USA – FEDERAL – SILVERMAN – 2002(2002) (Return Denied) (Habitual Residence) (Grave Risk) SILVERMAN v SILVERMAN. The court found that the district court erred in refusing the return based on “grave risk) the children were ordered returned to Israel for a determination of custody issues.
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Silverman v Silverman [USA 2002]USDC of Minnesota, Civil No. 00-2274 (JRT)
05 International Abduction [USA 2002]
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UNiTED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ROBERT HECHTER SILVERMAN, Civil No. 00-2274 (JRT)
Plaintiff,
FINDINGS OF FACT,
v. CONCLUSIONS OF LAW AND
ORDER DENYING
PLAINTIFF’S
JULLIE HECHTER SILVERMAN PETITION
Defendant.
Susan Anderson McKay, MCKAY LAW OFFICE, 11359 Windrow Drive,
Eden Prairie, Minnesota, 55344, for plaintiff.
Michael Baxter, LAW OFFICES OF MICHAEL BAXTER, 14501 Granada
Drive, Suite 200, Apple Valley, Minnesota, 55124, for
defendant.
Plaintiff Robert Hechter Silverman brings this action
against defendant Julie Hechter Silverman (now Julie
Hechter) pursuant to the Hague Convention, 19 I.L.M. 1501
(1980), and the International Child Abduction Remedies Act
(“ICARA”), 42 U.S.C. 11601 et seq., alleging that she
wrongfully removed their children to or retained them in the
United States. Plaintiff contends that the children are
habitual residents of Israel within the meaning of Article 3
of the Convention and accordingly seeks an order from the
Court directing the prompt return of the children to that
country. Plaintiff also seeks an order directing defendant
to pay his attorney’s fees pursuant to 42 U.S.C. 1
1607(b)(3). The Court has jurisdiction to hear this matter
under ICARA Section 4. 42 U.S.C. 11603(a) (providing
concurrent original jurisdiction over actions arising under
the Convention in state and federal district courts).
This matter came on for an evidentiary hearing before
the Court on March 18, 2002. The Court heard testimony from
plaintiff’s father, plaintiff and defendant, received
affidavit testimony and obtained exhibits. Afterwards, the
Court interviewed Samuel Silverman, age ten, in chambers
with counsel present. The Court then gave the parties an
opportunity to submit closing arguments and amended findings
of fact and conclusions of law to the Court. Based on the
entire record and proceedings, the testimony at the hearing
and arguments of counsel, the Court enters the following
findings of facts and conclusions of law.
FINDINGS OF FACT
1. All of the Findings of Fact set forth herein are
undisputed or have been proved by a preponderance of the
evidence.
2. To the extent that the Court’s Conclusions of Law
include what may be considered Findings of Fact, they are
incorporated herein by reference.
3. Robert was born in South Africa and holds dual
citizenship in the United States and Israel.
4. Julie is a dual citizen of the United States and
Israel. She holds a degree in sociology from the University
of Washington.
5. Robert and Julie met in 1988 while both were working
at the Hyatt Hotel in Jerusalem – he as a cook and she as
the Assistant Restaurant Manager.
6. In March 1989, Robert and Julie moved to the United
States for Robert to pursue his studies. They were married
in Seattle, Washington on July 16, 1989. At the time, they
resided in Poughkeepsie, New York.
7. Robert and Julie moved to San Francisco, California
in 1991 where their oldest son, Samuel, was born on March 2,
1992. Sam is now ten years old.
8. The family lived in San Francisco until April 1993
when they moved to Los Angeles, California. In May 1995, the
family moved from Los Angeles to Plymouth, Minnesota where
they resided from May 1995 until the end of July 1999.
9. Their second son, Jacob, was born on July 5, 1995 in
Minneapolis, Minnesota. He is now 6 years old.
10. In the summer of 1997, Robert and Julie contacted a
realtor in Israel to inquire about purchasing property with
the intention of relocating to Israel but could not make any
commitment until they sold their home in Minnesota.
11. In April 1998, the family began their efforts to sell
their home. During this time, Julie obtained estimates of
the cost to have their property moved to Israel.
12. Their home was sold in January 1999 and the closing
took place on March26, 1999. In March 1999, Robert began
applying for Aliyah to Israel, which is the equivalent of
immigration. Julie had already made Aliyah in 1987 during
her residence in Israel from 1987 to 1989.
13. Julie does not dispute that she wanted to move to
Israel and believed that Israel would be the right place to
raise children. She also says that she and Robert set the
move up to be permanent, but as time drew nearer to the
move, she was very torn because she did not think she wanted
to stay in the marriage. Robert and Julie had problems in
their marriage for a very long time and had sought marital
counseling several times. FN01
14. In the months leading up to the move, Robert was
working in La Crosse, Wisconsin. According to Julie, she and
Robert were separated at the time, although Robert denies
this.
15. By July, Julie says she did not want to go to Israel
but Robert convinced her to make the move. Julie agreed,
stating that she made the move only as a final effort to
reconcile her marriage.
16. The family left the United States on July 26, 1999
and arrived in Tel Aviv on July 27, 1999. FN02 The
household goods had arrived in Israel three months prior to
the family’s arrival in Israel.
17. Upon their arrival, the family stayed with relatives.
They first stayed with Robert’s sister in Hod Hosharon,
Israel for one month. In late August 1999, the family moved
to Raanana, Israel and stayed with Robert’s parents for
another two months. Raanana is located about 20 kilometers
from Tel Aviv. Almost immediately, as early as August 1999,
Julie says that she told Robert she wanted to return to the
United States.
18. Robert and Julie never purchased a home in Israel,
but in October, they entered into a lease to rent an
apartment and moved into the apartment in November.
19. In October 1999, Julie flew back to the United States
to file for bankruptcy in Minnesota after learning from her
father that she and Robert were nearly $100,000 in debt.
According to Julie’s testimony, she wanted to take the
children with her to the United States, but Robert refused
to let the children go with her.
20. Upon her return, Julie learned that Robert had
obtained a Tzav lkuv (the equivalent of a restraining order)
which prevented her from leaving Israel. FN93 On that same
day, Robert informed Julie that he knew about her affair and
that he had been reading her emails for the last six months.
Robert canceled the restraining order on November 3, 1999
after the parties agreed to try again to reconcile their
marriage. Nonetheless, Robert testified at his deposition
and acknowledged at the hearing that he would not have
allowed Julie to leave Israel with the children at any point
between October 1999 and June 2000. Julie also testified
that for the last nine months of her stay in Israel, Robert
engaged in threats, force and coercion during this time
which prevented her from leaving Israel.
21. As for the children, Sam was enrolled in the Havovel
Elementary School and Jacob was enrolled in preschool. They
made friends, learned to speak Hebrew and did well in
school, Sam participated in extracurricular activities,
including chess club, basketball and baseball.
22. In January 2000, Julie and Robert returned to
Minnesota to complete the bankruptcy proceeding. FN04 Both
parties attended the bankruptcy discharge hearing and
stated, under oath, that their permanent address was
Plymouth Minnesota. FN05
23. In April 2000, the parties filed a joint United
States income tax form for 1999 which listed their address
as Plymouth, Minnesota. Both parties signed the tax return.
24. In June 2000, Julie left Israel with the two children
for a summer trip to the United States and Canada, obtaining
Robert’s written consent to make the trip. She purchased
round-trip tickets and was scheduled to return to Israel on
August 30, 2000. At the airport before their departure,
Robert threatened Julie. It was at that moment, Julie says,
that she made the decision not to return to Israel.
25. Julie filed for legal separation from Robert and
custody of the two children in Hennepin County District
Court on August 10, 2000. Robert was served with the
petition in Israel. Robert then filed a motion to dismiss
the action, contending that the court lacked jurisdiction to
hear the custody issues. Robert also filed a Hague Petition
on October 10, 2000 in federal district court seeking return
of the children to Israel. On that same day, the state court
heard argument on Robert’s motion to dismiss for lack of
jurisdiction.
26. On October 17, 2000, the state court referee issued
an order 1) granting Julie temporary sole legal custody and
temporary sole physical custody of the children, 2) granting
Robert the right to reasonable visitation, and 3) appointing
a guardian ad litem for the children.
27. On May 4, 2001, the state court issued its Findings
of Fact, Conclusions of Law, Order for Judgment and Judgment
and Decree. In its Findings of Fact, the court found that
the parties’ move to Israel in August 1999 was temporary and
was made in an attempt to restore stability in their
marriage. The court further found that Julie and the
children would have returned to Minnesota from Israel in
October of 1999 but they were prevented from doing so by
Robert. The court also relied on the fact that in a
bankruptcy petition filed in October 1999, both Robert and
Julie signed the joint petition listing their permanent
address as 1300 West Medicine Lake Road, Plymouth,
Minnesota.
28. While the state proceeding was still pending, Julie
moved in the federal court to dismiss the case on abstention
grounds. On November 13, 2000, then-Chief Judge Paul A.
Magnuson granted her motion, concluding that there is an
ongoing state proceeding which implicates important state
interests and that Robert has an adequate opportUnity to
raise the Hague issues in state court. Silverman v.
Silverman, Civ. No. 00-2274 at 5-7 (PAM/JGL) (Nov. 13,
2000).
29. Robert appealed that decision: and on October 4,
2001, the Eighth Circuit concluded that abstention was
improper and remanded the case for an evidentiary hearing.
Silverman v. Silverman, 267 F.3d 788, 792 (8th Cir. 2001),
petition for reh’g en banc denied. The case was reassigned
to this Court and defendant moved shortly thereafter for a
jury trial based on the Eighth Circuit opinion. On February
21, 2002, the Court denied defendant’s motion. Silverman v.
Silverman, No. 00-2274, 2002 WL 264932 at *4 (D. Minn. Feb.
2l, 2002).
30. While the state and federal cases were pending in the
United States, a rabbinical court in Israel ruled on
November 16, 2000 that Israel was the place of residence of
Sam and Jacob during the eleven-month period in question and
that Julie’s failure to return to Israel in August 2000 was
prima facie evidence of wrongful retention of the children
in violation of the Convention. The decision was upheld on
October 30, 2001.
CONCLUSIONS OF LAW
The Hague Convention, to which the United States and
Israel are signatories, is an international treaty adopted
“to protect children internationally from the harmful
effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the
State of their habitual residence.” Hague Convention,
Preamble. Its primary purpose is “to restore the status quo
ante and to deter parents from crossing international
boundaries in search of a more sympathetic court.” Rydder v.
Rydder, 49 F.3d 369, 372 (8th Cir. 1995) (citing Friedrich
v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993)). A
decision under the Convention is not an adjudication of the
merits of any underlying custody claim. Hague Convention,
art. 19; 42 U.S.C. 1 160 l(b)(4).
In order to obtain relief under the Convention,
plaintiff must prove by a preponderance of the evidence that
his children were “wrongfully removed or retained within the
meaning of the Convention.” 42 U.S.C. 11603(e)(1)(A).
FN06 To demonstrate wrongfulness under Article 3 of the
Convention, plaintiff must prove that: “1) defendant
[retains} the children from their “habitual residence,” and
2) plaintiff was exercising his parental custody rights over
the child at the time of the [retention}.” Freier v. Freier,
969 F. Supp. 436, 439 (ED. Mich. 1996); Miller v. Miller,
240 F.3d 392, 398 (4th Cir. 2001).
If plaintiff satisfies his burden that the retention
of Sam and Jacob was wrongful, the Court must order the
return of the children to their habitual residence unless
defendant establishes one of the affirmative defenses set
forth in Articles 12, 13 or 20 of the Convention. These
exceptions are construed narrowly. Rydder v. Rydder, 49 F.3d
369, 372 (8th Cir. 1995).
In this case, defendant asserts there is a grave risk
that returning Sam and Jacob to Israel “would expose them to
physical or psychological harm or otherwise place them in an
intolerable situation.” Hague Convention, art. 13(b).
Defendant also contends that Samuel, age 10, objects to
being returned to Israel and that he “has attained an age
and degree of maturity at which it is appropriate to take
account of his views.” Hague Convention, art. 13. FN07
I Habitual Residence
As stated above, plaintiff carries the burden of
proving by a preponderance of the evidence that Julie’s
refusal to return Sam and Jacob to Israel constitutes a
wrongful retention under the Convention. To satisfy this
burden, plaintiff first must establish that the habitual
residence of Sam and Jacob at the time of the wrongful
retention was Israel. Miller v Miller 240 F 3d 392, 398 (4th
Cir 2001), Cohen v Cohen, 602 N Y S 2d 994, 998-99 (Sup. Ct.
1993). FN08
The Hague Convention does not specifically define the
term “habitual residence.” As one court observed, “[t}his
has been a matter of deliberate policy, the aim being to
leave the notion free from technical rules, which can
produce rigidity and inconsistencies as between legal
systems.” In re Bates, No. CA122.89 at 9-10, High Court of
Justice, Fam. Div’n Ct. Royal Court of Justice, United
Kingdom (1989). Consequently, the determination of one’s
habitual residence is a fact-based inquiry to be analyzed on
a case-by-case basis.
While the intent of the framers of the Convention is
for the concept of habitual residence “to remain fluid and
fact based,” Levesque v. Levesque, 816 F. Supp. 662, 665 (D.
Kan. 1993), several district and circuit courts have given
more precise descriptions of “habitual residence” The Eighth
Circuit has characterized habitual residence as one’s
“ordinary residence.” Rydder, 49 F.3d at 373. Many courts
have cited with approval the view articulated by Lord
Scarman in Shah v. Barnet London Borough Council and other
appeals:
[T]here must be a degree of settled purpose The
purpose may be one or there may be several It
may be specific or general All that the law
requires is that there is a settled purpose
That is not to say that the propositus intends
to stay where he is indefinitely Indeed his
purpose while settled may be for a limited
period Education, business or profession,
employment, health, family or merely love of
the place spring to mind as common reasons for
a choice of regular abode, and there may well
be many others All that is necessary is that
the purpose of living where one does has a
sufficient degree of continuity to be properly
described as settled.
Shah, [1983] 1 All E.R. 226, 233 (Eng. H.L.) (discussed and
adopted in In re Bates, at 33).
In one of the most recent decisions on this issue,
the Ninth Circuit concluded that “the first step toward
acquiring a new habitual residence is forming a settled
intention to leave the one left behind.” Mozes v. Mozes, 239
F.3d 1067, 1075 (9th Cir. 2001). The court further held
that, although it is the child’s habitual residence that is
being determined, “the intention or purpose which has to be
taken into account is that of the person or persons entitled
to fix the place of the child’s residence ” Id at 1076
(quoting E. M. Clive, The Concept of Habitual Residence,
1997 Jurid. Rev. 137, 144). The Third Circuit has similarly
noted that the determination requires consideration of both
the child’s circumstances and the parents’ shared intent
Feder v Evans-Feder 63 F 3d 217, 224 (3d Cir 1995)
(explaining that “a determination of whether any particular
place satisfies this standard must focus on the child and
consists of an analysis of the child’s circumstances in that
place and the parents’ present, shared intentions regarding
their child’s presence there”). In Ponath v. Ponath, 829 F.
Supp. 363 (D. Utah 1993), the district court echoed this
view, observing that “[although it is the habitual residence
of the child that must be determined, the desires and
actions of the parents cannot be ignored.” Id. at 367. The
court continued, “[t]he concept of habitual residence
must… entail some element of voluntariness and purposeful
design.” Id. FN09
Evaluating the case at bar under the above standards,
the Court determines that the habitual residence of Sam and
Jacob never changed from the United States to Israel and
therefore, Julie’s retention of the children in the United
States since June 2000 was not wrongful. With the exception
of the eleven months spent in Israel, Sam and Jacob have
spent their entire lives in the United States. The evidence
also indicates that their time in Israel would have been
much shorter had Julie not been prevented from leaving
Israel with the children from October 1999 until June of
2000. From October to November, she was prevented from
leaving Israel by virtue of the Tzav Ikuv issued by an
Israeli court on an ex parte basis. Although that order was
lifted a month later, Robert stated at his deposition and at
trial that he would not have allowed his wife to leave
Israel with the children in September, October, November or
December 1999. He also agreed that he would not have allowed
Sam and Jacob to leave Israel in January, February, March,
April, May and June of 2000 and that he would have prevented
Julie from leaving had he believed that she would return
with the children to the United States permanently. Julie
also testified that in the last year they were together in
Israel, Robert was physically violent towards her and that
he threatened to take her children away from him. FN10
Although Robert denies the abuse, the issue is one of
witness credibility and, on this point, the Court finds
Julie more credible. Tsarbopoulos v. Tsarbopoulos, 176 F.
Supp. 2d. 1045, 1056 (E.D. Wash. 2001) (weighing the
credibility of the witnesses in determining whether verbal
and physical abuse did occur).
In two similar cases, courts have concluded that a
coerced residence is not a settled intent to live there.
Ponath, 829 F. Supp. at 368; Tsarbopoulos, 176 F. Supp. 2d.
1045. In Ponath, petitioner, a citizen of Germany, and
respondent, a citizen of the United States, lived in Utah
with their two-year-old son. Id. at 366. On November 6,
1991, the family traveled to Germany on round-trip tickets
to visit petitioner’s family. Id. Although they were
scheduled to return to the United States a month later, they
remained in Germany much longer. Id. Two weeks after
arriving there, petitioner found employment and by April
1992, he began construction of a house on property near that
of his parents. Id. As early as February 1992, respondent
expressed her desire to return to the United States with the
minor child, but petitioner refused to permit her to leave
and prevented them from leaving through verbal, emotional
and physical abuse. Id. The court concluded that the
habitual residence of the minor child was the United States.
Id. at 367. In reaching this conclusion, the court
explained:
[W]hat began as a voluntary visit to
petitioner’s family in Germany, albeit an
extended visit, might be viewed by the court as
change of habitual residence of the minor child
but for respondent’s intent and desire to
return to the United States with the minor
child and petitioner’s willful obstruction of
that purpose. Petitioner’s coercion of
respondent by means of verbal, emotional and
physical abuse removed any element of choice
and settled purpose which earlier may have been
pre sent in the family’s decision to visit
Germany. . . . For the court to grant
petitioner’s motion, and thereby sanction his
behavior in forcing continued residence in
Germany upon respondent, and through her, the
minor child, would be to thwart a principle
purpose of the Hague Convention. In the court’s
view, coerced residence is not habitual
residence within the meaning of the Hague
Convention.
Id. at 367-68.
In Tsarbopoulos, the children were all born in the
United States and lived in the United States their entire
lives until their father, a Greek citizen and naturalized
citizen of the United States, accepted a position with the
Goulandris Museum in Athens, Greece. 176 F. Supp. 2d at
1051. At the time, Dr. Tsarbopoulos worked at the
Schering-Plough Research Institute in New Jersey. Although
the family moved to Greece in October 1997 and Dr.
Tsarbopoulos signed a two-year contract FN11 with the
museum, Dr. Tsarbopoulos did not resign from his position
with Schering-Plough until January 1998. Id. at 1052-53.
During that time, he maintained his insurance benefits and
represented to the company that he still lived in New
Jersey. Id. He also maintained various financial
arrangements in the United States, including a U.S. bank
account and U.S. addresses in order to qualify for air
mileage. Id. at 1052. The facts also revealed a history of
verbal and physical abuse by Dr. Tsarbopoulos towards his
wife, Kristi Tsarbopoulos. Id. at 1050. Witnesses described
Dr. Tsarbopouls as a very domineering husband who controlled
the finances and decision-making process and kept his wife
socially isolated. Id. This conduct continued in Greece and
worsened to the point where, in December 1999, Kristi
Tsarbopoulos returned to the United States with the three
children. Id. at 1054.
Petitioner filed a Hague petition, arguing that
Greece was the habitual residence of his children because,
among other things: 1) the family had lived there for 27
months; 2) the family took all of their clothes and
belongings to Greece; 3) he sought and obtained repatriation
benefits to aid with the move FN12 and 4) his wife had once
stated that she had a “dream of living in Greece.” The court
rejected .the father’s argument, concluding that Greece was
not the habitual residence of the children and that the
United States continued to be their habitual residence. Id.
at 1057. In the court’s view, the children did not
sufficiently acclimatize to Greece to make it their habitual
residence. Id. at 1055. The two youngest children had very
little socialization outside the family. Id. Although Hari,
the oldest, attended school and began to learn the Greek
language, the court found this evidence insufficient to
establish Greece as his habitual residence. Id. The court
further determined that the Tsarbopolous’s did not have a
shared intent to abandon the United States as their habitual
residence. Id. The court based this decision, in part, on
the verbal and physical abuse endured by Ms. TsaEbopoulos.
Id. at 1056. According to the court, “[t}he verbal and
physical abuse of one spouse by the other is one of several
factors in the Court’s determination of the existence of
‘shared intent’ to make a place the family’s ‘habitual
residence.” Id. FN13
The Court is guided by these decisions and, for the
reasons stated above, finds that Julie’s residence in Israel
from October to June was coerced and that she did not share
a settled intent to make Israel the family’s habitual
residence. There is also evidence, as there was in
Tsarbopoulos, which calls into question the permanency of
the move to Israel. In the bankruptcy petition filed in
October 1999 and when they appeared in court in January
2000, the parties swore under oath that their residence was
1300 Medicine Lake Road, Plymouth Minnesota. Likewise, the
couple’s 1999 income tax forms, filed in April 2000 and
signed by both parties, lists Plymouth, Minnesota as their
residence.
Even though Robert applied for and made Aliyah upon
the family’s move to Israel, that status does not suggest a
conclusion that the family’s move was intended to be
permanent. The Aliyah process provides substantial financial
benefits and given the financial difficulties faced by the
parties at the time, it would not be unusual for them to
seek help, regardless of whether the parties intended to
remain in Israel.
There is evidence that Julie sought employment while
in Israel and enrolled the kids in school. Robert also
emphasizes statements Julie made in emails to others which,
he argues, contradict Julie’s claim that she did not want to
remain in Israel. In particular, plaintiff relies on the
fact that, shortly after arriving in Israel, she told a
friend, “I’ve waited 20 years to make this move.” When read
in context, however, the Court finds that Julie made the
statement in an effort to make the best of the situation
before her. The statement, on its own, is thus entitled to
little weight. As for the other evidence relied on by
Robert, the Court acknowledges that the record is not
completely devoid of evidence supporting his position. The
same was true in Tsarbopoulos. However, it is plaintiff who
carries the burden on this issue, and, for the reasons
stated above, the Court finds that this burden has not been
satisfied. Cohen, 602 N.Y.S.2d at 999 (petition must fail
because petitioner did not satisfy one of the requirements
for relief under the Convention). Accordingly, for all the
foregoing reasons, the Court finds that the habitual
residence of Sam and Jacob is the United States and.
therefore, Julie’s retention of the children in the United
States is not wrongful.
II. Affirmative Defenses
A. Grave Risk of Harm
Even if the Court had determined that Israel was the
habitual residence of Sam and Jacob, the Court finds, in the
alternative, that their return to Israel would pose a grave
risk of physical harm or otherwise place them in an
intolerable situation. Article 13(b) of the Convention
provides that:
Not withstanding the provisions of the
preceding Article, the judicial or
administrative authority of the requested State
is not bound to order the return of the child
if the person, institution or other body which
opposes its return establishes that…. .
(b) there is a grave risk that his or her
return would expose the child to physical or
psychological harm or otherwise place the child
in an intolerable situation.
Hague Convention, art. 13, 19 I.L.M. at 1502. As with the
concept of habitual residence, many courts have interpreted
the scope of this exception. In Thomson v. Thomson, the
Supreme Court of Canada held that “the physical or
psychological harm contemplated by the first clause of art.
13(b) is harm to a degree that also amounts to an
intolerable situation.” 119 D.L.R.4th 253, 286 (Can. 1994).
A British court has concluded that the harm required to
trigger the grave risk defense is “something greater than
would normally be expected on taking a child away from one
parent and passing him to another.” In re A., 1 F.L.R. 365,
372 (Eng. C.A. 1988). The Eighth Circuit has cited to these
decisions with approval. Nunez-Escudero v. Tice-Menley, 58
F.3d 374 377 (~th Cir. 1995) (“We should give considerable
weight to these well-reasoned opinions of other Convention
signatories.”). The court in Nunez further emphasized that
“[t]he Article 13b inquiry does not include an adjudication
of the underlying custody dispute.” Id. According to the
Eighth Circuit, “[i]t is not relevant to this Convention
exception who is the better parent in the long run, or
whether [respondent] had good reason to leave her home in
Mexico and terminate her marriage to [petitioner], or
whether [respondent] will suffer if the child she abducted
is returned to Mexico.” Id What is relevant are the
circumstances and environment in which the child will reside
upon his or her return. In other words, “the Article 13b
inquiry must encompass some evaluation of the people and
circumstances awaiting that child in the country of his
habitual residence.” FN14 Id. at 378. Under the
implementing legislation for the Convention, a party
opposing return based on an Article 13(b) exception must
establish the exception by clear and convincing evidence.
42 U.S.C. 11603(e)(2)(A).
Upon review of the evidence presented in the case,
the Court finds that returning Sam and Jacob to Israel for
determination of the custody issue would expose them to a
grave risk of physical harm and place them in an intolerable
situation. Israelis currently in a state of turmoil.
Although, as plaintiff testified, Israel has always been a
country at conflict to some extent, it is clear that the
intifada has escalated dramatically in recent months. At the
hearing, defendant presented evidence of the violence
occurring in the region. It is undisputed that on March 16,
2002, a Palestinian gunman opened fire and killed two
people, including a 17-year-old student, in the City of Kfar
Saba. Each and every witness called, to testify acknowledged
that Kiar Saba is less than five miles from plaintiff’s home
in Raanana. Witnesses also acknowledged that another
Palestinian bombing occurred in Netanya, a city only 15
miles from Raanana.
Since the hearing on March 18, the violence in the
region has steadily worsened. On March 22, 2002, a
Palestinian suicide bomber killed three Israelis and wounded
40 more in Jerusalem. See “Jerusalem Bomber Kills 3 and
Shakes U.S. Peace Effort,” N.Y. Times at A1, Mar. 22, 2002.
On March 28, 2002, another Palestinian suicide bomber blew
himself up in a crowded hotel dining room in Netanya as more
than 200 people gathered for the Passover holiday meal. See
“Bomb Kills At Least 19 in Israel as Arabs Open Beirut
Meeting,” N.Y. Times at Al, Mar. 28, 2002. The incident,
“kill[ed] at least 19 and wounded more than a 100 others,
many of them children.” Id. On April 1, 2002, another
suicide bomber detonated himself in a popular cafe in Haifa,
a town in Northern Israel. See “Sharon Says Israelis in a
War After Suicide Bombing Kills 14; More Tanks Move in West
Bank,” N.Y. Times at A1, Apr. 1, 2002. The blast killed 14,
wounded 40 others and was described as “among the deadliest
of the 18-month conflict.” Id. On April 10, 2002, a bomb
exploded on a commuter bus near Haifa, killing at least five
people and injuring 20 others. See “Ambush Kills 13
Soldiers: More dead today as bus blast kills at least 5 near
Haifa,” Minneapolis Star Tribune at Al, Apr. 10, 2002. On
April 12, 2002, a female suicide bomber blew herself up at a
bus stop in Jerusalem’s crowded outdoor market, killing six
people and wounding many others. See “Bomb Rips at ‘Peace
Effort,” Minneapolis Star Tribune at Al, Apr. 13, 2002. The
escalating violence prompted the State Department to issue
travel warnings, telling Americans not to travel to Israel,
the West Bank or Gaza and advising American residents in
Jerusalem to leave the city. See “State Department issues
new travel warning for Americans in Israel,” 2002 WL
3319550, NBC News: Today, Apr. 3, 2002. Most recently, on
May 7, 2002, 15 people were killed in a suicide bombing of a
gambling club in Rishon le Zion, Israel, located 10 miles
south of Tel Aviv. See “15 Killed by Suicide Bomber; Sharon
Cuts Short U.S. Visit After a Meeting with Bush,” N.Y. Times
at A1, A14, May 8, 2002. The Court takes judicial notice of
these events in consideration of this issue. FN15
There is evidence in the record, particularly from
plaintiff’s father, Maurice Silverman, who lives in Raanana
and works in Tel Aviv, that, despite the events, schools and
business have not closed. Plaintiff contends that the facts
of this case are indistinguishable from those in Freir v.
Freier, 969 F. Supp. 436 (E.D. Mich. 1996), in which the
court held that unrest in Israel was insufficient to
establish the grave risk defense. Id. at 443. The Court does
not agree. Significant differences exist between the
violence occurring at the time Freir was decided and the
violence occurring in Israel today. Unlike before, the
violence has permeated areas that were previously unaffected
by the conflict. Furthermore, the type of violence, through
suicide bombings, has placed civilians, including children,
at much greater risk. The level and intensity of violence
occurring in Israel today thus goes well beyond “some
unrest” described in Freier. In the Court’s view, the
current situation in Israel meets the “zone of war” standard
contemplated by the Sixth Circuit in Friedrich.
The Court also takes account of the fact that Sam and
Jacob are settled in their new environment and that Sam
objects to returning to Israel. The Second Circuit has held
that a court may consider the degree to which a child has
settled in his or her new environment as well as that
child’s views in deciding whether the grave risk defense has
been established under Article 13(b). Blondin v. Dubois, 238
F.3d 153, 163-68 (2d Cir. 2001). Sam and Jacob have lived in
the United States for nearly two years, a time period longer
than that spent in Israel. In this time, Sam and Jacob have
adjusted extremely well to their environment, as evidenced
by letters submitted by teachers of the Touchstone Community
School in Worcester, Massachusetts, where they now live, and
Rabbi Bernstein of the Temple Sinai.
Additionally, Sam objects to returning to Israel, in
part because of the violence in the region. Blondin, 238
F.3d at 166 (stating that “if a child’s testimony is germane
to the question of whether a grave risk of harm exists upon
repatriation, a court may take it into account”). The Court
finds that Samuel is mature enough and old enough to take
consideration of his views, particularly where, as here, the
Court is taking his views into account as a factor, and not
a conclusive determination of whether to deny repatriation.
Id. (“[l]t stands to reason that the standard for
considering a child’s testimony as one part of a broader
analysis under Article 13(b) would not be as strict as the
standard for relying solely on a child’s objection to deny
repatriation under Article 13.”) (emphasis in original).
The evidence presented at the hearing reveal that Sam
is a very bright and intelligent individual. He is a gifted
child, which means he is in a class that is on par with his
academics. He reads newspapers each day to follow events in
Israel. The Court is particularly impressed by his behavior
in learning of the upcoming legal proceedings and his desire
to express his views in a letter and have them considered by
the Court. The Court witnessed Sam’s maturity firsthand in
discussions with him in chambers after the hearing. In both
the Court’s private discussions with Sam and in the presence
of counsel, the Court was impressed by the level of maturity
exhibited by Sam. It was evident that he understood the
purpose and significance of these proceedings. Of course,
while it is not possible to completely eliminate the
possibility of influence by, one parent, the Court saw no
evidence of such influence in either the events leading up
to Sam writing the letter, the contents of the letter
itself, or in discussions with Sam. Finally, the Court finds
that Sam, at age 10, is sufficiently old enough to have his
views considered. Blondin, 238 F.3d at 167 (eight-year-old
girl old enough to consider her views on returning to
France).
Thus, for all the foregoing reasons, the Court makes
the alternative holding that defendant has established the
grave risk defense by clear and convincing evidence.
Both parties are fully capable of being excellent
parents for Sam and Jacob. Regardless of whether there are
additional legal proceedings in this case, the Court
strongly encourages the parties to work out an arrangement
which allows both Robert and Julie to be parents who are
very much involved in their children’s lives.
ORDER
Based upon the foregoing, the submissions of the
parties, the arguments of counsel and the entire file and
proceedings herein, IT IS HEREBY ORDERED that plaintiffs
petition for return of the child to plaintiff [Docket No. 1]
is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: May 9, 2002
at Minneapolis, Minnesota.
____________________________________
JOHN R. TUNHEIM
United States District Judge
Footnotes
===========================
01 Julie admits she had a relationship with another man.
Although it is not clear when the relationship began, Robert
learned of the affair in April 1999 after searching
temporary internet files and reading Julie’s email messages.
02 As part of the benefits Robert received for making
Aliyah, the family received vouchers to travel to Israel
from the Aliyah Center. The voucher meant that their travel
would only cost them $100.00 for the entire family.
03 Julie also learned that Robert had put the children’s
passports and birth certificates in his father’s safe
deposit box in the bank.
04 The children remained in Israel and stayed with their
paternal grandparents, who live across the street from the
elementary school.
05 Both parties also admit they did not disclose a
transfer of $9,000.00 to Julie’s father from the sale of
their home.
06 Because Robert expressly permitted Julie to leave
Israel in June 2000, but did not consent to her keeping the
children in the United States permanently, the Court treats
this case as one of an alleged “wrongful retention.” Feder
v. Evans-Feder, 63 F.3d 217,220 n.4 (3d Cir. 1995).
07 Defendant has also suggested that repatriation to
Israel is inappropriate because Sam and Jacob are settled in
their new environment. Plaintiff correctly notes that the
well-settled exception contained in Article 12 of the
Convention is triggered only when a Hague proceeding is
commenced after the expiration of one year. In this case,
plaintiff filed his Hague petition well within the one year
time period and therefore the Article 12 defense does not
apply. Nonetheless, as discussed infra, the argument that
the children are settled in their new environment, while not
dispositive under Article 12, can be a relevant factor in
the grave risk analysis.
08 There is no dispute that Robert was exercising his
parental rights at the time of the alleged retention in the
summer of 2000 Robert has continued to exercise his custody
rights by maintaining contact with his children by
telephone.
09 The Court notes that the Eighth Circuit has discussed
case law from the Sixth Circuit which concludes that
parental intent is not relevant to the habitual residence
determination. Nunez-Escudero, 58 F.3d at 379 (citing
Fredrich v. Fredrich, 983 F.2d 1396, l4O1-1402 (6th Cir.
1993) (stating that “to determine the habitual residence,
the court must focus on the child, not the parents, and
examine past experience, not future intentions”). In the
Court’s view, it is difficult, if not impossible, to
consider the question of habitual residence without some
consideration of the parents’ intent. Accordingly, the Court
agrees with the Ninth Circuit that parental intent is a
relevant factor to be considered along with other factors in
the determination of habitual residence. The Court also
notes that the Eighth Circuit did not have the benefit of
the Mozes decision at the time it decided Nunez.
10 Robert admits that on one occasion be and Julie got
into a violent argument in the car and at one point he
leaned over and opened the passenger side door where Julie
was seated. Robert was driving about 40-55 miles an hour at
the time. Julie also testified that Robert slammed Julie up
against stone walls in their apartment. Julie also claims
Robert verbally threatened her by telling her that he would
see her dead before he would see her divorced.
11 The contract was renewed in January 1999 for another
two -year period, but then was modified in September 1999,
extending the contract for a term of indefinite duration.
Id. at 1052.
12 These benefits are available only to Greek citizens
and enabled Dr. Tsarbopoulos to bring goods to Greece
without paying taxes. Id. at 1055.
13 The court also relied on: 1) Dr. Tsarbopoulos’s
control and domination over decisions and finances of the
family; 2) his continued ties with the United States; and 3)
his misrepresentations to Schering-Plough concerning his
residence and his status of employment. Id. at 1056-57.
14 The Sixth Circuit has interpreted these standards to
mean that a grave risk of harm under the Convention can
exist in only two situations:
First, there is a grave risk of harm when return of
the child puts the child in imminent danger prior to
the resolution of the custody dispute – e.g.
returning the child to a zone of war, famine or
disease. Second, there is a grave risk of harm in
cases of serious abuse or neglect, or extraordinary
emotional dependence, when the court in the country
of habitual residence, for whatever reason, may be
incapable or unwilling to give the child adequate
protection.
Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir.
1996).
15 According to Federal Rule of Evidence 201, “[al court
may take judicial notice, whether requested or not,” and
such notice “may be taken at any stage of the proceeding.”
Fed. R. Evid. 201(c) & (f). The facts noted above are
appropriate for judicial notice as they are facts not
subject to reasonable dispute and are capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned. Fed. .R. Evid. 201(b).