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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Monday, September 8, 2014

Seaman v. Peterson, 2014 WL 4377582, --- F.3d ---- (11th Cir., 2014) [Mexico] [Habitual Residence] [Petition granted]



In Seaman v. Peterson,  2014 WL 4377582, --- F.3d ---- (11th Cir., 2014) the Appellant, John Kennedy Peterson, removed his four children from Mexico to the United States. His wife, and mother of the children, Pandita Charm–Joy Seaman, sued in the district court invoking ICARA and demanding an order returning the children to Mexico.The district court granted that relief. Peterson appealed. The Eleventh Circuit affirmed. 

In February  2002.Peterson and Seaman married in Georgia. Peterson was a citizen of the United States and a disabled Army veteran suffering from PTSD (post traumatic stress disorder). Seaman was a Jamaican citizen holding a “green card” with permanent residence status in the United States. From July, 2002–May, 2006 Peterson and Seaman established their family home in the area of Warner Robins, Houston County, Georgia. During this period they had three children: T.L.P., C.D.P. and R.T.P. The elder child, T.L.P. (who was born in Mexico) was 8 years of age at the time the petition was filed in this case. C.D.P. was age 7, and R.T.P was age 5. In May  2006.Peterson and Seaman disposed of their belongings in Georgia, and moved with their three children to Mexico. They first lived for a brief time in Guadalajara, near Seaman's parents and extended family, and then moved to a more permanent location in nearby Chapala, State of Jalisco, Mexico, on the lake of the same name about twenty five miles south of Guadalajara. Soon after leaving the United States, Peterson and Seaman had a fourth child, S .A.D., who was born in Mexico and was 4 years of age at the time of Seaman's petition under ICARA. In July, 2010, after living there for more than four years, Peterson left Mexico and returned to the United States. Seaman and the four children remained at their home in Chapala. On September 27, 2010 both Peterson and Seaman appeared before the Mexican Municipal Court which issued a “written declaration” that allowed Peterson to spend October 2, 2010, with the children subject to a strict order that they be returned to Seaman's custody by 10:00 p.m. the same day. On October 2, 2010 Peterson took custody of the four children in Mexico and absconded with them to the United States. After a three day trip in Peterson's automobile, they arrived in the Warner Robins area, Houston County, Georgia. On November 30, 2010 Seaman filed this action under the Hague Convention and ICARA in the district court.  On January 14, 2011 the district court entered its Order granting Seaman's petition and directing that the four children be returned to Mexico. Peterson was directed to pay the necessary transportation expenses. On February 8, 2011Seaman and the children returned to Mexico. The Eleventh Circuit held that a mixed standard of review is appropriate for determining habitual residence. Accordingly, it accepts the district court's finding of historical facts unless clearly erroneous, but with regard to the ultimate issue of habitual residence, the appellate court will review de novo, considering legal concepts in the mix of facts and law and exercising judgment about the values that animate legal principles.

The Eleventh Circuit observed that following the teaching of this court's decision in Ruiz v. Tenorio, 392 F.3d at 1252–53, the district court first determined whether there was a settled intention on the part of Seaman and Peterson to abandon a prior habitual residence and take up a new one. Seaman testified that the move from Georgia to Mexico in May, 2006, was intended to be permanent. Peterson testified that it was intended as an extended vacation and visit with Seaman's parents. The district court, viewing the objective facts, credited Seaman's testimony and, implicitly if not explicitly, discredited Peterson. The court noted that the parties sold their possessions in Georgia and took up their own dwelling in Mexico rather than living with Seaman's parents or in temporary quarters such as a hotel; that they enrolled the children in Mexican schools when they reached the appropriate age; that they were absent from the United States from a residential standpoint for more than four years, returning to the United States only a few times for visits of limited duration; that they established legal, temporary residence in Mexico; and, according to Seaman, intended to become citizens there. The district court concluded on the basis of those findings that, insofar as the parents were concerned, they either traveled to Mexico intending to stay for a brief period and then changed their minds in favor of abandoning their Georgia residence, or they traveled to Mexico already intending to make their new home there. Either way, they came to share an intent that Mexico was, or had become, their habitual residence within the meaning of the Convention and ICARA. The district court then turned its attention, following the analytical regimen dictated by Ruiz, 392 F.3d at 1253, to the question whether there had been an actual change in geography and the passage of a sufficient length of time for the children to have become acclimatized in the new place of residence. As stated in Ruiz, the intention of the parents is a crucial factor, but “cannot alone transform the habitual residence.” The district court found this to be an easier call. The geographic movement of the children was beyond dispute. Further, the children were all acclimatized and settled in Mexico; they were all fluent in Spanish; they attended and were well adjusted in school in Mexico, the eldest for almost four years, while the youngest, though not yet in school, was almost four years of age at the time of abduction and had never been to the United States. The district court thus concluded that under both prongs of the analysis required by Ruiz, the habitual residence of the children at the time of their abduction on October 2, 2010, was in Mexico. The district court  found that Seaman did enjoy rights of custody under Mexican law and that she was actively exercising those rights at the time of the children's abduction. The Eleventh Circuit  found no error in fact or law with respect to either conclusion.

Peterson made two claims in support of the grave risk of harm defense that he was required to establish by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A); Convention, Art. 13(b). Those claims were: (1) that Seaman's family belonged to a religious organization known as The Family International (“TFI”) which practices communal living that facilitates or even encourages sexual contact with children; and (2) that the children were malnourished and deprived of needed medical attention. With respect to TFI, the district court found that although some of Seaman's family members were part of that organization, Seaman herself disavowed her allegiance to TFI approximately 10 years ago, and there was no evidence that the Peterson children had ever been subjected to any improper contact or harmful influence of any kind. The district court determined that the medical evidence initially offered by a physician in Georgia concerning malnourishment of the children in general, and the lack of proper medical care of one of them in particular, had been manipulated by Peterson through inaccurate information he had communicated to the doctor. The court found that, in fact, there was no reliable evidence of neglect or abuse of any kind and that the children were well cared for. The district court therefore concluded that returning the children to Mexico would not “expose the child[ren] to physical or psychological harm or otherwise place [them] in an intolerable situation.” Convention, Art. 13. Upon review, the Eleventh Circuit found no error, much less clear error, in the district court's factual findings rejecting the defense of grave danger.

In rejecting Peterson’s claims of error by the district court in its findings of historical fact supporting its ultimate legal conclusion that the habitual residence of the Peterson children was in Mexico at the time of their abduction on October 2, 2010, the Court pointed out that the law is well settled that “[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”Anderson, 470 U.S. at 573–74, 105 S.Ct. 1504. It may reverse the district court only when “on the entire evidence” it is  “left with the definite and firm conviction that a mistake has been committed.”. After reviewing the lengthy record in its entirety, it was  left with no such conviction. Ample evidence supported the district court's reasoned findings, and therefore there was clear error. Upon de novo review of that legal conclusion in light of the record as a whole, it found that the district court got it right when it concluded that the habitual residence of the Peterson children was in Mexico when they were removed from Seaman's custody and brought to the United States.

Peterson challenged the district court's handling of the grave risk issue contending that the court: (1) effectively imposed upon Peterson, contrary to Baran v. Beaty, 526 F.3d 1340 (11th Cir.2008), the burden of proving that the Mexican courts are unable or unwilling to ameliorate a grave risk of harm; or (2) that the district court effectively deferred a decision on the grave risk defense to the courts of Mexico contrary to Danaipour v. McLarey, 286 F.3d 1 (1st Cir.2002). The Eleventh Circuit held that neither of those decisions were  of any help to Peterson because both were easily distinguishable. In Baran, the Court held  that once a responding parent proves, by clear and convincing evidence, that a child would face a grave risk if returned to his habitual residence, the responding parent does not have to prove, in addition, that the courts of the requesting state cannot be relied upon to shield the child from that risk. Here, the district court's concern that the children's exposure to the practices of TFI should be monitored by the court deciding custody issues—if such exposure occurs—was by no means an enlargement of Peterson's burden of proof nor was it inconsistent with the court's finding concerning the lack of a grave risk. Simply put, in this area of the law, there are grave risks established by clear and convincing evidence, and there are potential risks that are less than grave but bear watching. Recognizing that distinction is all that the district court did; and in so doing the court did not delegate its responsibility under the Convention or ICARA to the Mexican courts as in Danaipous v. McLarey, supra. The judgment of the district court was affirmed.