In Hala v Anteby, 2025 WL 2987448, (E.D. New York, 2025) Uriel Hala (“Petitioner”) brought an action against Esther Bracha Anteby (“Respondent”) pursuant to the Hague Convention seeking the immediate return of a child, LRA, to Israel.
Petitioner and Respondent were the parents
of LRA, who was born on February 21, 2021, in Mishmar Ha’Yarden, Israel.
Petitioner was an Israeli citizen. Respondent was a dual American and Israeli
citizen who resided in Israel from 2015 until July 2023. Petitioner and
Respondent were never married but lived together from 2020 until separating in
December 2022. LRA was born at the
parties’ home in Mishmar Ha’Yarden, with the assistance of a midwife, on
February 21, 2021. Petitioner and Respondent did not begin the process of
legally registering LRA with the Ministry of Interior until June 2022. As part
of this process, Petitioner and Respondent submitted DNA samples, along with a
DNA sample from LRA, to prove paternity. On June 15, 2022, Petitioner and
Respondent also executed a mutual affidavit with the Peace Court in Tzfat,
Israel, attesting to the at-home birth of LRA. In a court proceeding before a
Family Court in Hadera, Israel, Respondent testified that Petitioner was LRA’s
father. Following this proceeding, Respondent was legally registered as LRA’s
mother by the Family Court, but Petitioner was not registered as LRA’s father
at the time.
After Petitioner and Respondent separated in December 2022, they made an informal agreement to exercise joint custody over LRA and set a schedule whereby LRA would spend an equal number of days with each parent. Petitioner remained fully involved in LRA’s life and care—including arranging and paying for her education, taking her to spend time with his extended family, and paying for her support while she was with Respondent. On July 27, 2023, Petitioner brought LRA to Respondent’s apartment in accordance with the agreed upon schedule. On July 29, 2023, Respondent informed Petitioner that she was traveling on a short vacation to Ein-Hod, Israel and that he would not be able to pick up LRA from day care on July 30, 2023, as previously arranged, but that he could pick up LRA upon her return. Respondent then stopped communicating with Petitioner. On August 1, 2023, Respondent’s mother, Batia Anteby, informed Petitioner that Respondent brought LRA to Brooklyn, New York and would not return to Israel. Since then, Petitioner has only been in contact with Respondent’s mother, who resides at 1570 East 10th Street, Brooklyn, New York. Respondent’s mother sent Petitioner photos and videos of LRA, which appeared to be taken outside and inside of the home at that address. However, Respondent’s mother has not confirmed the residence of either LRA or Respondent.
On August 4, 2023, Petitioner filed an application seeking the return of LRA with the Israeli Central Authority (“ICA”). However, Petitioner’s application was delayed because Petitioner was not registered as LRA’s father with the Ministry of Interior. On February 15, 2024, the Family Court in Hadera certified, based on the previously submitted DNA samples, that Petitioner is LRA’s biological father. Months later, the ICA confirmed that Petitioner is LRA’s father. Petitioner then commenced this action on May 20, 2024, filing a Complaint, Verified Petition, and Motion for a Temporary Restraining Order, among other documents.
After being unable to locate Respondent, Petitioner, among other things, moved for leave for substituted service upon Respondent, pursuant to Rule 4(e)(1). The Court observed that Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that “an individual ... may be served in a judicial district of the United States by ... following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. Proc. 4(e)(1). In New York State, service may be effected “in such manner as the court, upon motion without notice directs, if service is impracticable under paragraphs one [personal service], two [leave and mail service][,] and four [nail and mail service].” S.E.C. v. HGI, Inc., No. 99 CIV. 3866 (DLC), 1999 WL 1021087, at *1 (S.D.N.Y. Nov. 8, 1999) (citing N.Y. C.P.L.R. § 308(5)). Although N.Y. C.P.L.R. § 308(5) requires a demonstration of impracticability as to other means of service, it does not require proof of due diligence or of actual prior attempts to serve a party under the other provisions of the statute. Id. (first citing Franklin v. Winard, 592 N.Y.S.2d 726, 727 (1st Dep’t 1993).Any form of service must comport with due process by being “reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” SEC v. Tome, 833 F.2d 1086, 1093 (2d Cir.1987) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Of relevance here, service by email, without more, comports with the requirements of due process “where a [petitioner] demonstrates that the email is likely to reach the [respondent].” Vega v. Hastens Beds, Inc., 110 Fed. R. Serv. 3d 1372, 339 F.R.D. 210, 217 (S.D.N.Y. 2021)).
The district court found that Petitioner demonstrated that email is likely to reach the respondent. Indeed, Petitioner contended that Respondent acknowledged receipt of Petitioner’s papers via email. Specifically, Petitioner argued that, on separate occasions, Respondent, using the email address of ebanteby@gmail.com, emailed Petitioner’s counsel regarding mediation and acknowledging receipt of Petitioner’s papers. As such, service by email was appropriate, and Petitioner was granted leave to effect substituted service, via email, upon Respondent.
