USA – CA – NADLER – 1992 (Motion to honor the foreign custody decree denied)NADLER v NADLER. The court ruled that the mother’s conduct of removing the children from Israel was not wrongful or reprehensible. The court denied the father’s motion to enforce the foreign custody order, ruling that this court had jurisdiction. The court discussed attorney’s fees and costs associated with locating the children. (This case was argued by Mr. Hilton and Mr. Rothschild for the mother).
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF SONOMA
DEPARTMENT 4
HONORABLE LLOYD VON DER MEHDEN, JUDGE
GADY NADLER,
Petitioner,
vs.
KATHERYN JOLLY (KATZ) NADLER, No. 186861
Respondent.
_______________________________/
REPORTER’S TRANSCRIPT OF PROCEEDINGS
DECEMBER 21, 1992
APPEARANCES:
FOR THE PETITIONER: LAWRENCE MOSKOWITZ, ESQUIRE
3510 Unocal Place, No. 103
Santa Rosa, CA 95303
(707) 528-7277
FOR THE RESPONDENT: WILLIAM HILTON, ESQUIRE
Box 269
Santa Clara, CA 95052
(408) 246-8511
and
JOHN DAVID ROTHSCHILD, ESQUIRE
Box 388
Sonoma, CA 95476
(707) 938-8409
OFFICIAL COURT REPORTER: LYNN A. ANDERSON, CSR #5213
DECEMBER 21, 1992 SANTA ROSA, CALIFORNIA
PROCEEDINGS
THE COURT: IN RE NADLER. ALL RIGHT. MAY I HAVE YOUR
APPEARANCES, PLEASE?
MR. HILTON: BILL HILTON APPEARING AS CO-COUNSEL WITH JOHN
ROTHSCHILD, WHO HAS LOST HIS VOICE THIS MORNING,
FOR MISS KATHERYN KATZ WHO IS PRESENT.
MR. MOSKOWITZ: LARRY MOSKOWITZ APPEARING FOR GADY NADLER.
THE COURT: THE PARTIES ARE PRESENT I SEE. I WANTED TO
CLARIFY, FIRST OF ALL, SEVERAL ITEMS. IN
REVIEWING THE VARIOUS RECORDS AND FILES IN THIS
CASE, IT’S EVIDENT THAT TWO CASES HAVE BEEN
CONSOLIDATED, AND THE NUMBERS ARE 186861 AND
186297.
BEFORE THE COURT TODAY I BELIEVE THERE ARE
SEVERAL MATTERS. PRINCIPALLY THE PLAINTIFF’S
MOTION FOR ENFORCEMENT OF THE FOREIGN CUSTODY
DECREE ISSUED FROM THE DISTRICT RABBINICAL COURT
IN ISRAEL, AND FOR COSTS OF LOCATING THE CHILDREN
AND FOR ATTORNEY’S FEES. FN-1
AND ALSO IT APPEARS TO THE COURT THAT THERE IS
OUTSTANDING PLAINTIFF’S MOTION TO DISMISS IN THE
FIRST ACTION, THE DOMESTIC VIOLENCE PREVENTION
ACTION 186297. I DON’T THINK THAT’S ACTUALLY EVER
BEEN RULED ON. IS THAT OUTSTANDING OR HAS THAT
BEEN DROPPED OR DISMISSED?
MR. MOSKOWITZ: WITH RESPECT TO THE RESTRAINING ORDER PORTION OF
THAT, ORDERS HAVE BEEN MADE AND WE DON’T HAVE A
PROBLEM. THERE WAS A REQUEST FOR COSTS IN THE
DOMESTIC VIOLENCE ACTION AND THAT IS TIED
TOGETHER WITH OUR REQUEST FOR ENFORCEMENT OF THE
ISRAELI ORDER.
THE COURT: IT’S IN EFFECT MERGED BUT A SEPARATE MOTION, BUT
MERGED IN THE HEARING TODAY?
MR. MOSKOWITZ: THAT’S CORRECT. AS I RECALL, THAT’S WHAT JUDGE
REGAN DID WITH IT ON JANUARY 31ST OF ’91.
THE COURT: NOW, I ALSO WANT TO CLARIFY THE FIRST
NAME OF GADY NADLER. IN SOME OF THE PLEADINGS THE
FIRST NAME IS INDICATED AS — MOST OF THE
PLEADINGS AS GADY NADLER. IS THAT ONE AND THE
SAME PERSON AS GEDALIYAHU? THAT’S A TERRIBLE
PRONUNCIATION.
MR. MOSKOWITZ: YES, YOUR HONOR. THAT’S THE SAME PERSON.
THE COURT: ONE AND THE SAME PERSON AS GADY NADLER?
MR. MOSKOWITZ: RIGHT. MY CLIENT.
THE COURT: IS THERE ANY FURTHER COMMENT OR ARGUMENT BY
EITHER PARTY? FIRST THE MOVING PARTY, MR.
MOSKOWITZ?
MR. MOSKOWITZ: NONE, YOUR HONOR.
MR. ROTHSCHILD: JUST TO GO OVER HOUSEKEEPING. ON THE COSTS AND
ATTORNEY’S FEES, THE COST OF LOCATING, ATTORNEY’S
FEES, THAT’S BEEN SEPARATED BY A STIPULATION
EARLIER.
MR. MOSKOWITZ: IT MAY BE NECESSARY TO HEAR THAT MATTER. IT MAY
NOT DEPENDING ON WHAT THE COURT RULES TODAY. WE
HAVE AGREED TO BIFURCATE THAT ISSUE. FN-2
THE COURT: ANYTHING FURTHER?
MR. MOSKOWITZ: NO.
THE COURT: MATTER SUBMITTED?
MR. HILTON: YES.
MR. ROTHSCHILD: YES.
MR. MOSKOWITZ: YES.
THE COURT: IN THIS RULING BECAUSE OF THE SEVERAL PLEADINGS
THAT HAVE BEEN CONSOLIDATED, INSTEAD OF USING THE
TERMINOLOGY PLAINTIFF AND DEFENDANT, AND
DEFENDANT AND PLAINTIFF, I’LL SIMPLY REFER TO
GADY, REFERRING TO GADY NADLER AS THAT PARTY
APPEARS AS A PLAINTIFF IN ONE ACTION, AS A
DEFENDANT IN ANOTHER. AND TO KATHERYN, REFERRING
TO KATHERYN NADLER-KATZ.
THIS IS THE COURT’S ORAL TENTATIVE DECISION:
THE COURT FINDS THAT THE HAIFA DISTRICT
RABBINICAL COURT LOST SUBJECT MATTER JURISDICTION
OF THE CUSTODY MATTER IN THIS CASE IN JULY 1990.
AT THAT TIME KATHERYN, THE CUSTODIAL PARENT WITH
THE CHILDREN, LEFT ISRAEL AND MOVED TO
CALIFORNIA, GADY HAVING — HAVING PREVIOUSLY
MOVED AWAY FROM ISRAEL. FN-3
AT THAT TIME, NONE OF THE PARTIES OR CHILDREN
RESIDED IN ISRAEL AND IT WAS NOT UNTIL JULY 1991
THAT — APPROXIMATELY A YEAR THEREAFTER THAT GADY
RETURNED TO ISRAEL, AND IN THIS REGARD THE COURT
REFERS TO THE PUBLISHED DECISIONS OF KUMAR VERSUS
SUPERIOR COURT, 32 CAL. AT PAGE 699. IN RE
HOPSON, 110 CAL. APP. 3RD, PAGE 884. AND LOUGH,
L-O-U-G-H, VERSUS SUPERIOR COURT, 8 CAL. APP. 4TH
AT PAGES 141 TO 143.
FURTHER, THAT THE MERE FACT THAT GADY MOVED BACK
TO ISRAEL IN JULY 1991 IN THIS COURT’S OPINION
DID NOT INVEST SUBJECT MATTER JURISDICTION IN
THAT COURT, AND WITH THE –WITH THE REMOVAL OF
ALL THE PARTIES FROM ISRAEL, THE ANALYSIS
NECESSARILY BEGINS UNDER THE UNIFORM CHILD
CUSTODY JURISDICTION ACT, PARTICULARLY SECTION
5152, FN-4 TO DETERMINE WHICH STATE OR COUNTRY
HAS THE CLOSEST CONTACT.
AND I REFER AGAIN TO KUMAR DECISION AT PAGE 699.
SECONDLY, IN DECEMBER 1990, WHILE KATHERYN AND
THE CHILDREN RESIDED IN THIS STATE, THE SUPERIOR
COURT OF SONOMA COUNTY ASSERTED JURISDICTION IN
THE FIRST ACTION THAT WAS FILED IN THIS CASE BY
KATHERYN AGAINST GADY WHICH INCLUDED CUSTODY
MATTERS, AND I’M REFERRING OF COURSE TO ACTION
186297.
IN THAT CASE A PETITION AND AN ORDER TO SHOW
CAUSE UNDER THE DOMESTIC VIOLENCE PREVENTION ACT
WAS FILED, SERVED, OR A VOLUNTARY APPEARANCE WAS
MADE BY GADY, AND ORDERS WERE ENTERED.
THAT ACTION AS INDICATED WAS CONSOLIDATED WITH
ACTION 186861.
NOW, THE CALIFORNIA COURT FINDS — THE COURT
FINDS OF COURSE THAT THE CALIFORNIA COURT DID NOT
DECLINE SUBJECT MATTER JURISDICTION. FN-5
FURTHER, UNDER SECTION 5152 FN-6 OF THE CIVIL
CODE, THE COURT FINDS THAT CALIFORNIA HAS THE
CLOSEST CONTACTS IN THIS CASE.
SPECIFICALLY UNDER SECTION 5152(1)(B) FN-7 IN
PARENS, THE COURT FINDS THAT IT IS IN THE BEST
INTEREST OF THE CHILDREN THAT CALIFORNIA ASSUME
JURISDICTION, AND THERE IS A — THERE HAS BEEN A
SUFFICIENT SHOWING THAT THE CHILDREN AND
KATHERYN, THE CUSTODIAL PARENT, HAVE A
SIGNIFICANT CONNECTION WITH CALIFORNIA AND THAT
THERE IS AVAILABLE IN CALIFORNIA SUBSTANTIAL
EVIDENCE CONCERNING THE CHILDREN’S PRESENT AND
FUTURE CARE, PROTECTION, TRAINING AND PERSONAL
RELATIONSHIPS.
NOW, WITH RESPECT TO THE MEASURING DATE, THERE
DOES APPEAR TO BE A CONFLICT IN SEVERAL OF THE
COURT OF APPEAL DECISIONS. IN THE MATTER OF PLAS
VERSUS SUPERIOR COURT, P-L-A-S, 155 CAL. APP. 3RD
AT PAGE 1015, THE TEST DATE IS THE COMMENCEMENT
OF THE ACTION.
AND UNDER IN RE HOPSON, 110 CAL. APP. 3RD AT PAGE
894, THE MEASURING DATE UNDER — FOR SECTION
5152(1)(D), FN-8 IN PARENS, PURPOSES, IS THE DATE
OF THE HEARING.
NOW, THE COURT NOTES THAT THE HOPSON CASE IS A
REPORTED DECISION IN THE FIRST DISTRICT. FN-9
UNDER EITHER OR BOTH MEASURING DATES, THE COURT
FINDS SUFFICIENT EVIDENCE OF THE ELEMENTS UNDER
SECTION 5152(1)(B), FN-10 INCLUDING THE FOLLOWING:
FIRST, THE FACT THAT THE CHILDREN RESIDED WITH
KATHERYN, THE CUSTODIAL PARENT, SINCE JULY 1990
IN CALIFORNIA. THAT IS FIVE AND A HALF MONTHS
APPROXIMATELY BEFORE COMMENCEMENT OF THE FIRST
ACTION IN CALIFORNIA OR TWO AND A HALF YEARS
BEFORE THIS HEARING.
SECONDLY, THE CHILDREN ATTEND SCHOOL IN
CALIFORNIA.
THIRD, KATHERYN, THE CUSTODIAL PARENT, WAS BORN
IN CALIFORNIA, ATTENDED COLLEGE IN THIS STATE,
AND ALMOST ALL OF HER FAMILY MEMBERS RESIDE IN
CALIFORNIA.
NEXT, THE CHILDREN WHO ARE NOW TWELVE, FOURTEEN
AND FIFTEEN YEARS OF AGE HAVE EXPRESSED THEIR
DESIRE THAT THEY NOT BE COMPELLED TO RETURN TO
ISRAEL, NOR TO ATTEND A RELIGIOUS SCHOOL IN THAT
COUNTRY. FN-11
NEXT, THERE IS DOUBT IN THIS COURT’S MIND THAT
THE CHILDREN WOULD COMPLY WITH AN ORDER THAT THEY
RETURN TO ISRAEL WITH EITHER PARENT, AND GADY BY
HIS WHAT THIS COURT CONSIDERS AN UNUSUAL REQUEST
THAT THEY BE ORDERED TO BE PRESENT AT THIS
HEARING AND THAT AN ADDITIONAL DEPUTY OR GUARD BE
PRESENT TO POTENTIALLY RESTRAIN OR PHYSICALLY
RESTRAIN THEM IS INDEED AN INDICATION, AN
ACKNOWLEDGMENT OR AN ADMISSION THAT THE CHILDREN
— OF THE CHILDREN’S RESISTANCE TO HIS REQUESTED
RELIEF. FN-12
FINALLY, THERE IS INSUFFICIENT SHOWING OF THE
CHILDREN’S CONNECTION WITH ISRAEL AT THE TIME OF
COMMENCEMENT OF THIS ACTION OR AT THE TIME OF THE
HEARING AND THERE IS SOME EVIDENCE THAT KATHRYN’S
REMARRIAGE ON COMING TO CALIFORNIA WOULD NOT BE
RECOGNIZED IN ISRAEL IF SHE AND THE CHILDREN WERE
TO BE RETURNED TO THAT STATE OR COUNTRY AND THERE
COULD BE ADVERSE CONSEQUENCES VISITED UPON THE
CHILDREN AS A RESULT OF THAT FACT. FN-13
MOREOVER, THE COURT FINDS UNDER SECTION
5152(1)(D), FN-14 IN PARENS, THAT NO OTHER STATE
WOULD HAVE JURISDICTION UNDER THE PREREQUISITES
SUBSTANTIALLY IN ACCORDANCE WITH PARAGRAPHS (A),
(B) AND (C) IN PARENS OF THE SAME SECTION, 5152.
FN-15 AND IT IS IN THE BEST INTEREST, THE COURT
SO FINDS, OF THE CHILDREN THAT THE — THAT THIS
COURT AND CALIFORNIA ASSUME JURISDICTION.
NEXT THE COURT FINDS THAT EACH OF THE FOLLOWING
CUSTODY PROVISIONS OF THE INITIAL ISRAELI DECREE
ARE NOT IN SUBSTANTIAL COMPLIANCE WITH THE
UNIFORM CHILD CUSTODY JURISDICTION ACT.
THERE ARE THREE PROVISIONS IN ALL. THE FIRST, AND
I’LL QUOTE THESE FROM THE INITIAL ISRAELI DECREE.
ANY MATTER CONNECTED WITH THE CUSTODY OF THE
CHILDREN, THEIR EDUCATION AND UPBRINGING WILL BE
SUBJECT TO THE SOLE AUTHORITY OF THE HAIFA
DISTRICT RABBINICAL COURT AND ITS DECISION WILL
BE BINDING ON THE PARTIES FOR ALL INTENTS AND
PURPOSES IN ISRAEL AS WELL AS ABROAD.
SECONDLY. IT IS AGREED BY THE PARTIES THAT THIS
AGREEMENT AND THE JUDGMENT PASSED IN RESPECT TO
IT BY THE COURT WILL BE VALID FOR ALL INTENTS AND
PURPOSES IN THE U.S. AS WELL.
THEN THE THIRD CLAUSE OF THAT ORDER. THE PARTIES
UNDERTAKE AND DECLARE THAT THE RABBINICAL COURT
IS THE ONLY INSTANCE OF JURISDICTION AUTHORIZED
AND/OR THAT WILL BE AUTHORIZED TO JUDGE ALL THEIR
MATTERS AND IN PARTICULAR MATTERS OF CUSTODY,
EDUCATION AND ALIMONY OF THE CHILDREN.
THERE ARE SEVERAL REASONS FOR THIS FINDING.
FIRST, IS THE INITIAL ISRAELI DECREE WAS INDEED
ENTERED BY AGREEMENT OR CONSENT OF THE PARTIES
AND IT IS WELL ESTABLISHED THAT CHILD CUSTODY
SUBJECT MATTER JURISDICTION CANNOT BE CONFERRED
BY CONSENT, ESTOPPEL OR WAIVER. THERE ARE A
NUMBER OF DECISIONS REFERRED TO IN THE BRIEFS.
NOTABLY IN RE BEN-YEHOSHUA, AT 91 CAL. APP. 3RD
AT PAGE 163. FN-16
FURTHER, AFTER JULY 1990, FN-17 THE ISRAELI COURT
LOST SUBJECT MATTER JURISDICTION UNDER THE
UNIFORM CHILD CUSTODY JURISDICTION ACT AND
COMMENCING IN DECEMBER 1990, CALIFORNIA WAS
EXERCISING SUCH JURISDICTION IN THE FIRST ACTION
FILED BY KATHERYN.
AND FINALLY, ONCE JURISDICTION WAS LOST IN THE
ISRAELI COURT, IT IS NECESSARY UNDER THE ACT TO
ANALYZE THE JURISDICTIONAL ELEMENTS OR FACTORS
UNDER THE ACT, INCLUDING SECTION 5152, FN-18
WHICH IS DETERMINED TO BE THE EXCLUSIVE MEANS OF
DETERMINING CHILD CUSTODY SUBJECT MATTER
JURISDICTION.
THE INITIAL ISRAELI DECREE DID NOT SO PROVIDE OR
MAKE ANY SUCH REFERENCE AND IN THIS COURT’S
OPINION DID NOT COMPLY WITH THE ACT.
NEXT, THERE WAS AN INSUFFICIENT SHOWING IN THIS
COURT’S OPINION THAT KATHERYN’S ACT OF LEAVING
ISRAEL WITH THE CHILDREN IN JULY 1990 BOUND FOR
CALIFORNIA WAS REPREHENSIBLE OR PROHIBITED
CONDUCT UNDER THE ISRAELI DECREE.
THERE IS NO PROHIBITORY OR NE EXEAT CONTAINED IN
THE INITIAL ISRAELI DECREE.
AT THE SAME TIME, THE ISRAELI COURT AS ALREADY
DETERMINED LOST JURISDICTION AND HAD NO LAWFUL
BASIS UNDER THE UNIFORM CHILD CUSTODY
JURISDICTION ACT WITH THE ANALYSIS THAT IS
REQUIRED THEREUNDER IN ORDER TO ASSERT
JURISDICTION FOR ENFORCEMENT PURPOSES.
FURTHER, THE PROVISION THAT THE CHILDREN QUOTE
“WILL LIVE WITH HER IN ISRAEL,” CLOSED, IS NOT
CONSTRUED BY THIS COURT AS MANDATORY LANGUAGE IN
LIGHT OF THE LANGUAGE EMPLOYED IN THE OTHER
PROVISIONS OF THE SAME DECREE, INCLUDING THE
REFERENCE TO THE DECREE BEING VALID IN THE U.S.
AND ALSO THERE IS REFERENCE IN ONE OF THE CLAUSES
WHERE IT REFERS TO FOR ALL — BINDING ON THE
PARTIES FOR ALL INTENTS AND PURPOSES IN ISRAEL AS
WELL AS ABROAD.
CONSTRUING THE DECREE IN ITS ENTIRETY AND
UTILIZING THE LANGUAGE THAT WAS USED IN THAT
DECREE AND THE ABSENCE OF A NE EXEAT ORDER, IT IS
THE COURT’S FINDING THAT THE REMOVAL OF THE
CHILDREN FROM ISRAEL WAS NOT REPREHENSIBLE
CONDUCT ON THE PART OF KATHERYN.
FINALLY, WITH RESPECT TO CIVIL CODE SECTION 5157,
FN-19 IT IS THE COURT’S OPINION THAT THAT SECTION
DOES NOT APPLY IN THIS CASE SINCE IT IS CLEAR
THAT KATHERYN IS THE — IS AND WAS THE CUSTODIAL
PARENT UNDER THE INITIAL DECREE.
ADDITIONALLY, THE COURT FINDS THAT THERE’S AN
INSUFFICIENT SHOWING THAT KATHRYN’S CONDUCT OF
REMOVING THE CHILDREN FROM ISRAEL IN JULY 1990
WAS WRONGFUL OR REPREHENSIBLE AS REQUIRED UNDER
SECTION 5157. FN-20
BASED ON THOSE FINDINGS, THE COURT DENIES THE
MOTION BY THE PLAINTIFF TO ENFORCE THE FOREIGN
CUSTODY ORDER AND ALSO DENIES PLAINTIFF’S MOTION
TO DISMISS IN ACTION 186297. FN-21
NOW, THE TWO FINANCIAL ISSUES APPARENTLY HAVE
BEEN BIFURCATED WHICH WERE SOUGHT IN THE INITIAL
MOTION. IS THERE ANY NEED FOR A RULING ON THAT
BIFURCATION?
MR. MOSKOWITZ: IS THERE A NEED FOR RULING ON THE BIFURCATION.
I’M NOT —
MR. ROTHSCHILD: ON THE FINANCIAL ISSUES.
THE COURT: YOU HAD INDICATED THAT THE FINANCIAL ISSUES WERE
BIFURCATED.
MR. ROTHSCHILD: THE ATTORNEY’S FEES AND COSTS FOR LOCATING THE
CHILDREN.
THE COURT: I ASSUME IN LIGHT OF THE COURT’S TENTATIVE RULING
ON THE SUBSTANTIVE ISSUES, THAT THERE’S NO NEED
FOR A RULING ON THAT. I’M UNCERTAIN AS TO WHAT
YOUR ARRANGEMENT IS BETWEEN COUNSEL.
MR. MOSKOWITZ: IN LIGHT OF THE COURT’S TENTATIVE DECISION, THERE
IS NO NEED FOR A RULING ON THAT ISSUE.
THE COURT: DO YOU AGREE?
MR. ROTHSCHILD: WELL, WE DO AGREE. WE FEEL THAT IF THE TENTATIVE
RULING BECOMES THE RULING OF THE COURT, THAT THE
MOTIONS FOR COSTS AND ATTORNEY’S FEES SHOULD BE
DISMISSED.
MR. HILTON: OR ACTUALLY DENIED.
MR. ROTHSCHILD: OR DENIED.
THE COURT: THERE BEING SOME DOUBT AS TO WHAT THE ARRANGEMENT
IS BETWEEN COUNSEL, IT IS AN ISSUE FRAMED BY THE
MOTION. AND THE REQUEST FOR COSTS FOR LOCATING
THE CHILDREN AND ATTORNEY’S FEES IS DENIED.
THE COURT IS GOING TO DIRECT KATHRYN’S ATTORNEY
TO PREPARE A FORM OF ORDER AND A STATEMENT OF
DECISION IF REQUESTED, AND TO SUBMIT AND SERVE
THOSE FORMAL ORDERS OR STATEMENT IN ACCORDANCE
WITH APPLICABLE LAW WHICH IS CODE OF CIVIL
PROCEDURE SECTION 632 AND RULE 232 OF THE
CALIFORNIA RULES OF COURT.
MR. MOSKOWITZ: YOUR HONOR, THERE IS ONE OTHER THING THAT NEEDS
TO BE ADDRESSED. NOT NECESSARILY RULED ON IN THE
MERITS THIS MORNING, BUT DEALT WITH, AND THAT IS
THAT THE INITIAL FILING BY MISS KATZ IN THE
DOMESTIC VIOLENCE ACTION DID REQUEST A CUSTODY
ORDER, AND THE COURT HAS MADE INTERIM ORDERS
ALONG THE WAY. IF THE COURT IS GOING TO ASSERT
JURISDICTION, WE NEED TO HAVE SOME KIND OF
ONGOING PARENTING ARRANGEMENT.
THE COURT: ALL RIGHT. DO YOU WISH TO MEET AND CONFER AS TO
THAT IN LIGHT OF THE COURT’S TENTATIVE RULING?
(COUNSEL CONFERRING.)
MR. ROTHSCHILD: WE’VE DISCUSSED THAT WHILE MR. NADLER IS HERE, WE
WILL WORK OUT AS WE HAVE IN THE PAST SOME
ARRANGEMENT FOR TIME FOR HIM WITH THE CHILDREN,
AND AS FAR AS ANY FUTURE MATTERS, IT WOULD SEEM
THAT AS THIS MATTER CAME FROM THE DOMESTIC OSC
CALENDAR, THE THURSDAY CALENDAR, THAT PROBABLY IT
SHOULD GO BACK TO THAT CALENDAR FOR ANY FURTHER
PROCEEDINGS ON DEFINING THE CUSTODY ACCESS
ARRANGEMENT, NOW THAT JURISDICTION HAS BEEN
ESTABLISHED.
THE COURT: IN THE INTERIM TIME, IS THERE A NEED FOR SOME
TYPE OF A STIPULATION OR —
MR. ROTHSCHILD: I DON’T THINK SO.
THE COURT: OR INTERIM ORDER AS TO CUSTODY AND VISITATION?
MR. MOSKOWITZ: NO. THE ONLY THING THAT WE NEED TO MAKE SURE OF
IN THE INTERIM IS THAT MISS KATZ IS ORDERED NOT
TO CHANGE THE CHILDREN’S ADDRESS WITHOUT EITHER
MR. NADLER’S PRIOR WRITTEN PERMISSION OR A COURT
ORDER. WE AT LEAST WANT TO KNOW WHERE THEY ARE.
THE COURT: COULD THE COURT REPORTER READ BACK THE LAST
COMMENT?
(RECORD READ.)
THE COURT: YOU DON’T OBJECT TO THAT?
MR. ROTHSCHILD: IT SEEMS TO ME THAT A NORMAL ORDER WOULD BE THAT
SHE’S REQUIRED TO INFORM HIM WITHIN TEN DAYS
OR — OF ANY MOVE AND IF THEY WANT, PENDING
FURTHER DISCUSSIONS THAT SHE NOT RELOCATE THE
CHILDREN BEYOND THE COURT’S JURISDICTION.
THE COURT: IS THERE A LOCAL — ISN’T THERE A LOCAL CUSTODY
ORDER PRESENTLY IN EFFECT?
MR. ROTHSCHILD: THAT’S WHAT WE WERE GOING TO BRING JP.
THAT IF I UNDERSTAND THE COURT’S RULING, THAT
BECAUSE OF THE INITIAL RULINGS, FAILURE TO
CONFORM WITH PROVISIONS OF THE UCCJA, THAT THE
COURT HAS DENIED ENFORCEMENT OF THE ISRAELI
CONDITIONAL CUSTODY ORDER, WHICH WOULD MEAN THAT
THERE’S NO CUSTODY ORDER IN THIS CASE. AND
PERHAPS THERE SHOULD BE A TEMPORARY CUSTODY ORDER
PENDING THIS MATTER’S RESTORATION TO THE ORDER TO
SHOW CAUSE CALENDAR.
THE COURT: MORE SPECIFICALLY, IS THE — ISN’T THE CUSTODY
ORDER INITIALLY ORDERED BY JUDGE REGAN, OR I
THINK IT’S JUDGE SATER UNDER 5152(1)(C) FN-22
STILL IN EFFECT?
MR. HILTON: IT IS AT THIS TIME, YOUR HONOR, BUT THAT — FOR
ALL INTENTS AND PURPOSES, THE EMERGENCY
PROVISIONS ARE GONE, AND SINCE THIS COURT HAS
DECIDED CALIFORNIA SHOULD HAVE JURISDICTION, I
THINK JUST TO CLARIFY THE RECORD, YOU COULD MAKE
A RULING THAT THE MOTHER HAS CUSTODY OF THE TWO
CHILDREN SUBJECT TO THE AGREED UPON OR COURT
ORDERED VISITATION RIGHTS OF THE FATHER, JUST SO
THIS IS CLEAR. FN-23
THE COURT: AND TO PLACE THE MATTER ON THE DOMESTIC
CALENDAR FOR FURTHER HEARING?
MR. HILTON: YES.
THE COURT: IS THIS —
MR. MOSKOWITZ: WHAT I WOULD SUGGEST IN THE ALTERNATIVE, IS FOR
AN ORDER THAT PENDING THE HEARING ON THE DOMESTIC
CALENDAR, THE PARENTING PROVISIONS AND THE
RESTRAINING ORDER PROVISIONS IN JUDGE SATER’S
ORDER REMAIN IN EFFECT.
WE’RE ONLY TALKING ABOUT A PERIOD OF A FEW WEEKS.
AND THOSE ORDERS DO CONTAIN THE LANGUAGE THAT I’M
CONCERNED ABOUT.
UNDER THE NELSON CASE AND THE CURTIS CASE ON
EMERGENCY, THE JURISDICTION GOES AWAY WHEN THE
EMERGENCY GOES AWAY, AND I THINK THE COURT NEEDS
TO AFFIRMATIVELY ORDER, BASED ON WHATEVER
JURISDICTION IS ASSERTED TODAY, THAT THOSE
PARENTING PROVISIONS AND THE PROVISIONS ABOUT
CHANGING THE CHILDREN’S ADDRESS REMAIN IN EFFECT.
THE COURT: AS AN INTERIM ORDER, IS THERE A STIPULATION —
MR. ROTHSCHILD: IT SOUNDS LIKE THERE IS A STIPULATION, THAT JUDGE
SATER’S — IS IT JUDGE SATER’S ORDER OR REGAN’S
ORDER?
MR. MOSKOWITZ: I THINK WE REPEATED THE LANGUAGE.
MR. HILTON: THE IDENTICAL LANGUAGE — JUDGE REGAN JUST
CONFIRMED THE ORDER OF JUDGE SATER. KEPT IT IN
EFFECT.
MR. MOSKOWITZ: YES. I THINK WE’RE TALKING ABOUT PARAGRAPHS 5, 6,
7 AND 8 OF JUDGE SATER’S ORDER WHICH WAS FILED
JUNE 6, 1991 IN THIS MATTER.
THE COURT: IS THERE A STIPULATION THAT UNTIL FURTHER ORDER
OF THE COURT KATHERYN SHALL CONTINUE TO HAVE SOLE
CUSTODY OF THE THREE CHILDREN AND GADY SHALL
CONTINUE TO BE ENTITLED TO VISITATION UPON THE
TERMS SET FORTH IN PARAGRAPH 5?
MR. ROTHSCHILD: YES.
MR. HILTON: YES, YOUR HONOR.
THE COURT: DO YOU SO STIPULATE?
MR. MOSKOWITZ: SO STIPULATED, YOUR HONOR.
THE COURT: JUST TO CLARIFY. THOSE TERMS ARE A,
THE CHILDREN WILL BE WITH GADY EVERY OTHER SUNDAY
FROM 12 NOON UNTIL 5 P.M. B, VISITATION SHALL BE
SUPERVISED AND SHALL OCCUR IN DOYLE PARK IN SANTA
ROSA. C, THE SUPERVISOR SHALL ALWAYS KEEP THE
CHILDREN IN HIS SIGHT BUT SHALL BE FAR ENOUGH
AWAY TO AFFORD GADY AND THE CHILDREN A REASONABLE
DEGREE OF PRIVACY. D, UNTIL FURTHER COURT OF THE
COURT, KATHERYN SHALL PAY THE COST OF SUCH
VISITATION.
MR. MOSKOWITZ: ALSO PARAGRAPHS 6, 7 AND 8 REGARDING PHONE
CONTACT, CHANGE OF ADDRESS, AND KEEPING THE
CHILDREN WITHIN THE NINE BAY AREA COUNTIES. AT
LEAST PENDING THE NEXT HEARING.
THE COURT: TO THE EXTENT OF PARAGRAPH 5 AS RECITED BY THE
COURT AS WELL AS PARAGRAPH 6, 7 AND 8, DO BOTH
PARTIES STIPULATE?
MR. MOSKOWITZ: YES, YOUR HONOR.
MR. ROTHSCHILD: WE HAVE NO PROBLEM, EXCEPT FOR NUMBER 8. 6 AND 7
ARE OKAY. BUT 8, THIS HAS BEEN IN EFFECT FOR
ALMOST WHAT, OVER A YEAR, ALMOST TWO YEARS I
GUESS AT THIS POINT. AND IT WOULD SEEM THAT IT’S
SORT OF RESTRICTIVE FOR THE CHILDREN, FOR
EXAMPLE, FOR SCHOOL TRIPS THAT THEY HAVE MISSED
BECAUSE THEY HAVEN’T BEEN ABLE TO GO OUT OF THE
NINE COUNTIES.
IT WOULD SEEM THAT WE KEEP THEM IN CALIFORNIA, IT
WOULD BE SUFFICIENT. AND WE SHOULD — WHAT WE CAN
PUT IN IS THAT MISS KATZ SHALL NOT CHANGE THE
CHILDREN’S RESIDENCE, YOU KNOW, FROM SONOMA
COUNTY, FROM SONOMA COUNTY, BUT AS FAR AS
LIMITING THE TRAVEL IN THE STATE, IT SEEMS
UNFORTUNATE AND UNNECESSARY.
THE COURT: DO YOU HAVE ANY PROBLEM MODIFYING 8 TO READ
WITHIN THE GEOGRAPHICAL LIMITS OF CALIFORNIA
RATHER THAN THE NINE BAY AREA COUNTIES?
MR. MOSKOWITZ: THAT’S FINE, YOUR HONOR.
THE COURT: VERY WELL. WITH THAT MODIFICATION, BOTH PARTIES
STIPULATE?
MR. ROTHSCHILD: YES, YOUR HONOR.
MR. MOSKOWITZ: YES, YOUR HONOR.
THE COURT: SO ORDERED. COURT WILL BE ADJOURNED.
MR. MOSKOWITZ: DO YOU NEED TO PUT THIS ON CALENDAR FOR THE
CUSTODY ISSUE?
THE COURT: YES. BACK ON THE RECORD ON THE NADLER MATTER.
WHICH THURSDAY DO YOU DESIRE THIS TO BE ON?
MR. MOSKOWITZ: MR. ROTHSCHILD HAS ALREADY SET A MATTER FOR THE
21ST.
MR. ROTHSCHILD: THAT’S CORRECT, THE 21ST.
THE COURT: 2lST OF JANUARY? 21ST OF JANUARY AT
1:30. WHICH DEPARTMENT?
MR. MOSKOWITZ: AN ODD NUMBER CASE. BOTH OF THEM.
THE COURT: WHAT DOES THAT MEAN?
MR. ROTHSCHILD: THAT MEANS IT WILL BE IN THIS DEPARTMENT.
THE COURT: DEPARTMENT 4, 8:30 ON THE 21ST.
County of Sonoma )
) ss.
State of California )
I, LYNN A. ANDERSON, CSR No. 5213 do hereby certify that I am a
Certified Shorthand Reporter in and for the State of California,
County of Sonoma;
That I reported the foregoing proceedings in stenotype and
thereafter caused the same to be transcribed as is contained
herein.
I further certify that the transcript is a true and correct
transcript of the proceedings had in said matter to the best of my
ability.
Dated: February 2, 1993
/s/ Lynn A. Anderson
_______________________________
Lynn A. Anderson, CSR No. 5213
Notes
1. All footnotes were added by Wm. M. Hilton
——————–
1. While not discussed in the decison, attorney fees and costs,
including costs to locate the children, can be ordered
pursuant to 9 ULA 15(b).
2. This is often the most practical approach since the actual
fees and costs will not be known until the matter is
completed. The usual rule is to submit the argument of fees
and costs on written argument with an accounting of such
fees and costs.
3. Mr. Nadler had left Israel several years before the mother
and children left Israel.
4. 9 Uniform Laws Annotated [ULA] 3
5. See 9 ULA 7
6. 9 ULA 3
7. 9 ULA 3(a)(2)
8. 9 ULA 3(a)(4)
9. But see Auto Equity Sales, Inc. v Superior Court (1962) 57
Cal.2d 450 [20 Cal.Rptr. 321] where it was held that the
decison of one district is not to be given more weight than
that of another district.
10. 9 ULA 3(a)(2)
11. See also In re Marriage of Bolton (Mont.1984)
690 P.2d 401, 404 where the wishes of the children were also
considered.
12. See The Convention on the Civil Aspects of International
Child Abduction, done at the Hague on 25 Oct 1980 [The
Convention], Art. 13(c) where the wishes of the children can
be used to prevent the return of the children to their
Habitual Residence.
13. This would be similar to a defense under Art. 13(b).
14. 9 ULA 3(a)(4)
15. 9 ULA 3
16. This case was between Israel and California.
17. This is when the mother and the children left Israel. As
previously noted the father had left some years before.
Accordingly none of the parties or the children continued to
live and/or reside in Israel, a necessary condition for
Child Custody Subject Matter Jurisdiction (CCSMJ).
18. 9 ULA 3
19. 9 ULA 8
20. 9 ULA 8
21. In the strictest sense the Court’s decision is technically
incorrect since the matter that was before the Court was the
enforcement of the initial Israeli decree which gave custody
to the mother. During the prolonged court hearings (over
two years) the father had obtained variations of the
original order in Israel which in effect required the mother
and children to return to Israel. The decision of the court
in effect held that the subsequent orders were not valid and
would not be enforced. At the same time the mother’s action
before the court was to modify the Israeli orders to account
for her presence in California and to regularize access.
22. 9 ULA 3(a)(3)
23. Emergency Jurisdiction under the UCCJA is temporary only, to
prevent harm to the child pending a hearing in that place
that has CCSMJ under either the “Home State” or “Significant
Connection” basis. See Shores v Shores (E.D.Tenn. 1987) 670
F.Supp. 774, 777.