overshadowed this case. Petitioner testified that she completed a 35-day treatment program in 2014 but has relapsed several times over the past two years. As recently as 2017, she admitted to using both cocaine and crystal meth and had numerous positive drug screens. In her Verified Petition she attested she “has been completely free of illicit substances for approximately two years. Other aspects of Petitioner’s life closely associated with her pervasive drug abuse compound the risk to the child. Arguably the most troubling was Petitioner’s relationship with John, a man she knew had been charged with sexual abuse of a child and had a history of domestic abuse of women. Petitioner testified that although she was aware that John had been ordered to have no contact with his own child, she nevertheless began an abusive relationship with him in May 2017, to which her child was exposed. Testimony at trial established that Petitioner appeared at Respondent’s house drunk in the middle of the night complaining that John had abused her. Another time, Petitioner testified John threw a cup at her and cut her face. John was arrested, charged, and served 75 days in jail for this abuse. The court was not convinced that the threat posed by the child’s exposure to men such as John has passed. Indeed, although Petitioner claims to be done with him, John is no longer in prison and was seen by her on the street.
Although Petitioner admitted that John was present in the home with L.E.W., she insisted she never left her son alone with him. The court’s concern that Petitioner’s drug-influenced lifestyle posed a risk to L.E.W. was confirmed by her on-and-off romantic relationship with another man, Shawn. Petitioner described Shawn as the “main friend” with whom she used drugs. She testified Shawn had given her crystal meth, heroin, and Dilaudid, and that she has given Shawn her prescription Percocet. Petitioner and Shawn used drugs together in her home while L.E.W. slept. At trial, Petitioner referenced by name a host of others she bought drugs from, sold drugs to, and/or used drugs with, neighbors, friends, and a prostitute she met through Shawn.
In 2011, Petitioner overdosed on Ritalin and suffered a psychotic episode in which she hallucinated and wandered around the common area of her housing complex with a baseball bat, believing there were homeless people in the bushes and dead babies on the ground. Petitioner was hospitalized for two days following this episode, which her daughter J.W. witnessed. L.E.W., who was then just shy of 2, was asleep at the time.
Petitioner had not engaged in legitimate employment in more than a decade. She survived on social assistance and had resorted to illegal means of earning income, such as selling drugs and prostituting herself through an escort agency called Niagara Dolls. Petitioner testified she last worked as a prostitute in 2013. This testimony contradicted a statement she made to the court-appointed guardian ad litem that she had only ever exchanged sex for money with Respondent. Petitioner admitted on direct examination that she was not truthful about this fact in her interview with the guardian ad litem.
Petitioner frequently asked Respondent for money, long after the parties divorced. At times, money was given in exchange for sexual favors. Petitioner testified that it was possible that she used that money to buy drugs. Other incidents of Petitioner’s addiction adversely impacted the child. School records from 2016–17 revealed L.E.W. was absent 21 and a half days and tardy 56 days while he was in Petitioner’s care. Petitioner admitted leaving L.E.W. alone, unsupervised, with men who lived in her housing complex,one of which is known to Petitioner only by first name. In 2016, she assaulted Respondent in front of L.E.W. While in the car on the way to her suboxone treatment, she punched Respondent and split his lip open.
Petitioner claimed to have “changed drastically” since then. Drug screens from the past few months of 2018 had been clean, and she claimed to be resolute in her desire to live a drug-free life. Yet her self-described support system included a friend with whom Petitioner currently smoked marijuana and from whom she had illegally purchased suboxone. Also of concern was Petitioner’s testimony that she is confident in her ability to stay clean because the “main friend” she did drugs with, Shawn, was currently incarcerated. All of this, along with her admitted false statements and long history of drug abuse, led the court to find Petitioner’s claim that she was capable of assuring the safety of the child utterly incredible.
The district court found that petitioner established a prima facie case for return and that Respondent had not established by a preponderance of the evidence that Petitioner acquiesced to the removal of L.E.W. to Virginia during the summer and fall of 2017. It noted that Respondent primarily defended his wrongful removal by arguing that L.E.W. would be subject to grave risk in Petitioner’s care in Canada.
The court observed that drug use, under certain circumstances, ... may qualify as grave-risk conduct.” Mlynarski v. Pawezka, 931 F. Supp. 2d 277, 284 (D. Mass. 2013), aff’d, No. 13-1361, 2013 WL 7899192 (1st Cir. May 8, 2013) (finding no grave risk where petitioner had “susceptibility to taking psychoactive substances” and occasionally smoked marijuana). Courts use a two-step approach to determine whether allegations of drug use qualify as a grave risk. “[T]he court must first determine whether the alleged ... drug use in fact occurred. Beyond that, the court must consider as part of the grave risk analysis how such conduct, if confirmed, would affect the child were he to be returned to his habitual residence.” There was no case law to help guide the court in assessing grave risk for the level of drug use presented here.
The district court pointed out that courts have found that past drug abuse, standing alone, is insufficient to constitute a grave risk. See Taylor v. Hunt, 2013 WL 620934, at *8 (report and recommendation adopted, 2013 WL 617058 (E.D. Tex. Feb. 19, 2013) (citing Sanchez v. Sanchez, 2012 WL 5373461, at 3 (W.D. Tex. 2012)) (“Evidence of past acts of domestic abuse or past drug activity in the place of habitual residence is not enough for the grave risk exception to apply.”) Likewise, courts have declined to find grave risk where the past drug abuse occurred outside the presence of the child, or where relationships that posed the risk of drug abuse have been abandoned. See Sanchez v. R.G.L., 761 F.3d 495, 500, 509 (5th Cir. 2014) (finding no gave risk where mother ended relationship with boyfriend who abused and trafficked drugs); In re Hague Application, 2007 WL 4593502, at *10-11 (E.D. Mo. Dec. 28, 2007) (rejecting grave risk defense where petitioner maintained drug-free home and terminated marijuana use, and where prior drug use was not in home or children’s presence). But the limiting factors present in those cases were not present here, where the evidence established that Petitioner’s unrelenting addiction transcends every other aspect of her life, without regard to the consequences to her child. The petitioner had a staggering history of drug abuse. Petitioner testified to using cocaine, heroin, crystal meth, marijuana, Ritalin, morphine, OxyContin, and Percocet. She admitted using crystal meth and Dilaudid in her home while L.E.W. slept, and to selling drugs, Ritalin and marijuana, on the street. Drug screens from the past two years included positive results for a variety of illegal substances, including cocaine, morphine, OxyContin, benzodiazepine, methadone, amphetamine, ketamine, and methamphetamine. Despite alleging falsely in her Verified Petition that she has been free of illicit substances for the last two years, she has relapsed numerous times. Indeed, Petitioner testified to a relapse in July 2017 and had positive drug screens as recently as December 2017 and January 2018. Petitioner’s testimony suggests that she purchased drugs as recently as December 2017. Petitioner, to her credit, sought treatment for her drug abuse, and her drug screens for the past couple of months of 2018 suggested improvement. But Petitioner had multiple “restarts” due to missing treatments, and reported to her doctor in January 2018 that she had purchased unprescribed suboxone off the street. Given the admitted falsehoods in prior statements made in connection with this litigation, the court was unable to credit Petitioner’s testimony that her drug abuse days were over.
Petitioner’s continuous pull to drugs further led her to engage in perilous personal conduct, including prostitution and exposing her child to men with dangerous criminal pasts. Although she claimed to have abandoned this lifestyle several years ago, Respondent’s witness Wayne Corby testified that Petitioner worked as an escort as recently as May or June 2017. Petitioner’s drug abuse caused her to expose L.E.W. to dangerous people. The court could not ignore the clear and convincing evidence that Petitioner’s drug abuse, and all of the consequences thereof, constituted a grave risk that L.E.W.’s unconditional return to her custody in Canada would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
The district court found that the case was ripe for undertakings. Although the court found that L.E.W. faced a grave risk if returned, this risk could be mitigated pending the Canadian court’s opportunity to make a fulsome custody determination. Similar to the circumstances at issue in Sabogal v. Velarde, 106 F. Supp. 3d 689, 710 (D. Md. 2015), the court was made aware that there was a criminal investigation and possible charge against Respondent for leaving Canada with L.E.W. without Petitioner’s consent and against the court’s order. If working together with the Canadian authorities, the parties can arrange to (1) have the temporary and final custody orders entered on November 22, 2017 and December 21, 2017 vacated, so that the underlying September 26, 2012 joint custody order is reinstated, and (2) arrange to have the criminal charges against Respondent dismissed or the investigation closed, the legal landscape would return to the status quo at the time of the removal. Then Respondent could take the child back to Ontario for custody proceedings.
The court directed that it would order the return of L.E.W. to Canada, provided the parties provide proof within sixty (60) days that the following conditions, which would reinstate the status quo at the time of the wrongful removal, have been satisfied: 1. That this custody dispute be resubmitted to the Canadian courts, and a hearing scheduled. 2. That the parties agree to ask the Canadian court to vacate the November 22, 2017 and December 21, 2017 custody orders, and reinstate the September 26, 2012 order pending a further hearing. That the parties take all steps necessary to have dismissed or closed any pending criminal complaints, investigations, or charges in Canada against Respondent, relating to his removal of the child. That, once L.E.W. is returned to Canada by Respondent, the parties agree that neither party shall remove him from the Niagara Region, Ontario, Canada without an express order of the Canadian court permitting L.E.W.’s removal. That the parties agree that neither party shall take any drugs for which they do not have current prescriptions and that the parties transmit forthwith the full record (sealed and unsealed) of this evidentiary hearing, including all pleadings, orders, reports, and transcripts, to the Canadian court presiding over the custody proceeding, FACS Niagara, and the Canadian Children’s Lawyer. The parties shall share the expense of ordering the transcripts. Upon proof that these conditions are satisfied, the court will issue a final order certifying that the conditions have been met, mandating compliance with the listed undertakings, and ordering the return of L.E.W. to Canada.
Monday, April 2, 2018
Frenken v. Hunter, 2018 WL 1536754 (N.D. California, 2018)[Netherlands][Habitual Residence][Federal & State Judicial Remedies] [Petition denied]
In Frenken v. Hunter, 2018 WL 1536754 (N.D. California, 2018) the Court granted Defendant’s motion for summary judgment dismissing the action.
Plaintiff was the mother and Defendant was the uncle of Child. The Child was born in 2004, in Lihue, Kauai. The Child’s father, David John Hunter (“Father”), was deceased. Plaintiff was a citizen of the Netherlands, The Child was a citizen of both the United States and the Netherlands, and the Father was a resident of California. On April 10, 2006, Plaintiff filed for divorce from Father in the Superior Court of California, Nevada County. Pursuant to a stipulation and order by that court for custody and/or visitation of children, Plaintiff and the Father agreed Plaintiff could move to Texas with Child on or after June 1, 2006. On June 21, 2010, the Nevada County Superior Court entered an order awarding the parties joint custody of the Child, stating that the Child’s “habitual residence” was the United States. In 2012, Plaintiff took the Child to the Netherlands without the Father’s consent. Plaintiff did not respond to the Father’s requests for Plaintiff to return Child. In July 2013, the Father initiated legal proceedings in a district court in the Netherlands, asserting claims under the Hague Convention. On July 23, 2013, the Dutch district court ruled that the Child must be returned to the United States by no later than August 9, 2013. Plaintiff appealed. The Dutch appellate court upheld the lower court’s decision and ordered the return of Child “to the place of her habitual residence in the United States of America” no later than September 7, 2013. Dutch authorities located Plaintiff with the Child in the Netherlands on or about April 22, 2014. The Father, who was in the Netherlands at that time, returned with Child to the United States. After th eChild returned to the United States, the Father obtained “sole and physical custody” over the Child pursuant to an order of the Marin County Superior Court. The Marin County Superior Court issued that order on November 4, 2014. On December 16, 2014, the Marin County Superior Court entered a subsequent order stating in pertinent part that: “The minor’s country of habitual residence is California [sic].” On August 1, 2016, the Marin County Superior Court issued another order stating that Father and Child resided in California, and that “[t]he United States is the country of habitual residence of the child.” Father died on April 30, 2017.
On May 1, 2017, the Child filed a petition in Marin County Superior Court to appoint Defendant as her guardian. The Plaintiff opposed the petition. The Marin County Superior Court appointed Defendant as Child’s temporary guardian on May 4, 2017. The Child was domiciled in Marin County, California from April 22, 2014 to at least the time that Plaintiff filed her district court complaint on May 31, 2017.
The district court found thst Plaintiff’s claims failed under the four-step framework set forth in Mozes. According to Plaintiff, Defendant wrongfully retained child on May 1, 2017. There was no dispute that Child was a habitual resident of California prior to that date. Plaintiff admitted in her complaint that Child had resided in California since April 22, 2014. In her opposition, Plaintiff acknowledged that she and the Father “agreed” in 2014 that the Father would be Child’s primary caregiver “in the State of California.” Courts on four different occasions, in both the United States and the Netherlands, found the Child to be a habitual resident of the United States. And the Marin County Superior Court found specifically that California was the Child’s habitual residence.
The district court observed that Plaintiff’s complaint not only failed to allege that Child’s habitual residence was the Netherlands, but also attached documents compelling a contrary conclusion. Under Mozes’s third step, the Court applied California law to determine whether Defendant’s retention of the Child breached Plaintiff’s rights. It found that it did not. Pursuant to the Marin County Superior Court’s order, the Father had sole custody of child as of November 4, 2014. Following the Father’s death on April 30, 2017, the Marin County Superior Court appointed Defendant as the Child’s temporary guardian. That appointment occurred on May 4, 2016. Plaintiff failed to identify any facts or authority that would disturb that appointment. Though Plaintiff asserted that custody of Child reverted to Plaintiff upon the Father’s death, she cited no applicable authority supporting her position. Plaintiff’s reliance on the Fourth and Fourteenth Amendments was similarly unavailing; the Ninth Circuit has repeatedly stated that a district court “has authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim.” See, e.g., Shalit v. Coppe, 182 F.3d 1124, 1128 (9th Cir. 1999). Pursuant to the Marin County Superior Court’s custody and guardianship orders, Plaintiff had not shown that her custody rights had been breached. The district court held that the Marin County Superior Court’s subsequent May 4, 2017 order, appointing Defendant as Child’s guardian, was sufficient to establish the lawfulness of Defendant’s retention. The court concluded that Defendant met his burden to show that there was no genuine dispute of material fact as to Defendant’s lawful retention of Child. The Court therefore granted Defendant’s motion for summary judgment.