Korn v Korn [US 2002]10th Judicial Circuit of Alabama
Civil Action Number DR 01 1348 RAF
01 International Abduction [USA 2002]
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CIRCUIT COURT
Tenth Judicial Circuit of Alabama
Civil Action Number
DR 01 1348 RAF
MICHAEL KORN ) FILED IN OPEN COURT
) 25 JAN 2002
Plaintiff ) R. A. Ferguson
) Circuit Judge
Vs. )
)
Katerina Korn, )
)
Defendant )
FINAL JUDGMENT OF DIVORCE
001 THIS CAUSE came on for trial the 17th day of December
2001 and continued day by day and concluded on December 20,
2001 and submitted to the Court for a final judgment upon
the pleadings on record in this cause. The Plaintiff,
appearing individually, was represented by and through his
attorney of record, Jack E. Held. The Defendant, appearing
individually, was represented by and through her attorney of
record, La Tresia L. Kinnell. The Court has made a finding
of facts as follows:
a) Both the Plaintiff and Defendant are Russian
immigrants that resided in Israel prior to coming to
the USA. Neither the Plaintiff or Defendant is a US
citizen. The Plaintiff has a work permit and has
applied for a Green card. The Defendant does not have
a work permit neither has she applied for one nor
applied for a Green card.
b) That the minor child, Libby Korn, born May 17,
1999, was born in the USA, is a citizen of the US and
has joint citizenship in Israel;
c) That the Defendant has been the primary care
giver of the child both in the USA and in Israel.
The Plaintiff is employed by the Alabama Symphony
Orchestra giving private lessons, working
continually and for long hours, up to 7 days per
week;
d) That the Defendant has been unemployed for the
most part since the child was born and has shown no
ability to gain employment in the USA at this time.
Further, while in the physical custody of the
Defendant, said minor child had extensive tooth decay
to her upper baby teeth which required immediate
dental attention that Plaintiff provided.
e) The Plaintiff has extended family living in the
USA, but out of state; Defendant has extended family
living in Israel. The Plaintiff and Defendant have
both testified on the day-to-day dangers of living in
Israel due to military and suicide bombings having
occurred on random basis. Both Plaintiff and
Defendant differ on how safe living conditions are in
Israel;
f) That the Defendant has informed this Court that
she has plans on returning to Israel with or without
the child within a reasonable time after this Court
enters its Orders; and
g) That this Court finds that it would be in the
best interest of the minor child that her residence
should be in the USA.
002 Upon consideration thereof, together with all of the
legal evidence, ore tenus testimony and argument by counsel
for the parties, the Court is of the opinion the following
Order should be entered. Accordingly, it is
ORDERED and ADJUDGED by the Court:
003 1. That the bonds of matrimony heretofore existing
between the parties are dissolved, and the said Michael Korn
(hereinafter referred to as “Plaintiff”) and said Katerina
Korn, (hereinafter referred to as “Defendant”) are divorced
each from the other.
004 2. That neither party shall marry again except to
each other until sixty (60) days after the date of this
Judgment of divorce, and if an appeal is taken (which must
be instituted within forty-two [42] days from this Judgment,
or from the date that a post-trial motion is denied), then
neither party shall again marry except to each other during
the pendency of the appeal.
005 3. That the costs of Court accrued herein are hereby
taxed as paid.
006 4. That the Court finds from all of the competent,
material and relevant evidence that it is in the welfare and
best interest of the minor child of the parties, namely:
Libby, the care, custody and control of the said minor child
be and the same is hereby awarded as shared legal custody.
007 I. Shared parental responsibility (Joint Custody)
for a minor child means that both parents retain full
parental rights and responsibilities with respect to
that child and requires both parents to confer so
that major decisions affecting the welfare of the
child will be determined jointly.
008 II. Both Plaintiff and Defendant desire to be
involved in the various activities of their minor
child. These include academic, religious, civic,
cultural, athletic, medical and dental activities of
the minor child. The Plaintiff and Defendant agree
that they will consult with each other prior to
initiating any such activity with the minor child.
Plaintiff and Defendant agree to cooperate with one
another in adjusting their schedules to assure that
the child is delivered to and returned that both
parties will consult with one another regarding all
such activities. It is further agreed and understood
that both parties will consult with one another
regarding all such activities. It is further agreed
and understood that the Plaintiff and Defendant will
notify one another as to any conferences, programs or
events relating to such activities in such a way that
both parties will have an opportunity to participate
in such activities of the minor child.
009 III Should Plaintiff and Defendant be unable to agree
on any aspect of the academic, religious, civic,
cultural, athletic or medical and dental activities
of the minor child, the following party is hereby
designated as having the primary authority and
responsibility regarding the involvement of the minor
child in said activity:
ACADEMIC – Defendant
RELIGIOUS – Defendant
CIVIC – Defendant
CULTURAL – Defendant
ATHLETIC – Defendant
MEDICAL. – Plaintiff
DENTAL – Plaintiff
010 The exercise of this primary authority is in no way
intended to negate the responsibility of the parties
to notify and communicate with each other as set
forth herein above.
011 5. That the Plaintiff have physical custody of the
minor child of the parties as follows:
(a) The first and third full weekends of each month
from 6:00 p.m. on Friday until 6:00 p.m. the
following Sunday; (The first weekend of a month
beginning on the first Friday of each month);
(b) Each Christmas Day from 3:00 p.m. until 3:00
p.m. on the following New Year’s Day;
(c) Thirty-one (31) consecutive days during the
summer (to be taken between June 10th and August
15th), to be selected by the Plaintiff but upon
written notice to Defendant at least thirty (30) days
in advance of such visitation;
(d) During the odd years, A.E.A. (Spring Break)
vacation from 9:00 a.m. Saturday until the following
Saturday at 6.00 p.m.;
(e) During the even years, Thanksgiving vacation
from 6:00 p.m. Wednesday until Sunday at 6:00 p.m.:
(f) Every other birthday of the child from 6:00 pin
on said date until 8:00 a.m. of the following day
beginning with the next birthday;
(g) Every Father’s Day from 9:00 until 6:00 p.m., of
the same day. The child shall be with the Defendant
on Mother’s Day. If that day falls on a visitation
weekend, the child shall be returned to Defendant by
9:00 a.m. on that Sunday;
(h) On the birthday of the Plaintiff from 3:00 p.m.
on said date until 8:00p.m. of the same day;
(i) At such other times as agreed upon between the
parties.
012 Each parent shall keep the other informed on a
current basis as to the primary residence address and
telephone number where the child resides or visits.
013 6. That the Defendant shall have physical custody
of the minor child of the parties at all other times not
given to plaintiff in Paragraph 5 herein above.
014 7. That should the Defendant decide to leave the
USA to reside elsewhere, this shall be deemed a material
change in circumstances such that the legal custody shall
immediately change and vest with the Plaintiff without
further legal proceedings by the Plaintiff or Defendant, and
the Defendant will immediately surrender physical custody to
Plaintiff. Further, the Defendant will have the following
visitation rights with the minor child of the parties:
(a) Six (6) weeks during each summer between June 30
and August 15 at a rime to be selected by the
Defendant provided, however, that Defendant shall
have mailed by registered mail a written notice to
the Plaintiff of the dates of the intended visitation
at least thirty (30) days prior to such visitation;
(b) Each Christmas, beginning December 26 at 9:0O
a.m. and ending New Year’s Day at 3:00 p.m. if the
Defendant is in the USA;
(d) Any other reasonable times the Defendant is in
the town air which the minor child resides. Defendant
shall give 48 hours’ notice and the visitation shall
be reasonable taking into consideration the child’s
schooling;
(e) During any periods of visitation, after the child
reaches the age of (12) years, the said child may
travel by commercial airliner, provided:
(1) The Plaintiff and Defendant shall equally
pay and be responsible for all airfares for the
transportation of said child;
(2) The flight shall be either non-stop or
direct and no change of planes will be involved
until the child reaches the age of 14 years
(3) All travel arrangements shall be made by
the Defendant;
(4) The Defendant shall notify the Plaintiff
not less than ten (10) days of the date of
visitation, of the date, time, airline and
flight number of proposed carrier;
(5) The Plaintiff shall send to the Defendant
his share of the round, trip airline tickets
within 10 days after notification from the
Defendant of the intended visitation;
(6) The Defendant shall ensure that either
she or the child notifies the Plaintiff of the
arrival of the child as soon as possible after
the child is met by Defendant
(7) At the end of the period of visitation,
the Defendant shall notify the Plaintiff of the
dates, time, carrier and flight number of the
child’s return. The Defendant shall notify the
Plaintiff twenty-four (24) hours prior to the
time of departure and
(8) On the return of the child, the Plaintiff
shall ensure that either he or the child
notifies the Defendant of the child’s return.
(f) The Defendant shall enjoy the rights telephone
visitation on each Thursday. Between the hours of 700
p.m. and 8.00 p.m. local tune with the minor child,
at the Defendant’s expense. The Plaintiff shall
neither interfere with nor listen in or be party to
the telephone conversation during the said period of
time; and
(g) Each parent shall keep the other informed on a
current basis as to the primary residence address and
telephone number. where the child resides or visits.
015 7. That child support shall remain the same
pursuant to the Order entered October 25, 2001. However, if
the Plaintiff receives legal custody pursuant to Paragraph 7
herein above, the Plaintiff’s obligation to pay child
support is terminated and future child support will be
reserved due to the Defendant unemployment and the. Costs
associated with visitation. Further, if custody is
transferred to the Plaintiff pursuant to Paragraph 7 herein
above, the Plaintiff by and through his attorney of record,
shall notify the Court for the termination of the Income
Withholding Order that is currently in place with the
Plaintiff’s employer.
018 8. That each party to this action is awarded and
shall retain the personal property presently in their
respective possession.
019 9. That the Plaintiff and Defendant shall pay and
be responsible for the paying the individual debts in their
respective names. In addition thereto:
a. The Plaintiff shall pay and be responsible
for paying all unpaid debts of the marriage and
shall hold the Defendant harmless from any
claims and. expenses thereon.
020 10. That the Plaintiff and Defendant shall pay and
be responsible for paying their respective attorney of
record for professional services rendered in this cause.
021 DONE and ORDERED this the 24th day of January, 2002.
/s/ R. A. Ferguson
R. A. FERGUSON, JR.
CIRCUIT JUDGE
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23 Feb 2002
Comment by: William M. Hilton, CFLS
Fellow, International Academy of Matrimonial Lawyers
Attorney At Law and Certified Family Law Specialist, State
of California
This case was not brought under the Convention on the
Civil Aspects of International Child Abduction, done at
The Hague on 25 Oct 1980 (The Convention), but is in fact
a “Move Away” case. See, e.g. In re Marriage of Burgess
(Cal. 1996) 13 Cal.4th 25 for the leading California case
on this issue and In re Marriage of Condon (Cal.App. 2
Dist 7 Div 1998) 62 Cal.App.4th 533, which applies Burgess
to an international relocation.
One of the issues before the Alabama court was the
personal safety of the child as a factor in awarding
custody, including the possibility of the child residing
in Israel.
Both parties presented testimony as to the safety of
Israel at the present time. See, e.g., Frier v Frier
(E.D. Mich. 1986) 969 F. Supp. 436 for techniques that
were used to make a similar evaluation.
The Alabama Court, in making its order, held that it would
be in the best interest of the child for her residence to
be in the USA and conditioned its award of custody of the
minor child to the mother on the express requirement that
the child live in the USA.
The interesting part of this decision is that if the
custodial parent decides to leave the USA, custody of the
child is automatically transferred to the non-custodial
parent, without any form of hearing.
It is doubtful that this automatic transfer of custody
provision would survive a judicial challenge since it
awards custody of a child to the other parent at some time
in the future based solely on a move of the present
custodial parent from the USA to any where in the world.
This is in the form of a punitive order which are looked
upon with severe disfavor. See. e.g. In re Marriage of
Hopson (Cal.App. 1 Dist. 1980) 110 Cal.App.3d 884, 907;
Marlow v Marlow (Sup.1983) 471 N.Y.S.2d 201, 207.
It is also contra to the requirement that “Best Interests”
be used to determine the issues of custody and visitation
at the specific time in question.
What the Alabama court should have done was to make a
finding that, at the present time, it appears to be in the
best interests of the child for that child to be in the
care, custody and control of the mother and that there be
a ne exeat order in place prohibiting the removal of the
child from a specific geographical location that could
only be lifted after there was a full changed
circumstances hearing over the issue of custody and/or
access to the minor child.
The changed circumstances hearing could then take into
account all of the factors that would then be available to
the court at the time the request to remove the child was
made, which would include, inter alia, relocation to a new
geographical area.
There is also a potential issue of who gets to modify the
existing Alabama order when all parties have moved from
Alabama to other forums.