Finkelstein v Finkelstein (Supreme Court 2000)QDS: 22702297
3 International Abduction (USA 2000)


QDS: 22702297


IA Part 5

30 Mar 2000

Justice Rigler

001 Upon the foregoing papers, defendant Shlomo
Finkelstein (“Shlomo”), by order to show cause, who already
has sole custody of one infant of the marriage, David
Finkelstein, now moves to transfer to him sole legal custody
of the remaining children of the marriage: Jaclob, Benjamin,
Sarah, and Yehuda. The plaintiff, Giselle Finkelstein a/k/a
Giselle Pinto (“Giselle”), removed two of the children,
Sarah and Yehuda, to Israel — without notice to the Court,
her former husband, or to her other three children. She did
not appear in Court to oppose the motion. A sworn affidavit
of service attests to the personal service upon her in Beit
Schemisch, Israel, of all the motion papers in this

002 Shlomo and Giselle Finkelstein were married on October
13, 1977. Five children were born of their marriage: David,
born August 2, 1981; Jacob, born December 26, 1983;
Benjamin, born May 23, 1987; Sarah, born August 26, 1990;
and Yehuda, born August 26,1993.

003 On June 30, 1993, Giselle moved out of their house,
taking all five children with her.

004 On April 18, 1996, the parties were divorced by decree
of this Court. The Divorce Judgment granted joint custody of
all five children to Giselle and Shlomo, with physical
custody of all five children reposed in Giselle, subject to
Shlomo’s rights of visitation.

005 The Court’s order of September 3, 1998 granted sole
legal custody of David to Shlomo, subject to Giselle’s
visitation rights. The Court, furthermore, granted sole
legal custody of Jacob, Benjamin, Sarah and Yehuda to
Giselle, subject to Shlomo’s visitation rights. The Court’s
order further directed Shlomo to pay $35 per week to
respondent in child support. As for Shlomo’s visitation
rights, the order stated that the “schedule set forth in the
parties’ stipulation of settlement will remain in effect,”
meaning that Shlomo would be entitled to visit the four
younger children every Sunday from 10 a.m. to 7 p.m. In
addition, the order expanded Shlomo’s visitation rights
insofar as it permitted him weeknight visitation that would
not interfere with the children’s schooling or religious

006 Subsequent to the Court’s order, Jacob refused to
leave Shlomo and return to Giselle’s custody. Defendant
Shlomo Finkelstein has been the sole support and caretaker
for Jacob continuously since September 1996. Plaintiff
Giselle Finkelstein acquiesced to Jacob’s continued
residence with Shlomo.

007 On or about January 28, 1999, after Benjamin had
several physical arguments with his mother, Benjamin also
moved in with Shlomo, refusing to return to or even visit
with Giselle. She acquiesced to Benjamin’s living with

008 Until on or about June 21, 1999, when Giselle
absconded with Sarah and Yehuda, Shlomo visited Sarah and
Yehuda every Sunday from approximately 10 a.m. to 7 p.m., as
provided in the September 3, 1998 order.

009 From September 3, 1998 to June 20, 1999, Giselle
refused to permit Shlomo weekly overnight visitation with
Sarah and Yehuda, in spite of the September 3, 1998 order of
this Court directing her to do so. This was a source of
anxiety not only for Sarah, Yehuda and Shlomo, but also for
David, Jacob, and Benjamin who looked forward to overnight
visits with their two younger siblings.

010 Giselle absconded with Sarah and Yehuda some time
between Shlomo’s last visit with Sarah and Yehuda on June
20, 1999 and June 25, 1999. On June 25, 1999, Giselle
telephoned Shlomo to inform him that she had moved to Israel
with her husband Michael Pinto, Sarah, and Yehuda. Giselle’s
move to Israel was a complete surprise to Shlomo, David,
Jacob, and Benjamin.

011 Notwithstanding Shlomo’s attempts and emotional pleas,
Giselle and her family members refused to advise Shlomo of
the whereabouts of his children or even a manner by which he
might contact them.

012 In or about the month of August 1999, two months after
leaving them, Giselle informed David, Jacob, and Benjamin of
her address and phone number in Israel. She currently
resides at Rehov Rashbag “B,” Beit Shemesh, Israel.

013 Since in or about the month of August 1999, Shlomo has
spoken with Sarah and Yehuda once a week. They tell him that
they miss their father and their brothers and want to return
to New York.

014 Since June 20, 1999, Shlomo has not seen Sarah and
Yehuda and, without the aid of this Court, he may never see
them again.

015 On December 10, 1999, Shlomo received Hebrew documents
from Giselle via international registered mail. Apparently,
these documents are part of a motion by Giselle to the
Israeli courts, requesting: (1) that the Israeli Family
Court enter an order restraining Shlomo from removing Sarah
and Yehuda from Israel without her prior written consent;
and (2) that the Israeli court permit service via
international registered mail.

I. Custody of Jacob and Benjamin

016 A prior custody determination should be modified when,
upon consideration of all applicable facts and
circumstances, modification is in the best interests of the
children. DLR 240; Friederwitzer v. Friederwitzer, 55
N.Y.2d 89 (1982). In its September 3, 1998 order, this Court
granted legal and physical custody of Jacob and Benjamin to
Giselle, subject to Shlomo’s visitation rights. In spite of
that order, Jacob refused to leave Shlomo’s custody and,
with Giselle’s acquiescence, he has lived with Shlomo
continuously since September 1996. Benjamin, on the other
hand, moved in with Giselle briefly in response to the
September 3, 1998 order, but moved back to Shlomo’s custody
on or about January 28, 1999, because of several physical
arguments with Giselle. Giselle also acquiesced to
Benjamin’s living with Shlomo.

017 Shlomo is and has been the sole support and caretaker
for Jacob and Benjamin, but lacks the legal authority to act
as their parent, a situation that has been made more
difficult because of Giselle’s relocation to Israel in June
1999. In light of the desire of Jacob and Benjamin to live
with their father and Giselle’s apparent willingness to
relocate to Israel without notifying Jacob and Benjamin, the
decision to change sole custody to Shlomo is an obvious one.
Accordingly, this Court hereby modifies its September 3,
1998 order to the extent of transferring legal custody of
Jacob and Benjamin from Giselle Finkelstein to Shlomo

II. Custody of Sarah and Yehuda

018 Where a custodial parent has relocated in a manner
that detrimentally affects the other parent’s ability to
enjoy frequent and regular contact with the child, the Court
of Appeals has held that the relocating party bears the
burden of demonstrating that the proposed move is in the
child’s best interests. Tropea v. Tropea, 87 N.Y.2d 727,
740-41 (1996); Mascola v. Mascola, 251 A.D.2d 4149-415 (2d
Dep’t 1998); Yelverton v. Stokes, 247 A.D.2d 719, 720 (3rd
Dep’t.), appeal denied, 92 N.Y.2d 802 (1998).

019 The custodial parent who relocates in a manner that
interferes with the noncustodial parent’s visitation rights
must demonstrate by a preponderance of the evidence that the
relocation is in the best interests of the child. Tropea, 87
N.Y.2d at 740-41; Mascola, 251 A.D.2d at 415; Yelverton, 247
A.D.2d at 720. When deciding the merits of a child’s
relocation, the Court should consider “each parent’s reasons
for seeking or opposing the move, the quality of the
relationships between the child and the custodial and
noncustodial parent, the impact of the move on the quantity
and quality of the child’s future contact with the
noncustodial parent,” and the impact of the move on the
child’s economic, emotional and educational well-being.
Tropea, 87 N.Y.2d at 740-41. Custody should be transferred
to the noncustodial parent when that result is dictated by
the best interests of the child. Yelverton, 247 A.D.2d at
721 (holding that best interests of child would be served by
transferring custody to noncustodial parent, because
proposed relocation to California would interfere with
child’s relationships with noncustodial parent, extended
family and friends). Mascola, 251 A.D.2d at 415
(transferring custody to noncustodial parent where
relocation would qualitatively affect the children’s
relationship with the noncustodial parent, and the custodial
parent failed to demonstrate that relocating to Florida to
address her health problems “justif[ied] uprooting the
children from the only area they have ever known, where they
are thriving academically and socially”); Burnham v. Basta,
241 A.D.2d 628, 629-30 (3rd Dep’t), appeal denied, 90 N.Y.2d
812 (1997) (transferring custody to noncustodial parent
where custodial parent proposed to move to New Jersey for
economic reasons and proposed relocation would interfere
with child’s ability to visit with noncustodial parent and
relatives during the week, and weekend visitation would be
shortened because of two to three hour long car ride).

020 Relocation is not in the child’s best interests where
meaningful visitation by the noncustodial parent is rendered
impracticable. The New York courts have thus transferred
custody to the noncustodial parent where visiting the child
would require long-distance travel on the part of the
noncustodial parent. Yelverton, 247 A.D.2d at 720-21
(transferring custody of child to noncustodial parent even
where custodial parent relocating to California proposed
that noncustodial parent be allowed to visit with child for
“lengthy” “uninterrupted” periods during child’s winter and
summer vacations, where noncustodial parent had right to
weekend and evening visitation); Burnham, 241 A.D.2d at
629-30 (transferring custody to noncustodial parent where,
“to continue to enjoy regular weekend visitation
[noncustodial parent] would have to endure a two to three
hour long car ride each way [to and from New Jersey.
Noncustodial parent’s] actual visitation time, which would
be shortened accordingly, would have to be shared among
[himself,] both sets of grandparents and the child’s other
relatives”); see Mascola, 251 A.D.2d at 415 (transferring
custody to noncustodial parent because relocation to Florida
would “qualitatively affect” the children’s relationship
with the noncustodial parent).

021 A custodial parent’s willful interference with the
noncustodial parent’s visitation rights “raise[s] serious
questions of her fitness to act as a custodial parent.”
Santoro v. Santoro, 224 A.D.2d 510, 512 (2d Dep’t 1996)
(transferring custody to father where mother “engaged in
persistent effort to prevent [child from seeing and being
with the father and her brother. For almost six months the
wife permitted no visitation whatsoever.”); see, e.g.,
Matter of J.F. v. L.F., 181 Misc. 2d 722 (Fam. Ct.
Westchester County 1999) (mother’s psychological
interference); accord Glenn v. Glenn, 262 A.D. 2d 885 (3rd
Dept.), appeal dismissed, 94 N.Y.2d 782 (1999); Frank R. v.
Deborah Ann R., 204 A.D.2d 615, 616 (2d Dep’t 1994)
(reversing trial court and remanding for a custody hearing
where custodial parent willfully interfered with father’s
visitation rights by “frequently den[ying] the father
visitation as well as telephone contact with the children
and unsuccessfully try[ing] to bar the father from attending
each child’s First Holy Communion”); Entwistle v. Entwistle,
61 A.D.2d 380. 383-84 (2d Dep’t), appeal dismissed, 44
N.Y.2d 851 (1978) (reversing trial court’s decision not to
transfer custody to noncustodial parent where custodial
parent willfully interfered with noncustodial parent’s
visitation rights by taking two children to Illinois and
keeping noncustodial parent ignorant of children’s
whereabouts; stating “[w]hile respondent … has not
technically ‘abducted’ the children inasmuch as she was
custodial parent, the net result to the [noncustodial
parent] is ultimately the same”).

02 In the present case, Giselle removed Sarah and Yehuda
to Israel in June 1999 without any notice to Shlomo,
unilaterally deciding to extricate those children from
loving relationships with their father, brothers,
grandparents, and other relatives. In fact, Giselle’s move
was intended to prevent Shlomo from exercising his rights to
visit Sarah and Yehuda, as evidenced by the refusal of
Giselle and her family members to advise Shlomo of the
whereabouts of his children or even a manner by which he
might contact them.

023 In disregard for the Court’s September 3, 1998 order,
Giselle relocated to Israel with her husband Michael Pinto,
Sarah, and Yehuda some time during the week of June 20,
1999. Giselle’s move was also a complete surprise to the
sons she left behind: David, Jacob, and Benjamin. Shlomo
first discovered that Giselle had absconded with Sarah and
Yehuda on June 25, 1999, when Giselle called him from
Israel, refusing to advise him of the whereabouts of his
children or even a manner by which he might contact them.
Shlomo finally obtained a phone number and address for Sarah
and Yehuda in August when Giselle provided this information
to her sons David, Jacob, and Benjamin in a phone
conversation with them.

024 By relocating with Sarah and Yehuda to Israel, Giselle
severed the two children’s connection with their father,
brothers, grandparents and other extended family in
Brooklyn. Furthermore, Giselle uprooted Sarah and Yehuda
from the only community they knew and, in particular, from
the school Beth Jacob, where both were making strides in
their academic and social development.

025 When a parent relocates in the manner done by Giselle,
the Court has to wonder whether she has the important
quality of empathy, so necessary in rearing children.
Evidently, she did not pause to consider the emotional
ramifications of her conduct on any of her five children, as
she splintered them between two far reaching continents.
Giselle, of course, decided not to explain her behavior to
this Court, by her failure to oppose the instant motion
despite the valid personal service upon her of the papers.
This lack of empathy, her thwarting the Court’s order of
visitation, and her failure to divulge the whereabouts of
Sarah and Yehuda to their father does not provide a
flattering picture of her ability to give Sarah and Yehuda a
nurturing environment and to be a fit parent.

026 Accordingly, this Court modifies its September 3, 1998
order to the extent of transferring custody of Sarah and
Yehuda to Shlomo, subject to Giselle’s visitation rights.

027 Giselle Finkelstein, in absconding with two of the
children to Israel, may have misplaced her reliance on a
prior separation agreement, paragraph Q, executed in 1995,
providing that Giselle

“may relocate with the children to any place
within and without the United States without the
consent of the Husband. In the event Wife
relocates anywhere then in that event she shall
share in the cost of one ticket per year for the
Husband to facilitate the Husband’s opportunity
to visit with the children.”

028 Paragraph Q of the 1995 Separation Agreement, which
the Court never addressed in its September 3, 1998 Order, is
hereby deemed vacated because it clearly conflicts with the
visitation schedule set out in that order. Friederwitzer,
supra, 55 N.Y.2d 89 (holding that custody provision in
divorce judgment was based on parties’ agreement and,
therefore, was entitled to less consideration than if it was
based on plenary consideration by the court); Eschbach v.
Eschbach, 56 N.Y.2d 167,171-72 (1982) (same).

III. The Hague Convention

029 The Hague Convention on Civil Aspects of International
Child Abduction (“Convention”) was established at the Hague
on October 25, 1980. The United States ratified the
Convention on April 29, 1988, and became a “Contracting
State” effective July 1, 1988. Executive Order No. 12648, 53
Fed.Reg. 30637 (1988). Also, on April 29, 1988, Congress
enacted the International Child Abduction Remedies Act
(“CARA”), 42 U.S.C. 11601 et. seq. (1994), to implement the
Convention in the United States. See 51 Fed. Reg.
10494-10516 (1986) (setting out full text of the convention
and U.S. State Department’s legal analysis of the

030 Israel is a contracting State to the Convention. See
citations contained in Sampson v. Sampson, 267 Kan. 175, 975
P.2d 1211, 1214 (1999).

031 The Convention has two objectives: “(a) to secure the
prompt return of children wrongfully removed to or retained
in any Contracting State;” and “(b) to ensure that rights of
custody and of access under the law of one Contracting State
are effectively respected in the other contracting States.”
Convention, Art. 1; 51 Fed.Reg. at 10498.

032 In enacting ICARA, Congress made the following

“1) The international abduction or wrongful
retention of children is harmful to their

(2) Persons should not be permitted to obtain
custody of children by virtue of their wrongful
removal or retention.

(3) International abductions and retentions of
children are increasing, and only concerted
cooperation pursuant to an international
agreement can effectively combat this problem.

(4) The Convention on the Civil Aspects of
International Child Abduction, done at The Hague
on October 25, 1980, establishes legal rights
and procedures for the prompt return of children
who have been wrongfully removed or retained, as
well as for securing the exercise of visitation
rights. Children who are wrongfully removed or
retained within the meaning of the Convention
are to be promptly returned unless one of the
narrow exceptions set forth in the Convention
applies. The Convention provides a sound treaty
framework to help resolve the problem of
international abduction and retention of
children and will deter such wrongful removals
and retentions.” 42 U.S.C. 11601(a).”

033 Under the Convention, the movant must show that the
child was removed from his or her “habitual residence.”
Although the Convention fails to define that term, courts
have grafted several guideposts in ascertaining its meaning:

(1) the Court must focus on the child, not the parents;

(2) the Court must evaluate past experience, not look at
future intention;

(3) the term should not be equated with “domicile,” and it
should simply be thought of as “ordinary residence”; and,

(4) there must be a degree of “settled purpose,” which might
even be for a limited period, whether dictated by education,
business, profession, or some other facts. See, Tabacchi v.
Harrison, 2000 WL 190576 (N.D. Ill. Feb. 10, 2000); Sampson,
supra, 975 P2d at 1214-15. See, e.g., Shalit v. Coppe, 182
F.3d 1124 (9th Cir.), as amended en banc (1999); Kanth v.
Kanth, 79 F.Supp. 2d 1317 (D. Utah 1999); Pesin v. Osorio
Rodriguez, 77 F.Supp. 2d 1277 (S. D. Fla. 1999); In re
Morris, 55 F.Supp. 2d 1156 (D. Colo. 1999).

034 The determination of “habitual residence” under ICARA,
as this Court noted in a prior case, must be made upon all
the facts and circumstances. Matter of Cohen v. Cohen, 158
Misc. 2d 1018, 1924 (Sup. Ct. Kings County 1993); see,
Symposium, “Women, Children and Domestic Violence: Current
Tensions and Emerging Issues” 27 Fordham Urb. L.J. 567, 754
(2000) (“[H]abitual residence is never described nor defined
in any of the information on the statute or the implementing

035 Under the Hague Convention, the judicial or
administrative authority of a Contracting State must return
to the child’s state of Habitual Residence a child who has
been wrongfully removed to or retained in that contracting
State. Hague Convention, art. 12. The Convention further
provides that “the removal or retention of a child is
considered wrongful where it is in breach of rights of
custody attributed to a person … under the law of the
State in which the child was habitually resident immediately
before the removal or retention.” Hague Convention, art.3
(emphasis added). Significantly, visitation rights, which
are defined as “rights of access,” do not constitute “rights
of custody” within the meaning of the Convention; therefore,
if a child is removed in derogation of a parent’s access
rights only, that parent is not entitled to his or her
return. Viragh v. Foldes, 415 Mass. 96, 108-09, 612 NE2d 241
(1993) (holding that Hungarian father’s visitation rights
did not give him “rights of custody” under the Convention
and, therefore, he was not entitled to have his children
returned to Hungary from United States); see, Croll v.
Croll, 66 F.Supp. 2d 554, 558 (S.D.N.Y. 1999) (holding that
visitation rights did not entitle father to have his child
returned to Hong Kong, but that, because Hong Kong order
prohibited child’s removal from Hong Kong, father had
custody rights based on Article 5 of the Convention which
states explicitly that “rights of custody shall include …
in particular, the right to determine the child’s place of

036 If a Court in the child’s state of Habitual Residence
transfers custody to the parent who had mere access rights
when the child was removed by the custodial parent, the
non-consenting parent is entitled to the return of his
children under the Hague Convention. David S. v. Zamira S.,
151 Misc. 2d 630 (Family Ct. Kings County 1991).

037 Although not binding on the Israeli judicial
authorities who will consider Shlomo Finkelstein’s Hague
Convention petition, David S. v. Zamira S., 151 Misc. 2d
630, 574 N.Y.S.2d 429 (Family Ct. Kings County 1991), is
instructive. In David S., 151 Misc. 2d at 635, 574 N.Y.S.2d
at 432, the New York Supreme Court, Kings County, ordered
that two children who were removed by their mother to New
York be returned to their father’s custody in Ontario,
Canada, in spite of the fact that the parties’ separation
decree granted the father mere visitation rights at the time
of removal. The Court found that two Ontario Supreme Court
orders transferring temporary custody of the children to
their father within a year after the children’s removal
“constitute[d] a declaration that the removal or retention
of the children was wrongful within the meaning of Article 3
of the Hague Convention.” 151 Misc.2d at 635, 574 N.Y.S.2d
at 432; accord, Janakakis-Kostun v. Janakakis, 6 SW 3rd 843
(Ky. App. 1999), pet. for cert. filed, (Mar. 8, 2000) (no.
99-1496). see also Viragh, 415 Mass. at 108-09, 612 N.E.2d
at 249 (refusing to return children to father in Hungary,
the children’s state of Habitual Residence, because
Hungarian court denied father’s petition to transfer custody
after the mother’s relocation with the children to the
United States; holding that “the ruling of the Hungarian
court constitute a declaration under Hungarian law that [the
mother’s] retention of the children in the United States is
not wrongful”).

038 Prior to this decision, defendant Shlomo Finkelstein
had no remedy for the return of his children under the Hague
Convention on the Civil Aspects of International Child
Abduction (the “Hague Convention”). Specifically, the Hague
Convention facilitates the return of children who are
removed from their country of Habitual Residence in
violation of their parent’s rights to custody, but not
visitation. Hague Convention October 25, 1980, arts. 3 & 6;
Croll, supra, 66 F.Supp.2d at 558; Viragh, supra, 415 Mass.
at 104, 612 NE 2d 241. Shlomo, who is entitled to regular
weekend and weekly overnight visitation with Sarah and
Yehuda, has no custodial rights under this Court’s September
3, 1998 order. Consequently, the only way for him to prove
to the Israel Central Authority that his children should be
returned to him under the Hague Convention is for him to
obtain a court order reciting that Sarah and Yehuda’s
removal and retention in Israel was and continues to be
wrongful. Because New York is the children’s state of
Habitual Residence, this Court hereby grants Shlomo
Finkelstein’s motion seeking a change in custody.

Accordingly, the motion to transfer custody is granted in
all respects so that defendant Shlomo Finkelstein is the
custodial parent of all five children. Such custody shall be
subject to appropriate visitation by the mother Giselle

The foregoing constitutes the decision and order of the


01 Apr 2000

Comment by Wm M Hilton

The facts of this case show that two children were removed
from New York by their mother on or about 25 Jun 1999. The
facts also show that, at that time, the mother had sole
custody of the two minor children and that the father only
had rights of visitation.

The facts next show that the New York Court modified its
earlier order of 03 Sep 1998 on 30 Mar 2000 to give custody
of the two children (who had been removed from NY to Israel)
to their father.

The court then, citing David S. v. Zamira S., 151 Misc. 2d
630 (Family Ct. Kings County 1991), finds that the change in
custody of the two children from their mother to their
father gave the father a right of custody as of the day the
children were removed from NY.

I must resectfully disagree with Judge Rigler, who is known
far and wide for his understanding of The Hague Convention
on the International Aspects of Child Abduction, that there
was a “Wrongful Removal” within the meaning of Art. 3 of The

Art. 3 of The Convention requires the following to show a
“wrongful removal”:

1) The child was removed from his/her “Habitual
Residence” (H/R).

2) At the time of removal the left behind parent had a
“Right of Custody” on the law of the H/R.

3) At the time of the removal the left behind parent was
actually exercising his “Right of Custody”.

If these three (3) conditions are met then a prima facie
case for a wrongful removal has been established.

Key to this discussion is the term “Right of Custody”.

It is common ground that the “Right of Custody” must exisit
prior to the removal of the child from his/her H/R. If a
child is removed from his/her H/R and, at the time of the
removal, the left behind parent does not have a “Right of
Custody” then the removal is not “wrongful” under The
Convention and there is no right of return under The

The court, in this case, relies upon David S. v. Zamira S.,
151 Misc. 2d 630 (Family Ct. Kings County 1991) for the
proposition that a court can, after the removal, grant a
right of custody to the left behind parent such that the
removal would be converted into a wrongful removal.

While a reading of David S. v. Zamira S. could lead one to
that conclusion, in fact the court in David S. v. Zamira S.
issued and served a Ne Exeat order on the mother before she
and the children left Canada. Accordingly, prior to the
time of the removal of the child from Canada the father had
a right of custody which would make the removal by the
mother wrongful and therefore the child would have to be
returned to Canada pursuant to Art. 12.

The cases are quite clear that a removal that was not
wrongful at the time of the removal cannot be converted to a
“Wrongful Retention” since they are mutually exclusive.
See, e.g., RE B. (A MINOR) (ABDUCTION) (UK Court of Appeal
1994)[1994] 2 FLR 249, [1994] Fam Law. 606, [1995] 2 FCR
505, on Hilton House Web Site as Inreb2_uk.txt.

Accordingly it would appear that in this case there was no
wrongful removal or wrongful retention from New York and
that Israel would not be obligated to return the children to
New York.