Nissim v. Kirsh, 2019 WL 3369450 (S.D. N.Y., 2019)[Israel] [Habitual Residence] [Consent] [Petition granted]

          In Nissim v. Kirsh, 2019 WL 3369450 (S.D. N.Y., 2019) the district court granted the petition for return. It found that the Parties’ decision to move to the United States was conditioned on the parties and child living in the same home as a family. Since Respondent eliminated that condition by unilaterally carrying off the Child to another home on the other side of the country, there was no mutual agreement that the Child’s habitual residence would change from Israel to the United States. 

          In 2008, Orna Kirsh, a dual United States and Israeli citizen, married Dror Nissim, an Israeli citizen. In 2009, their Child, a dual United States and Israeli citizen, was born in Israel and, with the exception of the occasional vacation to the United States, has lived entirely in Israel. In the Spring of 2018, Dror received a promotion that would require him to relocate from Israel to California. Dror and Orna jointly decided to move to California to pursue the promising economic opportunity. The parties agreed to travel separately to California so that Orna could prepare the living arrangements and get settled for the start of the Child’s school. Orna and the Child did, in fact, travel to California on August 1, 2018, and Dror travelled to California on August 13, 2018.On August 6, 2018, while Dror was in Israel, Orna purchased two plane tickets from California to New York for herself and the Child. Orna decided to depart for New York while Dror was in the air, on his way to California. Orna testified that, while in California, she had a “revelation” that she wanted to leave Dror and take the Child with her to New York. At no point, from the booking of the plane tickets to arriving in New York, did Orna disclose this “revelation,” or any relevant facts, to Dror. Upon landing in California, and after brief exchanges via text message and e-mail relating to pick-up at the airport, Dror arrived at the family’s California apartment only to find it empty with a note on the kitchen counter. In the note, received by Dror on August 13, 2018, Orna disclosed her decision to relocate, with the Child, to New York. Dror Nissim (“Petitioner” or “Dror”) initiated this action on December 10, 2018.

  While the Parties disputed the family’s intentions accompanying the move, the district court found that, upon relocating to California, it was the family’s intention to move and live together, and that the Parties intended on returning to Israel after their stay in California. Both Dror and Orna made preparations in accordance with that joint plan. Petitioner never sought any documentation other than a three (3) year work visa. Both Orna and Dror owned property, both jointly and separately, that they were currently renting or constructing in Israel. Both Parties left credit card accounts open in Israel. the family left items in storage that they were not bringing with them to California. They only sought temporary housing. Furthermore, the Parties discussed their intent to remain in California on a temporary basis only. Following Respondent’s arrival to California with the Child, this Court found that Orna’s plan to move the Child to New York was concocted unilaterally without significant pre-meditation. 

          The district court observed that determining a child’s country of habitual residence is a threshold issue in nearly all Hague Convention cases. Guzzo. While the Hague Convention itself does not define “habitual residence,” the Second Circuit has instructed that “courts should begin an analysis of a child’s habitual residence by considering the relevant intentions,” specifically “the intent of the person or persons entitled to fix the place of the child’s residence.” Gitter, 396 F.3d at 131. When those tasked with fixing a child’s place of residence, for instance a child’s parents, disagree on the child’s place of habitual residence, the court must “determine the intentions of the parents as of the last time that their intentions were shared. Without evidence of a “settled mutual intent” to change a child’s habitual residence, courts have been reluctant to fund such a change. Ermini v. Vittori, 2013 WL 1703590, at *12 (S.D.N.Y. July 8, 2014). In addition to shared intent, courts must look to the acclimatization of the child to her new surroundings. See Gitter, 396 F.3d at 133 (“[W]e must consider whether ... the evidence points unequivocally to the conclusion that the child has become acclimatized to [her] new surroundings and that [her] habitual residence has consequently shifted.”). While a child’s acclimatization may reach a level of completeness such that removal from the new location would cause serious harm, such acclimatization is rarely on display. See Heydt-Benjamin v. Heydt-Benjamin, 404 F.App’x 527, 529 (2d Cir. 2010); Ermini, 2013 WL 1703590, at *12. Further, although the test is two-pronged, analyzing the intention of the persons entitled to fix a child’s place of residence is the most important aspect of the analysis, particularly when a child is young. See Guzzo, 719 F.3d at 110 (2d Cir. 2013).

          The court noted that the Child was born in 2009 in Tel Aviv, Israel. For all intents and purposes, the family’s entire life was in Israel, especially that of the Child. 2In October of 2018, the Parties decided to temporarily relocate, as a family, to California due to a lucrative job opportunity offered to Petitioner by his company. The evidence supported the Court’s finding that the move was intended to be temporary. Dror obtained a temporary visa and demonstrated no intention of obtaining further documentation. Correspondence with the Company indicated that the move was temporary. Thus, the Court found that no settled mutual intent existed to change the Child’s habitual residence from Israel to the United States.

           The Court the had to determine if the Child has acclimated to her new surroundings. See Heydt-Benjamin, 404 F.App’x at 529. At the time Petitioner initiated the proceedings, the Child’s unfortunate reality had taken her from her home in Israel of nine (9) years to Mountain View, California, all just to turn around and trek back to New York, New York. All of this in a matter of twelve (12) days. The Child was enrolled in three different schools in that same time frame, only two of which she actually attended; had no friends, was unfamiliar with the new environment, and was struggling with the fact that her world had been turned upside down. Thus, at the time of filing, the Child had not acclimated to her new surroundings. The district Court found that their last shared intent was for the Child’s habitual residence to be Israel. Furthermore, the evidence did not demonstrate a transition so complete as to “unequivocally point to the conclusion that the child has acclimatized to the new location and has thus acquired a new habitual residence.” Ermini, 2013 WL 1703590, at *12. Petitioner has satisfied his burden of establishing that the Child, who is a habitual resident of Israel, has been removed or retained in the United States.

          The Court found that Petitioner had custody rights under Israeli law. Legal Capacity and Guardianship Law 5728-1962 (stating that both parents are equal guardians of their children). Further, as the Child has spent her entire life with both of her parents, Petitioner was exercising those custody rights and would still be exercising those custody rights if the Child had not been wrongfully retained. 

          The district court held that two Second Circuit cases directly controlled the outcome of this case: Mota and Hofmann. Mota, 692 F.3d at 116; Hofmann, 716 F.3d at 291. In Mota, the Second Circuit considered whether the retention of a child was “wrongful” when the mother consented to the child’s removal to the United States from Mexico on the condition that she would later be able to join her child and the child’s father at a later date. While the child successfully made the journey to the United States, the mother was unable to cross the border. The child’s father then refused to return the child to Mexico and the mother filed a petition pursuant to the Hague Convention. On appeal, the Second Circuit agreed with the district court’s ruling that the mother’s consent to the child’s removal was conditioned on the family living together in the United States. Acknowledging the effect of the unmet condition precedent, the Second Circuit affirmed that the last shared intent of the mother and father was that the child live in Mexico, the state in which she was habitually resident. In Hofmann, a mother and father lived in Canada with their two sons. Hofmann, 716 F.3d at 286. Family difficulties led the couple to explore relocation opportunities to New York. Shortly thereafter, the mother took the two sons on a trip to New York as the first step in their “permanent relocation” to New York. Although the family was in the process of relocating, the district court found that any consent to the children’s removal to New York, on the part of the father, was conditioned on the family living together in New York. Although “this condition may not have been expressly stated, it was understood by the parties,” the mother in particular. Shortly thereafter, the mother decided that she was unhappy in the marriage, sought a divorce, changed her children’s names, and found a home for her and the children. The district court found that at no point did she share any of this with the father of the children. Following their last vacation as a family, the mother told the father to meet her in New York under the guise of sending his children off for the first day of school. When he arrived, however, he was served with divorce papers. On appeal, the Second Circuit agreed with the district court in finding that the mother and father “had a shared intent to relocate to New York, but the extent to which that intent was shared was limited by [the father’s] conditional agreement that the relocation was to be accomplished as a family.” Before the relocation was complete, the mother “developed the unilateral intention to reside in New York with the children but without” the father. The mother’s “decision to retain the children in New York without their father ... precluded satisfaction of the condition on which [the father’s] shared intent was based.” 

          The court found that the facts here mirrored those of both Mota and Hofmann. As in Mota and Hofmann, it was the family’s intent to move and live in California together As in Mota and Hofmann, Petitioner consented to the initial removal of the Child from Israel to the United States. However, although perhaps not expressly stated, that removal was conditioned on the family living together, in California, for a short period of time. At no point was that conditioned satisfied. Thus, the Child continued to be wrongfully retained in New York in violation of Petitioner’s custody rights.

          In 2008, the Parties signed a financial agreement that was approved by court order. In 2009, the Parties entered into an agreement outlining the scope of the custody rights of the Parties in the event of a dispute., Neither agreement operated as a waiver of Petitioner’s custody rights or his rights under the Hague Convention.The 2009 Agreement was entered into prior to the birth of the Child. The third paragraph of the 2009 Agreement states: “If either of the parties decides that they are not interested in continuing their shared life, for any reason whatsoever, it is agreed between the parties that [Respondent] will be the parent with custody, and she may leave Israel and permanently reside abroad together with the daughter who is soon to be born and/or any other child who will be born to the parties in the future in any place that [Respondent] decides at her sole discretion.” Further, the fourth paragraph of the 2009 Agreement reads:“[Petitioner] undertakes not to object to and not to impede in any way the performance of clause 3 above, and he also commits not to undertake any proceedings, legal or otherwise, whether by himself or by someone on his behalf, whether in Israel or abroad, including proceedings under the Hague Convention, and including by means of a departure prohibition order, whether against [Respondent] or against the [Child] who is soon to be born to the parties and/or any other child who will be born to the parties.”
The Court held that while these clauses might be relevant and important in Family Court in Tel Aviv, the 2009 Agreement did not constitute a waiver of any sort in this proceeding. First, although it stated that it supersedes the 2008 Agreement, the 2009 Agreement was not approved by court order. In addition, there was no indication that Dror still consented to the terms of the 2009 Agreement or that the 2009 Agreement was not modified, either orally or otherwise, at some point during the nine (9) years of marriage following its enactment. The Court found that the conduct of the Parties indicated a modification to the 2009 Agreement. From 2009 onward, the family lived together, in Israel. They did so for the entirety of the Child’s life prior to her wrongful retention. She attended school, had friends, and was, by all accounts, doing very well. The Parties provided no evidence indicating the thought of moving the Child or separating as a family. Moreover, the Parties provided no testimony pertaining to discussions or conversations relating to the 2009 Agreement following their initial reconciliation. Furthermore, the validity and relevance of the 2009 Agreement was belied by Petitioner’s surreptitious conduct in this case. According to Respondent, she was acting within the terms of 2009 Agreement when she unilaterally moved to New York with the Child. Yet she still felt the need to move her family to California under the guise of a family relocation, enroll her Child in school, send misleading texts to her husband, and conceal from Dror that her actions were appropriate in accordance with the terms of their previously negotiated 2009 Agreement. The Court was not convinced. If Orna believed the 2009 Agreement to be binding, she would likely have told Dror at some point after she came to the realization that she wanted to leave. Booking plane tickets for the precise time Dror would be in the air, sending texts insinuating her and the Child’s presence in California, and leaving a lone note in an otherwise empty apartment were actions inconsistent with the belief that her actions were protected by the 2009 Agreement. For those reasons, neither the 2009 Agreement constituted a waiver of Petitioner’s rights in the instant case.

           The district court pointed out Article 13(a) of the Hague Convention creates an exception relevant to the case. A respondent may withstand a petition to return a child if:“[T]he person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; ...”To successfully make out a consent defense, a respondent “must establish by a preponderance of the evidence that Petitioner had the subjective intent to permit Respondent to remove and retain the child for an indefinite or permanent time period.” More specifically, the key to the analysis is “the petitioner’s subjective intent” – an inquiry that includes the nature and scope of the alleged consent. Moreno v. Casilio Pena, 2015 WL 4992005, at *11 (S.D.N.Y. Aug. 19, 2015) (quoting In re Kim, 404 F.Supp.2d at 516); see Mota, 692 F.3d at 117  (“[T]he nature and scope of the petitioner’s consent, and any conditions or limitations, should be taken into account.”). In other words, “it is important to consider what the petitioner actually contemplated and agreed to ...”. Chumachenko on Behalf of P.B. v. Belan, 2018 WL 6437062 (S.D.N.Y. Dec. 7, 2018). Here, the only evidence indicating consent was the 2009 Agreement prev. Orna presented no evidence that any consent allegedly bestowed by the 2009 Agreement was still valid in the instant situation. Respondent provided no indication that the Parties discussed the 2009 Agreement at any point following the birth of the Child. Further, even if Dror did consent to the removal of the Child, he did not consent to removal in such a nefarious manner. All of the testimony indicated that the move to California was a family affair, and that Respondent’s “revelation” did not occur until she was in California – long after the decision to move had been made. Validity of the 2009 Agreement aside, it could not be the basis for consent to the particularized and deceitful events that transpired in this case. Thus, Respondent had not satisfied her burden, and consent was not a defense to the Petition.