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
Monday, July 16, 2018
Kovacic v Harris, 2018 WL 3388333 (D. Maryland, 2018)[Croatia] [Age and Maturity defense] [Petition denied]
Thursday, July 12, 2018
Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018)[Israel] [Now settled defense] [Petition denied]
Saturday, July 7, 2018
Thursday, June 21, 2018
Medina v Villasanti, 2018 WL 3036558 (N.D. Texas, 2018)[Mexico][Habitual Residence][Petition denied]
In Medina v Villasanti, 2018 WL 3036558 (N.D. Texas, 2018) the district court denied Plaintiff Gloria Medina’s petition for return of child to Mexico. The district court found that bBeginning around 2007, Medina and Brandon Villasanti dated and lived together in Dallas, Texas, United States. In September 2009, Medina gave birth to a child (“SBV”) fathered by Villasanti. Eventually, Medina and Villasanti’s relationship ended. Medina and SBV moved to San Luis Potosi, Mexico while Villasanti remained in Dallas. For several years, Villasanti would annually visit Medina and SBV in San Luis Potosi. During the summer of 2015, Medina’s and Villasanti’s stories diverged. Medina alleged that Villasanti requested Medina’s permission to take SBV to the United States merely for a limited vacation. To memorialize this agreement, Villasanti sought Medina’s signature on a contract written in English. But because Medina only understood Spanish, Villasanti orally translated the agreement to Spanish for her. Medina maintained that Villasanti’s translation of the agreement matched his initial request: to take SBV to the United States for a brief vacation. Thus, Medina signed the agreement. Villasanti claimed instead that he clearly requested and received Medina’s permission to take SBV to the United States indefinitely. In support, Villasanti produced the agreement at issue. Signed by Villasanti on July 31, 2015, notarized on the same day, and signed by Medina a day later, the agreement indicated that Medina granted permission for SBV to travel and live with Villasanti and that Medina trusts Villasanti to take care of SBV while she is living with him. Villasanti further claimed that his translation of the agreement to Spanish accurately reflected its terms, including that it would allow him to retain SBV without any temporal limit. Based on the agreement, Villasanti took SBV to Dallas. According to Medina, Villasanti began wrongfully retaining SBV in late August of 2015 when he did not return the child to Mexico. As a result, Medina filed the petition for return of SBV. The Court found Villasanti to be the more credible witness and, in all cases where Medina’s testimony conflicted with Villasanti’s testimony, the Court accepted Villasanti’s account.
The district court noted that Medina’s petition was one for wrongful retention. The threshold inquiry in any wrongful retention case is determining which country is the child’s habitual residence. The Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie, 690 F.3d at 310. The inquiry balances the interests of the child with the intentions of the parents. A court’s “inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” When determining a child’s country of habitual residence, analysis focuses on the “parents’ shared intent or settled purpose regarding their child’s residence.. The inquiry balances the interest of the child with the parents’ intentions, but gives greater weight to the parents’ subjective intentions when the child is relatively young and incapable of deciding residency. Absent shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” Mozes, 239 F.3d at 1082. “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,]...most courts will find no change in habitual residence.’
The Court determined that SBV’s habitual residence at all times relevant to Medina’s petition had been the United States. Prior to August 2015, SBV’s habitual residence was Mexico: the fact that SBV resided there with Medina for several years with Villasanti making annual visits exhibits the parents’ shared intent for the child to remain in Mexico. But, when Villasanti took SBV to the United States in August 2015, that changed. Although the parties disputed the length of time that Medina allowed Villasanti to take SBV to the United States, the Court credited Villasanti’s testimony on this matter. Villasanti produced the written agreement at issue, which did not include any temporal limit. Where a written agreement between the parents determines the child’s habitual residence it controls. As a result, the parties evinced a shared intent in August 2015 to change SBV’s habitual residence to United States. Thus, because SBV habitually resided in the United States at the time Medina filed the petition and Medina consented to SBV’s residing there indefinitely, Villasanti had not wrongfully retained SBV.
The district court also determined first, that even assuming that Medina has made a prima facie case for wrongful retention, Villasanti met his burden under ICARA to prevent SBV’s return to Mexico. Villasanti established by clear and convincing evidence that there was a grave risk that SBV’s return to San Luis Potosi would expose her to physical harm. In support, Villasanti produced photographs of SBV’s arms taken mere months after her arrival in the United States in August 2015. The images demonstrated that SBV was ravaged by bugs while residing in Mexico over the previous several years. Villasanti testified that pickup trucks full of civilians armed with automatic weapons openly drive on the public streets of Medina’s village. Villasanti also testified that SBV was malnourished when he picked her up in Mexico. The Court credited Villasanti’s photographs and testimony as sufficiently establishing a grave risk of physical harm to SBV if returned to Mexico.
It also found that Villasanti also established by a preponderance of the evidence that Medina consented to Villasanti’s retention of SBV in the United States.
Even if Medina did not consent to the retention, it found that SBV was settled in her new environment. Longer than a year elapsed from the date of the alleged wrongful retention and the filing of the and Villasanti testified at trial that SBV (1) had been enrolled in school since her arrival in the United States, (2) lived in a home with Villasanti and her grandparents, and (3) repeatedly said she did not want to return to Mexico when asked. Collectively, this testimony established by a preponderance of the evidence that SBV was settled in her new environment.
Signed June 19, 2018.
Sunday, June 3, 2018
In Martinez v Urena, 2018 WL 2451199 (EDNY, 2018) Petitioner moved the Court for an order directing the parties’ twin boys be returned to the Dominican Republic in accordance with a stipulation of settlement which was previously “so-ordered” by the district court. The lawsuit was commenced in November 2016. The complaint recited that petitioner was a citizen of the Dominican Republic. Respondent was a citizen of the United States and the Dominican Republic. The parties were married in 2010. After their marriage, the parties tried unsuccessfully to obtain a United States visa for petitioner. In October 2013, after the parties’ twin boys were born, respondent proposed that he bring them to the United States and that petitioner continue with the visa-application process so that she could join them. Petitioner authorized the children to travel to the United States in 2014 but did so on the implicit condition that she would join them in the United States as soon as her visa application was granted. After the two boys traveled to the United States to meet respondent (no later than July 28, 2014), respondent filed divorce papers against petitioner in the Dominican Republic. Respondent then informed petitioner that he intended to keep the children with him in the United States. Respondent obtained a default custody order in Queens Family Court. Petitioner did not participate in the proceeding. On July 28, 2015, exactly one year after the date that her second child traveled to the United States, petitioner filed an application under the Hague Convention. Petitioner then filed this complaint in federal court in November 2016 seeking the return of her twin boys under the Hague Convention.
In January 2017, the parties entered into a stipulation, which provided (in relevant part): 1. Custody, including temporary custody, of the Children, AAUM and ASUM, shall be determined by a court in the Dominican Republic; 2. Petitioner shall commence the custody proceeding in the Dominican Republic by February 10, 2017; 3. Respondent shall subject himself and, if required by a court in the Dominican Republic, the Children[,] to the jurisdiction of the court in the Dominican Republic for purposes of such custody proceeding; 4. If the Children must be present in the Dominican Republic for purposes of such custody proceeding or for the court in the Dominican Republic to obtain jurisdiction over them, the Children shall be made present in the Dominican Republic for such purposes; * * * 9. The Court shall retain jurisdiction over this matter for purposes of enforcing this Stipulation and Order. The parties submitted the proposed agreed-to stipulation to the Court, which “so-ordered’ it.
As contemplated by the stipulation, petitioner commenced a proceeding for custody in the Dominican Republic. The Dominican Republic court held a hearing on the case in January 2018 and dismissed the case. Petitioner then filed this motion for an order directing the children to be returned to the Dominican Republic. Petitioner attached to he motion a translation of the Dominican Republic court’s opinion dismissing the case. According to petitioner, the dismissal was for lack of jurisdiction because the children resided in the United States with their father. Article 90 of the Dominican Republic Code 136-03, states that a custody claim must be filed in the court where the person with guardianship over the children resides. According to petitioner, this dismissal was without prejudice and petitioner could bring her case again if respondent returns the children to the Dominican Republic. To support this interpretation, petitioner provided a declaration of her counsel from the Dominican Republic, sworn under penalty of perjury.
The Petitioner then made the current motion. The district court observed that this case and the Petitioner’s motion was based on the Hague Convention and that the return remedy does not alter the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Art. 19; see also 22 U.S.C. § 9001(b)(4). Petitioner sought an order enforcing the stipulation and order to which both parties agreed, which was intended to resolve petitioner’s claim under the Hague Convention that respondent wrongfully removed their children from the Dominican Republic to the United States because he removed the children in breach of her rights of custody over them.
The district court pointed out that Respondent’s opposition did not challenge the Court’s authority to enforce the parties’ agreed-to order but made several arguments on the merits of petitioner’s underlying complaint. First, respondent argued that petitioner could not bring her claim under the Hague Convention because she granted permission for the children to travel to the United States in the first instance. Second, respondent argued that bringing the children to the Dominican Republic would be futile because the court in the Dominican Republic has already determined that he has legal custody, or, in the alternative, it would be futile because the Dominican Republic court will simply defer to the Brooklyn Family Court’s current custody order. It rejected this argument because that Court did not decide the merits of the claim but dismissed the case for lack of jurisdiction because the children resided in the United States with their father. Furthermore, respondent has not cited any provisions of Dominican Republic law to support his argument that the Dominican Republic court would defer to the Brooklyn Family Court if the children were returned to the Dominican Republic. Finally, respondent argued that Hague Conviction did not apply because “petitioner waited more than a year to bring the instant motion before this Court.” The court pointed out that Defendant appeared to be invoking the “now settled” defense in Article 12 of the Convention. A respondent who opposes the return of the children has the burden of proving this exception under Article 12 applies, meaning that he must establish, by the preponderance of the evidence, that (1) the petitioner did not file the petition within one year of the time that the child was wrongfully removed or retained and (2) the child has become settled in the new environment.
The district court found that the Respondents argument was misplaced. It attacked the underlying petition, which was already resolved through the parties’ stipulation and was not at issue in this motion. Moreover, even if it were appropriate to consider respondent’s “now settled” defense to the underlying petition respondent did not submit any evidence that the children have become settled in their new environment.
Petitioner sought to enforce an order previously issued by this Court. None of respondent’s arguments in opposition provided reasons why the Court should not issue the requested order. However, 22 U.S.C. § 9004(b) limits a court’s authority to “order a child removed from the person having physical control of the child unless the applicable requirements of State law are satisfied.” Petitioner did not submit any evidence that the order she requested requiring respondent to surrender the children to her or a Court-appointed guardian complied with New York state law. The Court therefore granted petitioner’s request for an order enforcing the terms of the parties’ stipulation as follows: “Respondent is directed to return the children to the Dominican Republic as promptly as possible, but no later than 60 days from the date of this order. Respondent must pay the children’s reasonable travel expenses to return. The children must remain in the Dominican Republic for however long is required for a Dominican Republic court to exercise jurisdiction over them and the parties’ custody dispute. If respondent wishes the children to return in the company of petitioner or another temporary guardian appointed by the court, in lieu of returning with them to the Dominican Republic himself, he may do so, but must inform the Court of this choice within 14 days.”
Saturday, May 26, 2018
Takeshi Ogawa v Kynong Sun Kang, 2018 WL 2376338 (D. Utah, 2018) [Japan] [Rights of Custody] [Petition denied]
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.