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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Sunday, June 11, 2017

Cohen v Cohen, --- F.3d ----, 2017 WL 2453777 (8th Cir.2017) [Israel][Habitual residence][Petition denied]



         In Cohen v Cohen, --- F.3d ----, 2017 WL 2453777 (8th Cir.2017 ) the 8th Circuit affirmed the district court’s denial of Yaccov Cohen’s petition for return . Yaccov Cohen and Ocean Cohen were the parents of O.N.C., who was born on December 6, 2009 in Israel. During the first three years of O.N.C.’s life, the Cohens lived together as a family in Israel. Between 2010 and 2011, Yaccov served approximately one year in jail on various criminal charges. Shortly after Yaccov’s release, Ocean and two of her brothers discussed the possibility of her family moving to St. Louis to join them. However, Yaccov was subject to a Stay of Exit Order placed on his visa that prevented him from leaving Israel until he paid his accumulated debt, which included criminal fines, penalties, and restitution payments. Yaccov and Ocean decided that Ocean and O.N.C. would move to St. Louis, and that once there Ocean would work to help Yaccov pay off his debt so he could join them. Ocean testified that they intended to move permanently to the United States, while Yaccov testified that they intended to move for a period of three to five years. To prepare for the move, Yaccov and Ocean went to the United States Embassy together to submit naturalization paperwork for O.N.C. In December 2012, Ocean and O.N.C. traveled to St. Louis. Ocean promptly enrolled O.N.C. in school and speech therapy, found O.N.C. a pediatrician, and secured employment. Ocean purchased a vehicle, obtained a driver’s license, and eventually rented an apartment. As arranged, Ocean sent money to Yaccov to help pay off his debts. In May 2013 and April 2014, Ocean and O.N.C. visited Yaccov in Israel for approximately two weeks each time. During the April 2014 visit, it became apparent that the marriage was deteriorating. Shortly before Ocean and O.N.C. were scheduled to return to St. Louis, Yaccov asked a lawyer to draft a “travel agreement” requiring Ocean and O.N.C. to return to Israel if Yaccov remained unable to join them in St. Louis within six months. Ocean signed the agreement after adding a clause requiring Yaccov to “stay away from crime and not get into trouble.” If he breached this condition, Ocean and O.N.C. would not be obligated to return to Israel at the end of the six-month period. In August 2014, Yaccov was arrested for driving without a valid license. In July 2014, Ocean filed for divorce in St. Louis County. The St. Louis County Circuit Court entered a default judgment granting the divorce in March 2015, giving Ocean sole custody of O.N.C. and Yaccov supervised visitation. In September 2015, Yaccov filed a complaint requesting O.N.C.’s return under the Convention.

          The 8th Circuit observed that habitual residence is determined as of the time “immediately before the removal or retention” and depends on “past experience, not future intentions.” Silverman v. Silverman, 338 F.3d 886, 897-98 (8th Cir. 2003) Habitual residence encompasses some form of settled purpose but only requires that the familyhave a sufficient degree of continuity to be properly described as settled. However, this settled purpose need not be to stay in a new location forever. The Eighth Circuit determines settled purpose from the child’s perspective, although parental intent is also taken into account. That said, parental intent need not be completely clear, and one spouse harboring reluctance during a move does not eliminate the settled purpose from the child’s perspective. In addition to settled purpose and parental intent, relevant factors include 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, 451 (8th Cir. 2011). It held that the district court did not err in finding that O.N.C.’s habitual residence was the United States. From O.N.C.’s perspective, his move to the United States resulted in a sufficient degree of continuity to be properly described as settled. The record supports that the alleged wrongful retention occurred either in July 2014, when Ocean filed for divorce, or in October 2014, when the six-month period under the travel agreement expired. At either of these junctures, O.N.C. had been living in the United States for almost two years—a significant portion of his young life. From his perspective, his family had moved to the United States indefinitely and established a home there, and he maintained considerable connections to his environment. O.N.C.’s mother obtained employment, purchased a vehicle, and rented an apartment for the family. O.N.C. attended school and speech-therapy classes, had a pediatrician, socialized with friends, and had extended family in the area. During the relevant time period, he primarily spoke English and participated in activities at his local Jewish Community Center. At the same time, little evidence established O.N.C.’s connection to Israel. In sum, O.N.C. experienced “a clear change in geography” and had acclimated to life in the United States. Moreover, the parents’ intent supported this conclusion. Both Yaccov and Ocean intended to move O.N.C. to the United States for at least three to five years, if not indefinitely. They applied together for O.N.C.’s U.S. citizenship and planned for Ocean and O.N.C. to settle in St. Louis and establish a home there until Yaccov could join them. In furtherance of this plan, Ocean established a life in St. Louis—all the while sending money to Yaccov in an effort to enable him to join his family. Both parties understood that O.N.C. would be without Yaccov for a significant period of time and that Ocean would establish a home in his absence.

         The parties disputed the circumstances under which Ocean signed the travel agreement, but Yaccov did not seek to enforce the agreement. Rather, he offered it only for the purpose of demonstrating parental intent. The 8th Circuit noted that even if Yaccov had sought to enforce the agreement, parents cannot establish the child’s habitual residence by contract. Barzilay v. Barzilay, 600 F.3d 912, 920 (8th Cir. 2010). The 8th Circuit agreed with the district court that Yaccov had not demonstrated by a preponderance of the evidence that O.N.C.’s habitual residence was Israel.