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
Friday, September 16, 2016
Bips v Bips, 2016 WL 4529957 (E.D. Va.,2016) [Germany] [Grave Risk of Harm not Established] [Petition Granted]
In Bips v Bips, 2016 WL 4529957 (E.D. Va.,2016) the district court granted the Petition of the mother, Caroline Thonet-Bips, for the return of her four-year old child to Germany. N. was born on March 2, 2012 and was a citizen of Germany and the United States. The mother was a citizen of Germany. The father was a citizen of the United States. The parties were married and lived together in Germany from July 12, 2010 until January 2015. In January 2015, petitioner filed for divorce in Germany. In September 2015, during the pendency of the divorce proceedings, E.H. began residing with petitioner at petitioner’s residence. Since the parties’ separation, there was a strained relationship between respondent and E.H., whom respondent has referred to in conversations with N. as “a guy that does bad things.” In March 2016, respondent relocated to Virginia. By Agreement dated March 22, 2016, the parties agreed that respondent would have specified visitation rights with N during the summer. It also provided that “[i]t is agreed that it is the mother who will be entitled to decide on the place of residence of the son.” In October 2015, while respondent was still residing in Germany, N. made statements to respondent that caused him to have concerns that the child was experiencing some form of abuse at the hands of E.H. On June 29, 2016, N., with petitioner’s consent, traveled to the United States, where respondent and N. were met by respondent’s domestic partner S.C. After spending several days in Pennsylvania visiting respondent’s relatives, respondent, N., and S.C. all traveled on July 7, 2016 to Virginia, where respondent resided with S.C. On July 7, 2016, N. and S.C. were watching the television program Power Rangers Megaforce together. N. asked S.C. why Power Rangers “have to have so much power” and S.C. explained that they have to have power to fight “bad people” to protect the world; once S.C. mentioned “bad people,” N. responded “like E.H.” S.C. testified that while she was concerned by these statement, she did not report them to respondent. The next day, while playing Power Rangers with S.C. on the floor of N.’s room, N. said to S.C that he needed to have power like the Power Rangers so he can fight “bad guys” like E.H. S.C. asked N. why he kept mentioning E.H., and N. said because he is a “bad guy” and he “hit me.” At that point, S.C. testified that she had a “huge concern” but again did not report the comments to respondent. Then, on July 9, 2016, while on an outing for ice scream, N. told both S.C. and respondent that E.H. “hit me.” At that point, according to S.C. and respondent, N. “just started spitting it all out ... spilled all the beans and explained everything in detail,” including that E.H. “pulled his eyelids, called him dumb, slapped him in the face,” and “squeezed” his “pee pee so hard and would not stop.” N. also made comments suggesting that E.H. abused E.H.’s own daughter as well and said that on one occasion in petitioner’s home (in Germany), E.H. became angry and began to shout loudly and threw a lamp, frightening N. so much that N. ran into his room. On the evening of July 9 and the morning of July 10, 2016, respondent and petitioner engaged in a series of contentious text messages. Respondent told petitioner “[N.] has been telling me that [E.H.] has been hitting him and that he calls me names and that he is mean to him. I will be reporting this to the US authorities. He told me that he is scared to be around [E.H.].” Petitioner responded by calling respondent’s allegations “absolute [sic] bogus” and stating that “[N.] for sure does not live in a household where he is scared.” Petitioner, through her German lawyer, asked respondent to return N. to Germany on July 22, 2016. Respondent refused. N. was scheduled to return to Germany on August 25, 2016, based on arrangements made before N. left Germany to spend the summer with respondent. Before that scheduled return date, respondent cancelled N.’s airline reservation. On August 19, 2016, petitioner filed the action.
The Court found that the petitioner established a prima facie case for return to Germany, which was the childs habitual residence. It also concluded that respondent failed to establish by clear and convincing evidence that there is a “grave risk” that N. would suffer physical or psychological harm by return to his mother in Germany. There never were any allegations or concerns that petitioner has abused N. Nor had there ever been any physical signs of abuse by anyone. The only indications of any possible abuse were the child’s own comments, which were originally made and investigated in Germany in October 2015 by German child protective services. That agency concluded that there was no abuse and that the N. was not in danger. N.’s most recent comments like the earlier comments, were subject to interpretation and completely uncorroborated or substantiated in any way as references to actual abuse, and also were part and parcel of a context involving the child’s fascination and perhaps obsession with Power Rangers, as well as the parties’ ongoing difficult and at times contentious relationship and respondent’s own criticisms and negative characterizations of E.H., which he conveyed to N. The court found that the case had none of the facts or circumstances that had caused other courts to refuse the return of a child based on an Article 13 defense under the Convention. It rejected respondents argument that there was a grave risk of harm because petitioner could not or will not adequately protect N. from any possibility of abuse at the hands of E.H. The Court saw nothing that would substantiate respondent’s concerns. The evidence presented was far from “clear and convincing” that any abuse ever occurred or that if N. was returned to his mother, there was a “grave risk” that this four-year old would suffer physical or psychological harm in Germany.
Ahmed v Ahmed, 2016 WL 4691599 (E.D. Tenn.,2016)[United Kingdom] [Habitual Residence][Petition denied]
In Ahmed v Ahmed, 2016 WL 4691599 (E.D. Tenn.,2016) the district court denied the petition of Faisal Ahmed, a citizen of the United Kingdom, for the return of the children finding that the U.S. was the children’s habitual residence. The Father was employed as an accountant in the U.K. The Mother was a citizen of the United States. The parties were married on December 29, 2009, in Dhaka, Bangladesh. At the time of their marriage, Father lived in London and Mother lived in Michigan, where she was studying optometry. Following their wedding, Mother continued to live in the United States until August 2011. In August 2011, Mother moved to London to live with Father. In December 2011, Mother returned to the United States and moved to Clarksville, Tennessee. In August 2013, Mother returned to London to live with Father, a move that she considered to be permanent at that time. In October 2013, the parties submitted an application to the U.K. Border Agency for Mother’s Indefinite Leave to Remain in the U.K. The application was approved and, on March 16, 2014, Mother was issued an ILR Residence Permit allowing her to live in the U.K. for ten years. Mother became pregnant with the twins in February 2014. Following a domestic argument in May 2014, Mother traveled from the U.K. to Knoxville, where she had previously lived. Mother did not return to the U.K. in the summer of 2014. She also testified that she chose not to return to the U.K. because of the issues in her marriage. Father traveled to Knoxville on October 9, 2014, and the twin daughters, An.Z.A. and Am.Z.A., were born on November 4, 2014 in Knoxville. Father returned to London on January 5, 2015. other and the children have remained in Knoxville ever since. On May 18, 2015, the parties and their children traveled to the United Kingdom. Mother traveled to London on a round-trip ticket, with a return to Knoxville scheduled for November 15, 2015, so she could attend a professional conference and visit family. The children, as U.S. citizens, had a 90-day visa to stay in the U.K. Father testified that the family brought “everything of any value” with them to London. Mother testified that she did not bring her diplomas or her optometry instruments to the U.K., nor did she take the family jewelry that was “culturally and religiously ... very important” to her and her family. Mother testified that she agreed to travel to the U.K. “for a short summer visit” upon certain conditions that she wanted Father to fulfill “to see if our marriage was going to work” . On July 12, 2015, Mother and the children traveled from London to Bangladesh, with Father’s consent and accompanied by her father, to attend the wedding of Mother’s brother. On August 5, but instead flew from Bangladesh to Knoxville, Tennessee where they have resided since then. The action was filed on March 23, 2016.
The district court observed that the primary issue was whether the children’s habitual residence was the U.K., or the U.S. It observed that term “habitual residence,” has been described by the Sixth Circuit as the country where, at the time of removal or retention, “the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ”. A child “can have only one habitual residence.” The Court “must look back in time, not forward” to determine a child’s habitual residence and “focus on the child, not the parents, and examine past experience, not future intentions.”The determination of a child’s habitual residence is a question of fact. Only a change in geography and the passage of time may combine to establish a new habitual residence. The Sixth Circuit has acknowledged that the standard of “acclimatization” and “a degree of settled purpose,” “may not be appropriate in cases involving infants or other very young children. The reason the “acclimatization” standard is ill-fitting to the case of an infant or very young child is that the child is naturally “entirely dependent on its parents.”. Infants do not develop a “settled purpose” or “firmly rooted” ties to a location through school, friendships, or other activities as older children do. Unfortunately, the Sixth Circuit has not yet articulated an alternative standard or considerations for determining the habitual residence of an infant and has expressly rejected the consideration of “shared parental intent” in determining a child’s habitual residence. The Court found that consideration of all available evidence, looking backward and focusing on the children’s past experience, was an appropriate path forward and consistent with the admonition in Robert to “look closely at the facts and circumstances of each case.” 507 F.3d at 989.
Given their young age, it was difficult to conclude how much the children had acclimated or become settled in the U.S. versus the amount of acclimatization that occurred during their time in the U.K. The facts and circumstances of the children’s past experience did not tilt the scale strongly in one way over the other, with the exception of the amount of time spent in each country. The children had spent most of their lives in the U.S., including most of their lives prior to the date of retention. While it is well settled that the “place of birth is not automatically the child’s habitual residence,” Holder, 392 F.3d at 1020, and that “a change in geography and the passage of time may combine to establish a new habitual residence,” Robert, 507 F.3d at 989, the Court questioned whether the children’s limited time in the U.K. was sufficient to establish a new habitual residence. To the extent that the parents’ intent is relevant, the preponderance of the evidence demonstrated that the parties had no settled mutual intent to live in either the U.S. or the U.K. on August 5, 2015, the date of the children’s retention. Looking backward from that date, there was no settled mutual intent during the children’s lives and much of Mother’s pregnancy. From the time of their birth to the date of retention, the children lived primarily in the U.S. While the place of their birth is not automatically the children’s habitual residence, Holder, 392 F.3d at 1020, the Court could not conclude that the seven to eight-week period the children spent in the U.K. was sufficient to establish that as a habitual or settled residence. The preponderance of the evidence indicated that Mother and the children traveled to the U.K. to visit and for Mother to determine whether she wanted to live with Father in the U.K. or return to the U.S. They did not bring all of their belongings to the U.K. and Mother did not sever her ties to living and working in the U.S. The children, as U.S. citizens, could only stay in the U.K. for three months. There was simply insufficient evidence that the children established deep-rooted ties or a degree of settled purpose in the U.K. in this limited time. The Court concluded that the facts and circumstances of the children’s past experience did not establish the U.K. as the children’s habitual residence, and therefore, their retention in the U.S. was not “wrongful” within the meaning of the Hague Convention.
Flores-Aldape v Kamash, 2016 WL 4430835 (N.D. Ohio, 2016)[Mexico] [Habitual Residence][Petition granted]
In Flores-Aldape v Kamash, 2016 WL 4430835 (N.D. Ohio, 2016) the district court granted the petition of Javier Flores-Aldape for the return of his child, C.F. to Mexico. The mother, Fatin Shawki Kamash, was a US resident and naturalized citizen. Javier was a Mexican citizen. In February 2011, Javier found a job in Mexico as an aviation engineer. He bought a house in Mexico. Javier and Fatin married in November 2012 in Michigan. The next month, Fatin moved to Querétaro, Mexico on a visitor’s visa. She did not have a job in Mexico. Fatin learned she was pregnant in July 2013. The next month, she returned to the United States in anticipation of an immigration interview scheduled for September 2013. C.F. was born in Michigan on March 30, 2014. Fatin and C.F. remained in Michigan for four months. In late July 2014, Fatin and C.F. flew to Mexico on round-trip tickets, with a return date in April. Fatin, Javier, and C.F. lived together in the family’s home in Querétaro, and C.F. was baptized in Mexico in August 2014. Later that month, Javier lost his job with General Electric, but the family remained in Mexico, living off Javier’s savings and receiving additional financial support from his parents. Given her young age, C.F. was not enrolled in daycare or any extracurricular activities and had limited interaction with the community beyond her own family. Fatin obtained a Mexican permanent resident card and opened a bank account in her name in Querétaro. In the spring of 2015, the family celebrated C.F.’s first birthday. Fatin applied and was accepted to the pharmacy program at The University of Findlay in Ohio for the fall 2015 semester. Javier and Fatin’s relationship deteriorated, and they discussed the possibility of divorce. Fatin and C.F. left for Michigan on May 10, 2015. Javier drove them to the airport, and Fatin and Javier parted on good terms. Fatin and C.F. left their winter clothes and many of their other belongings, including C.F.’s toys and crib, in Mexico. Upon her arrival in Michigan, Fatin resumed her part-time tutoring work at Oakland Community College and enrolled C.F. in daycare. Fatin also applied for and received WIC and child care assistance benefits in Michigan. During a phone call in the first week of August, Fatin informed Javier that she and C.F. would not be returning to Querétaro. Javier claimed they agreed the visit to Michigan would last only three months, corresponding with the summer session at Oakland Community College, while Fatin maintained it was indefinite, and she never intended to go back to Mexico.
On October 7, 2015, Javier filed the Hague Petition. The Court credited Fatin’s testimony that she and Javier desired to eventually create a long-term home in the United States. The Court found the parties did not share a present intention to begin that process with Fatin and C.F.’s May 2015 trip to Michigan. In a June 2015 e-mail Fatin confirmed the trip was meant to be limited in duration. The district court found there was no wrongful removal. Javier consented to C.F. traveling to Michigan with Fatin in May 2015. It became clear Fatin and C.F. were not returning to Mexico in early August 2015. August 5, 2015 was the date of C.F.’s retention. The Court observed that the Sixth Circuit has held “a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” Robert, 507 F.3d at 989 (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). The Sixth Circuit has also held this inquiry “must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich I, 983 F.2d at 1401. A person “can have only one habitual residence,” and “a change in geography and the passage of time” are required to establish a new habitual residence. The Sixth Circuit has repeatedly rejected the subjective intent of the parents as an additional factor in determining the child’s habitual residence. Nevertheless, it has also recognized that parental intent may be a valid consideration in cases involving very young children or children with developmental disabilities. The Court agreed parental intent is an appropriate consideration in cases like these. C.F. was just four months old when she left the United States for Mexico, and fourteen months old when she returned to visit family in Michigan. A child of that age is “too young to form any meaningful connection to a country, its inhabitants, and its locations.” Her experience of the world is limited to the environment created by her parents, and she will likely “acclimatize” quickly to any residence in which her family and daily routines are present, regardless of geographic location. The Court found that although C.F. was born in the United States, the circumstances reflected Fatin and Javier’s settled purpose to make their home -- at least for the foreseeable future -- in Mexico. Javier and Fatin established their marital home in Querétaro soon after their wedding, and they jointly participated in renovating the residence according to their preferences. Javier and Fatin also shared an intention to relocate to the United States someday. But to determine C.F.’s habitual residence, the Court had to look to the parents’ last moment of shared intent. The testimony and other evidence reflected that as of August 2015, Javier and Fatin had not jointly decided to abandon their residence in Mexico and move the family to the United States. Absent an agreed plan to abandon their home in Mexico, C.F.’s temporary visit to the United States during the summer of 2015 could not create a new habitual residence.
Blackledge v Blackledge, 2016 WL 4493691 (W.D. Pa., 2016)[Germany] [Habitual Residence] [Petition denied]
In Blackledge v Blackledge, 2016 WL 4493691 (W.D. Pa., 2016) the district court denied the petition filed by Charles Blackledge on July 6, 2016, seeking the return of his minor child (“J.B.”) to Berlin, Germany. The Petitioner was a citizen of the U.S. The Respondent was a citizen of Ukraine, where the couple were married in 2008, and J.B. was born there on June 26, 2008. The parties resided there until Petitioner obtained employment in Ireland in 2009. They thereafter resided in several European nations for varying periods of time. In June or July 2011, Petitioner began his current position in Germany. Around the same time, Respondent was accepted into graduate school at the University of Pittsburgh. The parties traveled together to Pittsburgh in August 2011, and established a residence for Respondent and J.B. Petitioner remained in Germany to continue his new job. Respondent and J.B. remained in Pittsburgh for two years while Respondent attended graduate school. Respondent and J.B. then returned to Germany in August 2013 to live with Petitioner. Respondent was able to continue her graduate studies remotely. J.B. was enrolled in a primary school , where the child completed kindergarten and first grade during the 2013 – 14 and 2014 – 15 academic years. After approximately two years in Germany, Respondent determined that she would need to return to Pittsburgh to complete her graduate degree. The parties agreed that J.B. would accompany Respondent back to Pittsburgh. Upon their return to Pittsburgh in August 2015, J.B. was enrolled in Colfax for the second grade. Respondent continued her graduate studies and Petitioner continued to work in Germany. Once back in Pittsburgh, the Respondent filed for divorce on April 7, 2016. Petitioner demanded the return of J.B. to Germany.
Petitioner claimed that he and Respondent had a verbal agreement by which J.B. was to accompany Respondent to Pittsburgh for one year while Respondent completed her graduate degree, and after which J.B. would return to Germany.
The Court found that J.B. was retained by Respondent beginning in August 2016. The Court observed that “Habitual residence” is the place in which a child “ ‘has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.’ ” Karpenko, 619 F.3d at 263. Habitual residence is a “concept that focuses on past experience, not future intentions.” Karkkainen, 445 F.3d at 294 (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)). To that end, the Court examines a child’s experiences in, and contacts with, his or her place of residence to determine whether he or she is “firmly rooted,” and not merely acculturated. A child’s academics, social engagement, participation in extracurricular activities, and routines are all central to finding acclimatization and a settled purpose. There “must be ‘a sufficient degree of continuity. The credible facts were strongly suggestive of a degree of continuity and settled purpose sufficient for the Court to find that J.B. , who was interviewed in camera, was acclimatized to Pittsburgh. J.B.’s record of academic achievement and engagement at Colfax, significant social contacts, wide ranging extracurricular activities, substantial familiarity with Pittsburgh, its institutions, and its culture, and unequivocally favorable opinion of all the above, demonstrated that J.B. had not only “formed meaningful connections with the people and places [he] encountered” in Pittsburgh, but that his life has attained “ ‘a sufficient degree of continuity to be properly described as settled. That notwithstanding, parental intent is still part of the Court’s inquiry. Evidence of shared intent by the parties – or a lack thereof – can trump evidence of acclimatization, particularly when the child is young. The shared intent of Petitioner and Respondent was far from clear. The Court found that the beyond agreeing that J.B. would reside with Respondent when she traveled to Pittsburgh for school – as he had in the past – there was no credible evidence of an agreement for a specific duration. A ‘child can lose its habitual attachment to a place even without a parent’s consent’…when ‘the objective facts point unequivocally’ to the conclusion that a child’s relative attachments to two countries have changed.” The credible facts, as found by the Court, clearly indicated that attachments shifted for J.B. In light of the lack of evidence of an agreement regarding a specific duration for J.B.’s stay in Pittsburgh, as well as the Court’s determination that Respondent exhibited a greater degree of credibility than Petitioner, and given the strong evidence of J.B.’s acclimatization, the Court found J.B.’s habitual residence to be Pittsburgh. Therefore, Respondent’s retention was not wrongful..
Fernandez v Bailey, 2016 WL 4474633 (M.D. Florida, 2016) [Panama][Federal & State Judicial Remedies][Temporary Restraining Order]
In Fernandez v Bailey, 2016 WL 4474633 (M.D. Florida, 2016) Petitioner father filed a Petition for Return of Children To Panama. He claimed that Respondent, the mother of the children, absconded to Florida with their eight-year old twin sons as of March 20, 2013. This was the second time that the Respondent has removed the children to the United States from Panama. Respondent returned the children to Panama only after a United States District Court in the Eastern District of Missouri ordered her to do so in September 2010. Petitioner alleged that the children resided with him in Panama City, Panama, up until February 20, 2013. Petitioner maintained that the delay in bringing this action was a result of the Respondent’s concealment of the children’s location from Petitioner through the use of aliases and frequent relocations across the state. The Court granted a temporary restraining order finding preliminarily that Petitioner would suffer irreparable harm unless the Order was granted. Given that Respondent again had removed the children from Panama, and refused to return the children from Florida to Panama, there existed a clear risk that Respondent would further secret the children and herself in violation of the Hague Convention, the ICARA, and other applicable law. The Court preliminarily found that the allegations established a prima facie claim of wrongful removal under Article 3 of the Hague Convention and that the fact-specific nature of numerous issues necessitated an evidentiary hearing. Nevertheless, at the Temporary Restraining Order stage, the Court found that Petitioner had shown that there is a substantial likelihood of success on the merits given his preliminary establishment of a prima facie case, the prior wrongful removal by Respondent, and the concealment tactics purportedly used by Respondent that would undermine a “well-settled” affirmative defense. In addition, the Court found that the threatened injury outweighed any harm the relief would inflict on Respondent and that that the issuance of the Temporary Restraining Order would l serve the public interest. The Court set a hearing date due to the fact that the Hague Convention provides a six week window for the adjudication of such cases. It required Respondent to produce the children at the hearing. Respondent was prohibited from removing the children from the jurisdiction of the Court pending a hearing on the merits, and further directed that no person acting in concert or participating with Respondent shall take any action to remove the children from the jurisdiction of this Court pending a determination on the merits of the Verified Petition for Return of Children to Panama.
Sadoun v. Guigui, 2016 WL 4444890 ( S.D. Florida, 2016) [France] [Grave Risk of Harm] [Petition denied] [Guardian Ad Litem]
In Sadoun v. Guigui, 2016 WL 4444890 ( S.D. Florida, 2016) Petitioner and Respondent had 3 children: S.A.E.S., born in 2001, L.E.J.S., born in 2004, and S.L.J.S., born in 2008. Their eldest daughter was 16 and not subject to the Convention. The Children were born in Paris and resided there with their parents in the family’s apartment for most of their lives. On June 29, 2015, Respondent and the parties’ four children departed France for the family’s annual trip to their vacation home in Miami Beach, Florida, while Petitioner remained behind in France to attend to his ailing father. Respondent and the Children did not return to Paris on the date they were scheduled to return. The parties stipulated that Petitioner met his burden of presenting a prima facie case of wrongful removal or retention under the Convention. However, the Court found that: (1) Respondent established by clear and convincing evidence that returning the Children to France would expose them to a “grave risk” of physical or psychological harm, and (2) that Respondent proved by a preponderance of the evidence that S.A.E.S. and L.E.J.S. were of a sufficient age and maturity to permit the Court to appropriately consider their objections to repatriation.
At trial, the parties’ eldest child, L.L.S., testified that Petitioner drank alcohol every night. Her testimony also revealed that during Petitioner’s drunken tirades, he would call each of the Children “dummy,” tell them they were “really stupid,” and refer to his wife as a “Bitch” or “slut,” which shocked his daughter. Respondent’s sister testified to Petitioner’s increasingly aggressive behavior while drinking and of the verbal onslaughts he unleashed upon his family during these alcohol-infused episodes. She testified “He was already seated with a drink in his hands. As we went on ... the night he kept on drinking and his speech got slurred. Very angry. Very aggressive. He called me a bitch many times in front of the children.” According to Respondent, Petitioner’s belittling of her and the Children was anything but an isolated event. (“[Petitioner’s] verbally abusive. He just recently called me a prostitute in the middle of a wedding in Miami. He is continuously demeaning me. It was terrible.” According to Petitioner, he was only drunk twice in his life. The Court received a substantial amount of credible testimony that throughout the parties’ seventeen-year marriage, Petitioner exhibited a pattern of coercive behavior towards Respondent that is widely recognized as domestic violence. Respondent’s sister testified that Petitioner isolated Respondent by greatly restricting her ability to travel, unless it was with the parties’ children. Petitioner financially abused Respondent by restricting her access to the couple’s shared financial resources in what appeared to have been an effort to reduce her sense of autonomy. Petitioner directed this pattern of abusive behavior toward his children in a physical manner as well. Muriel Guigui testified that she witnessed instances of Petitioner’s physical abuse of the Children when Petitioner would pull the boys’ ears and drag them to their rooms where he would repeatedly hit them to a point where they screamed out, “[p]lease stop, you’re hurting me.” On one occasion, Muriel entered the room after Petitioner left and found the boys crying with red marks on their bodies where Petitioner had struck them. Respondent convincingly recounted the brutal methods Petitioner frequently employed to “discipline” the children for talking loudly. (“A. He would strike their legs mostly because they were in a protective position. Their arms and legs with the belt. And usually to the head, a lot of times in the head. It’s hard to show proof.”). The Court also received into evidence an audio recording of the parties’ two sons being viciously beaten by Petitioner while the boys unsuccessfully begged for mercy. The Guardian Ad Litem discussed several instances of physical abuse that the Children brought up during their individual interviews. No one could reasonably contend that when Petitioner viciously struck his sixteen-year-old daughter in the head and possibly rendered her unconscious—in front of his seven-year-old daughter —that action was anything short of child abuse. Victims of spousal abuse often do not come forward to report instances of domestic violence for many reasons and, therefore, a lack of near-contemporaneous documentation does not necessarily render a victim’s claims unbelievable. The Court found that Respondent’s credible testimony that Petitioner harmed S.A.E.S and L.E.J.S. as a result of the disproportionate force that Petitioner frequently inflicted on them with either a belt or his hands—whether closed or open—together with Respondent’s unrefuted testimony about Petitioner’s emotional torment and physical abuse of her and L.L.S., “demonstrated a non-negligible probability of [Petitioner] someday physically injuring” the Children. Petitioner’s physical abuse of his children, the overwhelming evidence of psychological abuse of the Children and Respondent—particularly when Petitioner hurls obscene epithets at her in their presence—other indicia of domestic violence, and Petitioner’s reckless disregard for his family’s safety when he drove while intoxicated, led the Court to an obvious conclusion: it would be irresponsible to think the risk to the children less than grave.
Cohen v Cohen, 2016 WL 4546980 (E.D. Missouri, 2016) [israel] [Habitual Residence] [Petition denied]
In Cohen v Cohen, 2016 WL 4546980 (E.D. Missouri, 2016) the Petitioner Father was an Israeli citizen and resided in Israel. The Mother was a citizen of both the United States and Israel. The parties were married in Israel and were the parents of a son, O.N.C., born December 6, 2009 in Israel. The father had substantial debt and an extensive criminal record in Israel which resulted in a Stay of Exit Order placed on his visa which prohibited him from leaving Israel. Both parties testified that their plan was for Mother to move to the U.S. with O.N.C., find a place to live, enroll O.N.C. in school, and work to help Father pay off the debts which were preventing him from leaving Israel. Father would join them once his debts were paid off and they would live together in St. Louis. According to Mother, they decided to move because their financial situation was difficult and they did not see a future for themselves and their son in Israel. It was Father’s testimony that their intention was to live in the United States for three to five years to save enough money to buy a house in Israel. With the agreement of Father, Mother and O.N.C. traveled to St. Louis, Missouri on December 3, 2012. Over the next two years, Mother and O.N.C. returned to Israel twice, each time on round-trip tickets. Mother filed for divorce in St. Louis in July 2014 and on March 13, 2015, she was granted a divorce and sole custody. The father filed his district court complaint on November 25, 2015. The district Court observed that this case turned on whether O.N.C. s habitual residence changed to the United States. It noted that in the Eighth Circuit, factors relevant to the determination of habitual residence include the settled purpose of the move to the new country from the child’s perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.” Stern v. Stern, 639 F.3d 449, 452 (8th Cir. 2011). Habitual residence is determined by examining “past experience, not future intentions.” Sorenson v. Sorenson, 559 F.3d 871, 873 (8th Cir. 2009) “The ‘settled purpose’ of a family’s move to a new country is a central element of the habitual residence inquiry.” Barzilay, 600 F.3d at 918. However, “settled purpose “need not be to stay in a ... location forever. What is crucial is that the purpose “have a ‘sufficient degree of continuity to be properly described as settled.’ ” Settled purpose must be from the child’s perspective, although parental intent is also considered.
The district court found that O.N.C.’s habitual residence had changed to the United States and denied the petition. It found that he had experienced a clear change in geography and a substantial amount of time, over three years, had passed since the move to the United States. The evidence demonstrated that both Mother and Father decided to have O.N.C. reside in the U.S. Settled purpose need not be to stay forever so long as there is a “sufficient degree of continuity to be properly described as settled.” The last three years and eight months—more than half his life—had been spent in St. Louis, Missouri.. There was ittle evidence in the record concerning O.N.C.’s connections with Israel, while it appeared that O.N.C. had considerable connections with his current environment. He enjoyed a close relationship with his three maternal uncles, and he and Mother found a community with whom they socialized. The Court concluded that as of October 2014, O.N.C. had been in Missouri long enough to have a “sufficient degree of continuity to be properly described as settled” from his perspective, and that the parties intended to relocate to the United States and establish O.N.C.’s residence here. Prior to the move, the parties applied together for approval of O.N.C.’s naturalization application for United States citizenship. It was understood by the parties that Father would not be able to leave Israel until his debts were paid off and the stay order on his visa was lifted. Until then, their intent was always for Mother and O.N.C. to go ahead of Father and settle in the United States. The best evidence of this intent was the actions taken by the parties. Mother and O.N.C. traveled to the U.S. despite the known issues surrounding Father’s visa. Mother secured full-time employment, enrolled O.N.C. in school, bought and registered a car, applied for a Missouri driver’s license, and paid taxes. She eventually rented an apartment for them. The facts demonstrated that Mother was establishing a life here for the family, and for the next two years, the parties continued to act in furtherance of their plan. Not until April of 2014, when the marriage deteriorated, did Father claim the relocation had been intended to be temporary. The change in geography, passage of time since the move to the United States, O.N.C.’s acclimatization to his current environment, the degree of settled purpose in his environment from his perspective, and the shared intent of the parties all pointed to the U.S. as O.N.C.’s habitual residence.
Adamis v Lampropoulou, --- Fed.Appx. ----, 2016 WL 4470959 (Mem) (2d Cir.,2016)[Greece] [Consent][Petition denied]
In Adamis v Lampropoulou, --- Fed.Appx. ----, 2016 WL 4470959 (Mem) (2d Cir.,2016) the Second Circuit affirmed a judgment which denied Nikolaos Adamis petition for return of his son, D.A., to Greece following his removal to the United States by D.A.’s mother, appellee Fotini Lampropoulou. The district court found that Adamis had consented to the removal of D.A. from Greece, which meant that the move was not “wrongful” under the Hague Convention. The Second Circuit observed that “In cases arising under the [Hague] Convention, a district court’s factual determinations are reviewed for clear error. However, the district court’s application of the Convention to the facts it has found, like the interpretation of the Convention, is subject to de novo review.” See Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir. 2005) When a finding is based on a credibility determination, “particularly strong deference should be granted to the finding in light of the factfinder’s unique ability to assess the witness.” Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003). It held that the district court’s finding that Adamis consented to D.A.’s removal was not clearly erroneous. The district court relied on the testimony of Lampropoulou, D.A., and D.A.’s stepsister, Toula. Their statements were corroborated by a recorded conversation that occurred approximately ten days before Lampropoulou moved with D.A. to the United States. The conversation confirmed that Lampropoulou could live in the United States with D.A., and could “come and go” to Greece with D.A. Crediting Lampropoulou’s testimony, the district court found that there were no further conversations between the couple about the move until after Lampropoulou had already arrived in the United States, and that Adamis’s explanation for the recording – that he had consented only to a short trip to New York – was not credible. The Court deferred to those credibility findings which, particularly in conjunction with the recorded conversations, were not clearly erroneous.