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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Thursday, June 21, 2018

Medina v Villasanti, 2018 WL 3036558 (N.D. Texas, 2018)[Mexico][Habitual Residence][Petition denied]



In Medina v Villasanti, 2018 WL 3036558 (N.D. Texas, 2018) the district court denied Plaintiff Gloria Medina’s petition for return of child to Mexico. The district court found that bBeginning around 2007, Medina and Brandon Villasanti dated and lived together in Dallas, Texas, United States. In September 2009, Medina gave birth to a child (“SBV”) fathered by Villasanti. Eventually, Medina and Villasanti’s relationship ended. Medina and SBV moved to San Luis Potosi, Mexico while Villasanti remained in Dallas. For several years, Villasanti would annually visit Medina and SBV in San Luis Potosi. During the summer of 2015, Medina’s and Villasanti’s stories diverged. Medina alleged that Villasanti requested Medina’s permission to take SBV to the United States merely for a limited vacation. To memorialize this agreement, Villasanti sought Medina’s signature on a contract written in English. But because Medina only understood Spanish, Villasanti orally translated the agreement to Spanish for her. Medina maintained that Villasanti’s translation of the agreement matched his initial request: to take SBV to the United States for a brief vacation. Thus, Medina signed the agreement. Villasanti claimed instead that he clearly requested and received Medina’s permission to take SBV to the United States indefinitely. In support, Villasanti produced the agreement at issue. Signed by Villasanti on July 31, 2015, notarized on the same day, and signed by Medina a day later, the agreement indicated that Medina granted permission for SBV to travel and live with Villasanti and that Medina trusts Villasanti to take care of SBV while she is living with him. Villasanti further claimed that his translation of the agreement to Spanish accurately reflected its terms, including that it would allow him to retain SBV without any temporal limit. Based on the agreement, Villasanti took SBV to Dallas. According to Medina, Villasanti began wrongfully retaining SBV in late August of 2015 when he did not return the child to Mexico. As a result, Medina filed the petition for return of SBV. The Court found Villasanti to be the more credible witness and, in all cases where Medina’s testimony conflicted with Villasanti’s testimony, the Court accepted Villasanti’s account.


The district court noted that Medina’s petition was  one for wrongful retention. The threshold inquiry in any wrongful retention case is determining which country is the child’s habitual residence. The Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie, 690 F.3d at 310. The inquiry balances the interests of the child with the intentions of the parents.  A court’s “inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” When determining a child’s country of habitual residence, analysis focuses on the “parents’ shared intent or settled purpose regarding their child’s residence.. The inquiry balances the interest of the child with the parents’ intentions, but gives greater weight to the parents’ subjective intentions when the child is relatively young and incapable of deciding residency. Absent shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” Mozes, 239 F.3d at 1082. “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,]...most courts will find no change in habitual residence.’ 

The Court determined that SBV’s habitual residence at all times relevant to Medina’s petition had been the United States. Prior to August 2015, SBV’s habitual residence was Mexico: the fact that SBV resided there with Medina for several years with Villasanti making annual visits exhibits the parents’ shared intent for the child to remain in Mexico. But, when Villasanti took SBV to the United States in August 2015, that changed. Although the parties disputed the length of time that Medina allowed Villasanti to take SBV to the United States, the Court credited Villasanti’s testimony on this matter. Villasanti produced the written agreement at issue, which did not include any temporal limit. Where a written agreement between the parents determines the child’s habitual residence it controls. As a result, the parties evinced a shared intent in August 2015 to change SBV’s habitual residence to United States. Thus, because SBV habitually resided in the United States at the time Medina filed the  petition and Medina consented to SBV’s residing there indefinitely, Villasanti had not wrongfully retained SBV.

The district court also determined first, that even assuming that Medina has made a prima facie case for wrongful retention, Villasanti  met his burden under ICARA to prevent SBV’s return to Mexico. Villasanti established by clear and convincing evidence that there was a grave risk that SBV’s return to San Luis Potosi would expose her to physical harm. In support, Villasanti produced photographs of SBV’s arms taken mere months after her arrival in the United States in August 2015. The images demonstrated that SBV was ravaged by bugs while residing in Mexico over the previous several years.  Villasanti testified that pickup trucks full of civilians armed with automatic weapons openly drive on the public streets of Medina’s village. Villasanti also testified that SBV was malnourished when he picked her up in Mexico. The Court credited Villasanti’s photographs and testimony as sufficiently establishing a grave risk of physical harm to SBV if returned to Mexico.

It also found that Villasanti also established by a preponderance of the evidence that Medina consented to Villasanti’s retention of SBV in the United States. 

Even if Medina did not consent to the retention, it found that SBV was settled in her new environment. Longer than a year elapsed from the date of the alleged wrongful retention and the filing of the and Villasanti testified at trial that SBV (1) had been enrolled in school since her arrival in the United States, (2) lived in a home with Villasanti and her grandparents, and (3) repeatedly said she did not want to return to Mexico when asked. Collectively, this testimony established by a preponderance of the evidence that SBV was settled in her new environment.
Signed June 19, 2018.