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.
Thursday, May 1, 2014
In re A.L.C., 2014 WL 1571274 (C.D.Cal.) [Sweden] [Habitual Residence ] [Acquiescence] [Fundamental Freedoms]
In re A.L.C., 2014 WL 1571274 (C.D.Cal.) the district court granted the Petition of Andreas Carlwig for the return of his two minor children to Sweden. On February 27, 2014, Petitioner Andreas Carlwig ("Father") filed a Verified Petition for Return of Children to Sweden. Respondent Sarodjiny Carlwig ("Mother") was served with the Petition on March 13, 2014.
The district court found that Father and Mother married in Las Vegas, Nevada, on November 1, 2007. Father was a citizen of Sweden. Mother was born in India and is a citizen of both the U.S. and France. Throughout their marriage, the family's residence has been largely dictated by Father's job assignments. Shortly after their wedding, the couple moved to Dubai, United Arab Emirates. Their first child, A.L.C., was born in Dubai in 2008. A.L.C. was a citizen of both the U.S. and Sweden. In September 2011, Father's employer closed its operations in the U.A.E., and he was given a new assignment in Sweden. Father commuted between Stockholm, Sweden and Dubai for the next three months. He testified at the hearing that he was able to visit his wife and A.L.C. in Dubai every third weekend. In January 2012, the entire family relocated to Stockholm. Father and A.L.C. left first for Sweden, while Mother remained in Dubai to finish the last part of the move. Mother contended that she was forced to move to Sweden and only agreed to a six-month trial period. In her Response and at the hearing, Mother went into great detail about her residency status in Sweden and how the move to Sweden interrupted previous plans to move to the U.S. Ultimately, Mother acquiesced to the move and lived in Sweden with Father and A.L.C. for about thirteen months. While living in Sweden, A.L.C. started preschool and began making friends. Father's relatives also lived in Sweden and A.L.C. was able to spend time with his relatives including his grandparents, aunts, and cousins. When the family moved to Sweden in 2012, they moved into a rented apartment. The lease was for nine months and was later extended an additional three months. Father was employed in Sweden and was still employed by the same company he worked for in Dubai. Mother was not employed while the family lived in Sweden. Mother admitted that they left no belongings behind in Dubai.
In September 2012, while living in Sweden, Mother learned that she was pregnant
with the couple's second child-E.R.S.C. Father testified at the hearing that Mother first raised the possibility of traveling to Los Angeles in November 2012 for the purpose of giving birth to E.R.S.C. By all accounts, Mother's pregnancy with E.R.S.C. was a difficult one. The reason she gave Father for wanting to give birth in Los Angeles was to be close to her friends-whom she referred to as "family"-and because the birth of A.L.C. in Dubai was a bad experience. Father ultimately agreed to the trip He purchased roundtrip tickets from Stockholm, Sweden to Los Angeles for Mother and A.L.C., with a departure date of January 16, 2013, and a return date of September 4, 2013. Right before the scheduled departure date, Mother visited a doctor in Sweden and learned that she had a low platelet count. Concerned about her health, the trip to Los Angeles was cancelled. But Mother later changed her mind and a new flight to Los Angeles was booked for herself and A.L.C. They left for Los Angeles on February 27, 2013, while Father remained in Sweden. Both Mother and Father admitted to the existence of a note, written by Father, consenting to the trip to Los Angeles. A handwritten note, apparently signed by Father, was submitted by Mother in her Response. The note stated that Father consented to Mother taking A.L.C. to Los Angeles. The note was silent as to the trip's purpose or duration. Father maintained that the note was either a forgery or an earlier draft of the note. Father stated that the final draft included that the trip was to be only four to six months in duration-enough time for Mother to give birth and recuperate. Father's contention that the trip was only temporary was consistent with the round-trip tickets that were initially purchased for Mother and A.L.C. None of Mother's submissions indicated that the parties reached an agreement to move to anywhere in the U.S.in February 2013. In May 2013, E.R.S.C. was born in Los Angeles. Father made arrangements to take time off from work and travel to Los Angeles for the birth, though Mother ultimately asked him to stay away. But Father did visit Los Angeles to see A.L.C. and E.R.S.C. in June and July of 2013. Father stayed with Mother and the children in a temporary apartment. During
the visit, the family took a trip to Carlsbad, California, and Father testified that he and A.L.C. visited LegoLand together. However, Father had to return to work in Sweden at the end of July. In the Petition, Father stated that he suggested bringing A.L.C. back with him, but when Mother refused, he went home alone because the agreed-upon six months in Los Angeles had not passed. In August and September 2013, Mother and Father attempted to reach a resolution on where the family should live. But no resolution was reached, and Father never agreed to Mother remaining in Los Angeles with the children. Mother also admitted on cross-examination that Father never agreed to a move to Los Angeles. Both parties filed for divorce. On September 9, 2013, Mother filed for divorce in Los Angeles County Superior Court. Father claims he was unaware of these proceedings until traveling to Los Angeles in November 2013. Meanwhile, Father filed for divorce and custody of the children in Sweden in October 2013. The couple remained in communication throughout this time and Mother was made aware of the proceedings in Sweden. On November 2, 2013, Father traveled to Los Angeles with the children's grandfather. On November 10, 2013, Mother filed a police report alleging that Father sexually assaulted her during his visit to Los Angeles in June and July 2013. Mother also alleged that Father has been physically violent and verbally abusive throughout their marriage. Most of her allegations were vague.
The court found that Father met his burden of establishing a prima facie case for the return of A.L.C. and E.R.S.C. to Sweden. The Petition was based on wrongful retention in the U.S.. Father argued that the trip to Los Angeles was supposed to be for four to six months while Mother gave birth and recuperated. Mother contended that the parties agreed that she was never returning to Sweden with A.L.C. and E.R.S.C., and that the children's habitual residence was now the U.S. In Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), the Ninth Circuit emphasized the importance of shared parental intent in determining a child's habitual residence. Moreover, "the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind." An actual change in geography and passage of an appreciable period of time sufficient for acclimatization are also relevant to whether a child's habitual residence has changed. The second Mozes fact pattern is when a child's initial move from an established habitual residence was clearly intended to be of a limited and specific duration. Courts in these cases will usually find that the changed intentions of one parent do not lead to a change in the child's habitual residence. The third scenario arises when the petitioning parent initially agreed that the child could stay abroad for a period of indefinite or ambiguous duration. These cases are very fact-dependent
and usually have no clear answer.
The court found that before A.L.C. departed Sweden with his mother on February 27, 2013, he was clearly a habitual resident of Sweden. While A.L.C. spent only about thirteen months total in Sweden, the length of time was not as important as the fact that the family had abandoned Dubai and A.L.C. had by all appearances a relatively stable and normal life in Sweden. According to Father's testimony at the hearing, Mother first raised the idea of a trip to Los Angeles with A.L.C. in November 2012. Mother was pregnant with their second child at this point and expressed a desire to give birth in the U.S. Father ultimately agreed to the trip and permitted Mother to take A.L.C. with her. There were sufficient facts to demonstrate that Father only intended the trip to be temporary and last for a period of around six months. Father had been active in A.L.C.'s life in Sweden, but did not travel with Mother and A.L.C. Father made clear at the hearing that he had no job prospects in Los Angeles and that the family relied on his income. In addition, in June 2013, Father registered A.L.C. at a new school in Stockholm that he was expected to attend starting in September 2013. This comported with Father's belief that the trip to Los Angeles was merely an extended stay. Mother and A.L.C. also left belongings behind in Sweden. The Court found Mother's testimony and supporting evidence with regard to the parties' understanding about the trip to Los Angeles to be less than credible. Therefore, the Court gave little weight to the note as evidence of parental intent regarding the purpose and duration of the trip to Los Angeles. Overall, the Court found no shared intent to abandon Sweden as A.L.C.'s habitual residence. The Court noted that Mother has supplied evidence of A.L.C.'s acclimatization here in the U.S., but this did not support a finding of a change in A.L.C's habitual residence. The Court found the Father's testimony and evidence compelling and sufficient to meet his burden of establishing by a preponderance of the evidence that A.L.C. was a habitual resident of Sweden before Mother's retention of A.L.C. in the U.S.
E.R.S.C.'s habitual residence presented a trickier question - the habitual residence of a newborn absent shared parental intent. While the issue was complicated by the fact that E.R.S.C, unlike her brother A.L.C., had never been to Sweden, the Court found that its assessment of parental intent with regard to A.L.C. applied equally to E.R.S.C. and ultimately favored the same result as A.L.C. E.R.S.C. was born in the U.S., but a child's"place of birth is not automatically the child's habitual residence." Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir.2004) Moreover, an infant's habitual residence is not established solely based on the location of the mother. Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir.1995) ("To say that the child's habitual residence derived from his mother would be inconsistent with the Convention, for it would reward the abducting parent and create an impermissible presumption that the child's habitual residence is wherever the mother happens to be.") Thus, E.R.S.C. was not a habitual resident of the U.S. simply because Mother was present here and desired to stay. The Third Circuit's holding in Delvoye v. Lee, 329 F.3d 330 (3d Cir.2003) was instructive on the habitual residence of a newborn like E.R.S.C. In Delvoye, the court held that Belgium was not the newborn's habitual residence, because the parents lacked a "degree of common purpose" to habitually reside in Belgium with the child..The mother was living out of suitcases in Belgium, had only temporary visa, and left most of her belongings behind in New York. Like in Delvoye, the Court found that Father and Mother lacked a shared intent for E.R.S.C. to reside in Los Angeles or anywhere in the U.S. Father only consented to Mother traveling to Los Angeles for E.R.S.C.'s birth-not for E.R.S.C. to remain in the U.S. permanently. The Court found that E.R.S.C.'s young age suggested that she could not simply acquire habitual residence here in the U.S. based on the ten months she has spent here. The Court found that the best approach to E.R.S.C.'s habitual residence was to look to the last location of shared parental intent, which was Sweden. The last location of any stability for the family was Sweden. Sweden was where Father was employed. In addition, the Court had already found that A.L.C.'s habitual residence was Sweden. Splitting the children up for custody determinations in two countries was untenable. For these reasons, the Court found that E.R.S.C.'s habitual residence was Sweden and not the U.S.
The Court found insufficient evidence that Father consented to the children
becoming habitual residents in the U.S. While consent does not have to be expressed with the same degree of formality that is required for subsequent acquiescence, a court should focus on "what the petitioner actually contemplated and agreed to in allowing the child to travel outside [his or her] home country." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005). Here, Father did not consent to either A.L.C. or E.R.S.C. remaining in the U.S. Father allowed Mother to travel to Los Angeles with A.L.C. to give birth to E.R.S.C. Father only intended and consented to the trip lasting for four to six months-enough time for Mother to give birth and recuperate. Baxter, 423 F.3d at 371 ("The fact that a petitioner initially allows children to travel, and knows their location and how to contact them, does not necessarily constitute formal consent to removal or retention under the Convention."). There was also insufficient evidence to establish Father's subsequent acquiescence. Acquiescence requires "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich II, 78 F.3d at 1070. Mother submitted no evidence of a formal renunciation of custody rights by Father. Moreover, there was an utter lack of evidence of a "consistent attitude of acquiescence." The Court acknowledged that after Father realized that Mother was not going to return to Sweden with the children, he took steps to mediate the dispute with Mother. But at no time did Father agree to Mother remaining in Los Angeles with A.L.C. and E.R.S.C. Mother admitted during cross-examination at the hearing that Father never agreed to living in Los Angeles. In an email dated September 29, 2013, Father reiterated that he never agreed to a permanent stay in Los Angeles and continued to disagree with Mother retaining the children in Los Angeles. Father did consider a move to New York City with Mother in August 2013, but he had certain conditions of which Mother was less than amenable. Discussions about potentially moving elsewhere in the U.S., if certain conditions such as finding a job are met, hardly amount to a "consistent attitude of acquiescence." Moreover, the Court found that Father's attempts to reach a resolution with Mother only further demonstrated a lack of acquiescence to Mother's unilateral move to Los Angeles.
Mother alleged that Father had been physically and verbally abusive. She also claimed that Father raped her on more than one occasion. But the Court found that Mother's allegations lacked credibility.
Mother proffered numerous news articles and Internet postings to argue that Sweden is a racist country that will not welcome her children, who were of mixed race. However, a few examples of hate crimes and evidence of racist sentiments among a portion of the Swedish population did not reach the level of utterly shocking the conscience, especially when they did not involve the parties at issue here. Unfortunately, Sweden was not the only country where hate crimes and racism exist, and many examples of similar crimes and sentiments can be found here in the U.S. Accordingly, the Court found that the fundamental principles of human rights and fundamental freedoms did not prevent this Court from ordering the return of A.L.C. and E.R.S.C. to Sweden.
In Ortiz v. Martinez, 2014 WL 1409446 (N.D.Ill.) the district court denied the motion of Petitioner Julio Cesar Ortiz ("Ortiz") for a New Trial pursuant to Fed.R.Civ.P. 59, after his petition for the return of his minor children was denied. Ortiz brought a petition for the return of his two minor children, L.O. and A.O., who both resided in the United States with their mother Zulima Juarez Martinez ("Juarez") Respondent mother raised a defense under article 13 of the Convention, claiming that the children faced grave risk of harm because Ortiz had previously sexually abused his five-year-old daughter. Additionally, Juarez claimed the children desired to remain in the United States with her instead of being returned to Mexico with their father. The Court found that while Ortiz demonstrated by a preponderance of the evidence that L.O.
and A.O. were wrongfully removed to the United States by Juarez, the children were in grave risk of harm if they returned to their native county, Mexico, and that the child L.O. had attained an age and maturity at which it is appropriate to take into account of his child's views, that he desired to remain with his mother in the United States as an independent factor for denial.
The Court observed that a motion for new trial may be granted at the court's discretion "for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.” Because the court has discretion to grant a Motion for a New Trial, "a district court need not write a comprehensive opinion explaining why it denied a motion for a new trial; indeed, the judge need not give an explanation of any kind." Dunn v. Truck World, Inc., 929 F.2d 311, 313 (7th Cir.1991).
In this case, the Petitioner claimed that a new trial was warranted for two
reasons: (1) because the evidence that L.O. and A.O. were at a grave risk of danger because Ortiz sexually abused A.O was insufficient under a clear and convincing standard and (2) because the Court considered the wishes of the child sua ponte as outlined in Article 13(2)(d) of the Convention. The Court rejected both arguments.
The court noted that determining whether the child faces a grave risk of harm requires a fact based inquiry. Petitioner challenged the sufficiency of the evidence, arguing that the Respondent failed to offer documentary or physical evidence of sexual abuse. The court held that one does not have to provide documentary or physical evidence of sexual abuse when there is testimony that is corroborated by multiple witnesses. See Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir.2006). The Court heard testimony from all the witnesses, including Dr. Machabanski, and credited the testimony of Juarez, which was corroborated by A.O., who was a bright child. During the court's interview with A.O., she stated that her father had done something bad "for not to tell mommy. It was a secret." When asked what was bad, she replied with words and gestures that he put his finger in her vaginal area while she was showering with him on more than one occasion. During the court's interview with Juarez, she stated that she noticed recurrent rashes on A.O.'s vaginal area shortly after she was born, so she took her to see a doctor who prescribed medication for diaper rash. However, the rashes reappeared in the summer of 2010. Additionally, when A.O. was about three years old, Juarez walked in on Ortiz when he was bathing his daughter. Juarez remembers that A.O. and Ortiz were both naked, and that A.O. was standing against the shower wall and Ortiz was kneeling in front of her with his right hand between her legs without soap or a towel. About a week after that, Juarez overheard A.O. telling her father not to touch her in her private parts anymore. This Court indicated that as the fact finder, the Court properly weighed the evidence and credibility of the witnesses and found that the children would face a grave risk of harm if ordered to return to Mexico. Petitioner failed to present any new facts or law to change the Court's holding.
The Petitioner claimed that the Court erred when it raised the ‘”wishes of the child” exception sua sponte, and that the burden was on the Respondent to raise such an exception. However, Petitioner ignored the language of the Convention, which specifically grants the court discretionary authority to avoid return based on the child's preference. This Court did not err by exercising its discretionary authority.
In Mauvais v Herissee, 2014 WL 1454452 (D.Mass.)) the district court granted the petition of Manel Mauvais for the return of his two minor children to Canada. The petitioner, and the respondent, Nathalie Herisse, were both citizens of Haiti. They had two children together: MM and RM. They lived together in Haiti until September 2009, when Herisse moved to her aunt's home in Mattapan, Massachusetts, so that the baby she was expecting would be born in the United States. Mauvais and MM remained in Haiti. RM was born in Boston in November 2009. After MM was born in France in 2005, Herisse returned to Haiti. A catastrophic earthquake devastated Haiti in January 2010. Mauvais and MM moved to Quebec, Canada in February 2010. Herisse was still living in Massachusetts with her aunt and new infant. She asked Mauvais to bring MM to Massachusetts, but he refused. In turn, he urged Herisse to join him in Canada. She testified he threatened to harm MM if she did not. In March 2010, Herisse reluctantly took RM to Canada. Mauvais, Herisse, their two daughters, and two of Mauvais's children from a prior relationship lived for a while in Montreal with Mauvais's sister and her family. In July 2010, Mauvais and Herisse moved into their own apartment with their two daughters and Mauvais's twin children. They lived together there until January 2011, when Herisse moved out, taking the children with her. The three first stayed with relatives, but in September 2011 they moved to a separate apartment in Montreal. In February or March 2012, Mauvais convinced her to allow him and his other children to move into her apartment. The children lived with their mother in an apartment in Montreal for about two years prior to the events that gave rise to the present petition. MM was enrolled in and attended a primary school beginning with the 2011-2012 school year, and was enrolled for the 2013-2014 school year when she was taken by the respondent to the United States. RM was enrolled in a full time day care program between the end of April 2013 and late August 2013. Both children visited regularly with relatives, apparently on both their mother's and their father's sides. With some of the father's relatives, they regularly attended church and Sunday school. According to an aunt, they developed a "Quebecois" accent when speaking French. In late August 2013, Mauvais consented to RM traveling to the United States for a month to live with Herisse's aunt in Mattapan, and the aunt traveled to Canada to take RM to Massachusetts.
In the fall of 2012, RM began to have some health problems, including frequent nosebleeds and weight loss. Herisse took her to various clinics but was not satisfied with the care RM received. Herisse decided that it would be best for RM, a U.S. citizen, to return to the U.S. to receive medical care. For that purpose, the parties agreed that Herisse's aunt could bring RM to the U.S. in late August 2013. Medical records from the Boston Medical Center in evidence indicate no major health issues. In the fall of 2013, RM was examined and treated for eczema, a tendency to experience nosebleeds, and mild anemia. For the latter, she was prescribed an iron supplement.
The parties' written agreement provided that RM would be returned to Canada around September 20, 2013. She was not returned as agreed. On September 13, 2013, the respondent left Canada with MM and traveled to her aunt's home in Massachusetts, where she and her two children remained.
The district court found that prior to the children's removal and retention in September 2013, that the parties both were content to have their children live in their existing setting in Canada. For approximately two years, the children lived in a settled, "acclimatized" way in Canada. The fact that one or both of the parties may have harbored some desire eventually to move to the United States did not undercut these conclusions. After Herisse had stopped living with Mauvais, she established her own household with the children in Montreal. The children attended school and participated in various social activities. Herisse's actions showed that even when she was not under Mauvais's control or influence, she chose to remain in Canada. That she subsequently had a change of heart and decided that the children would be better off living elsewhere was of no moment, as any such intent was not a shared one with Mauvais. It was noteworthy RM had spent almost her entire life, and MM about half her life, in Canada, and the evidence presented at trial showed that both she and MM had had sufficient time for acclimatization. The court found that Mauvais had proven that Canada was the habitual residence of the children at the time of their retention and removal and, consequently, that MM and RM were wrongfully removed or retained within the meaning of the Convention.
The respondent testified that the petitioner frequently acted toward her in a sexually abusive manner. She further testified that he insisted on sexual activity at times and under circumstances when the children were or could have been exposed to it. The testimony was general and vague, however, and it was difficult to draw any reliable conclusions about how frequently such conduct occurred or how significant any impact on the children might have been. She also testified that Mauvais's son, BM, who was a few years older than MM, was sexually assaultive toward her. One such incident occurred while the family was still living in Haiti. According to the respondent, when she reported the incident to the petitioner, he disciplined BM by beating him with a belt. The respondent's aunt testified about a similar incident a couple of years later in Canada. There was no evidence as to what, if any, discipline was meted out to BM for that occasion. The evidence in the nature of an opinion that RM and/or MM might suffer psychological harm if returned to Canada was unconvincing because it did not appear to be based on an indepth investigation, but rather on some office interviews and a review of hospital records that themselves did not disclose any grave medical or emotional issue. The evidence fell well short of supporting a finding of a grave risk of psychological harm. Herisse contended that MM and RM faced a grave risk of physical and psychological harm if they return to Canada. At trial, Herisse testified that Mauvais has sexually abused her for many years, that BM had acted in sexually inappropriate ways toward MM on numerous occasions, and that Mauvais has been violent toward BM. Herisse also argued that RM's medical issues might not be as adequately addressed in Canada as in the United States. Herisse relied heavily on the First Circuit's decision in Walsh, but in that case the court relied on "ample evidence" that the petitioner "has been and can be extremely violent and ... cannot control his temper," and that the petitioner had a history of violence toward others, including threats to kill a neighbor and a physical confrontation with his adult son. Walsh, 221 F.3d at 219-20. The petitioner in Walsh was also a fugitive who had demonstrated a "chronic disobedience of court orders."
The facts of this case were neither as dire nor as clear. Herisse admited that Mauvais had never harmed or attempted to harm MM or RM. Even after moving out in January 2011, Herisse took no steps to prevent Mauvais from having contact with their children. A general likelihood that serial spousal abusers may also eventually abuse
their children is insufficient to establish, by the requisite degree of proof, grave risk of physical or psychological harm to MM and RM. Further, as to RM's medical care, there was insufficient evidence that there is a grave risk that RM's medical condition could not be appropriately addressed in Canadian medical facilities.