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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Saturday, July 7, 2018

Kovacic v Harris, 2018 WL 3105772 (D. Maryland, 2018) [Croatia] [Well-settled exception]




In Kovacic v Harris, 2018 WL 3105772 (D. Maryland, 2018) Plaintiff Ivica Kovačić (“Plaintiff” or “Kovačić”) sought the return of his daughter, “N.K.,” to Croatia. Plaintiff Ivica Kovačić and Defendant Danijela Harris (formerly Kovačić) were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.”, was born. Six years later, on February 9, 2009, the parties dissolved their marriage. In a Judgment dated that same day, the Municipal Court of Sisak, Croatia ordered that N.K. would “live with the mother Danijela Kovačić in Sisak...[and that p]arental care remain[ed] shared.”  The Croatian Court further ordered that Kovačić would have specified visitation time with N.K., pursuant to a schedule set out in paragraph III of the Judgment. Harris testified that after the divorce, Kovačić saw N.K. almost every other weekend. Two years later, Plaintiff moved to amend the Croatian Court’s Judgment, asserting that due to a change in circumstances N.K. should be entrusted to his care. The court declined to do so, noting a “problem of communication” between the parties “about their shared care of the minor child,” but finding that there was not a sufficient change in circumstances warranting an amended judgment.  In December of 2015, Harris departed Croatia and brought N.K. to the United States to see Harris’ sick aunt and grandmother. Kovačić had given Harris permission to apply for a tourist visa for N.K. and also agreed that N.K. could spend her winter school vacation from December of 2015 to January of 2016 in the United States. On January 7, 2016, however, Harris made the decision to stay in the United States. On January 6, 2017, Plaintiff filed suit under the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking the return of his daughter, “N.K.,” to her “habitual residence” in Croatia, On September 7, 2017, this Court approved the parties’ voluntary stipulation of dismissal on the ground that they had “agreed to settle this matter and ha[d] fully executed a settlement agreement.” Six months later, however, Plaintiff Kovačić filed a Motion for Relief from Judgment, asserting that Defendant had not honored commitments to intermittently send N.K. to Croatia. The Court granted Plaintiff’s Motion, and this case was scheduled for a two-day bench trial.

Plaintiff filed, among other things, a Motion in Limine to Admit Official Croatian Government Declarations, and a Motion for Partial Summary Judgment on Defendant’s Third Affirmative Defense.

The Court granted Plaintiff’s Motion in Limine to admit two declarations of Suncica Loncar, Senior Adviser Specialist for the Ministry for Demography, Family, Youth and Social Policy of the Republic of Croatia. He asserted that the declarations were instructive on the issue of whether Plaintiff had “rights of custody. The district court pointed out that it had  previously noted that “[i]t is well-established that the Hague Convention envisions that proof of foreign law may be established via ‘certificates or affidavits,’ Central Authority opinions, letters, and expert testimony.” Kovacic, 2017 WL 2719362, at *4 (citing Pérez-Vera Report, note 19; Whallon v. Lynn, 230 F.3d 450, 458 (1st Cir. 2000); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004)). Further, Federal Rule of Evidence 44.1 provides that “[i]n determining foreign law, the court may consider any relevant material or source, including testimony.” Fed. R. Civ. P. 44.1.

Plaintiff Kovačić also moved for partial summary judgment on Defendant Harris’ third affirmative defense which invoked the “well-settled” exception in Article 12 of the Hague Convention, asserting that it was undisputed that he filed suit less than one year after he learned of the wrongful retention. He asserted that Defendant stated in a Response to an Interrogatory that she did not make the decision to stay in the United States until January 7, 2016, and he filed this action on January 6, 2017. Defendant did not dispute that Plaintiff filed the action within one year of the wrongful retention. Rather, she argued that “it has been an additional year and a half since the filing, and N.K. is settled and has built a life in the United States.” The district court held that the only relevant time period for considering whether the well-settled exception applies, is the time between the alleged wrongful removal and retention and the filing of the action. Because Plaintiff filed this action within one year of learning that Harris intended to keep N.K. in the United States, the well-settled exception did not apply. Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Third Affirmative Defense was granted.