New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website 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 on this link for more information about the contents of the book and on this link for the complete table of contents.

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 http://www.nysdivorce.com 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.


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Wednesday, September 11, 2013

Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) [Ireland] [Temporary Restraining Order]


 


          In Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) Petitioner Elaine Mary Murphy's Ex Parte filed an Application for a Temporary Restraining Order enjoining Respondent William Milligan Sloan from removing their minor child from the jurisdiction of this Court pursuant to the Hague Convention on the Civil Aspects of International Child. The district court granted the application. According to the Petitioner's Verified Complaint and Petition for Return. Petitioner, a citizen of Ireland, sought the return of her eight-year-old daughter, E.. Petitioner and Respondent married and lived together in California in 2000. Their child, E., was born in 2005, during the marriage. In April 2010, Petitioner moved to Ireland with E., with Respondent's consent. Petitioner and E returned to the United States twice during the summer of 2010 before returning to Ireland so E. could start school in Kinsale, County Cork, Ireland.  Respondent resided, and continued to reside, in Marin County, California. He filed for divorce in Marin County Superior Court on October 25, 2010, That action was pending. E attended school in Ireland for the 2010, 2011, and 2012 scholastic years.  According to Petitioner, E. spoke Gaelic, and considered Ireland her home. E. had previously visited Respondent in the United States in 2010, 2011, 2012 and Easter 2013. On June 12, 2013, Respondent arrived in Kinsale to pick up E. for a summer vacation in the United States. On June 16, 2013, E. left Kinsale, County Cork, Ireland with Respondent for a summer visit to the United States. On June 21, 2013, over the phone from the United States, Respondent revealed to Petitioner that he did not intend to return E. to Ireland. 

The district court observed that a court exercising jurisdiction under ICARA “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition.” 42 U.S.C. § 11604(a). That authority extends to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Under Rule 65(b), a party seeking a temporary restraining order must establish: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if the requested relief is not granted, (3) that a balancing of the hardships weighs in its favor; and (4) that the requested relief will advance the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The court found that Petitioner satisfied each element. Petitioner  adequately established a likelihood of success on the merits by making a prima facie showing that E. is under sixteen years of age, that her habitual residence is in Ireland, that E. was removed from Ireland in breach of Petitioner's custodial rights, which rights Petitioner would have exercised but for the removal.

 

          The Court found that there was no reasonable likelihood of harm to Respondent from being wrongfully enjoined, and therefore ordered that Petitioner was not required to give security pursuant to Federal Rule of Civil Procedure 65(c). It directed Respondent to show cause why he should not be prohibited from removing the child from the Court's jurisdiction until the proceeding was concluded; to show cause why the relief requested in the Verified Complaint and Petition should not be granted and directed him to produce E.'s passports and any other identification and/or travel documents and to deposit them with the Court for safekeeping until the proceeding was concluded.

Biel v. Bekmukhamedova, --- F.Supp.2d ---- 2013 WL 4574161 (E.D. Louisiana.) [Luxembourg] [Younger and Colorado River Abstention]



In Biel v. Bekmukhamedova, --- F.Supp.2d ---- 2013 WL 4574161 (E.D. Louisiana.) Plaintiff Pierre Biel filed a petition under the Hague Convention seeking the return of his son to Luxembourg. Upon learning of an ongoing custody proceeding, the Court raised the issue of abstention sua sponte,



In October 2012, Plaintiff and Defendant Dinara Bekmukhamedova traveled with their son, VPZB, from Luxembourg to the United States. Defendant allegedly promised the family would return to Luxembourg after she obtained a Form I–551 Alien Registration Card (commonly known as a "Green Card"). Defendant subsequently informed Plaintiff that she intended to remain in the United States with VPZB indefinitely. On March 3, 2013, Plaintiff was allegedly awarded a preliminary Guardianship by a Luxembourg court. Plaintiff subsequently flew to New Orleans—where Defendant had recently moved—and filed a petition in New Orleans civil court on May 1, 2013, to obtain custody of VPZB. The state court held a preliminary hearing on May8, 2013, and set a trial date of June 14, 2013. The court further ordered that Plaintiff be allowed visitation, that VPZB not be removed from Orleans Parish, and that Defendant surrender VPZB's passport to the court. Upon motion of Plaintiff, the trial was continued until August 14, 2013. Plaintiff filed a second motion to continue on August 8, 2013. Neither the petition nor any of the state court filings mention the Hague Convention or ICARA.

Having reviewed the state court proceedings, the district court found abstention inappropriate in this case, under both Younger v. Harris,. 401 U.S. 37 (1971) and Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)