USA – CA – OFFICER – 1996 (Return denied) (Acquiescence) District Attorney. County of Santa barbara (REUVENI) v REUVENI, Neither parent denied that the habitual residence was Israel. The mother took the child to the US with out the father’s knowledge. The father applied under the Hague Treaty for return of the child. In denying the return, the court ruled that a letter sent by the father, to the mother, did “constitute acquiescence” (The mother was represented by Mr. Hilton)
===========================================================
District Attorney v Officer (California 1996)Superior Court, County of Santa Barbara No. 215833
===========================================================
FILED
Santa Barbara
Superior Court
Dec 17 1996
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
District Attorney, , ) No. 215833
County of Santa Barbara )
Petitioner, )
)
v. ) RULING ON MOTION
) FOR ORDER TO RETURN
) FOR ORDER TO RETURN
Karen Ora Reuveni, , ) MINOR CHILD CHILD
aka Karen Ora Officer ) ABDUCTION REMEDIES
Respondent. ) ACT
______________________________) 42 USC 11601 et seq
Respondent Karen Reuveni and Real Party in Interest Rachamin
Reuveni married and had a minor child together in the State
of Israel. Rachamin Reuveni is an Israeli national; Karen
Reuveni is an American citizen; the minor child has
entitlement to both nationalities. The parties agree that
Israel was the minor’s last “habitual residence” within the
meaning of the Hague Convention on the Civil Aspects of
International Child Abduction, codified in the United States
as 42 USC sections 11601 et seq.
This proceeding arises as a result of a petition on behalf
of Rachamin Reuveni to compel the return of the minor child
of the parties (Esther) to Israel. Rachamin Reuveni seeks to
assert his rights under the Hague Convention and 42 USC
11601 to a court decree returning the child, on the grounds
that he is a custodial parent and the child was removed from
Israel without his consent. Karen Reuveni resists this
request on three grounds: 1) that a decree of an Israeli
court gave her sole custody subject only to certain
visitation rights in Rachamin Reuveni, and so her removal of
the child from Israel to the limited States was authorized
by law; 2) that Rachamin Reuveni, by a letter dated October
6, 1996 which is in evidence, “acquiesced” in her removal of
the child to the United States at a time when he was aware
of his rights under the Hague Convention, and so has
irrevocably waived the right to enforce the child’s return;
and, 3) that the child would be seriously endangered by an
enforced return to Israel under present conditions. Rachamin
Reuveni replies to these contentions by asserting that a
reconciliation between the parties occurred after the decree
of the Israeli court, thus nullifying the decree placing
custody in Karen Reuveni; that the letter dated October 6,
1996 is not sufficient to constitute an acquiescence under
the Hague Convention; and that the danger to the child now
is not significantly greater, in the area in which the
family resided, than it was when they all lived there
before.
After consideration of the evidence, the legal authorities,
and the arguments of counsel, and the matter having been
submitted to the court for decision, the court finds in
favor of Karen Reuveni and against Rachamin Reuveni on the
first two issues, the proper interpretation of the Israeli
custody decree and the issue of acquiescence under the Hague
Convention. The court reaches no conclusion on the issue of
danger to the child in the event of return to Israel, but
will address that reserved issue should it become legally
necessary to do so in the future.
The decree of the Israeli court upon the separation of the
parties provides clearly for sole custody of Esther to Karen
Reuveni, with visitation rights to Rachamin Reuveni. WMH FN1
Rachamin Reuveni argues that a later reconciliation
occurred, but even if it did, this is insufficient to change
the terms of a decree lawfully entered by the court. The
decree does not contain a judicially-approved term
automatically nullifying its provisions if the parties
return to living temporarily as husband and wife, and in the
absence of binding legal authority compelling the
interpretation of such a term as implied by law, the court
declines to supply such a term. The parties have presented
no evidence that California or Israeli Law requires such a
construction. The court finds that the Israeli decree on
child custody and visitation continues in full force and
effect until judicially modified by a court having
jurisdiction of the parties and the subject matter. Article
13, section (a) of the Hague Convention provides expressly
that a party not actually exercising custody rights at the
date of removal may not compel return.
The court therefore concludes that Karen Reuveni’s removal
of Esther to the United States was authorized by the laws of
Israel and the United States at the time it occurred.
(Friedrich v. Friedrich (6th Cir. 1993) 983 F.9d 1396.)
Even if not, Rachamin Reuveni has “acquiesced” in Karen’s
retention of Esther in the United States, as that term is
construed under the Hague Convention. When one has knowledge
of one’s rights to petition for return of a child under the
Hague Convention and its domestic implementing legislation,
and with knowledge of those rights offers consent or
“acquiescence” to the child remaining in the foreign
jurisdiction, the right to compel return is lost
irrevocably. (Article 13(a), Hague Convention.) The burden
on a party raising this contention is to establish it by a
preponderance of the evidence (42 USC section
11603(e)(a)(B); Wanninger v. Wanninger (D. Mass. 1994) 850
F.Supp. 78, 81.)
The letter states in material part: “I would never take
Esther from you–from her mother. I am willing to sign
whatever you ask me to, so that you know you both would not
be hindered from leaving the country…. If you want your
freedom, I do not want to stand in the way of your
happiness.” WMH FN2
This language constitutes an “acquiescence” in the retention
of Esther in the United States in the custody of Karen.
(Hague Convention, Article 13(a); 49 USC section
11603(e)(a)(A); Wanninger, supra, at p. 89; see also Currier
v. Currier (Dist. N. H. 1994) 845 F.Supp. 916; see also Re
S. (Minors: Abduction; Acquiescence) (Court of Appeal,
United Kingdom, 1994) I FLR 819.) This court so finds by a
preponderance of the evidence.
The petition for an order compelling the return of Esther to
Israel is therefore DENIED. It is so ordered. Counsel for
Karen Reuveni is directed to present an appropriate Order
After Hearing in the form required by the California Rules
of Court, to give notice of this ruling and to transmit an
exemplified and certified copy of this order to the
appropriate authorities in Israel.
Dated: December 17 1996.
/s/ Thomas R. Adams
_______________________________
THOMAS R. ADAMS, JUDGE
——————–
1. The full text of the Israeli Order is attached as
Exhibit A.
2. The full text of this letter is attached as Exhibit B.
===========================================================
EXHIBIT A
Reuveni v Reuveni (Israel 1995)
Declaratory file No 23537/95; Civil file No 1398/95
———————————————————–
REUVENI V REUVENI
December 24, 1995
Declaratory file no 23537/95 Civil file no
1298/95
IN THE DISTRICT COURT IN JERUSALEM
Hon Judge Ruth Orr
DECISION
After receipt of Dr. Perlmutter’s opinion, I declare as
follows:
1. Custody of the minor child of the couple — will be
with the mother.
2. a. The father will see his daughter every Monday and
every Thursday of the week at 11:00 — for two
hours each time, during the month of January 96,
with the accompaniment of a social welfare
officer and without the mother being present.
b. Beginning February 1, 1996, the father will see
his daughter every Monday and every Thursday of
the week — from 10:00 until 1:00, but without
the accompaniment of a social welfare officer.
c. The father will receive the daughter for
visitation at the office of the father’s attorney
at 1 Doioi Kishonim Street,Jerusalem on the days
and at the hours designated above, and will
return the daughter to the mother’s possession in
the same office at the conclusion of the above
designated visitation hours.
d. Beginning from February 96, the father will spend
the visitation hours in the daughter’s presence
— at any location as he will deem appropriate
and without the mother being present.
e. If for any reason, the couple prefers other
visitation hours, they will notify the Court of
same in order to make a decision in the matter.
f. Should the father be prevented from taking his
daughter on any of the visitation days — he will
so notify the mother in time reasonably prior to
the visitation hour in order to prevent
unnecessary hassle and disappointment to the
daughter.
3. Beginning July 1, 1996, the father may take his
daughter on week-ends (Friday or Saturday) for six
consecutive hours on each occasion.
Should there be a problem with setting the additional
day (Friday or Saturday) or the place of the meeting
on that additional day, the parties will advise the
court what each of them regards as the appropriate
location and the Court will decide the matter.
4. The social welfare office is requested to follow up
concerning the child and report to the Court once per
half-year or on any occasion when problems arise
regarding the child.
5. The Court joins in Dr. Perlmutter’s wise advice that
the mother and father go for weekly, in-depth,
counseling in order to assist each of them in all
aspects of their live and especially regarding the
relationship between them for the sake of their
common child.
6. A copy of this decision shall be sent to the parties
and the social welfare office.
/s/ Ruth Orr
___________________
Ruth Orr, Judge
December 24, 1995
[Handwritten Notation: Send pursuant to decision December
24, 1995]
===========================================================
EXHIBIT B
Jerusalem, Israel — October 6 1996
Dear Karen,
I have called you several times and have left a message on
the answering machine.
We can’t be pulling Esther between us. I am longing to see
her and also to see you. I do love you both and need you.
I ask that you considering coming her to talk to me. We
could have someone else, a third person present — someone
that you would approve of. We could talk as husband and
wife (as human beings should do) to see what we have for
each other. I am not like and animal that I can forget you.
I would never take Esther from you — from her mother. I am
willing to sign whatever you ask me to, so that you know you
both would not be hindered in leaving the country. I say
again, I would never take Esther from you because I love
you. I don’t want ever to hurt you. I wanted to do right
and all for your good in whatever I did. I am burdened for
all the trouble that has come out of it. I do deeply love
you and believe I can, with your help, understand whatever
it is that needs to be worked out between us. We should not
hide from each other.
God gave Esther to us together and if we could some together
again, it is possible that He might bless us with more
children.
Everything in life (good and bad) we could walk hand in hand
together, helping and not hurting each other. My heart is
heavy. I don’t want our love to be destroyed. Trouble
should not separate us. If we put love first, all else can
be worked out. I am willing to do my part and ask that you
help me once again.
If you want your freedom, I do not want to stand in the way
of your happiness. We have to work it out, at least, for me
to visit Esther.
If you do talk with the Rabbi there, I would like for the
Rabbi to call me afterwards. I am anxiously awaiting your
answer.
/s/ Rachamin Reuveni
===========================================================
William M. Hilton, CFLS FILED
Attorney At Law, SBN 59503 SANTA BARBARA COUNTY
Box 269 20 Feb 1997
Santa Clara, California 95052
TEL: (408) 246-8511 FAX: (408) 246-0114
Attorney for Karen S. Officer
Special Appearance: 42 U.S.C. 11601 et seq.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
In re the Application of: ) No. 215833
)
Petitioner: District Attorney of )
Santa Barbara County ) ORDER, JUDGMENT &
) DECREE: DENIAL OF
vs ) PETITION TO RETURN
) CHILD
Respondent: Karen S. Officer, )
AKA Karen Or Reuveni )
___________________________________)
The Convention on the Civil Aspects of International
Child Abduction, done at the Hague on 25 Oct 1980
International Child Abduction Remedies Act,
42 U.S.C. 11601 et seq
1.0 GENERAL
1.1 This matter was brought before the Superior Court of
California, County of Santa Barbara by the PETITION
AND ORDER APPOINTING DISTRICT ATTORNEY TO LOCATE
MINOR CHILD (CFLC 3130, PC 278 et seq) (Filed 18 Oct
1996).
1.2 The matter was continued from time to time to 11 Dec
1996 for a hearing on the merits of Rachamin
Reuveni’s STATE OF ISRAEL — REQUEST FOR RETURN OF
ABDUCTED CHILDREN (Dated 22 Jul 1996).
1.3 Rachamin Reuveni was not present in court, but was
represented by Paul A Pettine III, Esq.
1.4 Karen S. Officer was present in court with counsel:
William M. Hilton, CFLS.
1.5 The Court took the matter under submission after
argument by counsel for both parties.
2.0 FACTS
2.1 Karen S. Officer and Rachamin Reuveni are wife and
husband and are the parents of Esther Chaia Reuveni,
dob 30 Jun 1994 (Estee), born in Israel. Estee is a
citizen of both the United States and Israel.
2.2 On 24 Dec 1995 the District Court of Jerusalem issed
its DECISION wherein Karen S. Officer was granted
sole cusotdy of Estee, with visitation rights to
Rachamin Reuveni.
2.3 On or about 28 Jun 1996 Karen S. Officer and Estee
permanently left Israel for the United States,
without the consent of Rachamin Reuveni.
2.3.1 At the time Karen S. Officer and Estee left
Israel, Israel was the “Habitual Residence” of
Estee within the meaning of Art. 3 of The
Convention.
2.4 On 22 Jul 1996 Rachamin Reuveni filed his REQUEST FOR
RETURN OF ABDUCTED CHILDREN with the State of Israel.
2.5 On 06 Oct 1996 Rachamin Reuveni wrote a letter to
Karen S. Officer wherein he state, inter alia, the
following: “I would never take Esther from you–from
her mother. I am willing to sign whatever you ask me
to, so that you know you both would not be hindered
from leaving the country…. If you want your
freedom, I do not want to stand in the way of your
happiness.”
2.6 On 18 Oct 1996 Rachamin Reuveni’s petition to compel
the return of Estee to Israel was filed with this
court.
2.7 The matter was argued and submitted on 11 Dec 1996.
2.8 After consideration of the evidence, the legal
authorities, and the arguments of counsel, and the
matter having been submitted to the court for
decision, the court finds in favor of Karen Reuveni
and against Rachamin Reuveni on the first two issues,
the proper interpretation of the Israeli custody
decree and the issue of acquiescence under the Hague
Convention. The court reaches no conclusion on the
issue of danger to the child in the event of return
to Israel, but will address that reserved issue
should it become legally necessary to do so in the
future.
3.0 RIGHTS OF CUSTODY (Arts. 3 and 5)
3.1 The decree of the Israeli court upon the separation
of the parties provides clearly for sole custody of
Esther to Karen Reuveni, with visitation rights to
Rachamin Reuveni. Rachamin Reuveni argues that a
later reconciliation occurred, but even if it did,
this is insufficient to change the terms of a decree
lawfully entered by the court. The decree does not
contain a judicially-approved term automatically
nullifying its provisions if the parties return to
living temporarily as husband and wife, and in the
absence of binding legal authority compelling the
interpretation of such a term as implied by law, the
court declines to supply such a term. The parties
have presented no evidence that California or Israeli
Law requires such a construction. The court finds
that the Israeli decree on child custody and
visitation continues in full force and effect until
judicially modified by a court having jurisdiction of
the parties and the subject matter. Article 13,
section (a) of the Hague Convention provides
expressly that a party not actually exercising
custody rights at the date of removal may not compel
return.
3.2 The court therefore concludes that Karen Reuveni’s
removal of Esther to the United States was authorized
by the laws of Israel and the United States at the
time it occurred. (Friedrich v. Friedrich (6th Cir.
1993) 983 F.9d 1396.)
4.0 ACQUIESCENCE
5.1 Rachamin Reuveni has “acquiesced” in Karen’s
retention of Esther in the United States, as that
term is construed under the Hague Convention.
5.2 When one has knowledge of one’s rights to petition
for return of a child under the Hague Convention and
its domestic implementing legislation, and with
knowledge of those rights offers consent or
“acquiescence” to the child remaining in the foreign
jurisdiction, the right to compel return is lost
irrevocably. (Article 13(a), Hague Convention.)
5.3 The burden on a party raising this contention is to
establish it by a preponderance of the evidence (42
USC section 11603(e)(a)(B); Wanninger v. Wanninger
(D. Mass. 1994) 850 F.Supp. 78, 81.)
5.4 The letter states in material part: “I would never
take Esther from you–from her mother. I am willing
to sign whatever you ask me to, so that you know you
both would not be hindered from leaving the
country…. If you want your freedom, I do not want
to stand in the way of your happiness.”
5.5 This language constitutes an “acquiescence” in the
retention of Esther in the United States in the
custody of Karen. (Hague Convention, Article 13(a);
49 USC section 11603(e)(a)(A); Wanninger, supra, at
p. 89; see also Currier v. Currier (Dist. N. H. 1994)
845 F.Supp. 916; see also Re S. (Minors: Abduction;
Acquiescence) (Court of Appeal, United Kingdom, 1994)
I FLR 819.) This court so finds by a preponderance of
the evidence.
6.0 ORDER DENYING PETITION
6.1 The petition for an order compelling the return of
Esther to Israel is therefore DENIED. It is so
ordered.
7.0 ORDER REMOVING RESTRICTIONS TO TRAVEL
7.1 This Court’s ORDER PENDING HEARING (Filed 31 Oct
1996) is dismissed in its entirety and in particular
all restrictions on the removal of Estee from
California and/or residence restrictions are removed.
7.2 The District Attorney of Santa Barbara County shall,
upon request of Karen S. Officer, promptly turn over
all the travel documents that are being held pending
the result of the hearing in California.
8.0 ORDER, JUDGMENT AND DECREE
8.1 The Court has read the above order, finds that it
conforms with its RULING ON MOTION FOR ORDER TO
RETURN MINOR CHILD UNDER INTERNATIONAL CHILD
ABDUCTIOLN REMEDIES ACT [42 U.S.C. 11601 et seq.]
(Filed 17 Dec 1996) hereby ORDERS, ADJUDGES AND
DECREES that the parties are to carry out each and
every of its terms.
/s/ Thomas R. Adams
__________________________
Hon Thomas R. Adams, Judge
Superior Court of California
United States of America
Date: 20 Feb 1997