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Thursday, July 12, 2018

Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018)[Israel] [Now settled defense] [Petition denied]

In Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018) the district court denied the Petition of Adis Marsha Amdamaskal (“Adis”) who sought the return of his children, M. and L., to Israel.

.         Adis immigrated to Israel from Ethiopia in 1991.  They were married in Ethiopia in 2002. After the marriage, Selamawit immigrated to Israel.  M. was born in 2006 while Adis and Selamawit were traveling in the United States. The family returned to Israel when M. was six months old. L. was born in Israel in 2011.  In March 2013, Adis was convicted of assaulting Selamawit and one of the children. Adis was sentenced to a conditional sentence of six months, with the condition being that he not be convicted of additional assaults.  Selamawit alleged that Adis regularly verbally and physically abused her during their marriage. Selamawit testified that she brought her children to the United States to protect them from Adis.  With Adis’s knowledge and permission, Selamawit and the children left Israel in January 2016 to visit family in Ethiopia. They were supposed to return to Israel on February 4, 2016, but instead Selamawit brought the children to the United States without the knowledge or permission of Adis. A few days after Selamawit traveled to the United States, Adis’s sister contacted one of Selamawit’s sisters in Ethiopia. Selamawit’s sister informed Adis’s sister that Selamawit had left for the United States.  Adis testified that Selamawit’s family thought that Selamawit had returned to Israel and that they did not tell him that she had departed for the United States. Documents in the record made it clear that Adis knew almost immediately that Selamawit and the children were in the United States. The Court therefore credited the written statement of Selamawit’s sister, that she told Adis’s sister that Selamawit went to the United States. On February 4, 2016—the same day that Selamawit and the children were supposed to return to Israel—Adis filed a complaint with the Israeli police concerning his missing wife and children. Ten days later, on February 14, 2016, Adis, through counsel, sent a letter and supporting materials to the Israeli Ministry of Justice entitled “Re: Application to Institute Proceedings Under The Hague Convention—Abduction of Minors.”  On February 29, 2016, Adis obtained an ex parte order from an Israeli court prohibiting the removal of the children from Israel. Adis also obtained a stay of leave order from the court dated March 1, 2016, apparently also prohibiting the children’s removal. Adis knew almost immediately that Selamawit and the children were in the United States. At least as early as March 2016, Adis knew that they were in Minnesota. And as of May 30, 2016, Adis knew that the children were probably living in St. Paul, where Selamawit’s sister and brother lived. Adis testified that he did not learn of his children’s whereabouts until sometime after March 2017. The Court did not credit this testimony. On March 7, 2017, Selamawit initiated divorce proceedings in Ramsey County District Court by serving Adis with a summons and petition for dissolution of marriage.  Adis initially filed what appeared to be a pro se response asking that the case be dismissed and citing, among other things, his Hague Convention application. In the meantime, the State Department formally notified the court that Adis had applied for the children’s return under the Hague Convention. The State Department explained that, as a result, the state court should refrain from making any custody determinations until the Hague Convention issue was resolved.. The state court eventually gave Adis until September 18, 2017 to initiate court proceedings under the Hague Convention.  Adis did not meet the September 18 deadline. But on or about October 17, 2017, Adis commenced this action in state court by serving Selamawit with a verified petition. Selamawit removed the proceeding to the district Court on October 31, 2017.

There was no dispute that Adis met his burden of proving that the children habitually resided in Israel, that their removal to the United States on or about February 4, 2016, was in breach of his custody rights, and that he was exercising those rights at the time of removal. Accordingly, the burden shifted to Selamawit to establish an affirmative defense to the children’s return. Custodio, 842 F.3d at 108922 U.S.C. § 9003(e)(2).  Slamawit first raised the “well settled” defense—that is, she asserted that Adis commenced these proceedings more than one year after the wrongful removal and the children are now settled in their new environment. Lozano, 134 S. Ct. at 1229. The district court found that she had proven the elements of the well-settled defense. The Hague Convention permits a court to deny a petition for a child’s return if the petition was filed more than one year after the wrongful removal and the child is settled in her new environment. The one-year period is not a statute of limitations; instead, its expiration “opens the door to consideration of a third party’s interests, i.e., the child’s interest in settlement.” Lozano, 134 S. Ct. at 1234–35. For that reason, it is not subject to equitable tolling. Id. at 1236. Adis did not dispute that he did not commence these proceedings until more than one year had passed from February 4, 2016, the date of the wrongful removal. See Wojcik v. Wojcik, 959 F. Supp. 413, 418–20 (E.D. Mich. 1997) (submitting a Hague Convention application to the State Department does not stop the one-year clock). The only question, then, was whether the children are settled in the United States. In this context, “settled” means that “the child has significant emotional and physical connections demonstrating security, stability, and permanence in [her] new environment.” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012)aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014). In determining whether a child is settled, courts consider such factors as: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent.

All of these factors indicated that M. and L. were settled in their new environment. At the time Adis filed the petition, the children were 11 and 6 years old, which is old enough to form relationships and emotional ties to the community. They had also been here for over 20 months—over a fourth of L.’s life—and had lived with extended family in the same housing complex since their arrival. Selamawit took immediate steps to enroll the children in school—and it was clear, from the specific and affectionate testimony of the school official, that they were fully integrated into and thriving in their classrooms. They were fluent in English. Through their school and after-school programming, the children had connection to their local religious community. The older child, M., was involved in age-appropriate extracurricular activities. The children were also surrounded by extended family; they not only lived with their uncle and his wife, but they had an aunt and cousins nearby with whom they were close. Finally, Selamawit was legally authorized to work in the United States, had a full-time job, and had applied for asylum; M. was a citizen of the United States. The Court found that Selamawit met her burden of showing that the children were settled in their new environment.

The Court observed that even when a court has found a child to be settled in her new environment, the court retains the equitable discretion to order the child’s return if other factors—including “the need to discourage inequitable conduct”—outweigh the child’s need for stability. Lozano, 134 S. Ct. at 1237 (Alito, J., concurring); see also Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007) (even if the respondent establishes an affirmative defense, the court retains the discretion to return the child if necessary to effectuate the goals of the Hague Convention).  In this case, returning the children to Israel despite their settled status in the United States was not necessary to serve the purposes of the Hague Convention. Although Selamawit did not inform Adis of the children’s location, she did not hide their presence in Minnesota. Instead, she lived openly with relatives—relatives whose identities and whose presence in the United States were known to Adis. She also enrolled the children in school, obtained medical care for them, and applied for asylum.