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
Sunday, November 4, 2012
Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262 (N.D.Ill.) [Israel] [Grave Risk of Harm] [Article 20]
Petitioner and Respondent both joined the Black Hebrew Israelite community in Dimona, Israel in the 1970's, as children. Members of the Community recite vows each year in which they promise not to question the judgment of the leader of the Community, who is Considered to be the spiritual Messiah. The Community permits polygamous marriage, and the Israeli government recognizes such marriages as legitimate. In general, women in the Community are subservient to men. A woman's path in life consists of getting married and serving her husband. Petitioner testified that if a woman acts not in accordance with her husband's wishes, she should be punished.
Respondent testified that women are not able to express themselves in the Community. Several additional witnesses testified that women in the Community do not have the ability to make decisions governing their own lives, but that the leader and the men make the decisions. Respondent began to pursue Petitioner when she turned seventeen and was of age to be allowed by the Community to do so. On April 30, 2003, Respondent married Petitioner, becoming his second concurrent wife. Petitioner has six children with his first wife. Before they married, Petitioner's first wife slapped and spat on Respondent. Respondent testified that after the marriage, she continued to be disrespected and verbally abused by Petitioner's first wife, and that she was treated like a servant by Petitioner and his first wife. Respondent gave birth to the Child in Israel in September 2004. Respondent moved out of Petitioner's house in May 2005, but after Petitioner reported her action to Community officials, she moved back in. In October 2005, Respondent again moved out of Petitioner's house and into her father's, taking the Child with her. Petitioner ordered Respondent to return to his house, but she refused. In October 2005, shortly after she moved out of Petitioner's house, the Community leadership requested that Respondent travel to the United States to work in one of the Community's restaurants. She explained to Petitioner and several members of the Community leadership that she did not want to be separated from her daughter, but she was told to go anyway. Respondent believed that if she did not obey the Community leadership, she could be expelled from the Community. Respondent left Israel to come to the United States at the request of the Community leadership in December 2005. She returned to Israel in May 2007 and stayed with her sister. Respondent and Petitioner were not on speaking terms, and the Child stayed with Respondent at her sister's. Respondent returned to the United States in August 2007. She again visited Israel in June 2009. ( She stayed in Israel for six months, and the Child stayed with her during this period. Respondent's mission ended in 2009, yet she returned to the United States in December 2009. Respondent returned to Israel in June 2011, and she remained there until she left for the United States with the Child in September 2011.
In a declaratory judgment action in September 2011, an Israeli family court issued an order, based on DNA testing, declaring Petitioner's paternity of the Child. The Child was currently eight years old. She lived in Israel her entire life until Respondent brought her to the United States in September 2011. Petitioner and Respondent agreed that the Child would visit the United States with Respondent until the end of the Jewish holiday season in November 2011.(Petitioner and Respondent reported to the Child's school and the United States Embassy in Israel that the Child would return to Israel after less than two months. Respondent and the Child resided in the Washington, D.C. area from September 2011 until the filing of this action in July 2012. Respondent testified that, once in the United States, the Child "began to cry regularly, saying she did not want to go back to Israel, but that she wanted to stay with [Respondent] in the U.S. instead." In late October, Petitioner requested that Respondent's brother, who was planning a trip to Israel, bring the Child with him. Respondent understood the agreement to entail Petitioner's coming to the United States to retrieve the Child and did not allow the Child to return to Israel with Respondent's brother. In November 2011, Respondent retained the Child beyond the two-month visit that she and Petitioner had agreed upon. Respondent testified that she received phone calls from Petitioner's family informing her that Petitioner was planning on kidnaping the Child.
Petitioner filed a Petition and Emergency Petition for Warrant of Arrest, which was granted and Petitioner was given temporary custody of the Child pending resolution of his petition for her return. A hearing was held on October 11. Respondent did not provide any evidence or arguments that the removal was not wrongful either in her response or in the evidentiary hearing. Given that the Child lived in Israel from the time she was born until Respondent brought her to the United States in September 2011, a fact the parties stipulated to, the Court found that the Child was a habitual resident of Israel. The Israeli law relevant here, provided by Petitioner, is Israel's Capacity and Guardianship Law of 1962. The law provides that parents, as the natural guardians of their minor children, have "the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf."Capacity and Guardianship Law, 5722-1962, 16 LSI 106, 14-15 (5722-1961/62) (Isr.). As the Child's natural father, Petitioner had custody rights over her, which were breached by Respondent's retention of the Child past the agreed-upon time period. If a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir.1996)(Friedrich II ). No such acts were present in this case; in fact, by Respondent's own admission, Petitioner cared for the Child during the time periods when Respondent was in the United States and was a good father. Finally, Petitioner obtained an ex parte decision in the Beer Sheva Family Court in Israel declaring that Petitioner and Respondent have joint custody rights under Israeli law, and that Respondent's actions had violated Petitioner's custody rights.
Thus, the Court found that Petitioner has met his initial burden and has established a prima facie case of wrongful retention under the Hague Convention.
The Court rejected the affirmative defenses asserted by Respondent. Respondent did not provide the Court any reasons or evidence indicating that the Child should be considered of sufficient age and maturity to have her views considered. The Court conducted an in camera interview with the Child on October 11, 2012. The Court asked the Child where she considered "home." The Child answered firmly and without hesitation, "in Israel." "The Court found it unnecessary to determine whether the Child was of sufficient age and maturity to have her views considered because the Child did not give any indication that she would prefer to remain in the United States. Thus, Respondent's assertion of the "age and
maturity" exception failed because the Child did not object to returning to Israel.
Respondent contended that the Court should refuse to return the child based on Article 13(b) of the Convention. Respondent believed "there is a grave risk that the child would be exposed to physical and psychological harm and that the child would be put in an intolerable situation" if the Court ordered her return to Israel. Respondent contended, and introduced multiple witnesses at the evidentiary hearing to testify, that women are subordinate to men in the Community. Respondent testified that the Child should stay in the United States where she would have better opportunities for education and self-expression than she would in the Community. Additionally, Respondent testified that she had been mistreated by Petitioner's first wife and treated as a servant in Petitioner's household. Respondent's mother, who had lived in the Community at least part-time for 35 years, expressed concern that as the daughter of Petitioner's second wife, the Child may not receive the same opportunities or affection as his other children.
The Court commended Respondent's desire to provide better educational opportunities for her daughter while admonishing her methods. However, the Article 13(b) exception is "not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. The lack of opportunities available to women in general and children of second wives more specifically does not approach a "grave risk of harm" or an "intolerable situation" for the purposes of the Convention. The Court did not condone the subordination of women. Given the testimony about the lack of meaningful educational opportunities and the limited roles available for women in the Community, the Court empathized with Respondent's desire to raise her daughter in the United States. However, where the Child may be better off is a custody matter, which is reserved for the courts in the country of her habitual residence. The Court concluded that returning the Child to a community that may only ever afford her second-class status because of her gender does not pose a grave risk of harm as intended by Article 13(b) of the Convention. Respondent testified that she believed Petitioner was a good father; that she believed he would protect the Child from harm; that he had never abused or neglected the Child or any of his other children; that Respondent felt comfortable with the Child visiting and staying with Petitioner; and that she had never had any reason to contact the police or social services about Petitioner.
Respondent appealed to the exception provided in Article 20 of the Hague Convention. Article 20 states that "[t]he return of the child ... may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Hague Convention, art. 20. Respondent contended that "[p]olygamy is illegal in the United States without exception. And molestation and the subjection of women are considered to be against the fundamental principles of this society." Respondent argued that even if Israel has laws with respect to those behaviors, "the government acquiesces, at least in the polygamy realm." Respondent filed a supplemental brief alleging that "[e]qual protection of women is a fundamental principle in the United States." Respondent argues that because "[t]he principles and practices of this community are anathema to the fundamental principles of the United States relating to the protection of human rights and fundamental freedoms of women," the Child's "future prospects in this community will be affected negatively by the role designated to women." Finally, Respondent suggested that the facts that all adults in the Community pledge yearly oaths of allegiance and obedience to the leader and that the Child "may inevitably have to pledge oaths and submit to the wishes of the leader" might "utterly shock the conscience"of the Court.
Both Respondent and the Court were unable to find a single decision from a court in the United States in which a child was not repatriated based on Article 20. Respondent's counsel admitted failure to find precedent but argued that "there has to be a case where [Article 20] does apply." The court held that this case is not it. While polygamy is certainly illegal in this country, and the systemic subordination of women is incompatible with the United States' aim of equality, "the Convention requires that the fundamental principles of the State not permit the return of the child; merely offending principles espoused in [United States] laws is insufficient." Habrzyk v. Habrzyk, 759 F.Supp.2d 1014, 1027 (N.D.Ill.2011) .The narrow jurisdiction of the Court, however, was limited to determining if any defense exists to the mandatory repatriation of the Child for the purposes of custody proceedings in Israel. Unfortunately, the fact that the Child may not have as robust rights as a man when she reaches maturity does not shock the conscience under Article 20. Cultural gender inequality is a serious issue. However, accepting cultural gender inequality as a sufficient basis for an Article 20 defense would undermine the Convention. To invoke Article 20 to refuse to return a child for anything less than gross violations of human rights
would seriously cripple the purpose and effectivity of the Convention. The Court found that Respondent had failed to provide the clear and convincing evidence necessary in asserting an Article 20 defense.
The district court denied the petition. It pointed out that before respondent brought their daughter to the United States. Petitioner Dr. Giorgio Prouse and respondent Robin Thoreson were married and the parents of an eight-year-old child, JP. Petitioner lived in Milan, Italy, and worked as a cardiovascular surgeon. Until December 2011, respondent lived in Milan and worked as a flight attendant out of Chicago, Illinois. JP was born in Milan and lived there with her parents for most of her life. JP visited the United States regularly during her school breaks and spent time here with her maternal grandparents. In the summer and fall of 2011, while petitioner was still completing his residency program, the family began experiencing financial difficulties. Throughout 2011, the parties discussed various living arrangements after petitioner completed his residency in 2012. The parties agreed that respondent and JP would go to the United States, where JP could attend the local school and live with respondent's parents while respondent worked. On December 28, 2011, respondent and JP flew to the United States. They moved in with respondent's parents in Beloit, Wisconsin, where JP began attending school in the local school district. Respondent's parents cared for JP while respondent lived during the week in Chicago. Respondent made a trip back to Milan in early January to finish cleaning their previous home and to bring some of the family pets to the United States. When respondent and JP left Italy, petitioner listed the family's home for sale or lease and entered into a four-year lease with the right to renew the lease for four additional years. Next, he moved into the family's old apartment, a small one-bedroom below ground unit adjacent to his mother's home. Finally, he wrote JP's school in Milan and informed the administrators that JP would no longer be in attendance due to "our move" to the United States for "sudden, unexpected reasons of work ." (Petitioner said that he referred to "our move" only in an attempt to persuade the school to refund a portion of JP's tuition that he had already paid.) Petitioner, respondent and JP visited each other in the United States and Italy in the following months. Petitioner visited the United States in January 2012 for JP's birthday. At that time he asked respondent to book the return portion of his flight for August "when returning to Italy would be difficult. He made no mention of taking JP back to Milan with him in August or any other time. JP then visited petitioner in Italy in March and April of 2012 for Easter break. They booked another trip for JP to go to Italy between July 14, 2012 and August 4, 2012. In April 13, 2012, petitioner informed respondent over the telephone that he wished to end their marriage. Respondent emailed petitioner and told him that she would do anything to make the marriage work, including moving back to Italy, transferring to another city that had more frequent flights to Milan on which she could work or moving somewhere else after petitioner finished his residency. Four days later, she flew to Italy. During her visit, she asked petitioner where she and JP would live. Petitioner told her that "the United States is a big place" and that Arizona would be a good place for her and JP because respondent's friend Michelle could help respondent raise JP. That summer, respondent became convinced that she and JP should no longer live with her parents and should look for a place of their own. On June 6, 2012, respondent emailed petitioner, explaining her concern and her desire to talk to him about moving and whether he would be able to help her financially. Petitioner agreed to help respondent and JP rent their own place. Petitioner and respondent communicated a few more times about the price of a rental, but eventually respondent dropped the issue. Petitioner assumed it was because she had worked things out with her parents. Before petitioner began this action, he did not tell respondent that he wanted JP to return to Italy for school in the fall. JP had a successful spring semester of school in Beloit. Although JP was engaged in life in the United States, respondent emailed petitioner on June 17, 2012 that JP missed "home, the dogs, you, etc." On June 26, 2012, respondent filed for divorce in Cook County, Illinois. The next day, petitioner came to the United States to attend his sister's wedding in Washington D.C. Respondent dropped JP off at the Chicago airport so that she could travel with petitioner to the wedding. She picked up petitioner and JP from the airport when they returned from Washington D.C. The next morning, July 2, 2011, respondent and JP took petitioner to the airport for his return flight to Italy. At some point while petitioner was in Chicago, a private investigator served him with respondent's divorce petition. Despite the pending divorce, the parties continued to communicate about JP.
On July 30-31, 2012, after obtaining legal counsel Petitioner filed a criminal complaint and an action under the Hague Convention in Italy, followed by this action, which he filed on September 5, 2012.
The district court observed that in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), the Court of Appeals for the Ninth Circuit undertook a lengthy analysis of the term "habitual residence" that other courts have relied on since then. In this case, the analysis was straightforward. Both parties agreed that their financial difficulties required leaving Milan and taking up residence in the United States, where they could reduce their living expenses and where petitioner would be likely to find a higher paying position than he could obtain in Italy. They agreed that respondent would leave in December 2011 with JP, who would live with respondent's parents while respondent increased her work hours as a flight attendant (and reduced her commuting expenses), and petitioner would come when he finished his residency. With that plan in mind, petitioner applied for a refund of JP's tuition from her expensive international school, saying that the family was moving to the United States; put the couple's home on the market, either for sale or rent; and moved back into a small below ground apartment in Milan. Respondent cleaned out the family home, moved all the family pets to the United States and enrolled JP in a local school in Beloit, Wisconsin, where JP's grandparents lived. This was ample evidence of the parties' settled purpose in December 2011 to establish a new residence in the United States. JP's eight months of residency in this country, her success in the local schools and her involvement in horseback riding supported a finding that her habitual residence was now in the United States. This finding was bolstered by the fact that home environment to which she was accustomed in Italy no longer exists; her home was rented out and she was no longer enrolled in the school she had been accustomed to attending.
Petitioner argued that he never acquiesced in JP's continued residence in the United States. The proof was to the contrary. As explained at length, he made no arrangements for her to come back to Italy to attend school. The record contained nothing in writing to suggest that he ever told respondent that he wanted JP to return to Italy to live with him. The finding that JP's habitual residence was not the United States answered the question whether she was wrongfully removed or retained. She was not. She came here and continued to reside here in accordance with a plan developed by both of her parents at a time when they had a shared intent. Her father's subsequent decision to end his marriage to her mother did not mean that he did not have the settled intent in December 2011 to move his family to the United States for an indefinite period.
As to whether the removal breached petitioner's rights of custody under the law
of the child's habitual residence, that question was moot in view of the finding that the removal was in accordance with the parties' agreement to move to the United States, as was the question whether respondent was exercising his custody rights at the time.