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, August 10, 2011
address and telephone number in Forest Hills, New York. Petitioner has since had telecommunications with his child via both phone calls and video conference.
On February 25, 2011, petitioner filed a petition in the Bucharest Court seeking a decision that respondent's removal and retention of L.R. outside of Romania was illegal. On May 5, 2011, the Bucharest Court dismissed the action, finding that petitioner did not have standing to bring the suit and was without remedy of law.
The District Court observed that in order to raise a prima facie case, a petitioner had to prove by a preponderance of the evidence that: "(1) the child was habitually resident in one State and has been ... retained in a different State; (2) the ... retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights [or would have exercised those rights] at the time of the ... retention." Gitter v Gitter, 396 F.3d at 130-131. If a court deems that there has been a wrongful removal or retention of a child under the age of sixteen, and the petition was brought within a year of the wrongful removal or retention, the country in which the child is located must "order the return of the child forthwith," unless the respondent is able to raise an affirmative defense. Hague Convention art. 12.
The District Court found that petitioner failed to establish a prima facie case of wrongful removal and retention by a preponderance of the evidence. The parties did not dispute that L.R. was a habitual resident of Romania at the time of his removal. The pinnacle issue was whether respondent's unilateral decision to change the child's domicile was in breach of petitioner's rights of custody. Both sides cited to Abbott as the seminal case in determining whether petitioner has a ne exeat right-the right of a parent to require his consent before a child is taken out of the country. In Abbott, the Court held that a parent's ne exeat right qualifies as right of a custody under the Hague Convention. See 130 S.Ct. at 1990. Therein, the father and mother separated and a Chilean court awarded visitation rights to the father. Id. at 1988. The Court found that while visitation rights or "rights of access" alone did not amount to a ne exeat right, where the law of the country of residence explicitly requires a parent to give consent before removing the child, a custodial right exists. Thus, absent an explicit award of custody, the Court consulted the law of the country of residence to determine whether a parent had a ne exeat right.
The district court observed that the final and irrevocable Divorce Decree only awarded petitioner visitation rights, not custodial rights. The Court rejected petitioners argument that his visitation rights, in conjunction with four Romanian laws, amounted to a ne exeat right. The first law to which petitioner cited was the Romanian Law on the Protection and Promotion of the Rights of the Child, Law 272/2004, which concerns a child's temporary travel abroad. That law provides, in part, that "the child[ ]'s travel in the country or abroad may only be done when both parents have been notified and have agreed; any misunderstanding between the parents concerning the expression of this agreement is ruled upon by the court of law." Here, respondent did not notify petitioner of L.R.'s travel to the United States; however, any disagreement arising from the child's travel outside of Romania had already been ruled upon by "the court of law"--that is, the irrevocable and final decision rendered in the Divorce Decree, which granted sole custody to respondent. Although petitioner argued that his visitation rights alone created a ne exeat right, this argument was misguided. See Abbott, 130 S.Ct. at 1988-89 (finding that "direct and regular visitation rights," are recognized as "rights of access," but that these rights alone do not offer a return remedy under the Convention). Upon reading Law 272/2004 in full, the district court observed that the law clearly anticipated that a final and irrevocable custody determination would modify and limit the very parental rights which Law 272/2004 espoused. Article 16, for example, provides that the "court of law, considering the best interests of the child as a priority, can limit the exercise of the [noncustodial parent's right to maintain direct contact]." The Bucharest court that issued the parties' Divorce Decree did just that, and negated petitioner's custodial rights by awarding respondent sole custody of the child. Thus, petitioner failed to establish that the Divorce Decree and law 272/2004 created a ne exeat right. The second law to which petitioner cited was the Status of the Free Movement of the Romanian Citizens Abroad Law 248/2005, ("248/2005"), which states that a minor Romanian citizen may leave the country when accompanied by one of his parents "without the need for the other parent's affidavit, only if the accompanying parent presents proof that she has custody of the minor based on a final and irrevocable court decree." This law clarified that because respondent has a final and irrevocable Divorce Decree vesting her with sole custody of L.R., she could temporarily remove L.R. from Romania without petitioner's permission. The Court found that the Divorce Decree superseded the prior Romanian law requiring both parents' consent. The Romanian Consulate affirmed this finding in a letter to this Court, noting that "[i]n accordance with the Romanian Law no. 248/2005, as amended, the parent who has the custody of the child is entitled to request the issuance of a Romanian passport/travel document for the said child and to approve any trip abroad, without the other parent's consent." Accordingly, Law 248/2005 failed to confer upon petitioner a ne exeat right.
The Court concluded that petitioner had not established that he had any ne exeat rights as to L.R. under the Divorce Decree or Romanian law. The Romanian court rendered a final and irrevocable custodial determination in favor of respondent, did not award any custodial rights to petitioner, and was silent as to petitioner's ne exeat rights. This Decree, under Romanian law, then superseded any ne exeat right that petitioner may have had. Accordingly, petitioner failed to establish that respondent's retention of L.R. was in violation of his custodial rights.. Because the Divorce Decree did not afford petitioner with custodial rights, and Romanian law does not grant a ne exeat right in the face of the superseding Divorce Decree, petitioner had no custodial rights to exercise at the time of L.R.'s removal. Accordingly, petitioner failed to meet the third element of his prima facie case. The petition was therefore dismissed.