USA – FEDERAL – FREIER – 1996 (Return ordered) FREIER v FREIER. Mother took the child to Michigan, USA for annual visit with her parents. The mother informed the father that she was not returning to Israel. Father files for return of the child under the Hague Convention. The court ordered the child returned to Israel.
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Freier v Freier (E.D. Mich. 1996)969 F.Supp. 436
10 International Abduction [USA 1996]
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UNlTED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jonathan M. Freier,
Plaintiff,
v Case No
96-CV-73967-DT
Hon. Denise Page
Hood
Judith D. Freier, 04 Oct 1996
Defendant
______________________/
ORDER GRANTING PETITION FOR RETURN OF MINOR CHILD TO ISRAEL
HOOD, District Judge
<* page 437>
I. BACKGROUND/FACTS:
001 This matter is before the Court on the Complaint and
Petition by Jonathan M. Freier for Return of Minor Child,
Avital Freier, to Ra’anana, Israel, her habitual residence.
The Complaint is brought against Judith D. Freier, the
mother, under the International Child Abduction Remedies Act
(“ICARA”), 42 U.S.C. 11601 et seq., and the Hague
Convention of the Civil Aspects of International Child
Abduction (the “Hague Convention”).
002 Petitioner Jonathan Freier and Respondent Judith D.
Freier are currently married. Both are dual United States
and Israeli citizens. They both moved separately to Israel
in the late 1970s. In 1987, they returned to Michigan to get
married and then returned to Israel to live where they have
lived together continuously. Respondent has two children
from a prior marriage (Yonathan 14 and Michal, 11) who also
lived with the parties. On June 10, 1992, the couple’s only
child together, Avital, was born in K’far Sava, Israel. She
is now four years of age. Avital has resided in Israel since
her birth. Petitioner is self-employed as a marketer of
toys. Respondent has been continuously employed since the
marriage with various employers.
003 Respondent has vacationed during the summers with her
three children at her parents’ home in Southfield, Michigan.
Petitioner asserts that since their mamage, Respondent has
been present in Michigan for approximately 101 days:
a. 1987: July 7 through August 18
August 30 through September 4
b. 1988: July 6 through August 2
c. 1990: July 1 through August 2
d. 1993: July 12 through August 12
(3 weeks, 10 days of which
were spent in Virginia)
e. 1995: July 29 through August 27
(18 days and the balance spent
in Virginia, California,
England
and Germany)
004 Of the days Respondent has spent in Michigan, Avital,
born in 1992, has spent approximately 8 weeks in Michigan:
July 12 through August 12, 1993 (less than 10 days spent in
Virginia) and 18 days between July 19 through August 27,
1995. After each visit, Respondent would return to Israel in
time for the children to begin school. FN1
005 <* page 438> Avital attended a day care in Israel
(Na’amat Day Care Center) from 8:00 am. until 4:00 p.m.
during work days since she was one year old until she was
removed. For the current school year, she was approved to
transfer to the public school, Paamonit Kindergarten, across
the street from h® home. (Exhibit N. Petitioner’s Brief).
006 Avitai was born with a hair lip and cleft palate and
has been under continuing medical care in Israel since her
birth She has undergone three surgical procedures there to
date and has participated speech therapy for the last six
months. The two times Avital has visited Michigan, she was
checked by doctors for second opinions.
007 Avital is an official member of the synagogue Lechu
N’ranina in Ra’anana. She has extended family in Israel,
including a paternal grandmother, aunts, uncles and cousins.
Avital has participated in nature trips with other families
between the months of June and October each year.
008 When Respondent departed Israel on June 30, 1996, she
informed Petitioner that she would be vacationing with her
parents in Michigan until August 1. The date of return on
their tickets was August 1, 1996. Petitioner thought
Respondent was just vacationing with her family in Michigan
as she had in the past. Petitioner had no idea that
Respondent was thinking about not returning home. As a
family, they had made plans for the current school year.
Avital was expected to attend the public kindergarten.
Petitioner asserts that if he had known Respondent was not
returning, he would not have willingly let the children go.
(Exhibit J. Petitioner’s Brief, Petitioner’s affidavit).
009 Respondent asserts that she had begun discussing with
Petitioner the possibility of permanently relocating to
Michigan in August 1995. FN2 Respondent asserts that the
parties were having financial difficulties because
Petitioner refused to work, leaving Respondent as the
primary provider for the family. Respondent also asserts
that Petitdoner became abusive toward her oldest child,
Yonathan, who filed a police report against Petitioner.
Petitioner claims that there was never an assault against
the children. Yonathan did file a police report complaining
that Petitioner did not allow him sufficient time to finish
his meals. With Respondent’s concurrence, the report was
rescinded. (Exhibit J, Petitioner’s Brief, Petitioner’s
Affidavit and Exhibit G. Police Report). Respondent claims
that the marriage continued to deteriorate and she continued
to state her desire to return permanently to Michigan.
Respondent made arrangements for the children and herself to
return to Michigan but Petitioner refused to go. However, he
allowed the children to leave Israel. Respondent asserts
that Petitioner was aware that Respondent was unhappy and
wanted to remain in Michigan.
010 When Respondent arrived in Michigan on July 1, 1996,
she called Petitioner to inform him that they had arrived
safely, stating that she missed him and was thinking of him.
When she did not call again for some time, he telephoned
Respondent on or about Wednesday, July 17, 1996. At that
time, Respondent informed him that she was not returning to
Israel and that she wanted a divorce. Petitioner attempted
to dissuade Respondent. She responded by telling Petitioner
that she would extend her return tickets until August 14,
1996. To date, Respondent and the children have not returned
home.
011 Respondent asserts that Petitioner had always talked
as though the child, Avital, would remain with Respondent.
She claims that his real goal is her return. Respondent
further asserts that Petitioner filed an action in the
Rabbinical Court in Israel requesting that the court enter
an order prohibiting Respondent from leaving Israel should
she <* page 439> return. Petitioner responds indicating that
Respondent can contest such an action with the Rabbinical
Court with a Rabbi as her representative.
012 On August 19, 1996, Respondent filed a divorce action
in Oakland County Circuit Court and obtained an Ex Parte
Custody Order for physical custody of Avital. FM3
Respondent enrolled her three children in the (????) Hebrew
Day School in Lathrup Village, Michigan. On August 20, 1996,
Petitioner filed a Request for Return of Abducted Child with
the State of Israel under the Hague Convention. On August
23, 1996, the instant action was filed with the Court
pursuant to ICARA and the Hague Convention.
II. ANALYSIS:
A. Junsdiction.
013 The United States and Israel are both signatories to
the 1980 Hague Convention. The United States Congress
ratified the Convention by enacting ICARA. Specifically,
Congress made the following declarations:
(b)(l) It is the purpose of this chapter to
establish procedures for the implementation
of the Convention in the United States.
(2) The provisions of this chapter are in
addition to and not in lieu of the
provisions of the Convention.
* * *
(4) The Convention and this chapter empower the
courts in the United States to determine
only rights under the Convention and not the
merits of anv underlying child custody
claims.
42 U.S.C. 11601(b)(emphasis added). It is clear from the
above-quoted language that this Court has jurisdiction over
the matter but only to determine rights under the Convention
and not the merits of any underlying child custody claims.
B. Article 3 of the Hague Convention.
Article 3 of the Hague Convention states:
The removal or the retention of a child is to be
considered wrongful-
(a) 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 irrunediatelv before the
removal or retention; and
(b) at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.
Art. 3(a) and (b) (emphasis added).
C. Standard/Burden of Proof.
014 The Sixth Circuit has had an opportunity to address
the meaning of “habitual residence” under the Convention.
Under the Act, Petitioner has the burden of showing by a
preponderance of the evidence that the removal was wrongful.
42 U.S.C. 11603(e)(1); Friedrich v. Friedrich (6th Cir.
1993) 983 F.2d 1396, 1400 (Friedrich I). In order to show
wrongfulness: Petitioner must prove by a preponderance of
the evidence that 1) Rripondent removed the child from her
“habitual residence,” and 2) Petitioner was “exercising” his
parental custody rights over the child at the time of
removal, or that he would have exercised his rights but for
the removal, under the law of the child’s habitual
residence. Id. If Petitions meets the burden, the burden
then shifts to Respondent to show one of the four following
affirmative defenses: 1) by clear and convincing evidence
that there is a grave risk that the return of the child
would expose the child to physical or psychological harm
(Art. 20) [WMH Note: This should read Art. 13(b)], 42 U.S.C.
11603(e)(2)(A)); 2) by clear and convincing evidence that
the return of the child would not be permitted by the
fundamental principles of the requested State relating to
the protection of human rights and fundamental freedoms
(Art. 20, 42 <* page 440> U.S.C. 11603(e)(2)(A)); 3) by a
preponderance of the evidence that the proceeding was
commenced more than one year after the abduction and the
child has become settled in his/her new environment (Art.
12, 42 U.S.C. 11603(e)(2)(B)); or 4) by a preponderance of
the evidence that Petitioner was not actually exercising the
custody right at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or
retention (Art. 13a, 42 U.S.C. 11603(e)(2)(B)). Friedrich
I at 1400.
D. Petitioner’s Burden.
1. Habitual Residence.
015 The Sixth Circuit has stated that:
A person can have only one habitual residence. On its
face, habitual residence pertains to customary
residence prior to the removal. The court must look
back in time, not forward.
Friedrich I at 1401. The Sixth Circuit cited a British Court
case, In re Bates No. CA 122.89, High Court of Justice,
Family Div’n Ct. Royal Court of Justice, United Kingdom
(1989), for the proposition that the focus is on the child
and not the parents and that past experience and not future
intentions is the test. Id.
016 Here, Respondent’s factually unsupported brief asserts
that the child had a habitual residence here in Michigan
because of the annual visits to Michigan. Respondent also
argues that by August 1996, the mother and children were
committed to remaining in Michigan and that by the end of
the first week of their return, they considered Michigan
their home.
017 The documentary evidence and exhibits submitted by
Petitioner, as well as the testimony of the witnesses,
indicate that in “looking back in time,” the child’s
“habitual residence” is in Israel. The child was born in
Israel. The parents lived continuously in Israel for years
prior to the child’s birth Since the child was born, she has
visited the United States twice. The child has been
attending day care in Israel since she was one-year old. The
child was accepted to attend kindergarten in a public school
in Israel for this school year. The child has extensive
family in Israel.
018 Respondent cites Brooke v. Willis (S.D.N.Y. 1995) 907
F.Supp. 57 for the proposition that it takes only “one day”
to change residence. However, that is not the Sixth Circuit
rule of law. In addition, in Brooke, the child lived 50% of
her time with one parent in the United Kingdom and 50% of
her time in the United States. Respondent also cites a U.K
case, In re V (1995) 2 F.L.R 992 FN4 for the proposition
that a residence could be alternated. However, the Sixth
Circuit specifically states that “a person can have only one
habitual residence.” Friedrich I. 983 F.2d at 1401. The
Sixth Circuit further stated:
… habitual residence can be “altered” only by a
change in geography and the passage of time, not by
changes in parental affection and responsibility. The
change in geography must occur before the questionable
removal; here, the removal precipitated the change in
geography. If we were to determine that by removing
Thomas from his habitual residence without Mr.
Friedrich’s knowledge or consent Mrs. Friedrich
“altered” Thomas’s habitual residence, we would render
the Convention meaningless. It would be an open
invitation for all parent who abduct their children to
characterize their wrongful removals as alterations of
habitual residence.
Id. at 1402. Friedrich I specifically states that in order
to determine habitual residence, one must look back in time.
The Convention also specifically states that the child’s
habitual residence is the residence “immediately before the
removal or retention.” There is no question here that the
child, Avital, has lived predominantly in Israel for most
her young life. The amount of time spent in Michigan amounts
to vacation time and is inadequate to establish habitual
residence. Nor do the facts support an “altered” habitual
residence. At best, Avital can be claimed to have resided in
Michigan from approximately August 1 or August 14 (the date
of the latest return ticket and its extension) until October
1996. While this may be a <* page 441> change of geography,
it did not occur before the wrongful removal or retention
and is not coupled with a sufficient “passage of time.”
Based on the above-stated facts and Friedrich I, the Court
finds that the child’s habitual residence is in Israel.
2. Exercise of Parental Custody Rights.
019 Respondent states in her brief and testimony, that
Petitioner had knowledge of her intention to take Avital
with her to the United States and permanently reside in the
United States. Petitioner asserts in his affidavit that he
had no knowledge that Respondent was going to leave him
forever and take their daughter with her. Petitioner, in
addition to his affidavit, submitted a transcript of the
couple’s July 31, 1996 telephone conversation to support his
argument that Respondent did not plan on leaving for good.
(Exhibit N. Petitioner’s Brief, p. 2).
020 The Sixth Circuit on the issue of custody stated:
Under the Convention, whether a parent was exercising
lawful custody rights over a child at the time of
removal must be determined under the law of the
child’s habitual residence. Hague Convention, Article
3.
Friedrich I, 983 F.2d at 1402. The Sixth Circuit further
expanded on this issue in Friedrich v. Fnedrich (6th Cir.
1996) 78 F.3d 1060 (Friedrich II). The Sixth Circuit
stated:
… Enforcement of the Convention should not be made
dependent on the creation of a common law definition
of “exercise.” The only acceptable solution, in the
absence of a ruling from a court in the country of
habitual residence, is to liberally find “exercise”
whenever a parent with de jure custody rights keeps,
or seeks to keep, any sort of regular contact with his
or her child.
* * *
We therefore hold that, if a person has valid custody
rights to a child under the law of the country of the
child’s habitual residence, that person cannot fail to
“exercise” those custody rights under the Hague
Convention short of acts that constitute clear and
unequivocal abandonment of the child. Once it
determines that the parent exercised custody rights in
any manner, the court should stop — completely
avoiding the question whether the parent exercised the
custody rights well or badly. These matters go to the
merits of the custody dispute and are, therefore,
beyond the subject matter jurisdiction of the federal
courts. 42 U.S.C. 11601(b)(4).
021 There is no dispute that an Israeli tribunal has not
rulled on the custody issue. Petitioner submitted sections
14 and 15 at Israel’s Capacity and Guardianship Law.
(Exhibit Q. Petitioner’s Brief). It states that parents are
the natural guardians of their child with the right to
custody of the child and the right to determine the child’s
place of residence. It is clear that Petitioner, as the
natural father, has custody over Avital under Israeli law.
Since the Israeli tribunal has not ruled on the custody
issue, under FriedrichII, this Court must liberally construe
whether Petitioner has “exercised” his right to those
custody rights. There is no serious challenge to
Petitioner’s custody rights or the exercise of those rights.
Petitioner, as noted above, is the child’s natural father.
Petitioner, Respondent and the children, all lived together
continuously in Israel.
022 Petitioner claims that he has requested for the return
of the child via telephone. Petitioner, by filing the
instant petition, is further exercising his rights to
custody over Avital. Petitioner began this process to seek
return of the child just after the child did not return to
Israel by the date of the extended airline ticlces, August
14. On August 15, he filed an Application for Return of the
Child with the Ministry of Justice in Jerusalem. On August
20, he filed a Request for Return of the Child and Divorce
Proceedings in the Rabbinical District Court and on August
23, this Complaint and Petition.
023 Petitioner claims that in various telephone calls with
Respondent, he has requested visitation with the child while
he is here for the hearing of this matter before this Court.
Petitioner has custody rights over Avital and has and is
exercising his rights. There has been no abandonment the
child, and no judicial termination of Petitioner’s rights.
<* page 442> Petitioner has not consented to the removal and
retention of the child.
024 Based on the above, Petitioner has met his burden that
the child, Avital, was wrongfilLIy removed from her place of
habitual residence and that he has and continues to exercise
his custody rights over her.
E. Respondent’s Burden/Affirmative Defenses.
1. Grave Risk of Harm.
025 Respondent argues that even if the Court should find
that Israel is the habitual residence of the child, the
request for return of the child should be denied under the
exceptions set forth in Article 13 and Article 20 of the
Hague Convention. Article 13 states in pertinent part as
follows:
Notwithstanding the provisions ofthe preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return
of the child if the person, institution or other body
which opposes its return establishes that-
(b) there is a grave risk that his or her return would
expose the child to physical or psychological hand or
otherwise place the child in an intolerable situation.
026 The Sixth Circuit has stated that these exceptions
must be narrowly construed:
All four of these exceptions are “narrow,” 42 U.S.C.
11601(a)(4). They are not a basis for avoiding return
of a child merely because an American court believes
it can better or more quickly resolve a dispute.
(citation omitted). In fact, a federal court retains,
and should use when appropriate, the discretion to
return a child, despite the existence of a defense, if
return would further the aims of the Convention.
(citation omitted).
Friedrich II 78 F.3d at 1067.
027 Respondent has not established by clear and convincing
evidence that Avital is in grave risk of physical or
psychological harm if she were to return to Israel. The
Sixth Circuit addressed this issue stating:
Although it is not necessary to resolve the present
appeal, we believe that a grave risk of harm for the
purposes of the Convention can exist in only two
situations. First, there is a grave risk of harm when
return of the child puts the child in imminent danger
prior to the resolution of the custody dispute —
e.g., returning the child to a zone of war, famine’ or
disease. Second, there is a grave risk of harm in
cases of serious abuse or neglect, or extraordinary
emotional dependence, when the court in the country of
habitual residence, for whatever reason, may be
incapable or unwilling to give the child adequate
protection. Psychological evidence of the sort Mrs.
Friedrich introduced in the proceeding below is only
relevant if it helps prove the existence of one of
these situations. (footnote omitted).
Friedrich II. 78 F.3d at 1069. Respondent claims that
separation of the child from her mother and two older
siblings (her mother’s children from a previous marriage)
would cause severe psychological harm and create an
intolerable situation. The Sixth Circuit has said that this
sort of adjustment problem common in the relocation of most
children is not enough. Id. at 1067.
028 Respondent claims in her brief that the two older
children do not wish to return to Israel. She further claims
that the child would not be able to be near her
grandparents, aunts and uncles who reside in Michigan. The
record does not support this. In her own testimony,
Respondent admitted the younger of her two older children
misses Israel. Respondent also testified that her parents
frequently visit Israel for several months at a time,
renting an apartment near the child’s habitual resident.
Petitioner and Respondent have family members in Israel
including Petitioner’s mother and Respondent’s sister. The
Court understands and sympathizes that Respondent’s father’s
health has worsened He has been ill a number of years.
However, as noted in Friedrich II, a removing parent cannot
be allowed to remove or retain a child and then complain.
Nor is the Court entitled to decide where the child would be
happiest since that is an issue for the custody court to
decide. Friedrich lI, 78 F.3d at 1068. Even the lack of
money or educational resources are not determining. Id at
1068-1069. The <* page 443> child is in no imminent danger
nor will she suffer a grave risk of injury from this
separation.
029 Respondent also argues that return of the child to
Israel would expose the child to grave risk of harm as
Israel is a “zone of war” as contemplated by the Sixth
Circuit. Respondent cialms this is true because of the
“skirmishes” that erupted in Israel resulting from the
opening of a tunnel under the Old City of Jerusalem in close
proximity to the Al Aksa Mosque (the holiest Muslim shrine
in Israel). The newspapers have dubbed this “the worst
clashes since 1987-1993 uprising or intifada” (Respondent’s
Exibit B). Respondent claims this fighting is not far from
her home near the border. The maps and other docurnents
presented to the Court seem to indicate the fighting is from
15 to 90 minutes away from the marital home. The Court notes
these “clashes” began Tuesday or Wednesday, September 24 or
25, 1996, after the wrongful removal of the child.
030 Respondent in her testimony expressed a great deal of
anxiety and fear over the recent unrest as well as the
ongoing tension in Israel. Respondent testified hearing
about random violence such as car and bus bombings. Her
testimony was supported by the testimony of her sister,
Shoshana Silberstein, who is currently visiting from her
home in Israel. Ms. Silberstein testified that she and her
husband are contemplating on moving back to the Untied
States and that at least one of her children feels the
tension of the country.
031 On the other hand, Professor Rakover, an Assistant
Deputy Attorney General in Israel, FN5 stated that things
were regular and that he bad walked to the Western Wall in
Jerusalem since the unrest had taken place. He further
indicated that although military presence was increased,
schools and shops were not closed except for the holidays or
for the purpose of demonstrating political views.
032 The Court would agree that at this time Israel is
experiencing some unrest and that this unrest may be in
relative proximity to the family’s residence. However, the
Court does not find sufficient evidence in this record for
Israel to be the “zone of war” contemplated by the Sixth
Circuit or the Hague Convention. No schools are closed,
business are open and Petitioner was able to leave the
country. It appears that the fighting is limited to certain
areas and does not directly involve the city where the child
resides.
033 With respect to Respondent’s anxiety and fear about
the ongoing tension in the country, it must be noted that
she has lived there for a number of years, raised children
there for some fourteen years and that her parents have
spent extended periods of time there as well. Based on the
above, the Court finds the Respondent has failed to
establish by clear and convincing evidence that the child,
Avital, is in grave risk of physical injury because of the
unrest in Israel or that Israel is a zone of war as
contemplated by the Hague Convention.
2. Human Rights and Fundamental Freedoms.
033 Finally, Respondent asserts that the Court should
refuse to return the child under Article 20 to protect the
mother’s rights and freedoms, particularly, her freedom of
travel. Article 20 provides:
The return of the child under the provisions of
Article 12 may be refused if this would not be
permitted by the fundamental principles of the
requested State relating to the protection of human
rights and fundamental freedoms.
034 Respondent claims that Petitioner has sought and
obtained an injunction which prohibits her from leaving
Israel until the divorce and custody proceedings are
settled. An injunction also limits the child’s travel. The
exhibits submitted at the hearing indicate the injunction
expires September 1997. Respondent claims this injunction
potentially affects her ability to see her two other
children should she return to Israel without them. The
record, including Petitioner’s Hearing Exhibit AA, a letter
from Petitioner’s counsel, Dr. Don I. Frimer in Israel, and
the <* page 444> statements of Professor Rakover, indicate
that Respondent has a due process right to challenge the
injunction. Dr. Frimer claimed such challenge can include an
immediate hearing on the merits of the injunction. While
Professor Rakover seemed to suggest such proceedings could
take up to three months, both agreed such an injunction
could be dismissed if the freedom of travel could be secured
by a bond. Dr. Frimer and Professor Rakover both noted that
freedom to travel “was early on recognized as a right of
constitutional character” and was included as a basic right
in Israel’s “Basic Law: The Dignity of Man and His
Freedoms.” (Petitioner’s Hearing Exhibit AA). This Court is
satisfied based on the infonnation received from Professor
Rakover, Dr. Frimer and Rabbi Tsevi Weinman (Respondent’s
counsel in Israel), that Respondent’s human rights and
fundamental freedoms are not in jeopardy amd are protected
by the due process available in the civil and Rabbinical
courts of Israel.
035 The Court has focused primarily on Respondent’s rights
even though it is not clear that the Hague Convention’s
focus under Article 20 is on the parents’ rights as opposed
to the child’s rights. With respect to the child, Avital,
the Court is satisfied that she also has due process rights
available to her in Israel in order to challenge her
injunction adequately. Avital’s human rights and fundamental
freedoms, especially the right to travel, are protected.
Respondent has not shown by clear and convincing evidence
that the return of Avital to Israel would violate the United
States’ fundamental principles relating to the protection of
humam rights and fundamental freedoms.
3. One year after retention/abduction
036 Respondent has not met this third affirmative defense
since the child only left isreal on June 30, 1996.
4. Consent
037 Respondent argues that there is no wrongful removal or
retention of the child because Petitioner consented to or
acquiesced in the removal o the child “in sptice of ongoing
marital difficulties and assertions by the mother that she
wished to permanently relocate to Michigan.” (Respondent’s
Brief, p.4). Consent or acquiescence in removal are
defenses under Article 13(a) of the Hague Convetion.
Article 13(a) provies in part:
— the judicial or administrative authority of the
requested State is not bound to order the return of
the child if the person, institution or other body
which opposes its return establishes that–
(a) the person — having the care of the person of the
child — had consented to or subsequently acquiesced
in the removal or retention.
038 Petitioner clearly consented to the removal of the
child on June 30, 1996 for the summer vacation to visit the
grandparnts. The return tickets were for August 1, 1996.
Petitioner fully expected the child’s return. The record,
including the testimony of Respondent, suggests that
Petitiolner’s first knowledge of the Respondent’s intention
to permanently return the child to Michigan was in a
telephone call on or abour July 17, 1996. In that
conversatiion, he neither consented to nor acquiesced in the
retention.
039 In Friedrich II, supra, the Sixth Circuit addressed
acquiesence:
we believe that acquiescence under the convention
requires either: an act or statement with the
requisite formality, such as testimony in a judicial
proceeding; a convincing written renunciation of
rights; or a consistent attitude of acquiescence over
a significant period of time.
Friedrich II, 78 F.3d at 1070.
040 In this case, the judicial proceedings set in motion
by the father seeking return of the chiId occur within days
of the extension date of the return airline tickets. Consent
to wrongful removal or retention has not been shown here by
a preponderance of the evidence. Nor has Respondent shown
any evidence rising to a “consistent attitude of
acquiescence over a significant period of time.” Although
the Court is satisfied Petitioner and Respondent has
discussed a move back to Michigan, there is no indication on
this record Petitioner knew that Respondent intended such a
move on June 30 or that she would decide to wrongfully
retain the children after vacation. Petitioner has neither
<* page 445> consented to the pennanent removal nor
acquiesced in the wrongfful retention of the child in
Michigan by Respondent.
F. Costs.
041 Petitioner requests that Respondent pay for the costs
relating to this Petition. 42 U.S.C. 11607(3) states:
(3) Any court ordering the return of a child pursuant
to an action brought under section 11603 of this title
shall order the respondent to pay necessary expenses
incurred by or on behalf of the petitioner, including
court costs, legal fees, foster home or other care
during the course of proceedings in the action, and
transportation costs related to the return of the
child, unless the respondent establishes that such
order would be clearly inappropriate.
042 Respondent has not established that payment of court
costs, legal fees, and transportation relating to the return
of the child is inappropriate. The Court grants Petitioner’s
request upon submission of the appropriate affidavit and
documentation. The imposition of these costs and a fees is
not intended to result in the deprivation of any right of
the Respondent
Accordingly,
043 IT IS ORDERED that Plaintiff’s Petition to Return the
Minor Child, Avital Freier, to Israel is GRANTED;
044 IT IS FURTHER ORDERED that the Minor Child be returned
to plaintiff at the of offices of Defendant’s counsel in
Southfield, Michigan, by Monday, October 7, 1996, 9:00 am.;
045 IT IS FURTHER ORDERED that Defendant turn over the
Minor Child’s passport to her counsel by Wednesday, October
2, 1996, 7:00 p.m.;
046 IT IS FURTHER ORDERED that Defendant not take the
Minor Child outside the counties of Oakland, Macomb and
Wayne, Michigan; and
047 IT IS FURTHER ORDERED that attorney fees and costs,
including any additional transportation costs incurred by
Plaintiff related to the return of the Minor Child to
Israel, be awarded to Defendant (WMH Note: This should be
Plaintiff). Plaintiff is to submit an affidavit and proper
documentation as to the attorney fees and costs.
ORDER SUPPLEMENTING ORDER GRANTING PETITION FOR RETURN OF
MJNOR CHILD TO ISRAEL
048 This matter having been brought on by Defendant’s Ex
Parte Motion for Stay of Order or Modification of Order and
Plaintiffs Emcrgency Motion for Enforcement of October 4,
1996 Order, a hearing having been held at 10:15 a.m. on
October 7, 1996, and this Court being otherwise fully
advised in the premises:
049 IT IS HEREBY ORDERED that both Motions are denied.
050 IT IS FURTHER ORDERED that pursuant to this Court’s
Order dated October 4, 1996 entitled Order Granting Petition
for Return of Minor Child to Israel, that Plaintiff,
Jonathan M. Freier shall return with the minor child,
Avital, to Tel Aviv, today, October 7, 1996 and continuing
to October 8, 1996 according to the following flight plan:
051 TWA flight # 220 departing Detroit Metropolitan
Airport at 6:10 p.m. arriving JKF International Airport in
New York at 7:49 p.m.
052 TWA flight # 884 departing JKF International Airport
at 9:40 p.m., arriving Tel Aviv on Tuesday, October 8,1996
at 2:10 p.m.
053 IT IS FURTHER ORDERED that Defendant, Judith M. Freicr
is not prohibited from flying on the above flights.
——————–
1.
The divorce decree between Respondent and her first
husband precludes her from taking their two children
abroad for more than 60 days at a time. Respondent was
required to post a $30,000.00 for this provision. The
father (Mr. Schiachi) of the two older children has
apparently also filed an Application for Assistance
under the Hague Convention for the return of his two
children and has called in the $30,000.00 bond.
2. Respondent did not submit any supporting documents or
affidavits with her response but Respondent testified
at the hearing of this matter.
3. The Petitioner has not been served in the divorce
action but intends to file a limited appearance to
argue that the state court has no jurisdiction over the
matter because Respondent has not been a resident of
Michigan for 180 days preceding the filing of the
Complaint of Divorce. Also, Petitioner plans to argue
that the state court has no jurisdiction over the
custody issue pertaining to Avital under the Hague
Convention Treaty, Article 19. Respondent’s initiation
of the divorce and custody proceedings in the Oakland
County Circuit Court can be seen as an effort to seek
relief in a court in her “native” land where Respondent
may feel she has an advantage. This is the precise
behavior the Hague Convention and ICARA seek to
curtail.
4. A copy of the case was not attached to Respondent’s
brief.
5. Professor Rakover was contacted by the parties’
attorneys by telephone on another issue before the
Court.