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
Tuesday, February 21, 2012
children. According to Petitioner, the following acts took place in 2010 and 2011: On March 17, 2010, the Mother [Respondent] had filed an application in the United Kingdom's High Court of Justice, Family Division, Bournemouth District Registry (the "English Court"), requesting permission to permanently remove the children from the United Kingdom. A trial was scheduled for December 2 and 3, 2010 on the Mother's application. As a result of the Mother's application for permanent removal having been filed, the English Court ordered that a report be prepared by the Children and Family Reporter, Mrs. Pat Holmes. Mrs. Holmes prepared her report dated October 8, 2010 and submitted it to the English Court. After the report was submitted to the English Court, a hearing was held before His Honour Judge Meston Q.C. on October 25, 2010. Judge Meston had reviewed both parties' submissions, reviewed the report prepared by the Children and Family Reporter and had heard from counsel for both parties with respect to agreements reached between the parties. At the hearing on October 25, 2010, the English Court issued a Residence and Contact Order on October 25, 2010. . The Residence and Contact Order provided hat the children shall reside with the Mother in the United Kingdom and set out a detailed and extensive schedule of contact for the Father in the United Kingdom. No order was made with respect to the parents' ex lege joint parental responsibility pursuant to the Children Act 1989. The Residence and Contact Order provided hat the Mother's application to permanently remove the children from the United Kingdom would be withdrawn and that the trial on her application scheduled for December 2-3, 2010 be vacated.
Thereafter the parties functioned pursuant to the Residence and Contact Order, which did not address the issue of parental responsibility, and both parties continued to share parental responsibility under the Children Act. Because the parties were both the parents of the children and no court suspended or otherwise terminated either party's parental responsibility, the parties continue to share parental responsibility for the children under the Children Act by operation of law. The Residence and Contact Order provides as follows with respect to removing the children from the United Kingdom: "WARNING: Where a Residence Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or the leave of court. However, this does not prevent the removal of the child for a period of less than one month by the person in whose favor the Residence Order is made (Sections 13(1) and (2) Children Act 1989). It may be a criminal offence under the Child Abduction Act of 1984 to remove the child from the United Kingdom without the leave of the court." After the issuance of the Residence and Contact Order, the parties and children continued to reside in the United Kingdom and followed the schedule for residence and contact set out in the Residence and Contact Order. The Father was scheduled to have his regularly scheduled time with the children on July 30, 2011 and was also scheduled to begin his summer holiday time with the
children on August 1, 2011. When the Father went to pick up the children on July 30, 2011, he discovered that the Mother's home was completely empty. Immediately upon discovering that the Mother's home was completely empty, the Father began searching for the children and reaching out to family and friends for help locating his daughters. The Father learned from one of the Mother's friends that the Mother had taken the children to Hawaii and later confirmed from other friends and relatives that the Mother had taken the children to Hawaii.
The testimony and evidence presented at the hearing supported these facts as set forth in the Petition. The Court found that Petitioner established that he had parental responsibility for the children and did not consent to their removal from their habitual residence in the United Kingdom. Respondent did not obtain leave of court before she removed the children from the United Kingdom, and, since the removal of the children, Petitioner had not acquiesced to their removal or retention.
Based on the evidence presented, the Court found that Respondent had not met her burden of establishing that the children were at grave risk of harm if returned to the United Kingdom. The evidence that Petitioner was physically, verbally, and mentally abusive to Respondent during the course of their marriage and thereafter was troubling. Respondent testified regarding Petitioner's history of alcohol abuse and anger management issues, and its effect on the family. The Court found Respondent's
testimony credible with respect to her fear of Petitioner's angry outbursts and threats of violence against her and her friends. Respondent also presented credible evidence that the children witnessed verbal confrontations and disagreements between their parents, which may have affected the children psychologically and emotionally. Specifically, a 2006 incident in which Petitioner physically kicked and struck Respondent in front of the oldest child and destroyed household property, and subsequently pleaded guilty to breaching the peace and criminal property damage, and an April 2011 incident at Waterloo Station in which Petitioner verbally threatened Respondent and a third-party in front of the children during a custody exchange. The Court also heard testimony regarding an April 2011 incident during which the younger child was injured while in Petitioner's care. The parties disputed the cause and severity of the injury to the child's elbow. Respondent maintained that Petitioner yanked
the child up by her arm as she resisted having her diaper changed; Petitioner contended the injury was the result of normal play with the children. Respondent faulted Petitioner for waiting several hours between the time of the injury and when he eventually sought medical care for the child the next morning. A hospital record indicated the following history of the presenting complaint: "[p]laying when getting nappy changed L. arm around her elbow very painful and not moving it, very upset in triage." The Court found that the parties' respective views of the incident were reconcilable based on the testimony and evidence presented at the hearing, and credited each. Respondent also recounted another recent incident in which the older child became ill while playing outside with Petitioner during poor weather conditions, and detailed her concerns regarding Petitioner's parenting capabilities. It was clear that the parties' relationship was troubled both during and after their marriage, when Petitioner was abusive toward Respondent, and that Respondent believed that matters were deteriorating in the months before she removed the children. The Court, however, found that, as troubling as this behavior may be, Respondent had not established for purposes of the article 13(b) analysis that the children would suffer "serious abuse that is a great deal more than minimal." Gaudin, 415 F.3d at 1035; see also Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.2000) (stating that a husband's "verbal abuse and an incident of physical shoving" directed at his wife, while regrettable, was insufficient to establish a "grave risk" of harm to the child, especially where there was no allegation that the father had ever abused the child, either physically or psychologically). The Court considered the alleged psychological harm suffered by the children and found that, while regrettable and unacceptable, any such harm did not to rise to the level required for sustaining an article 13(b) exception. See Whallon, 230 F.3d at 460 ("The logic, purpose, and text of the Convention all mean that such harms are not per se the type of psychological harm contemplated by the narrow exception under article 13(b). To conclude otherwise would risk substituting a best interest of the child
analysis for the analysis the Convention requires. This would undercut the Convention's presumption of return where rights of custody have been violated....").
Based on the foregoing, the Court granted the Petition.
Both parties acknowledged that when Petitioner was in Connecticut in January 2010 to visit his children, Petitioner, while at a Petco store, made a statement in his native Albanian, according to Petitioner, "curs[ing]", or according to Respondent's minor child, Kimberly to whom Petitioner was speaking, "threaten[ing] to kill" Respondent and her mother. Thereafter, Respondent filed a police report, a warrant was issued for Petitioner's arrest, and a mandated reporter made a referral of child abuse to the Department of Children and Families ["DCF"], which resulted in a substantiated report. According to Petitioner, on August 19, 2010, Respondent applied for a U-Visa. A U-Visa provides temporary immigration benefits to aliens who are victims of qualifying criminal activity, and to their qualifying family members, as appropriate. See http://www.uscis.gov/i-918 (Last visited Feb. 8, 2012). According to Respondent, by the summer of 2010, Respondent and the minor children had lived in this country for almost three years and their original visas had expired, so as to remain here legally, Respondent applied for nonimmigrant status which was granted to her and the children in July 2011. With the approval of their new nonimmigration status of legal permanent residents of the United States, Respondent and the children were issued Social Security cards and Employment Authorization cards, which Respondent used to obtain a Connecticut driver's license, and to register the children for Connecticut's Supplemental Nutrition Assistance Program and the healthcare program. Petitioner contended that he did not learn of Respondent's change in immigration status until December 30, 2011, in response to Petitioner's filing a motion to stay in the state court divorce proceedings that Respondent initiated in 2009. Petitioner contended that upon information and belief, Respondent used her passport, to which she was not supposed to have access, in accordance with this Court's order, to apply for a U-Visa, and, according to Petitioner, Respondent's immigration status wasrelevant to this case. Further, Petitioner contended that these documents were necessary for Petitioner to address Respondent's use of the "well-settled" defense at trial, as such documents will include Respondent's allegations of abuse which Petitioner will use in his case-in-chief, and to impeach Respondent by questioning the credibility of any testimony she may provide at trial. Accordingly, Petitioner requested the production of documents concerning Respondent's U-Visa application.
In her brief in opposition, Respondent argued that all of the appropriate documents, which documents include all visas, social security cards, and authorizations to work, had been produced, and the other documents withheld are those which would violate the attorney/client privilege or would violate the intent of protections found in 8 U.S.C. 1367. Additionally, Respondent asserted that her immigration status was not an important factor to the "well-settled" defense, and Petitioner had no standing to second-guess the Department of Homeland Security ["DHS"] and its decision to grant Respondent a U-Visa. Petitioner contended that courts have found "immigration status to be of utmost importance to establishing the Article 12 well settled defense
In Petitioner's Motion, he sought to compel production of documents responsive to Request Nos. 1, 3, 4 and 5, which document requests sought documents or correspondence related to Respondent and the children's current immigration status (No. 1), and related to any changes made to their immigration status since arrival in the United States (No. 3), as well as documents and correspondence, including, but not limited to applications, affidavits and all supporting documents submitted to the Department of Homeland Security or any other Federal or State agency or officials related to their immigration status or the change therein (No. 4), and any documents or correspondence between Respondent and the Department of Homeland Security or any other Federal or State agency or officials.
The Court observed that at issue in this was the application of the "well-settled" defense, which defense must be established by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B) . The Convention itself does not define what constitutes a child being "settled in its new environment." Hague Convention, art. 12. However, the U.S. State Department has established that "nothing less than substantial evidence of the child's significant connections to the new country is intended to suffice to meet the respondent's burden of proof" in asserting the well-settled defense. Several factors are considered in determining whether or not a child has become settled: the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's
employment[;] and whether the child has friends and relatives in the new area. Lozano v. Alvarez, No. 10-CV-8485(KMK), 2011 WL 3667444, at *28 (S.D.N.Y. Aug. 22, 2011) (citations omitted); In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001) (same); see also In re: Filipczak, No. 11 Civ. 1178(VM), 2011 WL 6980845, at *7 (S.D.N.Y. Dec. 23, 2011), citing Lozano, 2011 WL 366744, at *28; Matovski v. Matovski, No. 06 Civ. 4259(PKC), 2007 WL 2600862, at *13 (S.D.N.Y. Aug. 31, 2007)(multiple citations omitted)(same); Reyes Olguin v. Cruz Santana, No. 03 CV 6299 JG, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005) (citations omitted)(same);
Diaz Arboleda v. Arenas, 311 F.Supp.2d 336, 343 (E.D.N.Y.2004) (citation
omitted)(same). To reach a finding of settled, the Court must be presented with substantial evidence of significant connections to the new environment. Koc, 181 F.Supp.2d at 152 (internal quotations & citation omitted).
In the bulk of cases in which immigration status is considered, it is done so after an assessment of the foregoing factors, and it is considered as only one element among many pointing either in favor of a finding of significant ties to the United States, or in finding a lack of significant ties to the United States. The Court pointed out that U.S. District Judge Kenneth M. Karas stated, "[c]ourts that have found that a child was not settled have tended to do so where ... a child has moved frequently and therefore not had a stable living situation." Lozano, 2011 WL 3667444, at *30 (citations omitted); see also Filipczak, 2011 WL 6980846, at *7-8 (immigration not considered but finding of not settled when lived in multiple cities and attended multiple schools, caring and intact family in both countries, and guardian ad litem testified children are readily adaptable to any environment). In Lozano, while Judge Karas noted concern that both the Respondent and the child had overstayed their visas, and thus were here illegally, he considered the other factors referenced above which evidenced their connection to the United States, before concluding that the child was, in fact, well settled in her current environment. Lozano, 2011 WL 3667444, at *31. Following the Ninth Circuit's lead, see In re B. Del C.S.B., 559 F.3d 999, 1010-14 (9th Cir.2009), "the idea that immigration status should render an otherwise settled child not settled" was
rejected, and Judge Karas concluded that "immigration status should only be a significant factor in the settled analysis if there is an immediate concrete threat of deportation." Lozano, 2011 WL 3667444, at *30,citing B. Del C.S.B., 559 F.3d at 1010-14. The rationale for this position, with which the Court agreed, was grounded in the language of the Convention. The Convention is concerned with the present as the Article 12 defense applies to a child "now settled in its new environment[,]" and the determination of the child's future well-being is left to the court conducting custody
proceedings. See Hague Convention, art. 12 ; B. Del C.S.B., 559
F.3d at 1013.
Respondent represented to the Court that she applied for and was granted nonimmigrant status in July 2011. An individual granted U Nonimmigrant status may, after threecontinuous years of physical presence in the United States, apply for a green card. Even if the Court were to consider immigration status as a "most important factor" in the "well-settled" defense, the Court need only consider the status, which status was evident from the existence of the U-Visa. Thus, to the extent not already produced, on or before February 16, 2012, Respondent was directed to produce copies of their current visas.
Petitioner requested Respondent's copies of all documents that would be barred from disclosure by "the Attorney General, or any other official or employee of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other official or employee of the Department of Homeland Security, or Department of State" under 8 U.S.C. 1367(a)(2), but to the extent they were in Petitioner's possession, such disclosure, while arguably running afoul of the letter of this section, was not prohibited by this statute. Although Petitioner asserted that he sought this information to determine whether the statements made in the U-Visa application were consistent with the evidence presented, Petitioner also claimed that Respondent secured her change in immigration status through fraud, which he sought to establish at trial. Thus, while Petitioner may need the documents underlying and related to Respondent's U-Visa application as they may be relevant to her credibility and may be used to impeach her, in order to use these documents in that manner, Petitioner must seek to undermine the decision of DHS by challenging the veracity of Respondent's statements, upon which both DHS and law enforcement relied, thereby, interfering with Respondent's immigration case. Petitioner's Motion to Compel production of documents responsive to Request Nos. 4 and 5 was denied.
Janet's response to Jorge's petition raised a single argument-consent or acquiescence under Article 13-that rests solely upon the allegations of the petition. She argued that, pursuant to those allegations, Jorge could not obtain the relief requested as a matter of law. She pointed to Jorge's admission that in December 2009 he consented to her travel to the United States with their son and his concession that he was aware in January 2010 that she would not be returning to Mexico. She further noted that Jorge did not file the present petition until December 2011. Janet argues that Jorge consented to their son's travel to the United States. She further argued that Jorge's knowledge that Janet would not be returning to Mexico with their son, and his lack of action in attempting to obtain the return of their son establishes that he acquiesced to Janet's retention of their son in the United States.
The Court disagreed that Jorge alleged facts establishing that he consented and acquiesced to Janet's retention of their son in the United States. He alleged facts indicating that he consented to Janet traveling to the United States with their son. Absent from the petition, however, was any allegation suggesting that Jorge's consent was for Janet to travel to and remain in the United States, and indefinitely retain their son in the United States. Rather, Jorge alleged in the petition that Janet
indicated that the purpose of the travel was for Janet to visit her sister, and that Janet intended to return to Mexico with their son by January 7, 2010. Jorge did not allege that he consented to Janet retaining their son in the United States after January 15, 2010.
Jorge's admission that he knew Janet was retaining their son in the United States in January 2010, and his filing of the petition in December 2011, did not establish as a matter of law that he acquiesced in Janet's retention of their son in the United States after January 2010. Janet did not direct the Court's attention to any authority suggesting that a delay of 23 months between obtaining knowledge of the wrongful retention and the filing of a Hague petition establishes, as a matter of law, acquiescence in the wrongful retention. This is particularly true where, as here, Jorge alleged that subsequent to Janet's wrongful retention of their son he has sought the assistance of the Central Authority of Mexico, the Mexican Courts, the United States State Department, and local law enforcement officials in Las Vegas in obtaining the return of their son to Mexico. Accordingly, as Jorge had not alleged facts establishing, as a matter of law, that he either consented or acquiesced to Janet's retention of their son in the United States after January 15, 2010, the Court denied the motion to dismiss Jorge's petition.