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Thursday, December 19, 2019

Stone v. Stone, 2019 WL 6790500 (D. New Jersey, 2019)[Israel] [Habitual residence] [Wrongful removal] [Petition denied]

In Stone v. Stone, 2019 WL 6790500 (D. New Jersey, 2019) the District Court denied Petitioner Yerucham Stone’s September 12, 2019 petition for the return of his three minor children to Israel.

Petitioner and Respondent were both United States citizens who were born in New Jersey. Both parties and the Minor Children were Orthodox Jews. Nearly all of the parties’ close familial relatives lived in the United States. Petitioner iwas a Talmudic scholar who began studying in Israel in or around 2010. Petitioner and Respondent met in Israel in August 2013, and married in a religious ceremony in New York on December 5, 2013. The couple had three minor children: D.S., age 5; R.S., age 3; and M.S., age 1. Although the Minor Children were born in Israel, they were solely citizens of the United States. Throughout the duration of their marriage, the parties primarily resided in Israel and made frequent return trips to the United States. 

In or around August 2018, Petitioner signed a five-year lease on an apartment. The parties subsequently invested the equivalent of approximately $10,000 to renovate the apartment. Petitioner entered Israel pursuant to an A2 student visa, which expired in 2023. Respondent, as the spouse of an individual present on an A2 visa, was permitted to remain in the country on an A4 accompaniment visa. Because Petitioner was present in Israel on a student visa, neither he nor Respondent was legally permitted to work in the country. The parties painted vastly different pictures of life in Israel. Respondent testified there were several times when the family could not afford to buy food for the Sabbath. Respondent alleged that Petitioner “began exercising more and more control over [her], refusing to give [her] any funds, or ... allow [her] to buy any clothing” and also described a general feeling of isolation. Respondent and the Minor Children had great difficulty communicating in Israel because they only spoke English and did not speak Hebrew.
When the parties traveled within the country, they primarily did so either on foot or via public transportation because they did not own a car. In February 2019, Respondent told Petitioner that a family emergency required her to return to New Jersey. Respondent testified that she fabricated the story because she “was pretty much sure that [Petitioner] would not allow [her] to leave if [she] were to tell him the truth of why [she] was leaving.” 

On February 23, 2019, Respondent flew to the United States, along with M.S., on roundtrip tickets, with a stated return date of March 7, 2019. Upon Respondent’s arrival the parties engaged in a telephone conversation wherein” Respondent asked Petitioner to travel to the United States so the two could share “vacation time” together. On March 14, 2019, Petitioner, D.S., and R.S. flew to the United States on roundtrip tickets, with a planned return date of April 30, 2019. Petitioner. D.S., and R.S. never used the return tickets. 

On or about March 24, 2019, once all five members of the family were present in New Jersey, Respondent informed Petitioner that she would not return to Israel. Petitioner testified that after this pronouncement, he never agreed to remain personally in the United States, nor did he explicitly agree that the Minor Children would remain in the United States. The Court found Petitioner’s testimony on this subject to be credible. Respondent further testified that while she knew Petitioner preferred to live in Israel, she “thought he decided to put our family as a preference before his preference of living in Israel.” The Court also found Respondent’s testimony to be credible. The Court, nevertheless, found that Petitioner’s subsequent actions demonstrated his willingness to remain in the United States and vitiated any explicit opposition he may have previously expressed.

On or about March 25, 2019, D.S. began attending kindergarten in Lakewood, New Jersey. On or about March 28, 2019, R.S. began attending Rivkie Schuster Play Group. Petitioner began attending lectures on the Talmud in Lakewood. New Jersey. During their time in the United States, until or around May 14, 2019, the parties primarily lived in the basement of Respondent’s brother, in Toms River, New Jersey. In April 2019, the parties executed a month-to-month lease on an apartment in Lakewood, New Jersey to begin on May 14, 2019. On or about April 12, 2019, Petitioner submitted an application to the appropriate New-Jersey state entities for Medicaid and other benefits. Petitioner averred on the application forms that he, Respondent, and the Minor Children were all residents of New Jersey. 

At some point during the Spring of 2019, Petitioner sought to secure a position at the Kollel. On May 5, 2019. Petitioner began studying at Yeshivas Be’er Yitzchok in Elizabeth, New Jersey. In or around May 2019, Petitioner spoke with Rabbi Sruly Blobstein about potentially securing a job for Respondent. Petitioner informed Rabbi Blobstein that Respondent had told him she did not wish to return to Israel. On or about September 5, 2019, D.S. began another year of kindergarten at Meoros. On September 12, 2019, Petitioner filed the petition. On October 17. 2019, Petitioner served Respondent with a copy of an Israeli Custody Complaint, filed in Family Court in Israel seeking a custody determination by that court. 

The Court noted that the Third Circuit has articulated four considerations relevant to determine whether a removal or retention was wrongful. Courts should consider: (1) when the removal or retention at issue occurred, (2) the child’s place of habitual residence immediately prior to the removal or retention, (3) whether the removal or retention violated the petitioner’s custody rights, and (4) whether the petitioner was exercising those rights at the time of removal or retention. Baxter, 423 F.3d at 368; see also Mozes, 239 F.3d at 1070. The date of removal or retention “establish[es] the relevant date of [the children’s] habitual residence for purposes of the Convention.” Karkkainen, 445 F.3d at 290. “[R]emoval refers to the parent’s physical taking of the child out of the country; [] retention refers to the parent’s keeping the child out of the country.” De La Vera v. Halguin, No. 14-4372, 2014 WL 4979854, at *6 (D.N.J. Oct. 3, 2014) (citing Baxter, 423 F.3d at 369).  

 “The inquiry into a child’s habitual residence is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case. In the Third Circuit, a child’s habitual residence is the place “where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” Feder, 63 F.3d at 224. Courts balance the “child’s circumstances in that place and the parents’ present, shared intentions regarding their child’s presence there.” “The first step towards acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Maxwell v. Maxwell 588 F.3d 245, 251 (4th Cir. 2009). When determining whether a change has occurred, courts will consider whether there has been “an actual change in geography” and a “passage of an appreciable period of time, one sufficient for acclimatization” by the children to the new environment. Papakosmas v. Papakosmas, 483 F.3d 617. 622 (9th Cir. 2007) (quoting Mozes, 239 F.3d at 1078)

Petitioner argued that Respondent wrongfully removed M.S. to the United States on February 23, 2019, when she traveled to New Jersey after lying to Petitioner about the reason for her trip. M.S. was one year old and had lived nearly his entire life in Israel, except for one trip to the United States. The Court, therefore, found M.S.’s habitual residence immediately preceding his removal to the United States was Israel. Respondent traveled with M.S. from Israel to the United States on February 23, 2019. The date of the alleged wrongful removal as to M.S., therefore, was February 23, 2019.

The critical inquiry for the analysis was whether the removal was “wrongful.” Respondent’s misrepresentation as to her personal impetus for the trip, alone, did not constitute a wrongful removal. See, e.g., Roche v. Hartz, 783 F. Supp. 2d 995, 1002 (N.D. Ohio 2011) (finding respondent-mother’s use of “misrepresentation to induce [petitioner-father] into agreeing to the trip” did not constitute a wrongful removal). On February 27, 2019, Petitioner traveled to the United States and met with Respondent. Petitioner never alleged Respondent denied him access to M.S. during this time. On March 7, 2019, Petitioner left M.S. in New Jersey with Respondent and returned to Israel. At no point during this time period, nor during the months preceding August 22, 2019, did Petitioner express to Respondent that he no longer consented to M.S.’s continued habitation with her in New Jersey. Nor did Respondent prevent Petitioner from exercising his legal custody rights. The Court, accordingly, found that as of February 23, 2019, Petitioner’s custody rights were not breached. The Court, therefore, found that M.S. was not wrongfully removed from Israel.

 Petitioner argued that by the time the Petition was filed, the “[Minor Children] had been definitively wrongfully retained in the United States [for] approximately four and one [-] half months.” Petitioner’s assertion would place the date of wrongful retention at some time towards the end of April or early May 2019. This date, however, conflicted with Petitioner’s Israeli Family Court Filing. Furthermore, this assertion conflicted with the actions taken by Petitioner subsequent to the alleged wrongful retention. A child is wrongfully retained on “the date beyond which the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof.” Blackledge, 866 F.3d at 179. Here, although Petitioner may have expressed a desire to return to Israel, he equivocally communicated to Respondent that he no longer consented to the Minor Children’s habitation with Respondent in New Jersey. The Court found, then, that the date of retention was not until August 22, 2019, when Respondent took the Minor Children from the Lakewood Apartment to Menachem Leibowitz’s Home, that Petitioner withdrew his consent for the Minor Children’s co-habitation with Respondent. Accordingly, for the purposes of the habitual residence analysis, the relevant date was August 22, 2019. See Karkkainen, 445 F.3d at 290 (holding the date of retention establishes the relevant date for determining a child’s habitual residence, for purposes of the Hague Convention); see also Blackledge, 866 F.3d at 179 (holding that because the petitioner never “clearly and unequivocally withdrew his prior consent,” the date of retention was the date the petition was filed).

Petitioner asserted that there was never a shared intent between the parties to abandon Israel as the Minor Children’s habitual residence. Petitioner’s argument was unconvincing. The sum total of his actions, considered along with the acclimatization of the Minor Children, led the Court to conclude that as of August 22, 2019. the Minor Children’s habitual residence was New Jersey. When a move includes “a degree of settled purpose” courts have found that a child’s habitual residence has changed. This “settled purpose” may be for a limited period of time and does not require an intention to stay in the new location indefinitely. Feder, 63 F.3d at 223-24. Here, while the Court agreed that the Minor Children’s presence in New Jersey was initially intended, at least by Petitioner, to be for a limited period of time, their continued presence in the state, coupled with numerous actions taken by the parties, including Petitioner, constituted a sufficient degree of settled purpose to change their habitual residence. After conducting a fact-intensive analysis, the Court found that there was shared parental intent to remain in New Jersey, for at least a period of time. There was, therefore, shared parental intent to abandon Israel as the Minor Children’s habitual residence and establish New Jersey as their new habitual residence.

The Court balanced the “shared parental intent” with the “acclimatization of the child,” in reaching its determination. See Whiting, 391 F.3d at 546. Finally, because R.S. was three years old, the Court considered both the “very young child” standard articulated in Karkkainen, and the acclimatization factors it considered for D.S. As with M.S., there was a shared parental intent for R.S. to remain in New Jersey for at least a limited period of time. Turning to the acclimatization factors, considering R.S.’s young age and her rapid acclimation to an educational environment where she was able to speak the language, the Court found R.S. had developed a set routine and acquired a sense of environmental normalcy. Due to these factors, the Court found R.S.’s habitual residence on August 22, 2019 was New Jersey. The Court weighed both the evidence of shared parental intent and the acclimatization of the Minor Children, and found the Minor Children were habitually resident in New Jersey on August 22, 2019. Because the Court found the Minor Children were habitually resident in New Jersey on the date of the alleged retention, the Court found Petitioner’s custody rights were not breached and, therefore, the retention was not wrongful under the Hague Convention. The Court held the Minor Children were not wrongfully retained by Respondent in New Jersey. Because M.S. was not wrongfully removed and because the Minor Children were not wrongfully retained, the Court, denied the Petition. 

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