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Tuesday, October 28, 2014

Matter of R.B v. K.G., 2014 WL 5347587 (Fam Ct, 2014) [New York Family Court] [Israel] [Well Settled] [Age and Maturity]

In Matter of R.B v. K.G., 2014 WL 5347587 (Fam Ct, 2014) Petitioner-father R.B. filed petitions in early 2014, asserting that Respondent-mother K.G. wrongfully retained the subject children, M.B. (13) and G.B. (10), in the United States and that they should be returned to Israel, their country of habitual residence. The Family Court granted the petition.
The parents were born and married in Israel. Their two children were born in Israel and lived there for their entire lives until August 4–5, 2012, when the mother brought them to the United States. The parties August 12, 2007 divorce agreement was incorporated, but not merged, into a September 2007 judgment of divorce from a Family Court in Haifa, Israel. The Agreement stipulated that Ms. G. would have primary residential custody of the children and that both parents "will be guardians to the Children" within the meaning of Israeli custody law. It provided that: The Minors shall not leave Israel except upon the joint consent of the Husband and Wife. Notwithstanding the above, the Husband and Wife shall not withhold approval of the Minor's exiting the country where it is required for a trip abroad with the Husband or the Wife or any of their relatives or friends, for a period of up to 1.5 months. Both parties testified that, following the divorce, the father fully exercised his parenting and custodial rights in Israel. The children were closely bonded to each parent.
According to the mother's testimony, she developed an intent in or about December 2011 to spend at least a year in the United States with the children. She notified the father that she wished to do so, stating that she wished to study in the United States and that the children would have the opportunity to learn English. Mr. B. informed Ms. G. of his opposition to this plan. Over a period of several months, the parties attempted to hammer out an agreement through mediation. Ultimately, the father agreed to permit the children to accompany the mother to the United States for the one-year period of August 2012 to August 2013 provided that the mother agree to certain conditions. The parties never signed the agreement. The father testified that, ultimately, he did not want to interfere with the children's chance to spend a year in the United States and to learn English, and that he clearly understood that, even if not all of the financial arrangements were fixed, the children would in any case be returning within one year and that the mother would pay for his round-trip airfare to visit the children in the United States. The court found the father to be a truthful, very straightforward witness whose testimony the court credited. On August 4–5, 2012, the mother flew to New York with the children. Ms. G. did not return the children to Israel.
The father maintained regular contact with the children, by telephone and via Facetime, as well as through letters and packages. He tried to speak with the children about three times per week through telephone or Facetime, although he was not always successful. He visited the children in New York in October 2012, with the mother paying for his round-trip airfare. The father visited the children again in March 2013, staying with his new partner at a hotel in New York. The mother again paid for his round-trip airfare. During the spring 2013 visit, the mother raised for the first time the issue of having the children stay in New York for another year. The father adamantly opposed any extension. On April 6, 2013, the mother sent the father an email, stating in pertinent part,"... I have decided to try to extend our stay here for another year considering, among other things, the children's wishes and their best interest. " The father made clear his opposition to the children remaining in the United States.

In January 2014, the father, through counsel, filed a request for Family Court to register the Israeli divorce/custody order in New York and to enforce that order by directing the mother to return the children home to Israel. See DRL 77–d. On February 11, 2014, the mother filed an objection to the registration of the out-of-state custody order. The court held that the mother had not proffered any basis pursuant to statute to object to the registration of the order and that it was therefore proper to register the Israeli order.

Following the registration of the Israeli order, Mr. B.'s counsel re-filed the petition on March 3, 2014, seeking enforcement of the Israeli custody order and the return of the children to Israel, based in part upon the requirements of the Hague Convention. On May 5, 2014, the mother, through counsel, filed an answer and cross-petition seeking to "enforce and modify an order and for contempt of court." In the verified document, the mother specifically stated that the parties modified the 2007 Israeli order in 2012 and again in 2013. Ms. G. averred that the parties agreed in 2012 that the children would join her in New York "through the summer of 2013" and in 2013 that the children would remain in New York "through the summer of 2014." On June 11, 2014, the court on its own motion dismissed the mother's cross-petition for lack of jurisdiction for the reasons, citing, inter alia, DRL 76–b. The court indicated that determination as to habitual residence is fact-intensive and depends upon the most recent "settled intent" shared by those entitled to fix the children's residence, here their parents. Gitter, supra, 396 F.3d at 131–32. The focus is on the latest time the parents shared an intent. See also Hofmann v. Sender, 716 F.3d 282, 291–92 (2d Cir.2013). In making this determination, courts review the actions and declarations of the parents, as that normally controls the habitual residence of the children.

The Court found that Mr. B. established a prima facie of wrongful retention of the children. Although the parties did not actually sign the agreement permitting the mother to take the children to the United States before their trip to New York in August 2012, the parties had reached an understanding that the mother could take the children to New York for one year. The father, whose testimony the court credited based upon its observation of the father on the witness stand, as well as upon the logic and consistency of his testimony, acknowledged that he agreed to have the mother take the children to New York for one year from August 2012 to August 2013, although he and the mother could not come to terms on the financial assurances or penalties for noncompliance by the mother. Despite the mother's belated assertion that there was no firm agreement, her prior sworn statements that the initial trip to New York was for one year belied her later statements that it was for an indefinite period of time. In addition, based upon the mother's material inconsistencies in her sworn statements and testimony, as well as upon the court's observation of her demeanor on the witness stand, the court did not credit her testimony to the extent that it contradicted that of the father.

The parties' understanding that the mother could take the children for one year from August 2012 to August 2013 had great significance for the court's analysis. First, there was no wrongful removal of the children from Israel. The parties agreed to the one-year removal even though they did not sign a document. As that was the case, the claim by the mother and the attorney for the children that the father did not file the petitions within one year of the wrongful removal or retention of the children could not prevail. The father filed the proceedings in early 2014, well within a year of the alleged wrongful retention of the children in August 2013; consequently, the court could not analyze whether or not the children were well settled in their new environment and should not be returned.
There was no question but that the retention of the children in the United States after the initial year of August 2012 to August 2013 was wrongful. The father never consented to the children staying for a second year and not thereafter. The email exchanges between the parties and the father's credible testimony established that he vehemently opposed the children remaining in the United States for a second year. The period of wrongful retention commenced when the non-custodial parent, Mr. B., clearly communicated his desire to regain his custody rights and demanded the return of the children. In spring 2013, the father demanded return of the children as of August 2013. After not receiving an affirmative response and after exchanges with Ms. G., the father offered to allow the children to stay in New York for one final year, from August 2013 to August 2014 only if certain conditions were agreed upon and met, and only if that agreement were reduced to writing and signed by the mother, with the agreement ratified by the Family Court in Israel. The mother did not meet those conditions and the parents had no meeting of the minds as to a second year, and no shared intent to change the children's habitual residence. The father never abandoned attempts to have the children returned to Israel. The mother's testimony as to whether or not the father agreed to a second year was inconsistent and not credible. The mother's retention of the children in New York impaired and prejudiced the father's rights of access to his children in direct contravention of a long-negotiated agreement incorporated into the 2007 Israeli order of divorce. Both parties agreed at trial that the father was at all times exercising his custody rights. Under these circumstances, the court found that the mother's retention of the children in the United States as of August 2013 was wrongful.

With respect to respondent's "wishes of the children" defense, the focus is not so much on the wishes as it is on a valid "objection" to returning to Israel. While M. expressed enthusiasm about remaining in New York and articulately expressed her reasons therefor, the court was at the same time impressed by M.'s description of her ties to Israel. The court found G. to be very sincere, but at his age, he did not demonstrate the level of maturity necessary to make a life-changing decision to remain in the United States. M. did demonstrate a real level of maturity, but neither child focused upon what it would mean not to have their father in their life to the extent that he could participate in their day to day activities and decisions that materially affect their lives, as he had done since birth until the time the mother took them to the United States. Although the mother did not exercise undue influence upon the children, the court found that at least a substantial portion of the children's wish to stay in the United States resulted from the mother's wrongful retention of them here for a second year. In addition, the children did not "object" to being returned to Israel within the contemplation of this provision of the Hague Convention and ICARA. "They clearly preferred or wished to remain here, but an objection within the meaning of the Convention and ICARA refers to a more substantial basis, such as fear of physical, emotional or psychological harm, or some substantive basis other than enjoying the activities in which they are engaged or liking their friends in their new environment or the opportunities that new environment presents. The Court held that even were the court to find that the children "object" to repatriation in Israel within the meaning of the Hague Convention, it would exercise its discretion to order the return of the children to Israel because the parties had agreed that its courts would determine all custody issues. It noted that if the Israeli Family Court believes it is in the children's best interest to remain in or re-visit the United States, it has the power to modify its custody order.

Authors comment:

Hague Convention cases are not custody cases. The court is limited to adjudicating "only rights under the Convention" and may not decide "the merits of any underlying child custody claims. See Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). A petition for the return of a child commencing a civil action for the return of a child must be filed "in any court which has jurisdiction of such action." 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b).

The Supreme Court has jurisdiction to hear these proceedings. N.Y. Const, art VI, § 7[a]. On the other hand, the Family Court is a court of limited jurisdiction, whose jurisdiction is proscribed by Article VI, § 13 of the New York State Constitution. It has not been conferred with jurisdiction under Article VI, § 13 of the New York state constitution to determine such cases. A court hearing a Hague Convention proceeding must have jurisdiction of the action and must be authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). Family Court is not authorized to exercise such jurisdiction. While 22 U.S.C. § 9003, formerly cited as 42 USC § 11603, grants original jurisdiction of these proceedings to State and federal district courts, it does not grant jurisdiction to state courts of limited jurisdiction, such as the family court and surrogates court, nor does it purport to do so.

Moreover, Domestic Relations Law §77-a, the Uniform Child Custody Jurisdiction and Enforcement Act, which provides that a "court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination", does not authorize the commencement of a civil action for the return of a child.

It appears that the Family Court lacks subject matter jurisdiction to hear Hague Convention cases. This has been confirmed by the U.S. Court of Appeals for the Second Circuit, which has held that " [t]he phrase "in any court which has jurisdiction of such action," 42 U.S.C. § 11603(b), underscores that while § 11603(a) confers jurisdiction in a particular federal forum (i.e., in United States district courts), it does not confer jurisdiction in particular state courts (e.g., a family-law court; a juvenile court; or a court of general jurisdiction); the appropriate state forum for an action under the Hague Convention is an issue of state law. The court in which the petition is filed must also be "authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). See footnote 25.