USA – FEDERAL – BEN-EVEN V TAL – 2001(Returned denied) BEN-EVEN v TAL. The child was taken from Israel to the United States. The father “requests that the Court determine that the minor child of the parties, was wrongfully removed from the country of Israel and is being wrongfully retained in the United States by Respondent”. The court ruled that the place of habitual residence of the child is the United States. The child’s trip to and stay in Israel in the company of her mother for a period of eight months was temporary and contingent upon adjustment of the child to life in that country. That adjustment never occurred. Israel did not supplant the United States as the child’s place of habitual residence. Respondent has the right to determine place of residence of the child under the Decree of Divorce and amendments thereto. Her exercise of that right is consistent with both California and Nevada law. There has been no wrongful removal under the principles of the Hague Convention. Accordingly, IT IS HEREBY ORDERED that Respondent’s Motion to Dismiss is Denied. IT IS FURTHER ORDERED that the Petition for Return of Child to Petitioner (#1) is Denied.
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Ben-Even v Tal (USDC Nevada 2001)United States District Court, District of Nevada
No CV-S-01-0475-KJD (RJJ)
12 International Abduction [USA 2001]
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
DANI BEN-EVEN, | CV-S-01-0475-KJD (RJJ)
Petitioner, |
|
v. |
|
ORLY TAL, | ORDER
Respondent. |
_____________________|
001 This matter is before the Court on DANI BEN-EVEN’s
Petition for Return of Child to Petitioner (#1) and
Respondent ORLY TAL’s Motion to Dismiss (#12). The Court has
jurisdiction pursuant to 42 U.S.C. 11601 -11610, the
International Child Abduction Remedies Act (“ICARA”). ICARA
implemented the provisions of the 1980 Hague Convention on
the civil aspects of international child abduction.
Petitioner DANI BEN-EVEN requests that the Court determine
that Shirelle Ben-Even, the minor child of the parties, was
wrongfully removed from the country of Israel and is being
wrongfully retained in the United States by Respondent.
FACTUAL HISTORY
002 Both Petitioner and Respondent were born in Israel.
Respondent moved to the United States In 1979 and later
became a naturalized citizen. Petitioner moved to the United
States in 1980 and later became a naturalized citizen, also.
The parties each hold dual citizenship in the United States
and Israel. Petitioner and Respondent were married in the
state of California on December 14, 1991. Shirelle Ben-Even,
the female minor child of the parties, was born September
24, 1993 in Los Angeles, California The parties lived
together in Los Angeles, California throughout their
marriage and until separation in December 1995, when
Respondent flied for divorce. Soon thereafter, Respondent
and the minor child moved to Las Vegas, Nevada to live with
Respondent’s parents. Petitioner continued to reside in
California. The Decree of Divorce entered between the
parties in the Superior Court of California, County of Los
Angeles, awarded joint legal custody of the minor child to
the parties with physical custody awarded to the mother
(Respondent) and specific visitation awarded to the father
(Petitioner). The Decree further provided for the right of
each party to take the minor child to Israel. However, each
party waived any right to initiate legal proceedings under
Israeli law, on behalf of the minor child, against the other
spouse for issues “arising out [of] and relating to the
marital settlement agreement” regarding property purchased
in Israel. The Decree further provided that “neither party
shall remove the minor child from Nevada or California
without first obtaining the written consent of the other”,
and granted Respondent custody of the child’s passport. The
Decree also provided for cooperation between the parties In
the event both became residents of the same state or
country. It also provided that the Decree should be subject
to and interpreted exclusively under the laws of the State
of California. The Decree was filed August 12, 1998.
003 In March of 1999. Petitioner moved to Israel. Before
leaving the United States, he obtained a written agreement
from Respondent modifying the Decree of Divorce and that
agreement was flied with the Superior Court of Los Angeles
on December 2, 1998. The modification provided that, in the
event Petitioner should take up permanent residence in
Israel, he would have visitation with the minor child in
Israel each summer for four weeks during in the years 1999
and 2000 and for six weeks during the years thereafter.
Beginning in 2002, the Petitioner would additionally have
visitation with the minor child in Israel for up to fourteen
days during alternating winters. Respondent was to
contribute the lesser of 50% of the cost of airfare for the
child and accompanying adult or $1,500.00, with Petitioner
to pay the balance. Respondent later attempted to have the
modification set aside, but her request was denied.
004 Shortly after Petitioner moved to Israel in 1999, he
requested and Respondent agreed that the child be sent to
spend time with him during the spring break. That visitation
occurred and the child was returned to the United States.
Petitioner took the child to Israel again on July 4, 1999
where she stayed until retrieved by Respondent on July 29,
1999. Respondent alleges that when she went to Israel to
pick up the child in July of 1999, the child cried over the
fact that the long flights to Israel were upsetting her and
that she missed her mother and her home and did not want to
do the trip anymore. According to Respondent, the behavior
was so disturbing that she started considering the
possibility of moving closer to the Petitioner and hoped
that living closer would end his threats to kidnap the
child. Further, according to Respondent, on August 16, 1999,
she advised Petitioner that she was going to make an attempt
to move to Israel with the daughter for a trial period, but
that she was not committing to live there on a permanent
basis and if at any time either Respondent or daughter were
not happy, they would return to the United States. See
Affidavit of ORLY TAL, #17 and #18. In October of 1999,
Respondent and the child moved to Israel. On June 13, 2000.
Respondent returned to the United States and commenced legal
proceedings to change the custodial arrangements between the
parties.
ISSUES PRESENTED
005 Petitioner alleges, and Respondent denies, that the
country of Israel became the country of habitual residence
of the minor child. Petitioner points to several acts which
he claims evidence the intent of Respondent and the minor
child to abandon the United States as the place of habitual
residence. Petitioner relies on the fact that Respondent and
child came to Israel with financial assistance from the
Israeli government under that country’s “right of return”
laws. Petitioner also asserts that Respondent obtained full
time employment in her chosen field, took a one-year lease
on an apartment, enrolled the child in school, and obtained
government sponsored medical coverage.
006 Petitioner denies that there was any intention on her
part to abandon the United States as the child’s place of
habitual residence. She points to several facts which
support her claim. First, Respondent renewed her driver’s
license on September 16, 1999, twenty days before the flight
to Israel, even though the license was not due to expire
until December 17, 1999. Second, she did not cancel her
American citizenship or relinquish Nevada residency or
cancel social security accounts. Third, she left personal
belongings with a friend to be stored and requested that her
employer keep an open door in the event she decided to
return. Respondent also states that she requested the
director of the Jewish Community Day School in Las Vegas,
Nevada to hold a place open far the minor child and claims
that she rented a post office box for the purpose of
continued receipt of mail. Respondent also denies that her
receipt of financial assistance under “Right of Return” laws
obligated her to live in Israel for any specified time. She
asserts such assistance is a “privilege” available to
certain individuals who left Israel before the age of 14,
and not a commitment to live in Israel for any specified
period of time.
007 It appears that the parties continued to have
difficulties even with all family members living in the
country of Israel. Respondent alleges that the daughter
begged to return to Las Vegas and that her anxiety and
crying end pleading became more frequent and severe after
each visit with Petitioner. Again, according to Respondent,
during the month of May 2000, there were incidents at the
child’s school, witnessed by the school principal, when the
child stated that she was not happy in Israel and wanted to
return to the United States. Following meetings with the
school principal, the child’s teacher, and a psychologist,
and after consultation with attorneys in Israel, Respondent
left with the minor child for the United States, without
notice to Petitioner.
008 The Respondent’s affidavit and other pleadings make
numerous references to coercive threats on the part of
Petitioner, including cutting off support, taking the
daughter to Israel and not returning her, and death threats
against Respondent. Petitioner denies those threats and
denies that the child was having any difficulties or
problems in Israel.
008 Although the Court recognizes that it is without
authority to make custodial determinations during this stage
of the proceedings, the factual dispute over whether the
child was comfortable in Israel does have clear relevance to
the determination of whether Israel became the child’s place
of habitual residence. The Court also notes that although
Petitioner disputes the allegations of misconduct on his
part, those allegations, if substantiated, would bear
directly on the determination of whether either Respondent
or her daughter ever formed a settled intent to make Israel
their place of residence as alleged by Petitioner, or an
experimental or trial place of residence as alleged by
Respondent. The Court also notes that Respondent’s affidavit
asserts that there are independent witnesses to the
difficulties the child was having at school in Israel and
the death threats from Petitioner. See Affidavit of ORLY TAL
#17 and #18.
009 Following her return to the United States, Respondent
filed petitions for modification of the Decree of Divorce in
California (which denied jurisdiction based upon Nevada
residency) and thereafter, in Nevada.
LEGAL ANALYSIS
010 The Court will first address Respondent’s Motion to
Dismiss. In support of that motion, Respondent argues that
the identical issues raised by Petitioner in the instant
case have already been litigated in the Nevada State
District Court and that therefore this action should be
dismissed with prejudice.
011 The Court has thoroughly reviewed the documentation
submitted by the parties in support of their positions on
the issue of res judicata and the Younger Abstention
Doctrine and finds that although the Hague Convention issues
were presented to the Nevada State District Court, that
Court never ruled on the central issue presented by the
instant petition. The state court did issue certain interim
child custody rulings, but never addressed the merits of the
Hague Convention petition. In January of 2001, the state
case was transferred from one department to another, but the
transferee judge stated that the case would have to be
restarted for any decision on the merits of the petition.
012 This Court finds that no hearing has been held by the
transferee judge, or decision rendered on the state court
petition, that any petition pending in state court would not
deprive this Court of jurisdiction and that the policy of
the Hague Convention that issues be promptly determined,
combined with the Court’s concurrent jurisdiction pursuant
to 42 U.S.C. 11603, are factors strongly suggesting that
this Court proceed with the required determinations.
Accordingly, the Motion to Dismiss is denied.
DETERMINATION OF PLACE OF HABITUAL RESIDENCE
013 In order for the Hague Convention to apply, the
subject child must have been “habitually” residing In a
contracting state immediately before any breach of custody
or access rights and then taken to or retained in another
contract state. See Hague Convention, art. 3. It is
undisputed that the provisions of the Hague Convention are
in force between the United States and Israel. Pursuant to
Article 12 of the Convention, if a petition is filed within
a year of child’s wrongful removal or retention, the Court
shall order the return of the child forthwith. It is
undisputed that the petition flied April 25, 2001 in this
district was within one year of the child being taken from
Israel on June 12, 2000. Article 3 of the Convention
further provides that the removal or retention of a child is
to be considered wrongful where it is in breach of rights of
custody attributed to a person, an institution or any other
body, either jointly or alone, under the law of the state in
which the child was habitually resident immediately before
the removal or retention; and at the time of removal or
retention those eights were actually exercised, either
joIntly or alone, or would have been so exercised but for
the removal or retention. Application of the foregoing
provision requires a determination of four issues: (1) When
did the alleged removal or retention take place; (2)
Immediately prior to removal or retention, which state was
the child’s habitual residence; (3) Did removal or retention
breach custody rights of the petitioner under the law of
habitual residence; and (4) Was petitioner exercising those
rights at the time of removal or retention.
014 It is undisputed that Respondent removed the child
from Israel on June 12, 2000, when she left without notice
to return to the United States.
015 The place of habitual residence of Shirelle is
disputed by the parties. The burden of proof under the
Convention is on Petitioner. See Shalit v. Shalit 182 F.3d
1124, 1129 (9th Cir. 1999). It is clear that prior to
leaving the United States for Israel in March of 1999, the
child’s place of habitual residence was the United States.
The child Is a natural born citizen of the United States
with a United States passport. The child spent almost all of
her life in the United States prior to October of 1999. The
child was living with the mother and going to school in Las
Vegas, Nevada and there is no dispute that she was doing
well.
016 The first step in acquiring a new habitual residence
is an intention to abandon the prior residence. Although an
intention need not be declared, where there are
contradictory actions, declarations regarding intent are
relevant and should be considered. The Convention (Article
13) permits the Court to decline to order the child returned
if the child objects to being returned and has attained an
age and degree of maturity at which it is appropriate to
take account of the child’s views. Shirelle is not yet age 8
and thus, too young to have her views taken directly into
account. However, her views must be taken into account
indirectly because Respondent has stated that her decision
on whether to stay in Israel was to be contingent in large
part upon whether the child felt comfortable living there.
Although children are not in a position to make independent
choices as to where they wish to reside, see Gonzalez v
Reno, 212 F.3d 1338 (11th Cir. 2000), there is nothing to
prevent a parent who has authority to make such a
determination from considering the wishes of the child, see
Fedder v. Evans-Fedder, 63 F.3d 217 (3rd CIr. 1995). The
issue here is which parent had the authority to make that
decision. As noted above, the decree provided for joint
legal custody between the parties with actual physical
custody in Respondent subject to Defendant’s rights of
visitation. The decree further provided that it would be
interpreted under the laws of the State of California. Cases
recently decided under California law give the parent having
actual physical custody the right to determine place of
residence. See In Re Marriage of Burgess, 913 P.2d 473, 13
Cal. 4th 25 (Cal. 1996); In Re Marriage of Conden 73 Cal.
Rptr.2d 33, 62 CaL App.4th 533 (Cal.App. 1998).
017 Burgess involved a couple with joint legal custody,
with the mother retaining sole physical custody. The
California Supreme Court held that the mother, seeking to
relocate, had no burden of demonstrating that the move was
necessary, that such parent has the right to change the
residence of the child subject to the power of the court to
restrain removal that would prejudice the rights or welfare
of the child. See Burgess, 913 P.2d at 481, 13 Cal.4th at
36.
018 In Conden, both parents had joint legal and physical
custody. The Court found that the mother was the primary
caretaker regardless of the provisions of the decree and
that the mother had, for the preceding nine months, been
away from the father before she and the children moved to
Australia. In that case, the court affirmed that California
law allows a spouse with primary physical custody of a child
to move away unless the other spouse can demonstrate the
move would be against the best interests of the child. ~
Conden, 73 Cal.Rptr.2d at 40, 62 Cal.App. 4th at 542-43.
019 In the instant case, Respondent had physical custody
under the California decree. The decree provided that the
agreement would continue to be interpreted under the laws of
the State of California. It is therefore clear that under
the laws of California, Respondent had the right to
determine the residence of the child. Respondent has stated
in her affidavit that her decision on the place of the
child’s resIdence would be based on how the child was doing.
Her conduct is consistent with the assertions of her
affidavit in that regard. She avers that she moved to Israel
to see if the separation anxiety being suffered by the child
could be alleviated by the presence of both parents.
020 Even if, as argued by Petitioner, the California
residence was abandoned upon Respondent’s move to Nevada
that fact would not yield a different result. Nevada’s
statute on authority of a custodial parent to remove a child
is Section 125C.200 of the Nevada Revised Statutes. Recent
Nevada cases have made it clear that the burden is on the
non-custodial parent to prove that allowing the custodial
parent to remove a child to another state is not in the best
Interest of the child. See. e.g., Jones v. Jones, 885 P2d
563, 110 Nev. 1253 (Nev. 1994). Section 125C.200 is
primarily a notice statute and is not to be used to prevent
the custodial parent from freely pursuing life outside
Nevada when a reasonable alternative for visitation Is
possible. See Trent v. Trent, 890 P.2d 1309, 111 Nev. 309
(Nev. 1995). The move to Nevada and later Israel would not
of itself change or defeat the terms of the decree.
021 Respondent had the right to determine the residence of
the child. It is of some significance that the Decree of
Divorce provides for Respondent to have custody of the
child’s passport. The trial period in Israel did not work
out. Therefore, the Court finds that Respondent’s return to
the United States with the minor child was not in breach of
Petitioner’s custody rights. The Court further finds that
the contingencies upon which Respondent and the minor child
moved to Israel1 namely that adjustment problems and
separation anxiety experienced by the child when she was
away from her mother would be alleviated, were never
realized and thus there did not congeal any settled
intention to make Israel the state of habitual residence.
The Court further finds that Israel did not supplant the
United States as the locus of the child’s family and social
development. Shirelle never became settled in Israel and
simple consent to her presence in Israel was not enough to
shift her residence there. The Ninth Circuit Court of
Appeals has stated that unless there is sufficient evidence
of a shared intent between the parents, a prIor habitual
residence should be deemed supplanted only when “the
objective facts point unequivocally” to that conclusion.
Mozes v. Mozes, 239 F.3d 1067, 1081-2 (9th Cir. 2001). The
facts relied upon by Petitioner do not unequivocally support
the conclusion that Israel replaced the United States as the
place of habitual residence far the child.
CONCLUSION
022 The place of habitual residence for Shirelle Ben-Even
is the United States. The child’s trip to and stay in Israel
in the company of her mother for a period of eight months
was temporary and contingent upon adjustment of the child to
life in that country. That adjustment never occurred. Israel
did not supplant the United States as the child’s place of
habitual residence. Respondent has the right to determine
place of residence of the child under the Decree of Divorce
and amendments thereto. Her exercise of that right Is
consistent with both California and Nevada law. There has
been no wrongful removal under the principles of the Hague
Convention.
Accordingly, IT IS HEREBY ORDERED that Respondent’s Motion
to Dismiss (#12) is Denied.
IT IS FURTHER ORDERED that The Petition for Return of Child
to Petitioner (#1) is Denied. Because the Petition for
Return of Child is denied, the Court need not consider or
rule on Respondent’s Article 13(b) claims under the Hague
Convention.
DATED this 31st day of July 2001.
/s/ Kent J Dawson
___________________________
Kent J. Dawson
United States District Judge