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, April 2, 2018

Frenken v. Hunter, 2018 WL 1536754 (N.D. California, 2018)[Netherlands][Habitual Residence][Federal & State Judicial Remedies] [Petition denied]





In Frenken v. Hunter, 2018 WL 1536754 (N.D. California, 2018) the Court granted Defendant’s motion for summary judgment dismissing the action. 
Plaintiff was the mother and Defendant was the uncle of Child. The Child was born in 2004, in Lihue, Kauai. The Child’s father, David John Hunter (“Father”), was deceased. Plaintiff was a citizen of the Netherlands, The Child was a citizen of both the United States and the Netherlands, and the Father was a resident of California. On April 10, 2006, Plaintiff filed for divorce from Father in the Superior Court of California, Nevada County. Pursuant to a stipulation and order by that court for custody and/or visitation of children, Plaintiff and the Father agreed Plaintiff could move to Texas with Child on or after June 1, 2006. On June 21, 2010, the Nevada County Superior Court entered an order awarding the parties joint custody of the Child, stating that the Child’s “habitual residence” was the United States. In 2012, Plaintiff took the Child to the Netherlands without the Father’s consent. Plaintiff did not respond to the Father’s requests for Plaintiff to return Child. In July 2013, the Father initiated legal proceedings in a district court in the Netherlands, asserting claims under the Hague Convention. On July 23, 2013, the Dutch district court ruled that the Child must be returned to the United States by no later than August 9, 2013. Plaintiff appealed. The Dutch appellate court upheld the lower court’s decision and ordered the return of Child “to the place of her habitual residence in the United States of America” no later than September 7, 2013. Dutch authorities located Plaintiff with the Child in the Netherlands on or about April 22, 2014. The Father, who was in the Netherlands at that time, returned with Child to the United States. After th eChild returned to the United States, the  Father obtained “sole and physical custody” over the Child pursuant to an order of the Marin County Superior Court. The Marin County Superior Court issued that order on November 4, 2014. On December 16, 2014, the Marin County Superior Court entered a subsequent order stating in pertinent part that: “The minor’s country of habitual residence is California [sic].” On August 1, 2016, the Marin County Superior Court issued another order stating that Father and Child resided in California, and that “[t]he United States is the country of habitual residence of the child.” Father died on April 30, 2017. 

On May 1, 2017, the Child filed a petition in Marin County Superior Court to appoint Defendant as her guardian. The Plaintiff opposed the petition. The Marin County Superior Court appointed Defendant as Child’s temporary guardian on May 4, 2017. The Child was domiciled in Marin County, California from April 22, 2014 to at least the time that Plaintiff filed her district court complaint on May 31, 2017. 
The district court found thst Plaintiff’s claims failed under the four-step framework set forth in Mozes. According to Plaintiff, Defendant wrongfully retained child on May 1, 2017. There was no dispute that Child was a habitual resident of California prior to that date. Plaintiff admitted in her complaint that Child had resided in California since April 22, 2014.  In her opposition, Plaintiff acknowledged that she and the Father “agreed” in 2014 that the Father would be Child’s primary caregiver “in the State of California.” Courts on four different occasions, in both the United States and the Netherlands,  found the Child to be a habitual resident of the United States. And the Marin County Superior Court found specifically that California was the  Child’s habitual residence. 

The district court observed that Plaintiff’s complaint not only failed to allege that Child’s habitual residence was the Netherlands, but also attached documents compelling a contrary conclusion. Under Mozes’s third step, the Court applied California law to determine whether Defendant’s retention of the Child breached Plaintiff’s rights. It found that it did not. Pursuant to the Marin County Superior Court’s order, the Father had sole custody of child as of November 4, 2014. Following the Father’s death on April 30, 2017, the Marin County Superior Court appointed Defendant as the Child’s temporary guardian. That appointment occurred on May 4, 2016. Plaintiff failed to identify any facts or authority that would disturb that appointment. Though Plaintiff asserted that custody of Child reverted to Plaintiff upon the Father’s death, she cited no applicable authority supporting her position. Plaintiff’s reliance on the Fourth and Fourteenth Amendments was similarly unavailing; the Ninth Circuit has repeatedly stated that a district court “has authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim.” See, e.g., Shalit v. Coppe, 182 F.3d 1124, 1128 (9th Cir. 1999). Pursuant to the Marin County Superior Court’s custody and guardianship orders, Plaintiff had not shown that her custody rights had been breached. The district court held that the Marin County Superior Court’s subsequent May 4, 2017 order, appointing Defendant as Child’s guardian, was sufficient to establish the lawfulness of Defendant’s retention. The court concluded that Defendant met his burden to show that there was no genuine dispute of material fact as to Defendant’s lawful retention of Child. The Court therefore granted Defendant’s motion for summary judgment.