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
Saturday, December 24, 2016
Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7th Cir., 2016) [Mexico] [Grave Risk of Harm Defense] [Petition denied]
Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir.,2016)[Italy] Habitual Residence] [Petition denied]
Pliego v Hayes, 2016 WL 7048693 (6th Cir., 2016) [Turkey] [Grave Risk of Harm] [Attorneys Fees] [Petition Granted]
Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016)[Czec Republic] [Habitual Residence] [Petition granted]
Application of Gonzales v Batres, 2015 WL 12831299 ( D. NM, 2015)[Mexico] [Habitual Residence] [Petition granted]
In re Application of Gonzales v Batres, 2015 WL 12831299 ( D. NM, 2015) the district court granted the petition and ordered the immediate return of the Children to Petitioner’s custody in Mexico. Petitioner and Respondent were Mexican citizens. Respondent was a lawful permanent resident of the United States living in Las Cruces, New Mexico. After Respondent lawfully entered the United States, he hired a third party to bring Petitioner and her two children from a previous relationship unlawfully into the United States. After Petitioner moved into Respondent’s home their children E.E.C.M. and D.M.C.M. were born in that city. Both of the Children were United States citizens. Petitioner decided to end the relationship with Respondent, and on April 3, 2013, without informing Respondent, took the Children, along with her two older children, to Gómez Palacio, Durango, Mexico, where Petitioner and her four children moved in with Petitioner’s mother. Respondent discovered Petitioner’s whereabouts and traveled to Gómez Palacio on April 5, 2013, at which time he saw Petitioner and the Children. Respondent visited the Children in Gómez Palacio approximately every other weekend thereafter, sometimes taking them to the home of his mother. The parties entered into an Agreement on November 29, 2013, which gave Petitioner primary custody of the Children while allowing Respondent to visit with the Children every other weekend. After picking up the Children for a scheduled visitation on Saturday, December 14, 2013, Respondent returned to the United States with the Children without Petitioner’s consent.
The district court found that the Children’s habitual residence was in Durango, Mexico. Although the Children were only living in Mexico for approximately eight months prior to their removal, Re Bates and Feder made clear that habitual residence may be established in such a brief period if the parents’ shared intentions and the children’s living arrangements “amount[ ] to a purpose with a sufficient degree of continuity to enable it properly to be described as settled.” Re Bates, 1989 WL 1683783. This may be true even if the Children spent a majority of their lives in the United States before arriving in Mexico, and even though the Children were U.S. citizens, seeFriedrich I, 938 F.2d at 1401. Here, E.E.C.M. had begun schooling in Durango, and D.M.C.M. had sometimes received medical care in that state, both of which are strong evidence of settled purpose. Moreover, although Respondent was plainly not happy about the prospect of his children living away from him in Mexico, his frequent visits to Gómez Palacio and the Agreement he worked out with Petitioner, whatever its legal effect, were evidence that both parents were planning their lives around the Children living in Durango. The fact that a child has spent most of his or her life in one country, while sometimes relevant, is not dispositive. Feder, 63 F.3d at 224. The Court rejected Respondents argument that it was Petitioner who wrongfully removed the Children from the United States without Respondent’s consent, implying that the Children’s habitual residence should be measured from just prior to that removal. However, Respondent never filed a petition under the Hague Convention alleging that Petitioner wrongfully removed the Children. Once a petition is filed, a court should consider only whether a respondent’s removals of a child are wrongful” rather than “whether the petitioner’s removals of the child were wrongful.” Ohlander, 114 F.3d at 1539-40. Thus, the fact that the Children may have been habitual residents of the United States until Petitioner took them to Durango, Mexico was irrelevant to the proceedings. The appropriate point in time to consider in this case was not when Petitioner fled with the Children to Mexico, but when Respondent fled with the Children to the United States. Because the parents’ shared intentions showed acclimatization and a degree of settled purpose for the Children in Mexico on the date of their removal from that country, the Court held, inter alia, that the Children’s habitual residence at the time of removal was Mexico.
Villatoro v Figueredo, 2015 WL 12838861 (M.D. Florida, 2015)[Guatamala] [Federal & State Judicial Remedies] [Stay pending appeal]
Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014)[Germany] [Federal & State Judicial Remedies] [Comity][Petition granted]
Olson v Olson, --- F.Supp.2d ----, 2013 WL 12147783 (M.D. Tenn., 2013) [Hungary] [Consent and Aquiesence] [Age of Maturity Defense] [Petition granted]
In Olson v Olson, --- F.Supp.2d ----, 2013 WL 12147783 (M.D. Tenn., 2013) the district court granted the Petition of Simona Oana Olson for an Order directing that the parties’ minor children, L.S.O. and S.M.O., be returned to Hungary. Petitioner and Respondent married in 1996 in Bucharest, Romania. The parties moved to Visalia, California, approximately a month-and-a-half later to be close to Respondent’s parents. In September 1999, while living in Dallas, Texas, they had twin boys.Approximately five years later in 2004, the family moved to Budapest, Hungary. According to Petitioner, they moved to Hungary for three reasons: Petitioner wanted to attend dental school, Respondent wanted to get his master’s degree, and they wanted to be closer to Petitioner’s family in Bucharest, Romania. The parties purchased a home in approximately 2005, which located in Budapest, Hungary. They resided in Budapest, Hungary, as a family, until 2008, when Respondent took employment in Bucharest, Romania, some eleven to twelve hours drive away from their home. During that time, the couple lived in two different apartments, Respondent lived with Petitioner’s sister and her family in Romania, while Petitioner and the children remained at the family home in Hungary. The parties had plans for moving at the conclusion of Petitioner’s education in Hungary, so they would be in the same country as a family. With these plans in mind, the parties entered into a Residential Lease Agreement with David Barnie and Alexis Barnie for a term of one year in June 2012. As planned on July 30, 2012, the children traveled from Hungary to the United States in the care of a paternal aunt and arrived in the United States on July 31, 2012. Once in the United States, the children engaged in a summer vacation with their paternal grandparents. On August 12, 2012, while the children were enjoying their summer vacation, Petitioner and Respondent moved much of their belongings to Bucharest, Romania. Petitioner had graduated from dental school approximately a month prior to their relocation. Once in Romania, Petitioner applied for her Romanian dental license, and she was waiting on her license. Respondent left Budapest, Hungary, as planned, to retrieve the children, on a round-trip plane ticket on September 10, 2012. On September 20, 2012, neither the children nor Respondent returned to Hungary. Between September 17 and 18, 2012, Petitioner sent multiple Facebook messages and tried to call Respondent numerous times during the night. On September 17, 2012, Respondent advised Petitioner that he was extending the children’s stay in America until he and she could reach an agreement on how to proceed with the marriage and divorce. On September 24, 2012, Respondent obtained an Ex Parte Order of Custody from the Sumner County, Tennessee, Circuit Court. Respondent responded to the United States Central Authority refusing a voluntary return on October 22, 2012. On February 14, 2013, Petitioner’s Verified Petition requesting the return of the children was filed with the Court.
The district court found that although the the children were United States citizens, were already fluent in English, and were temporarily enrolled in a Tennessee public school, these facts, were not sufficient to outweigh the volumes of evidence suggesting the children would have perceived, and in fact did perceive, their stay in the United States to be merely a temporary vacation. The evidence about the children’s lives in Hungary and their own statements indicated that immediately prior to their retention in the United States, Hungary was their habitual residence. The district court found that the petitioner made out a prima facie case and that the respondent did not establish consent or acquiescence. Petitioner’s agreement to allow the children to travel to the United States for a vacation did not constitute consent to their relocation here, and the actions she took to secure their return under the Hague Convention overwhelmingly supported the finding that she did not consent to their permanent residence in the United States. Moreover, Respondent has failed to prove that Petitioner acquiesced in his retention of the children in the United States. Although Respondent argued that Petitioner agreed to an extension of the vacation, this delay did not indicate her acquiescence to the children’s retention in the United States. Petitioner never said nor did anything which would constitute acquiescence. Rather, after learning of Respondent’s intentions, and before she even knew Respondent had begun divorce proceedings, Petitioner’s Hungarian Application for Return had been filed with the Hungarian Central Authority. Further, her attempt to negotiate a Tennessee parenting plan with Respondent did not constitute acquiescence.
Based upon the consideration of the children’s testimony, the Court concluded both children reached the age and maturity level at which their objections, if any, should be taken into account. The court found that the children were impressive, well-mannered, and articulate thirteen-year-old boys. Given the choice, both children would prefer to remain in the United States. Although the children displayed a preference (and particularly S.M.O., a strong preference) for remaining in the United States, neither boy expressed an objection to his return. The court concluded that absent such objection the maturity exception defense was not established by Respondent.
Anderung v Anderung, 2013 WL 12142385 (S.D. Iowa)[Sweden] [Habitual Residence] [[Grave risk of harm] Petition granted]
In Anderung v Anderung, 2013 WL 12142385 (S.D. Iowa, 2013) the district court granted the Petition of Magnus Anderung (Magnus), to have the couple’s minor child, L.A, returned to Sweden. Magnus was a citizen of Sweden. Raina was a citizen of the United States. They were married in Iowa, in June 2007. After the wedding, the couple traveled to Magnus’ hometown of Gavle, Sweden, where they lived with Magnus’ mother while Magnus took a summer job. The couple returned to New York City at the end of August 2007. Late in September 2007, Magnus and Raina returned to Gavle and moved into an apartment. The couple stayed in Gavle until March 2008. In March 2008, the couple moved to Surrey, England, and lived in an apartment. In October 2008, the couple was residing in London and got into an argument.The police arrested Magnus and charged him with second-degree assault. Once the trial began, Magnus decided to plead guilty. After Magnus was released from the London jail, the couple reconciled, and in January 2009, Raina became pregnant with L.A. In May 2009, the couple moved back to Sweden. L.A. was born in Sweden on September 27, 2009.Magnus testified, that by May 2011, at least twice a month Raina was assaulting him and threatening to call and tell the police that he had hit her. On October 18, 2011, Magnus filed for divorce in the District Court of Gavle and sought sole custody of L.A. Magnus gave his his express consent for L.A. to travel from Sweden on May 27, 2012, for a visit to the U.S. Reina testified that, it was by mutual agreement that Raina and L.A. would come to the U.S. and stay indefinitely and that Magnus would join them at a later date Magnus disputed Raina’s contention and argues Raina wrongfully retained L.A. in the U.S. after August 25, 2012.
The district court found that the child’s habitual residence was Sweden. On May 27, 2012, when L.A. and Raina left Sweden, L.A. was two years and eight months old. L.A. was born in Sweden, lived her entire life in Gavle, Magnus’ mother and three of his siblings lived in Gavle, and L.A. attended preschool classes with other children in Gavle. Raina testified that she took mostly summer clothing and a few of L.A.’s toys and only brought to the U.S. what she could fit into four suitcases. The court observed that from a child’s perspective, to be taken away from the only place known to her as home without saying goodbye to immediate family or friends and to have most of her belongings left behind is inconsistent with a settled purpose to abandon that country as the child’s habitual residence. The court found that the parents’ conduct leading up to Raina and L.A.’s departure belies the assertion that when Raina left on May 27, 2012, the couple had a “settled purpose” to abandon Sweden. Raina did not move out of her apartment in Gavle and continued to pay rent even though she had a month-to-month lease and could have discontinued the lease at any time; Raina informed L.A.’s preschool that L.A. was taking summer vacation and would return in August; Raina took only summer clothing and a few of L.A.’s toys and keepsakes, leaving most of their belongings in Sweden; Raina obtained round-trip rather than one-way tickets from Sweden to the U.S.; Raina did not notify the Swedish Social Insurance Agency that she was permanently leaving Sweden and instead continued to receive benefits for at least three months after she left; and neither Magnus nor Raina withdrew their divorce and custody proceedings that were pending in the District Court of Gavle. The record evidence simply does not support Raina’s contention that the couple had a settled purpose to abandon the country of mutual residence, Sweden, to take up residence in the U.S. Approximately eight weeks passed between August 25, 2012, the onset of L.A.’s wrongful retention in the U.S., and October 31, 2013, when Magnus filed an application for assistance under the Convention with the Swedish Foreign Ministry. Magnus filed the Verified Complaint in this case on February 14, 2013. The Court held that to find Raina’s assertions that L.A. had become acclimatized in the U.S. support a finding that the U.S. has become L.A.’s habitual residence would run contrary to the purposes of the Convention. An abducting parent who retains a child in a foreign country and argues against the child’s return because a change in residence would be demonstrated traumatic for the child runs contrary to the purposes of the Convention.
The evidence in this record that Magnus gave his consent for L.A. to come to the U.S. for a visit from May 27, 2012, until August 25, 2012. Raina’s assertions failed to demonstrate acquiescence. The Court rejected Raina’s argument that L.A. would be at grave risk of harm and should not be returned to Sweden due to Magnus’ history of violence and because of the failure of the Swedish judicial system to provide protection. Magnus and Raina had a history of volatile arguments but there were no major incidents from the time Raina became pregnant in 2009 until September 2011. There was no evidence that Magnus ever harmed L.A. Raina’s criticism of inaction by the Swedish authorities was also contrary to the record. The Court was confident that, contrary to Raina’s assertions, Sweden had a competent child welfare system in place. The court found that Raina utterly failed to present any evidence, that L.A. would be at grave risk of harm if she is returned Sweden and that Raina had not met her burden of proving an affirmative defense preventing L.A.’s return to Sweden.