The New York Matrimonial Trial Handbook by Joel R. Brandes

 

The New York Matrimonial Trial Handbook is a “how to” book. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action and custody case. The book deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination and cross-examination of the parties and expert witnesses at trial. It is available in hardcover, as well as Kindle and electronic editions. It is also available from Amazon,  and other booksellers.  See Table of Contents. 

The New York Matrimonial Trial Handbook 2023 Cumulative Update is available on Amazon in hardcover, paperback, Kindle, and electronic editions. This update includes changes in the law and important cases decided by the New York Courts since the original volume was published. It brings the text and case law up to date through and including December 31, 2022, and contains additional questions for witnesses. See Table of Contents.

Recent Hague Convention District Court Cases - Soterano v. Aponte, 2023 WL 3790895, (S.D. Florida,2023)

 [Venezuela][Petition denied][Well-settled]

Soterano v. Aponte, 2023 WL 3790895, (S.D. Florida,2023).

Petitioner, Adel Jose Sabbagh Soterano, sought the return of his son A.S.O. and his daughter R.S.O. to Venezuela. The Mother argued one of the Hague Convention exceptions applies, specifically that the Father was not exercising custodial rights, that the Children would be at risk of harm if they were to return, or because the Father’s filing is untimely, the Children are well-settled and object to returning to Venezuela. The Court found that the Father had established a prima facie case for return. However, because the Father’s petition was not filed within a year of removal and the Mother had met her burden in showing that the Children were well-settled in their new environment and prefer to live with their Mother, the Court denied the Petition.

 

Recent Hague Convention District Court Cases - Sarmiento v Morales. 2023 WL 3886075 (S.D. Texas, 2023)

 Ecuador][Petition denied][Grave risk of harm]

Sarmiento v Morales. 2023 WL 3886075  (S.D. Texas, 2023)

Petitioner by Victor Modesto Hernandez Morales for the return of his five-year-old son, VAHV (o Ecuador. In January 2022, when he was not yet four, VAHV was brought to the United States by his mother. The Court found that Petitioner met his burden of proving, by a preponderance of the evidence, that VAHV was wrongfully removed from Ecuador. the Court found that Respondent met her burden of proving, by clear and convincing evidence, that VAHV was at grave risk of being exposed to physical and psychological harm should the Court order his return to Ecuador. The Court declines to order a return. The Petition for Return was denied.

 

Recent Hague Convention District Court Cases - Rothman v Rothman 2022 WL 20208933 ( N.D. California,2022)

 [United Kingdom][Discovery motion to compel granted]

Rothman v Rothman 2022 WL 20208933 ( N.D. California,2022)

 Petitioner objected on relevance grounds to the production of documents responsive to the following discovery requests: Documents sufficient to show all real or personal property possessed by you, any corporate entity in which you hold at least a 50% ownership interest, or any trust for which you are either a settlor or beneficiary, which property was located within California between August 2020 and the present.;  Any state and federal tax returns filed by you in the United States for the years of 2020 and 2021; Any filings or submissions provided, or representations made, to any authority of the United Kingdom or any political entity therein with responsibility for taxation of income or assets. The relevant time period for this request was any year for which income obtained between January 1, 2020, and December 31, 2021, would be relevant to such filings, submissions, or representations. The Court held that Courts regularly consider tax return evidence in determining habitual residence under the Hague Convention. See, e.g., Silverman v. Silverman, 338 F.3d 886, 890 (8th Cir. 2003); Foster v. Foster, 429 F. Supp. 3d 589, 599, 609 (W.D. Wis. 2019); Hofmann v. Sender, 716 F.3d 282, 287-88 (2d Cir. 2013); Wild v. Eliot, 147 F. Supp. 3d 49, 51 (D. Conn. 2015); Sorenson v. Sorenson, 563 F. Supp. 2d 961, 965 (D. Minn. 2008). Similarly, ownership by one or both parents of property within the jurisdiction can be a relevant consideration. Gaudin v. Remis, 379 F.3d 631, 635 (9th Cir. 2004); Smith v. Smith, 976 F.3d 558, 560 (5th Cir. 2020). The Court concluded that the information sought by the Respondent was relevant and discoverable. The respondent’s motion to compel was granted.

 

 

Recent Hague Convention District Court Cases - Revelo v Cedeno, 625 F.Supp.3d 529 (W.D. Louisiana, 2022)

 [Ecuador][Habitual residence][Petition granted][No Grave risk of harm]

Revelo v Cedeno, 625 F.Supp.3d 529 (W.D. Louisiana, 2022)

The District Court held that the child’s place of habitual residence was Ecuador; the child’s removal violated the father’s rights of custody, for the purpose of deciding the petition; the father was exercising his custody rights at the time of the child’s removal, supporting petition; and evidence was insufficient to demonstrate that child faced grave risk of harm if returned to live with father in Ecuador. Petition granted.

Recent Hague Convention District Court Cases - Peyre v McGary, 2023 WL 3726728. (D. Arizona, 2023)

 [France][Petition granted][ Consent and Grave risk of harm not established]

Peyre v McGary, 2023 WL 3726728. (D. Arizona, 2023).

While living in France, Father, and Mother got married and had twins. On June 30, 2022, Mother flew to the United States with the Children while Father remained in France. Mother contended it was part of an agreed-to plan for her to permanently relocate to the United States with the Children as she and Father were considering whether to divorce, while Father contended it was a summer vacation from which Mother and the Children were expected to return. Mother’s primary defenses were that “Father consented and/or acquiesced to removal or retention of the Children from France to Arizona” and that the return of the Children would expose them to a grave risk of harm based on Father’s domestic violence against Mother and serious abuse or neglect against the Children. The Court concluded that Father was entitled to relief and Mother was required to return the Children to France. Mother had not come close to establishing that the Children would be exposed to a grave risk of physical or psychological harm if returned to France.

Recent Hague Convention District Court Cases - Peyre v McGarey, 2023 WL 4351544 (D. Arizona, 2023).

 [France][Petition granted][ Mother’s motion for reconsideration denied]

Peyre v McGarey, 2023 WL 4351544 (D. Arizona, 2023).

The Court ordered the Mother to return the parties’ twin children to France. The mother’s motion for reconsideration was denied.

Recent Hague Convention District Court Cases - Neiuwenhoven v Pisani, 2023 WL 3794568, (M.D. Florida, 2023)

 [Australia][Petition granted][ application for attorney’s fees and costs]

Neiuwenhoven v Pisani, 2023 WL 3794568, (M.D. Florida, 2023)

The Court found that the minor child was wrongfully removed from her country of habitual residence and was due to be returned. Upon referral of Petitioner’s application for attorney’s fees and costs recommended that Petitioner’s motion be granted in part and denied in part and that he should be awarded attorney’s fees and costs in the total amount of $45,210.30. This total recommended award reflects reductions for a reasonable attorney hourly rate and a 30% reduction for financial hardship considerations. The requested hourly rate for Ms. Lungarelli was reduced from $495 per hour to $300 per hour, and the requested hourly rate for Ms. Estevez was reduced from $400 per hour to $250 per hour. Respondent offered no documentation in support of her contentions about financial hardship. While she stated she is not working, she did not state she was incapable of working. Nonetheless, she had no doubt incurred considerable expense during this litigation, her earning potential was unclear, and issues relating to marital finances likely remain unresolved. Whatever her income, the potential fee award in this case would be a substantial portion of it. Moreover, in his reply to Respondent’s memorandum opposing the application for fees, Petitioner did not dispute Respondent’s assertions regarding hardship or regarding her strained financial circumstances

 

Recent Hague Convention District Court Cases - McElliott v McElliott 2023 WL 4764816 (D. New Jersey, 2023)

 [Ireland][ motion to appoint a guardian ad litem denied]

McElliott v McElliott 2023 WL 4764816  (D. New Jersey, 2023)

Respondent’s motion to appoint a guardian ad litem for the benefit of the minor child C.M. whom Petitioner seeks returned to Ireland was denied.

 

Recent Hague Convention District Court Cases - Lugo v Padilla. 2023 WL 3853546, (M.D. Florida, 2023)

 [Venezuela][Petition denied][Well-Settled]

Lugo v Padilla. 2023 WL 3853546, (M.D. Florida, 2023)

Recommends, that the Petition be denied. Upon weighing the totality of the factors—none of which weigh in favor of a finding that the child is not well-settled—the court founds that Respondent has carried her burden of proving that M is well-settled by a preponderance of the evidence. M was well-settled in this community. Over a year has passed since M was removed from Venezuela, and M is now a well-settled child. M has spent a substantial portion of his life in this community, setting down roots all the while. That M’s original removal was wrongful does not justify yet another uprooting. As the United States Supreme Court has explained, “the expiration of the 1 year opens the door to consideration of a third party’s interests, i.e., the child’s interest in settlement.” Lozano, 572 U.S. at 15. This is a case where M’s interest in being settled outweighed the return remedy.

 

Recent Hague Convention District Court Cases - Junior v De Sousa. 2023 WL 4725909 (N.D. Ohio, 2023).

 [Brazil][Petition granted][Motion for reconsideration and stay pending appeal denied]

Junior v De Sousa. 2023 WL 4725909  (N.D. Ohio, 2023).

Petitioner Edward Jose Junior (“Jose Junior”) brought a petition seeking an order compelling the return of his child, A.S.C., to Brazil. In 2020, his ex-wife and A.S.C.’s mother, Respondent Aline Ferreira de Sousa wrongfully removed A.S.C. from Brazil. On June 27, 2023, this Court granted Jose Junior’s petition and issued a return order. Respondent Ferreira de Sousa asked the Court (1) to reconsider the return order on two grounds and (2) to stay the return order pending appeal. Motion denied.

 

Recent Hague Convention District Court Cases - Junior v de Sousa, 2023 WL 4228163 (N.D. Ohio 2023)

 [Brazil][Petition granted]

Junior v de Sousa 2023 WL 4228163 (N.D. Ohio 2023)

Petitioner Jose Junior sought an order compelling the return of his seven-year-old child, A.S.C., to Brazil. Petition granted. Jose Junior established a prima facie case of wrongful removal. Aline had not why a grave risk of harm would exist if A.S.C. returns. Aline also has not shown that Brazil would be incapable or unwilling to give A.S.C. adequate protection if it is later needed. Ferreira de Sousa’s grave risk defense failed. The Court similarly rejected Ferreira de Sousa’s argument that the United States human rights principles bar the return of A.S.C. This public policy defense should only be invoked only on “ ‘the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.’ ” Ferreira de Sousa has not met that high standard.

Recent Hague Convention District Court Cases - Godinez v Godinez. 2023 WL 3727863, (D. New Jersey, 2023)

 Mexico][Petition granted][wrongful removal][no grave risk of harm]

Godinez v Godinez. 2023 WL 3727863, (D. New Jersey, 2023)

Petition against Respondent Levi Helem Morales Godinez seeking the return of their three minor children, J.A., S.D., and E.M., to Mexico. The Petition was granted. Godinez exercised his custody rights, and he met his burden of demonstrating a prima facie case of wrongful removal under the Convention. While the Court was sympathetic, it could not find clear and convincing evidence that Morales’s limited testimony of domestic abuse, standing alone, was sufficient to establish that the children would be at grave risk of physical or psychological harm or otherwise in an intolerable situation if they were returned to Mexico. There was no evidence of any abuse, neglect, or violence directed toward any of the children. 

Recent Hague Convention District Court Cases - Godinez v Godinez, 2023 WL 4295763 (D. New Jersey, 2023)

 [Mexico][Petition granted][Stay pending appeal denied]

Godinez v Godinez, 2023 WL 4295763 (D. New Jersey, 2023)

Stay pending appeal denied.

Recent Hague Convention District Court Cases - De Costa v De Lima, 2023 WL 4049378 (D. Massachusetts, 2023).

 [Brazil][Petition denied][Well-Settled]

De Costa v De Lima, 2023 WL 4049378 (D. Massachusetts, 2023).

Petition for the return of six-year-old son to Brazil. T.F. was currently living in Martha’s Vineyard, Massachusetts. The Court found that T.F. was well settled in the United States and would not order his return to Brazil, It did not reach the issue of whether his return would put T.F. at grave risk of harm.

Recent Hague Convention District Court Cases - Chavnov v Chavnova, 2023 WL 4111369 (C.D. California. 2023)

 

Chavnov v Chavnova, 2023 WL 4111369 (C.D. California. 2023)

Petition to Return of the Child to Mexico. The petitioner was ordered to show cause why this cause should not be dismissed for failure to prosecute and comply with court orders. The petitioner may discharge the Order to Show Cause by serving Respondent in accordance with 22 U.S.C. § 9003(c) and California law governing service and filing adequate proof of service by July 12, 2023.

Recent Hague Convention District Court Cases -Argueta v Argueta-Ugalde 2023 WL 4206071(E.D. Michigan, 2023)

  

Argueta v Argueta-Ugalde 2023 WL 4206071(E.D. Michigan, 2023).

The Court granted the Petition to have minor child, M.A., returned to Brazil. Petitioner’s Motion for Attorneys’ Fees and Costs granted in part. Attorneys’ fees for Alvarez for 107.5 hours at $350 per hour for a total of $37,625; Attorneys’ fees for Grauman for 36.2 hours at $325 per hour for a total of $11,765; Paralegal fees for 92.1 hours at $135 per hour for a total of $12,433.50. Petitioner was entitled to an award of $61,823.50 in attorneys’ fees.