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Monday, May 23, 2011

Khalip v Khalip, 2011 WL 1882514 (E.D.Mich.) [Ukrane] [Federal and State Judicial Remedies]

In Khalip v Khalip, 2011 WL 1882514 (E.D.Mich.) Petitioner Oleg Yuriyovich Khalip (Petitioner) sought the return of his two minor children, claiming that the children's mother, Respondent Alla Viktorivna Khalip, a/k/a Alla Viktorivna Galkin, (Respondent), wrongfully removed them from the Ukraine to Michigan. Petitioner was born in 1964 in the Ukraine and was a citizen and resident of the Ukraine since his birth. Respondent was born in 1977 in the Ukraine. She was a native and citizen of the Ukraine, where she resided until June 11, 2010. Petitioner and Respondent were married on January 25, 2002. Their two children were born in the Ukraine; IOK in 2002 and KOK in 2003. On November 20, 2009, Petitioner and Respondent divorced; a custody agreement was not reached during the divorce proceedings. On May 11, 2010, Petitioner signed a notarized application, which gave consent to Respondent to permanently move IOK and KOK to the United States. On June 1, 2010, Petitioner signed a notarized application revoking his consent because, according to Petitioner, Respondent breached an oral agreement related generally to the upbringing of the children and their permanent residence after the age of 16. According to Petitioner, he personally served the revocation application on Respondent on June 8, 2010. In support, he proffed three affidavits from witnesses who said that they overheard the conversation between Petitioner and Respondent. Respondent disputed that she was ever served with Respondent's revocation. On June 10, 2010, Respondent moved to Michigan with IOK and KOK, where they permanently resided since. According to Petitioner, Respondent picked up the children from school on June 10, 2010, and secretly took them to Michigan without Petitioner's knowledge. According to Respondent, Petitioner agreed to the move. Respondent asserted that upon their arrival in Michigan, she provided Petitioner with telephone and email contact information. She said that the children had regular contact with Petitioner via phone and video chat and that Petitioner visited them twice in Michigan within two months. Petitioner did not admit or deny the visits. On June 14, 2010, Respondent remarried to Leonardo Alex Galkin (Galkin). Respondent, Galkin, and the two children now lived together in Ann Arbor, Michigan.

The Court observed that under Ukrainian law, each spouse has equal rights and obligations in the marriage and family. Article 51, Ukraine Constitution. The Family Code of Ukraine establishes the equal rights and duties of the parents with regard to a child whether they were married or not. Article 141, Ukraine Family Code. Particularly, a divorce does not influence on the extent of the parental rights and duties. A child's residence under the age of ten shall be determined by the consent of his or her parents. Article 160, Ukraine Family Code. If a mother and a father who live separately have not come to agreement in the question where the minor children should live, their dispute may be resolved by a court. Article 161, Ukraine Family Code. Finally, if one of the parents or any other person willfully, without consent of another parent or another persons, with whom the minor child lived according to the law or by the court decision, change the place of his or her residence, also by means of abduction, a court, upon application of the interested person, has the right to deliver immediately the decision on depriving the child and his or her return to the last place of residence. Article 162, Ukraine Family Code.

On July 7, 2010, a Ukraine district court entered a decision in response to Petitioner's consent revocation application, which certified Petitioner's revocation and held that Respondent had illegally taken the children without Petitioner's consent. The Ukrainian appeals courts affirmed the lower court's decision, after which the Ukranian district court ordered immediate taking of the children. On February 2, 2011, Respondent appealed to the Highest Specialized Court of Ukraine. The high court accepted the appeal, effectively staying the lower court's rulings.

On September 3, 2010, Petitioner filed the petition. On March 9, 2011, the Court heard oral argument on the petition. On March 23, 2011, the Court interviewed the children in chambers. Each articulated the reasons that they do not want to return to the Ukraine: generally, because they recalled that the Ukraine was dirty and preferred the United States, which they said was cleaner and bigger. KOK stated that she did not want to be without her mother. Petitioner moved the Court to appoint an independent psychologist to interview the children, and the Court ordered a psychologist to "determine and report to the Court and both parties whether or not the children have attained an age and degree of maturity for the Court to take account of their views." If the answer to the first question was "yes," the psychologist was further ordered to "determine and report the children's views regarding returning to the Ukraine to live." The psychologist's report was filed with the Court, and both parties, on April 19, 2011. In response to the Court's first question, the psychologist stated: In my professional opinion, speaking as a psychologist, neither child (IOK or KOK) is at his or her present age and stage of cognitive and emotional development capable of conducting a mature (in the sense of: thoughtful, rational, and reasonably balanced and comprehensive) analysis of his or her own best interests with respect to the question of returning to live in the Ukraine with their father.

Respondent conceded that the Ukraine, where the children were born and had always lived, was the habitual residence of the children prior to their removal. To demonstrate that he was exercising valid custody rights at the time the children were removed to Michigan, Petitioner, inter alia, cited his consent revocation application and the decisions from the Ukraine district and appellate courts, which certified the revocation and ordered the children's return. Respondent said she did not wrongfully remove the children because Petitioner consented to the children's permanent change of residency, relying on the May 11, 2010, consent application. She asserted that she was not aware of Petitioner's June 1, 2010, revocation at the time that she moved with the children on June 10, 2010. Based on the evidence, particularly the consent revocation document, which was notarized before Respondent moved with the children, the court held that Petitioner submitted sufficient evidence to show that at the time the children were removed he was exercising his custody rights. Further, the surreptitious nature of Respondent's move with the children--without Petitioner present and executed in an unplanned manner by picking up the children from school without the Petitioner's knowledge or that of the children's caretaker--weighed in favor of Petitioner's assertion that Respondent moved without his consent. Finally, even if Respondent was not aware of the revocation, it did not take away from the fact that Petitioner exercised his rights by expressly revoking his consent in a notarized writing, which he then filed in the Ukranian courts for certification. This was not a case where Petitioner simply changed his mind. Thus, Petitioner established by a preponderance of the evidence that the children were wrongfully removed.

Respondent argued that Petitioner consented to the removal when he signed the consent application, and that he subsequently acquiesced in the removal of the children when he visited them in Michigan on two occasions. In response, Petitioner argued that he did not consent to the children's removal and again profferred the consent revocation document and the Ukranian district and appellate court decisions to support his assertion. On balance, the evidence weighed in Petitioner's favor. Particularly, the consent revocation document and the Ukranian district and appellate court decisions persuaded the Court that Petitioner was actively exercising his custodial rights before and after the children were removed. Also, the manner in which the children were removed supported the inference that Petitioner did not consent to the children's removal. Petitioner's visits to Michigan and communication over email and through video chat failed to demonstrate that he acquiesced in the removal. The Court also found that IOK and KOK had not reached the requisite level of maturity that a Court should consider their views. Accordingly, the Court found that the age and maturity defense did not apply.

The Petition was granted and it was ordered that the parties' children, IOK and KOK, be returned to the Ukraine, pursuant to the Convention and ICARA. However, in light of Respondent's May 13, 2011, supplemental filing, submitted on the eve of the Court's decision, the Court stayed the effectiveness of this decision for 30 days. The Court recognized that the July 7, 2010, decision from a district court in the Ukraine, which ordered the immediate return of the children appeared to have been effectively stayed by the Highest Specialized Court of Ukraine. In the Ukraine, "High Specialized Courts shall consider cassation complaints of respective court jurisdiction; analyze, study, and cumulate court practice; assist lower courts to ensure identical application of Constitutional norms and laws in court practice; perform other functions." Martindale-Hubbell Law Digest, Ukraine, 11 (2008). The Highest Specialized Court of Ukraine "ruled": (1) [t]o start cassation proceedings, concerning the claim of [Petitioner] towards [Respondent] ... concerning separation of the children, their return to the permanent place of residence to Ukraine and determination of the place of residence of the children with [Petitioner]"; (2) [t]o suspend execution of decision of Leninskiy district court of Zaporizhya city dated July 07, 2010 till termination of the cassation proceedings of the case"; (3) "[t]o demand the mentioned civil case from Leninskiy district court of Zaporizhya city"; and (4) "[t]o send the copies of the cassation appeal and the enclosed materials of the case to the persons who participate in the case[,] to explain their right to file an objection to cassation appeal till May 20, 2011."

Based on the above ruling, the nature of the future proceedings in the Ukraine courts was not altogether clear. As it related to the present petition, under Article 15 of the Convention: judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. The Court should also consider the "length of time it will take to obtain the required documentation." Hague International Child Abduction Convention; Text and Legal Analysis, Department of State, March 26, 1986, at 14-15. In the interest of comity, the Court gave considerable weight to the Ukraine court decisions in deciding whether the children were wrongfully removed and should therefore be returned to Petitioner; the Highest Specialized Court's decision is no different. On the other hand, the Court has an obligation under the Convention to make an expeditious decision. With these conflicting considerations in mind, effectiveness of this decision was stayed for 30 days to allow the parties the opportunity to further illuminate the status of the legal proceedings in the Ukraine, including the time it will take the courts in the Ukraine to resolve the pending proceedings.

Thursday, May 12, 2011

Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) [Israel] [Habitual Residence]

In Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) the Eight Circuit reiterated the rule it established in Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir.2010) and Silverman v. Silverman, 38 F.3d 886, 897 (8th Cir.2003) (en banc) that the factors relevant to the determination of habitual residence include "the settled purpose of the move from the new country from the child’s perspective....", rejecting the approach of the Ninth Circuit.

Michelle, a dual citizen of the United States and Israel, met Martin, on a visit to Israel in 2000. He was a dual citizen of Israel and Canada. Michelle moved from the United States to Israel with her two children. Martin and Michelle were married in a religious ceremony in Israel. Their son DJ was born in 2003. In 2005 Michelle was accepted in a doctoral program at Iowa State University, and Martin signed a document consenting to her traveling to Iowa with DJ "for as long as she is enrolled in her PhD studies." Martin characterizes the document as memorializing a mutual agreement that Michelle and DJ would return to Israel as soon as her studies ended. Michelle denied there was such an agreement, and only Martin signed it. The document did not specify what would happen after Michelle's studies ended. In August 2005 Michelle moved to Iowa with her older children and DJ, who was then two. Martin followed in October 2005, after closing his taxi business in Israel. Michelle filed for divorce in October 2007 although she did not serve Martin with any papers. Martin returned to Israel in February 2008. At that time he believed Michelle would soon follow him there with the children. Shortly after Martin left the United States, Michelle proceeded with the divorce and requested temporary custody of DJ. During divorce proceedings, Michelle revealed that she would return to Israel with DJ and her other children only if she could find work there in her field.

Martin brought an action in the district court for DJ's return to Israel under ICARA. The district found after trial that DJ habitually resided in the United States. It found DJ had "considerable connections with his current [Iowa] environment." At the time DJ was seven years old and had been living in Iowa since he was two. He had visited Israel once when he was three. DJ had finished one year of kindergarten in Iowa and had celebrated holidays with Michelle's family in Des Moines. In sum, the district court found that DJ had acclimated to Iowa. Regarding the intentions of DJ's parents, the district court found that the couple had intended to make Iowa DJ's habitual residence, at least during Michelle's studies, even though they planned to return to Israel eventually. Based on its findings it denied Martin's petition. The Eighth Circuit affirmed.

On appeal, Martin argued that the district court gave insufficient weight to the parties' intention to return to Israel after Michelle graduated. The Eight Circuit pointed out that in Barzilay, supra, it explained that "factors relevant to the determination of habitual residence [include] 'the settled purpose of the move from the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.' " Settled purpose "need not be to stay in a new location forever, but the family must have a 'sufficient degree of continuity to be properly described as settled.' " It concluded that from the perspective of the child, who had lived in Missouri for five years, the settled purpose of the family's move was to remain there permanently despite an agreement by the parents to move the whole family to Israel should either spouse return.  Here, the district court found that from DJ's perspective, the settled purpose of his relocation to Iowa was to reside there habitually. In reaching this decision, the court relied on Barzilay and a Third Circuit case discussing the element of  settled purpose, Whiting v. Krassner, 391 F.3d 540 (3rd Cir.2004). Whiting held  that settled purpose does not require an intention to stay in a new location  forever. Rather, one's "purpose while settled may be for a limited period," and education could prompt such a move.(quoting In re Bates, CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)).

Martin argued that the district court gave too much weight to DJ's perspective in considering the move's "settled purpose" and too little to the Sterns' intent to return to Israel after Michelle finished her degree. He argued that the Court should focus on the parents' intention to return to Israel rather than on DJ's acclimatization and perceptions. He cited Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), a Ninth Circuit case that did not consider the settled purpose concept "very useful" which held, in contrast to its decisions in Barzilay and Silverman, that without "settled parental intent, courts should be slow to infer from [a child's] contacts that an earlier habitual residence has been abandoned." The Eighth Circuit rejected this approach, pointing out that the settled purpose of a child's move must be viewed from the child's perspective, and observing it had been rejected by the Sixth Circuit, which characterized it as having "made seemingly easy cases hard and reached results that are questionable at best." Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007). It held that the child's perspective should be paramount in construing this convention whose very purpose is to "protect children," and declined to adopt a framework that would contradict its own precedent and frustrate the Convention's goal of 'deter [ring] parents from crossing borders in search of a more sympathetic court.

The record here favored Iowa as DJ's habitual residence whether the Court emphasized DJ's perspective or that of his parents. The district court found that the parties' intent at the time of the move was to make Iowa DJ's habitual residence. It did not clearly err in doing so. The Court concluded that under the Hague Convention "the court must focus on the child, not the parents, and [must] examine past experience, not future intentions," Silverman, 338 F.3d at 898.