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
Saturday, April 30, 2011
In August of 2005, the couple and BJM moved to Flatrock, Michigan. Brian and Princess were married on April 20, 2006. As of 2007, however, the couple's relationship was deteriorating. In July or August of 2007, the couple separated and Brian returned to LaSalle, Ontario Canada. Brian and Princess agreed that BJM would reside with Brian at the 450 Superior Residence and attend school in LaSalle the following year. At this time, Brian was still in the process of obtaining his masters degree at Michigan State University. In the fall of 2008, Brian had an internship position that required him to temporarily reside in California. In the fall of that same year, Princess's mother was diagnosed with terminal cancer. After the diagnosis, Princess cared for her ill mother and, as a result, was unable to care for BJM on a full-time basis. At that time, Brian, Princess, and Linda agreed that BJM would reside at the 450 Superior Residence in LaSalle and attend school in LaSalle. On October of 2008, Brian, Princess, and Linda executed a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of BJM and that BJM "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." That agreement further provided that Linda "shall have the authority to make inquiries and decisions concerning the health, education and welfare of the child. Specifically, the Aunt shall have the authority to enroll the child in school in LaSalle." The parties entered in to that written agreement so that Linda would be able to enroll BJM in school in LaSalle. Linda was able to enroll BJM in school in LaSalle. On November 3, 2008, BJM was registered in junior kindergarten at Sandwich West Public School in LaSalle, Ontario Canada. B.M. attended the remainder of that school year at Sandwich West Public School, while residing at the 450 Superior Residence. Princess's mother passed away in December of 2008. Once the school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan.
In September of 2009, B.M. returned to LaSalle. From September 8, 2009 to June 30, 2010, B.M. was registered in senior kindergarten at Sandwich West Public School in Canada. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Towards the end of the 2009-2010 school year, Princess told Brian that she wanted B.M. to come live with her in Michigan and the couple argued about her request. Brian expressed that he wanted B.M. to remain with him during the school years, at least until the couple's older son graduated from high school. Brian wanted his son to be able to get through his senior year of high school without having to baby-sit and care for his sister while his mother was working. Although Brian understood that Princess wanted B.M. to come to Michigan to attend first grade at Laurus Academy, Brian did not agree or consent to that. In June, 2010, B.M. came to Michigan to stay with her mother. When B.M. left Canada for the summer, she did not take her personal belongings with her to Michigan. Her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Before leaving to visit her mother for the summer, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. In August of 2010, Princess called Brian and asked for B.M.'s vaccination records. Brian believed that Princess wanted those records so that she could enroll B.M. in first grade in Michigan and he did not give her the records. In August of 2010, Brian consulted a lawyer to advise him about his custody rights. B.M. returned to the 450 Superior Residence on September 3, 2010. From September 3, 2010 to September 7, 2010, B.M. was in Canada with Brian. On September 7, 2010, B.M. was registered in grade 1 at Sandwich West Public School in Canada. On September 7, 2010, Brian took B.M. to school for her first day of first grade at Sandwich West Public School. Later that evening, however, Princess came to the 450 Superior Residence and took B.M. back to Michigan without Brian's consent. On September 8, 2010, Princess registered B.M. in grade 1 at Laurus Academy in Southfield, Michigan. B.M. began attending Laurus Academy on September 8, 2010.
After Princess took B.M. to the United States on September 7, 2010, Brian sought legal advice on how to obtain a custody determination through the appropriate legal channels. On November 11, 2010, Princess brought B.M. back to Canada so that B.M. could receive medical treatment. Because the child was ill and could not return to school, and Princess was working full-time, Princess returned B.M. to the 450 Superior Residence and asked that Brian care for B.M. Princess asked that Brian return B.M. to her in Michigan on November 14, 2010, but Brian did not do so. On November 18, 2010, Brian filed an Application for Custody in the Ontario Court of Justice. As of November 21, 2010, B.M. was still in Canada with Brian, residing at the 450 Superior Residence. Princess and Brian McCurdy Jr. went to the 450 Superior Residence on November 21, 2010. At that time, Brian stated that he would not let Princess take B.M. to Michigan. Both Brian and Princess were upset and argued with each other. Linda, who was an attorney in Canada, was also present at the home and served Princess with legal documents from the custody action in the Ontario Court of Justice. Princess then left the house and returned to the United States without B.M. Princess read the documents that she was served with on November 21, 2010, and understood that Brian had initiated custody proceedings in Canada. On November 22, 2010, Brian re-enrolled B.M. at Sandwich West Public School, so that she could go back to school there. On November 24, 2010, Brian picked B.M. up from school and dropped her off at his sister's house, Cheryl McCurdy-Ducre, to play with B.M.'s cousins. On November 24, 2010, Princess traveled to LaSalle in order to get B.M. and bring her to the United States. Princess drove to Canada with her adult daughter, Lutece Shreve, her sister, Laura Lee, and a friend, Tammy Biddles. The group knew that B.M. was at Brian's sister's house and drove to the house. Because Princess knew that they would not let her in the house if she came to the door, Princess told her daughter Lutece to go in the house and get B.M. Lutece left the house with B.M., and brought B.M. to the car where Princess and the others were waiting. Neither Princess nor Lutece told Brian or his family members that they were taking B.M. from the house or that they were taking B.M. to the United States. Upon learning that Princess had taken B.M., Brian immediately contacted border control, to try to prevent Princess from taking B.M. across the United States-Canadian border. Brian also went to the LaSalle police station on November 24, 2010 and told the LaSalle police that B.M. had been removed from Canada by Princess without his consent. After returning to the United States with B.M. on November 24, 2010, Princess then stayed at a friend's house for a period of approximately two weeks and did not inform Brian where they were. From November 24, 2010 B.M. remained in Michigan with Princess and was attending Laurus Academy. On December 1, 2010, Princess initiated divorce and custody proceedings in the United States. Although she was aware that Brian had initiated custody proceedings in Canada in November, Princess signed an Affidavit stating that she had "no information" regarding other custody proceedings concerning B.M. On December 8, 2010, Brian filed a Hague application in Canada. On March 11, 2011, Brian initiated this action.
The District Court observed that it was undisputed that Brian had custody rights and that Brian was exercising his custody rights. Thus, the Court had to determine whether Canada was B.M.'s habitual residence immediately prior to the removal. Brian alleged that B.M. was wrongfully removed from Canada on September 7, 2010, and that she had been wrongfully retained by Princess in the United States since that time. Thus, the Court had to determine B.M.'s habitual residence immediately prior to her removal on September 7, 2010. It found that Brian had established by a preponderance of the evidence that Canada was B.M.'s habitual residence immediately prior to her removal on September 7, 2010. B.M. was born in Canada. In the fall of 2008, Brian, Princess, and Linda all verbally agreed that B.M. would reside at the 450 Superior Residence in LaSalle during the school year and attend school there. In addition, in October of 2008, Brian, Princess, and Linda formalized that agreement by executing a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of B.M. and that B.M. "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." B.M. was enrolled in junior kindergarten at Sandwich West Public School in LaSalle on November 3, 2008, and attended the remainder of the 2008-2009 school year there, while residing at the 450 Superior Residence. Once the 2008-2009 school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan. That same plan was followed for the 2009-2010 school year. In September of 2009, B.M. returned to LaSalle to live with Brian and attend school at Sandwich West Public School. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Thus, for B.M.'s first two years of school, she attended school in Canada while residing with her father at the 450 Superior Residence during the school years and spent only the summer months visiting her mother in the United States. Respondent had stipulated that Canada was B.M.'s habitual residence as of June, 2010. After the end of her senior kindergarten school year, in June, 2010, B.M. came to Michigan to stay with her mother for the summer--as she had done the two previous years. When B.M. left Canada for the summer, she did not take her personal belongings with her. That is, her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Moreover, while living in Canada, B.M. participated in extracurricular activities such as cheerleading. Before leaving to visit her mother for the summer in June, 2010, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. Based on the evidence presented, the Court found that Canada was B.M.'s habitual residence prior to her removal on September 7, 2010, and that the removal was wrongful under the Hague Convention. (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993). The Court found that Princess had not presented any evidence to establish that Brian consented by virtue of an action or statement with requisite formality, such as testimony in a judicial proceeding. To the contrary, Brian initiated legal proceedings in both Canada and the United States in order to retain custody of B.M. Moreover, although the couple had previously executed a written agreement that B.M. would attend school in Canada while residing at the 450 Superior Residence, there was no evidence to establish that the couple executed any subsequent written agreements regarding any changes in custody, schools, or B.M.'s primary residence. There was no evidence to establish that Brian signed any written renunciation of rights to custody. Nor was there any evidence that Brian consented or had a "consistent attitude of acquiescence over a significant period of time."
Brian did not consent or acquiesce to the removal and retention of B.M. In Respondent's Answer she asserted as an affirmative defense, that "[e]quitable estoppel bars the Father from relief in this cause of action." The Court noted that the case law in the Sixth Circuit reflects that if a Petitioner establishes that removal or retention was wrongful, "the child must be returned unless" the defendant
can establish one of the narrow defenses that are expressly provided for in the Hague Convention. Friedrich, 78 F.3d at 1067. "Equitable estoppel" is simply not one of the narrow defenses set forth in the Hague Convention. Respondent had not supplied the Court with any legal authority to show that the Court had the authority to decline to order the child returned based on a theory of equitable estoppel. Accordingly, the Court rejected this proffered defense as a matter of law.
Muhlemkamp v Blizzard, 521 F Supp 2d 1140 (E.D. Washington) [Germany] [Full Faith and Credit] [Well-Settled in New Enviorment]
Ms. Blizzard, demanding Ms. Blizzard inform him of when she would be returning with
E.M. so that he may "make use of the time I have left with [E.M.] in Germany." In this email, Mr. Muhlenkamp expressed his belief that a continued stay beyond two weeks was "not legal." Based on the clear and unambiguous understanding by Mr. Muhlenkamp that Ms. Blizzard would be returning with E.M. to Germany to finalize agreement on future visitation with E.M. and on other parental rights and responsibilities, the Court found that Mr. Muhlenkamp intended, and never waived the right, to determine such custody rights of E.M. in Germany under German law. At some point in August or September of 2006, Ms. Blizzard moved to Spokane, Washington, with E.M., where they resided since.
The District Court observed that in determining the appropriate location of a child under the Hague Convention, the threshold issue is whether the removal or retention of the child was wrongful. Here, the Bayreuth Local Court may have superseded the District Court in its determination that Ms. Blizzard wrongfully removed E.M. Thus, the Court was confronted with the question of whether the Court must respect the Bayreuth Local Court's decision and enter an order compelling the return of E.M. It noted thta United States courts are to give full faith and credit "to the judgment of any other ... court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter." 42 U.S.C. 11603(g). The Bayreuth Local Court entered an order and "Certificate of Wrongfulness" declaring the removal of E.M. was "wrongful" within the meaning of the Hague Convention. Article 15 of the Hague Convention allows: The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Hague Conv. art. 15. Here, the question of the wrongfulness of E.M.'s detention had already been decided by the Bayreuth Local Court. Ahough the typical procedure under Article 15 would be for the District Court to request a determination of wrongfulness by a German court, because the Bayreuth Local Court had already made a determination, the Court had to determine whether to give the decision full faith and credit under ICARA, 42 U.S.C. 11603(g). The Court found that several concerns arose from the Bayreuth Local Court's decision. First, Ms. Blizzard never received notice of this proceeding , nor did the Bayreuth Local Court or Mr. Muhlenkamp ever attempt to notify Ms. Blizzard of the custody proceeding and Hague Convention issue. Second, the Bayreuth Local Court's requisite level of burden of proof was below the standard mandated by ICARA and the Hague Convention. That court simply stated that Mr. Muhlenkamp had "shown plausibly by submission of an affidavit dated October 18, 2006, and the notarized revocation of travel permission dated August 14, 2006[sic] that he has joint right of custody of [E.M.]," and therefore the court made a finding of "wrongfulness" pursuant to the Hague Convention. However, the requisite burden of proof is more than "plausible"; a petitioner must "establish by a preponderance of the evidence" the child was wrongfully removed. 42 U.S.C. 11603(e)(1)(a). Because no notice was made to Ms. Blizzard of the proceeding and the Bayreuth Local Court applied a burden of proof substantially less then the requisite burden, the District Court did not give full faith and credit to the Bayreuth Local Court decision.
The Court found that Removal of E.M. from Germany occurred on June 12, 2006. Retention, if wrongful, occurred after the two-week window Mr. Muhlenkamp believed Ms. Blizzard would be in the United States. Thus, retention occurred on June 26, 2006. In determining the location of Habitual Residence the Court observed that although E.M. possessed a U.S. social security card, U.S. birth certificate, and U.S. passport prior to the removal, E.M. was born and lived in Germany her entire life. Therefore, at the time of removal, the Court concluded E.M.'s habitual residence was in Germany, though it is certain that the parties agreed that Ms. Blizzard was relocating to the United States with E.M. to begin her job in Spokane, Washington.
The Court noted that under the Hague Convention, rights of custody "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Conv. art. 5. German law gives both parents equal custody of a child.(citing Burgerliches Gesetzbuch [BGB] [Civil Code] Aug. 18, 1896, ss 1621 P 1, 1627;) "The violation of a single custody right suffices to make removal of a child wrongful." Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir.2004) "Rights of access do not constitute rights within the meaning of the Hague Convention...." Croll v. Croll, 229 F.3d 133, 135 (2d Cir.2000). Rights of access "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Conv. art. 5(b). This case presented the question of whether Mr. Muhlenkamp retained merely a right of access, rather than rights of custody, when he agreed to let Ms. Blizzard take E.M. to the United States. On May 5, 2006, Mr. Muhlenkamp signed a general letter written by Ms. Blizzard giving his "express permission for Allison Blizzard to travel internationally and remain abroad indefinitely with [E.M.]." Mr. Muhlenkamp and Ms. Blizzard disagreed as to what "indefinitely" meant. From the facts, the court determined that Mr. Muhlenkamp retained the right to determine custody rights, including parental-decision making roles and the right of visitation, in Germany. For this reason, the Court concluded Mr. Muhlenkamp possessed rights of custody at the time of removal. Mr. Muhlenkamp did not know of Ms. Blizzard's intention on June 12, 2006, the time of removal, and therefore did not exercise his custodial right at the time of removal. However, when Mr. Muhlenkamp became aware of Ms. Blizzard's intent, he exercised his rights and did not acquiesce to the retention of E.M. in the United States. Therefore, the Court concluded wrongful retention occurred on June 26, 2006.
Mr. Muhlenkamp filed his petition on July 17, 2007. Wrongful retention began on June 26, 2006. The Court concluded the filing occurred outside the one-year limitation. It observed that the Ninth Circuit has stated: The question whether a child is in some sense "settled" in its new environment is so vague as to allow findings of habitual residence based on virtually any indication that the child has generally adjusted to life there. Further, attempting to make the standard more rigorous might actually make matters worse, as it could open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit-such as having the child profess allegiance to the new sovereign. Mozes, 239 F.3d at 1079. The Ninth Circuit provides a dim light as to what factors are pertinent: "[S]ome courts regard the question whether a child is doing well
in school, has friends, and so on, as more straightforward and objective...." Here, E.M. was performing at two to three age levels above her own. E.M. also was well-liked and had a strong core of friends. Ms. Blizzard routinely took E.M. to community cultural events. E.M. had many relatives in the Northwest and in Arizona, where they often spent holidays. Thus, the Court found E.M. had settled. Because E.M. had settled, the one-year limitation exception applied. Therefore, even though the Court found Ms. Blizzard wrongfully retained E.M. outside of Germany, the Court concluded E.M. shall remain with Ms. Blizzard in the United States.
The District Court observed that while the ICARA allows a court to impose provisional remedies "to protect the well-being of the child involved or to prevent the child's further removal or concealment," IRACA only establishes the authority prior to "final disposition of the petition." 42 U.S.C. 11604 Thus, the Court did not enter a temporary order on custody.