New York Matrimonial Trial Handbook
The by Joel R. Brandes is available in Bookstores and online in the print edition , . It is also available and for all ebook readers in our bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click and
The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at with the permission of the New York Law Journal.
Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.
Friday, November 18, 2011
Respondent argued that the District Court should abstain from deciding the Petition and allow the issues raised therein to be decided in the state custody proceeding pursuant to the Younger and Colorado River abstention doctrines. The District Court rejected her argument. It observed that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir.2003) (citing Colorado River, 424 U.S. at 817)). "Virtually" is not "absolutely," however, and in exceptional cases federal courts may and should withhold equitablerelief to avoid interference in state proceedings. "The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). This doctrine is an exception to the general rule of nonabstention and derives from "the vital consideration of comity between the state and national governments." 31 Foster Children, 329 F.3d at 1274 (internal citation omitted). Under Younger, abstention is warranted when (1) there is an ongoing state judicial proceeding with which the federal proceeding would interfere; (2) the state court proceeding implicates important state court interests; and (3) the state court proceeding provides the petitioner with an adequate opportunity to raise his claims. Yang v. Tsui, 416 F.3d 199, 202 (3d Cir.2005).
The District Court concluded that Respondent failed to demonstrate that its adjudication of the Hague Convention claim would interfere with the ongoing state custody proceeding, an essential showing under the first Younger factor. In deciding this issue, it looked to the relief requested and the effect it would have on the state proceeding. The adjudication of the issues raised in the Petition--whether the child's removal from Belize and his retention in this country were wrongful and, if so, whether he should be returned to Belize--would not affect the custody determination that would be made in state court pursuant to state family law. In Yang, because the Hague Convention had not been raised in the state custody proceeding, the court concluded that the federal court's adjudication of a Hague Convention petition would not interfere with the state action. As in Yang, in this case the Hague Convention was not raised in the state proceeding. Because there was no Hague Convention claim pending in the state proceeding, the adjudication of the Petition would not interfere with the state proceeding. If a custody proceeding does not have a Hague Convention claim before it, an adjudication of such a claim by the federal court would not constitute interference." The second Younger factor, whether the state proceeding implicates important state court interests, likewise did not support abstention. It could not be disputed that the
State of Florida has a strong interest in domestic relations and custody matters, but
they are not issues in the case. The Petition sought the return of the child "under the
Hague Convention and ICARA, which is a federal statutory matter." If a federal court abstained from adjudicating a Hague Convention petition simply because child custody was being disputed in state court, the Hague Convention and ICARA would be rendered meaningless. Finally, Respondent failed to establish the third Younger factor for abstention. Although the state court has jurisdiction to entertain a Hague Convention petition, Petitioner did not raise such a claim in the state proceeding. He chose instead to file the Petition in federal court. It was unlikely, therefore, that Petitioner would have an adequate opportunity to raise his Hague Convention claims in the state forum. Because Respondent failed to meet the Younger requirements for abstention, the court denied her motion on that ground.
Respondent also asked the Court to abstain from adjudicating the merits of the Petition under the Colorado River abstention doctrine. This doctrine allows abstention by a federal court in favor of a parallel state proceeding based on "considerations of '(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' " Colorado River, 424 U.S. at 817. Abstention from federal jurisdiction is the exception, however, not the rule. Lops, 140 F.3d at 942. When a parallel state court proceeding exists, the Supreme Court has outlined six factors to consider in determining whether to abstain and dismiss a federal action: (1) whether one of the courts has assumed jurisdiction over any property in issue; (2) the inconvenience of the federal forum; (3) the potential for piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal or state law will be applied; and (6) the adequacy of each forum to protect the parties' rights. No one factor is per se determinative; how each factor is weighed depends on the facts of each case. When on balance the factors weigh against abstention, the federal court should
proceed notwithstanding the existence of the a parallel state proceeding. The Court first had to determine whether the concurrent state and federal cases were in fact
parallel proceedings. The cases need not involve identical parties, issues, and requests
for relief. Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1329-30
(11th Cir.2004). Rather, they must "involve substantially the same parties and
substantially the same issues." If the cases are not parallel, the Colorado
River doctrine does not apply. The Court found that this threshold test had not been met. Arguably the parties were not substantially the same. Petitioner was asserting a wrongful retention claim against the Ellenbys in federal court whereas neither of the Ellenbys was a party to the divorce and custody proceeding in state court. Although the relief requested in federal court was the return of the child to Belize, which based on the facts of the case was directed more toward Respondent than her parents who allegedly were assisting in the wrongful retention of the child, the Ellenbys were nevertheless subject to this Court's jurisdiction, once properly invoked, under the Hague Convention. More significant to the determination was the fact that the issues were not substantially similar. The subject matter of the two cases was decidedly different. The Court could not decide issues of custody, only which jurisdiction should properly determine custody. And the state court cannot decide whether the child should be returned to Belize. The fact that the same evidence could be used in both proceedings does not mean the issues are necessarily substantially similar. Even assuming the existence of a parallel state proceeding, the Court found abstention under Colorado River inappropriate. It considered all of the factors and found that they strongly militated against abstention under the Colorado River doctrine. Accordingly, Respondent's motion was denied on this basis.
Dalsgaard v Montoya, 2011 WL 5037223 (M.D.Fla.) [Denmark] [Habitual Residence] [Wishes of the Child defense]
Eight-year-old D.S.D. lived in Denmark since infancy. Her parents, Peter Dalsgaard and Denise Montoya, were divorcing, in Denmark. The parents shared joint custody of D.S.D., and under Danish law parents with joint custody must each consent to a child's remaining abroad. A March, 2011, agreement signed by both parents allowed D.S.D. to visit Montoya, who moved to the United States after the separation, from June 25, 2011, until August 1, 2011. On August 1st Dalsgaard flew to Tampa, Florida, to accompany his daughter during her return to Denmark in
accord both with the agreement and with Danish law. D.S.D. refused to return with her father; the preponderant evidence suggests Montoya and her family assented to, and perhaps fueled and encouraged, D.S.D.'s resistence. Dalsgaard returned to Denmark and gained full temporary custody of D.S.D. from the pertinent Danish authority. On September 28, 2011, Dalsgaard petitioned the District Court for D.S.D's return to Denmark under the Hague Convention on the Civil Aspects of International Child Abduction. After a hearing the court orally ordered D.S.D. returned to Dalsgaard and to Denmark on Tuesday, October 25, 2011.
Montoya exerted no effort arguing that D.S.D.'s "habitual residence" is the United States. Nor could Montoya argue with any success that no retention occurred. "[T]he term 'retention' is meant to cover the circumstances where a child has been prevented from returning to h[er] usual family and social environment." Pielage, 516 F.3d at 1288. A "retention" began when without Dalsgaard's consent Montoya kept D.S.D. in the United States and away from "her usual family and social environment" after August 1st. Montoya protested that no "intentional" or "overt" retention occurred because she merely acquiesced to D.S.D.'s desire to remain. Although whether the retention is intentional is not controlling under the Convention, Montoya signed an agreement under which her eight-year-old was due back in Denmark on August 1st. The record was devoid of evidence that Montoya insisted or even urged D.S.D. to return to Denmark--certainly nothing suggests that Montoya attempted to enforce the agreement with the persistence, authority, and persuasion typifying the responsible parent of an eight-yearold. The Convention grants Montoya no presumption of neutral (let alone pristine) motivation. The retention that began August 2nd was "wrongful" under the Convention. A retention is not "wrongful" because of an abductor's intentions; a retention is "wrongful" because of a violation of a custody right in the child's habitual residence. D.S.D.'s habitual residence is Denmark, and the question is whether Montoya retained D .S.D. in contravention of Danish law. Under Chapter 1, Section 3 of the Danish Act on Parental Responsibility: (1) If the parents have joint custody, they must agree on significant decisions regarding the child. The parent with whom the child lives can make decisions about general day-to-day matters relating to the child, including where in Denmark the child will have his or her habitual place of residence. (2) If the parents have joint custody but disagree about the custody, they both have to give their consent for the child to leave the country.... They also have
to give their consent if the child's stay abroad ... is extended beyond the agreed, presumed, or specified duration, unless an agreement has been made according to section 17(1)....Under Chapter 3, Section 17, "(1) If the parents have joint custody and disagree about which parent the child should live with, the court will decide the matter.... (2) The court can change an agreement or a decision about a child's place of residence." A letter from the Department of Family Affairs to the State Department confirmed that under Danish law "[b]oth parents must [ ] consent if a child's stay in a foreign country is extended beyond what is decided or agreed." see Familiestyrelsen, Legislation and Rules,
http://www.familiestyrelsen.dk/en/englishversion/legislationandrules/ (last visited Oct. 22, 2011); Hague Convention, Art. 14 (permitting direct judicial notice of the law of the habitual residence).
Dalsgaard and Montoya's March, 2011, agreement declared joint custody and
provided that D.S.D. will visit the United States for "specified duration[s]." Unless a Danish court orders otherwise, Danish law required that Dalsgaard consent before D.S.D. remained outside Denmark for longer than the "agreed, presumed, [ ] specified duration."
The Court found that Montoya's retention of D.S.D. violated Danish law. A Danish state administration granted Dalsgaard temporary full custody, which further proved that Montoya retained D.S.D. in violation of the law of D.S.D.'s habitual residence. Also, Dalsgaard applied for temporary full custody on August 2nd, the day that Montoya's wrongful retention of D.S.D. began. Not that Montoya challenged the point, but the order confirmed that Dalsgaard unquestionably exercised his custody rights when the wrongful retention began.
Montoya claimed that Dalsgaard consented to the retention and that D.S.D. "objects to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of [her] views." Montoya's argument that Dalsgaard consented to the retention required no attention because the only evidence of consent under the Hague Convention was the evidence that fails to show consent under Danish law, namely, the "re-assessment" provision of the March, 2011, agreement. The one difference is the burden of proof; under Article 13 of the Hague Convention and ICARA, Montoya had to demonstrate consent by a preponderance of the evidence. No evidence showed that Dalsgaard consented under Danish law to D.S.D.'s move to
the United States. That left D.S.D.'s state of mind and "degree of maturity." The burden was again Montoya's by a preponderance of the evidence, though even if D.S.D. was mature and objected to return, application of the exception was not mandatory. The Court indicated that before the evidentiary hearing, an hour and twenty minute in camera interview of D.S.D. transpired; no lawyers and no parents. Although a vibrant, cheerful, and delightful guest in chambers, D.S .D. when questioned had little to say about her parents' dispute. D.S.D. expressed in head nods and one-word sentences a preference to remain in the United States. Her reticent and laconic responses (she had plenty to say about other matters) left the depth and sophistication of her conviction, and the maturity behind her conviction, highly doubtful. Contributing to this doubt, Montoya conceded that D.S.D. was "in a lot of turmoil right now" and "has to digest a lot of things." Montoya admitted also that D.S.D.'s desire to
remain in the United States wavered. Dalsgaard asserted that D.S.D.'s preference to remain in the United States was the product of Montoya and her family's influence. Montoya denied that D.S.D. experienced untoward manipulation. Based on her testimony, however, Montoya conspicuously failed to explain to D.S.D. that D.S.D. was supposed to return to Dalsgaard on August 1st. The evidence suggested that Montoya allowed a belief to fester in D.S.D. that returning to Denmark betrayed Montoya. The point was, even if Montoya inflicted no "undue" influence, D.S.D. behaved as if she believes she must elect between her parents, and her unenviable position obviously agonized her. Head nods and monosyllables in favor of the status quo--an eight-year-old's best effort at a balance of terror–was the closest D.S.D. can get to appearing to favor neither parent. The sentiments of a perspicacious district judge addressing a Hague Convention petition for a ten-year-old boy resonate. D.S.D. was not afraid of the girlfriend, who in fact treated D.S.D. well by D.S.D.'s own account.
The Court concluded that D.S.D.'s distressing story fully justified an order to return.
Walker v Walker, 2011 WL 5008533 (N.D.Ill.) [Australia] [Habitual Residence] [Abandonment and Consent]
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States. The Respondent decided to permanently remain in the United States with the Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children. Petitioner did not visit the Children after he left the United States in July 2010 and before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a parent could establish a habitual residence of a child by the "wrongful removal and sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.