USA – FEDERAL – SHALIT – 1998 (Return denied) (wrongful retention) SHALIT v COPPE-SHALIT. Father filed for return of child to Israel. The child had gone to live in Israel for three years with both parties’ approval. At the end of three years, the child came to the US for a visit. The mother refused to return the child to Israel and the father claimed the mother is retaining the child in the US in violation of the Convention. The court found that Israel was the child’s habitual residence. The court further ruled that because the mother had custody rights in Alaska before the alleged retention, the retention was not wrongful. The fathers motion failed, child not ordered returned. (See Mr. Hiltons footnotes)
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Shalit v Shalit (D. Alaska 1998)Case No A98-328 CV (JWS)
17 International Abduction [US 1998]
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UNITED STATETS DISTRICT COURT
DISTRICT OF ALASKA
Haim Shalit, )
)
Petitioner ) Case No A98-328 CV (JWS)
)
vs ) ORDER FROM CHAMBERS
)
Cheryl Coppe a/k/a Cheryl )
Gardner Shalit, )
)
Respondent )
______________________________)
I. INTRODUCTION
001 Petitioner Haim Shalit (“Shalit”) filed this suit
under the Hague Convention on the Civil Aspects of
International Child Abduction (“Convention”) seeking his son
Yarden’s return to Israel. At docket 8, respondent Cheryl
Coppe (“Coppe”), Yarden’s mother, moves for summary
judgment. The motion is opposed at docket 11 by Shalit, who
also cross-moves for suramary judgment- Oral argument was
heard on November 17, 1998.
II BACKGROUND
002 Coppe and Shalit married in 1985 and divorced in 1989.
FN01 They had one son, Yarden, who was born in 1987. FNO2
When Coppe and Shalit divorced in 1989, the Superior Court
for the Third Judicial District in Anchorage, Alaska,
(“Superior Court”) awarded Coppe custody of Yarden. FN03
The Superior Court is an Alaska state court of general
jurisdiction with full authority to determine custody and
visitation rights. FN04 In April 1992, the Superior Court
entered an order giving Shalit certain visitation rights,
but leaving custody with Coppe. FN05 Again in May 1993,
the Superior Court entered a custody order giving Shalit
certain visitation rights, but otherwise leaving custody of
Yarden with Coppe. FN06 Shalit participated in all
proceedings and was represented by counsel. In the summer of
1995, Coppe verbally agreed to let Yarden live with Shalit
in Israel for three years. FN07 In August 1998, Yarden
visited Coppe in Alaska. FN08 Coppe retained custody of
Yarden at that time. Shalit has not filed any motion to
modify the Superior Court’s custody or visitation orders.
Shalit filed this action in the United States District Court
for the District of Alaska. FN09 Shalit contends Yarden
was wrongfully retained and seeks Yarden’s return to Israel.
III. STANDARD OF REVIEW
003 Rule 56 of the Federal Rules of Civil Procedure
provides that summary judgment should be granted if there is
no genuine dispute as to material facts and if the moving
party is entitled to judgment as a matter of law. The moving
party has the burden of showing that there is no genuine
dispute as to material fact. FN10 The moving party need
not present evidence; it need only point out the lack of any
genuine dispute as to material fact. FN11 Once the moving
party has met this burden, the nonmoving party must set
forth evidence of specific facts showing the existence of a
genuine issue for trial. FN12 All evidence presented by
the nonmovant must be believed for purposes of summary
judgment, and all justifiable inferences must be drawn in
favor of the norimovant. FN13 However, the nonmoving party
may not rest upon mere allegations or denials, but must show
that there is sufficient evidence supporting the claimed
factual dispute to require a fact-finder to resolve the
parties’ differing versions of the truth at trial. FN14
IV. DISCUSSION
004 The Convention establishes procedures for resolving
disputes related to international child abduction. FN15
The Convention “is designed to restore the ‘factual’ status
quo which is unilaterally altered when a parent abducts a
child and aims to protect the legal custody rights of the
nonabducting parent.” FN16 The Convention does not address
the “merits of any custody issue.” FN17 As described in
President Reagan’s Letter of Transmittal to the Senate:
The Convention’s approach to the problem of
international child abduction is a simple one.
The Convention is designed promptly to restore
the factual situation that existed prior to a
child’s removal or retention. It does not seek
to settle disputes about legal custody rights,
nor does it depend upon the existence of court
orders as a condition for returning children.
FN18
005 Congress implemented the Convention’s substantive
provisions in the international Child Abduction Remedies
Act, 42 U~S.C. 11601 et seq. (“ICARA” or “Act”). Under
ICARA, the court’s authority is limited to determining
“rights under the Convention and not the merits of any
underlying child custody claims.” FN19 ICARA provides, in
part:
(e) Burdens of Proof
(1) A petitioner in an action brought under
subsection (b) of this section shall establish
by a preponderance of the evidence-
(A) in the case of an action for the return of a
child, that the child has been wrongfully
removed or retained within the meaning of the
Convention; FN20
006 “Wrongful removal or retention” is defined as “removal
or retention of a child before the entry of a custody order
regarding that child.” FN21 Shalit has the initial burden
to establish Yarden was wrongfully removed or retained.
FN22 The Convention defines wrongful removal or retention
in Article 3:
The removal or the retention of a child is to be
considered wrongful where –
a. 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
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.
The rights of custody mentioned in sub-paragraph
a above, may arise in particular by operation of
law or by reason of a judicial or administrative
decision. or by reason of an agreement having
legal effect under the law of that State. FN23
007 To meet his burden, Shalit must first establish that
Yarden’s habitual residence was in Israel. FN24 If it was
not, the inquiry ends and Shalit is not entitled to any
relief. FN25 If Yarden’s habitual residence was in Israel,
the court must determine whether Coppe’s retention of Yarden
in Alaska was unlawful under Israeli law.
A. Whether Habitual Residence Is Established
008 Habitual residence is an elastic standard. As one
court recently observed in describing “habitual residence”:
The Convention does not define “habitual
residence.” The courts that have considered the
matter in the last few years have determined a
child’s habitual residence on the basis of the
peculiar facts and circumstances of the case at
hand. Nevertheless, a consensus has emerged on
some general principles. “Habitual residence” is
not a technical term, like “domicile,” and it
should be understood as the child’s “ordinary
residence” at the relevant time. Moreover, in
determining a child’s habitual residence, “the
court must focus on the child, not the parents,
and examine past experience, not future
intentions.” An English court, frequently cited
in American decisions, has said that for a
particular place of residence to be considered
habitual, “[t]here must be a degree of settled
purpose…. All that is necessary is that the
purpose of living where one does has a
sufficient degree of continuity to be properly
described as settled.” Whether a child’s
residence has become thus “settled” depends on
“an analysis of the child’s circumstances in
that place and the parents’ present, shared
intentions regarding their child’s presence
there.” FN26
009 The Restatement (Third) of Foreign Relations Law
additionally offers some useful guidance:
Habitual residence should be interpreted in
light of the policy of deterring
child-snatching. In general, a child is
considered to have acquired a habitual residence
in a state by living there for at least six
months; residence in boarding schools, summer
camps, and similar institutions away from home
ordinarily is not “habitual residence.” FN27
010 Here, Yarden lived in Israel by agreement of the
parents for three years. He attended school in Israel. At
times he left Israel for vacations with Coppe in Alaska and
Florida. However, he always returned to Israel. Although,
according to Coppe, it was anticipated Yarden would
eventually be returned to Alaska, this does not affect his
habitual residence. As one court commented:
It does not matter that the United States was
not intended to be the children’s permanent
residence, nor that it was intended when they
came here that they were to return to Israel in
2000. What may happen in the future ordinarily
has little, if any, relevance to whether the
children have become so “settled” in their place
of residence that it may fairly be described, in
the present but by reference to the past, as
their “habitual” residence. “The court must look
back in time, not forward.” FN28
011 Under the undisputed circumstances described above,
Yarden’s habitual residence was Israel in which he had a
degree of settled purpose. FN29 The court therefore finds
that Israel was Yarden’s habitual residence.
B. Whether Yarden Was Wrongfully Retained in Alaska
012 Yarden would be wrongfully retained in Alaska if Coppe
kept him here before entry of a custody order. FN30
Custody rights are resolved by applying the law of the
child’s habitual residence. FN31 Shalit must establish
Yarden was retained in Alaska in violation of Israeli law.
This raises the issue whether Israel would recognize the
custody order previously entered in Alaska. Although this
court has found no authority directly on point, there is no
reason to suppose that under the doctrine of comity Israel
would not honor the custody order entered by the Superior
Court. FN32 Shalit submitted as an exhibit extracts from
what he describes as Israel’s Capacity and Guardianship
Law.” Sections 24 and 25 of that Code recognize that courts
have power to approve and determine guardianship. FN34 It
therefore seems clear that Israel recognizes courts have
power to determine custody. Israel is a signatory to the
Convention, and the Convention declares one of its primary
goals is to “ensure that rights of custody . . . under the
law of one Contracting State are effectively respected in
the other Contracting States.” FN35 Accordingly, there is
no reason in law or policy to conclude Israel would not
honor the custody order in question.
013 In Meredith v. Meredith, FN36 the court denied a
petition filed under circumstances similar to this case. In
Meredith, the father secured an order from an Arizona state
court awarding him legal custody of his daughter. A month
later he regained physical custody of the child. Five months
later the child’s mother filed a petition alleging the child
was wrongfully removed from England. The court noted the
mother must establish lawful custody at the time of removal
or retention in order to support her petition. FN37 The
court then examined the underlying circumstances and found
the mother’s lawful custody had not been established,
because the state court issued its order before the father
had regained physical custody of the child. The court
observed the custody order “was based on lawfiilly supported
findings that Arizona had proper jurisdiction over the
parties and that [the father] was entitled to custody
[pursuant to the state court order].” FN38
014 This case is conceptually similar to Meredith. Alaska
had proper jurisdiction over both Shalit and Coppe. A state
court of competent jurisdiction entered a lawful custody
order. The order was in place before Coppe retained Yarden
in Alaska. Shalit participated in proceedings regarding the
custody order and was duly represented. Shalit has not
sought modification of the pre-existing custody order or
visitation rights established by the custody order. The
custody order remains valid. If necessary, Shalit may invoke
the Convention to protect his visitation rights. FN39
015 Shalit raises two arguments opposed to the preceding
analysis. First, Shalit contends that under the Convention a
custody order does not preclude further inquiry into a
child’s custody status. Second, Shalit offers an affidavit
discussed further below that contends Shalit has custody
under Israeli law.
016 Regarding Shalit’s first point, he correctly observes
that the existence of a custody order does not, on its own,
entitle Coppe to summary judgment. Article 17 of the
Convention provides:
The sole fact that a document relating to
custody has been given in or is entitled to
recognition in the requested State shall not be
a ground for refusing to return a child under
this Convention, but the judicial or
administrative authorities of the requested
State may take account of the reasons for that
decision in applying this Convention. FN40
017 However, as explained in the legal analysis submitted
to Congress, Article 17 is primarily concerned with
preventing an abducting parent from securing a custody order
after abduction but “before the court had notice of the
wrongful removal or retention.” FN41 The analysis observes:
Even when custody rights are conferred by court
decree, technically speaking the Convention does
not mandate recognition and enforcement of that
decree. Instead, it seeks only to restore the
factual custody arrangements that existed prior
to the wrongful removal or retention (which
incidentally in many cases will be the same as
those specified by court order). FN42
018 Here, the custody arrangement that existed prior to
the allegedly wrongful removal or retention is the Superior
Court’s order. Recognizing and giving effect to that order
simply restores the factual status quo. Furthermore, because
wrongful retention only occurs when “it is in breach of
rights of custody,”‘ the court must consider evidence
defining those “rights of custody.” FN43 This court’s role
is not to explore the underlying basis for custody, but
simply to restore some degree of stability to the
pre-existing custodial arrangement. FN44 Where, as here, a
lawful custody order was entered with both parties subject
to the court’s jurisdiction and participating in the
proceedings, this court should not ignore such an order .
FN45
019 Concerning Shalit’s second argument, he submits a
legal opinion in the form of an affidavit from Mr. Shmuel
Moran, FN46 and argues that Moran’s opinion establishes he
has rights of custody under Israeli law. FN47 As a
preliminary point, the court notes Moran is Shalit’s counsel
in Israel who is representing him in proceedings filed
there. FN48 Moran’s legal conclusions should therefore be
analyzed in light of his role as Shalit’s advocate. Moran
does not address any aspect of the choice of law question
previously discussed. It is therefore unilluminating. Moran
concludes the parties agreed to let Yarden live in Israel
and that, therefore, under Israeli law this verbal agreement
confers legal custody on Shalit. However, Moran’s opinion is
offered without benefit of Coppe’s affidavit. Coppe contends
the verbal agreement she made with Shalit provided that
Yarden would only live in Israel for three years from the
summer of 1995 until 1998. FN49 Shalit has not
controverted Coppe’s affidavit. Additionally, Moran’s
opinion addresses custody in the absence of a court order.
But here a court order is in place. Finally, Moran’s legal
opinion is based on the assumption Shalit and Coppe made
agreements regarding Yarden’s custody. FN50 However,
Shalit now argues that any verbal agreement the parties made
regarding Yarden’s custody should not be considered. FN51
Under these circumstances, Moran’s opinion carries little,
if any, persuasive force.
020 Shalit cannot establish as a matter of Israeli law
that he enjoyed lawful rights of custody at the time of
removal or retention. It follows that Shalit cannot
establish Yarden was wrongfully retained in Alaska, and his
petition fails.
V. CONCLUSION
021 For the foregoing reasons, Coppe’s motion at docket 8
is GRANTED, and Shalit’s motion at docket 11 is DENIED. The
petition is DISMISSED. The order at docket 2 is VACATED.
DATED at Anchorage, Alaska, this 17Tth day November 1988.
/s/ John W Sedwick
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JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
FOOTNOTES
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1. Docket 1, exh. 6, at 3.
2. Id
3. Docket 8, exh, 1.
4. AS 22.10.020(a).
5. Docket 1, exh. 5.
6. Docket 8, exh. 2.
7. Coppe Affidavit, 3, at 2 (submitted as unmarked
exhibit to motion at docket 8).
8. Petition, docket 1, 11, at 3; Answer to Petition,
docket 7, 3, at 1.
9. Docket 1.
10. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
11. Id. at 323-325.
12. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9
(1986),
13. Id, at 255
14. Id, at 248-9.
15. Both the United States and Israel are signatories to
the Convention.
16. Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995).
17. Convention, art. 19. Mozes v. Mozes, _ F.Supp.2d ____
1998 WL 514152, at *4 (C.D. Cal. 1998).
18. 51 Federal Register 10495 (March 26, 1986).
19. 42 U.S.C. 11601(b)(4).
20. 42 U.S.C. 11603(e).
21 42 U.S.C. 11603(f)(2).
22. 42 U.S.C. 11603(e)(1)(A).
23. Convention, art. 3.
24. Mozes v Mozes, __ F. Supp.2d ___, 1998 WL 514152, at
*4 (C.D.Cal. 1998).
25. Id
26. Toren v. Toren, ___ F.Supp.2d ___, 1998 WL 756366, at
*2 (D. Mass 1998)(citations omitted).
27. Restatement (Third) Foreign Relations Law, 485,
comment c., at 621 (1987).
28. Toren, suora, ___ F.Supp.2d at ___, 1998 WL 756366, at
*3 (citation omitted).
29. Wipranik v. Superior Court, 63 Cal.App.4th 315, 323,
73 Cal. Rptr. 2d 734. 73 9 (Cal.App. 1998) (child
habitual resident of Israel where “child resided in
Israel for three years, attended school there for two
years, and had family and friends in Israel.”).
30, 42 U.S.C. 11603(f)(2).
31. Meredith v. Meredith, 759 F.Supp. 1432, 1434 (D. Ariz.
1991).
32. At one time courts were reluctant to recognize custody
orders from other states or foreign nations.
Restatement (Second) Conflict of Laws, 79, cmt c, at
239-39 (1971). Within the United States. such issues
are now resolved by statute. Id. at 78-81 (Supp.
1989). Regarding custody orders from foreign nations,
the Restatement applies principles of comity and
instructs such custody orders should be recognized
provided adequate notice was given all concerned
parties. Restatement (Third) Foreign Relations Law,
485, at 620 (1987). Courts now recognize foreign
custody orders. Dixson v. Cantrell, 564 So.2d 1138,
1139 (Fla. App. 1990) (custody order from the
Netherlands “entitled to recognition … under the
principle of comity.”).
33. Docket 1, Exh. 3.
34. Docket 1, Exh. 3, at 4.
35. Convention, art. 1(b).
36. 759 F.Supp. 1432 (D. Ariz. 1991).
37. Id. at 1434.
38 Id. at 1435.
39. Convention, am 21. See also Letter of Submittal from
Secretary of State to President, 51 Federal Register
10496-97 (March 26,1986) (for discussion regarding
visitation rights).
40. Convention, art. 17.
41. 51 Federal Register at 10504.
42. 51 Federal Register at 10507.
43. Convention, art. 3.
44. Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995).
45. Meredith, supra, 759 F.Supp. at 1435.
46. Docket 1, exh. 8.
47. Docket 11, at 6.
48. DoCket 1, Exh. 6, at 1.
49. Coppe Affidavit, submitted with motion at docket 8.
50. Docket 1, exh. 8, at 2-3.
51. Docket 11, at 13.
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COMMENT by Wm M Hilton
The Disrtict Court states that “. . . If Yarden’s habitual
residence was in Israel, the court must determine whether
Coppe’s retention of Yarden in Alaska was unlawful under
Israeli law . . .” This is an incorrect reading of Art. 3
which states:
“(a) 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;”
All that is required is a showing that, under the Law of
Israel, the father had a right of custody. No illegality of
any sort is required.
Whether Israel does or does not recognize the Alaskan
custody order is not relevent. The issue is whether or not,
under Israeli law, the father has a right of custody.
The court then states that a principal purpose of The
Convention is to restore the “factual status quo”. The
factual status quo was that the child’s habitual residence
was in Israel and that his father had de facto custody.
What the court did here is restore the “legal” status quo
and ignored the actual “factual” status quo.
The argument that the court uses that Israel should
recognize the Alaskan order as a matter of comity is, at
best, speculation. In fact it is more likely than not that
the Israeli courts (which regularly use and rely on English
decisions) would follow the view of McKee v McKee [1951] AC
352, [1951] All ER 942, which held that it would be an abuse
of discretion to enforce a foreign custody order without
first holding a de novo best interest hearing.
The court, while properly discounting the memorandum of law
from Israel that held that the father had a right of
custody, did not find that the father, under Israeli Law,
had or had not a right of custody. The court merely held
that the mother’s custody order might be enforced in Israel,
based on the U.S. theory of comity.
That it was error for the court to have speculated that
Israel might enforce the Alaskan order is even more evident
by the terms of Art. 15 of The Convention:
“The judicial or administrative authorities of a
Contracting State may, prior to the making of an
order for the return of the child, request that
the applicant obtain from the authorities of the
State of the habitual residence of the child a
decision or other determination that the removal
or retention was wrongful within the meaning of
Article 3 of the Convention, where such a
decision or determination may be obtained in
that State. The Central Authorities of the
Contracting States shall so far as practicable
assist applicants to obtain such a decision or
determination.”
What the court should have done is stay the proceedings and
make an application to the Israeli Courts under Art. 15 to
determine whether or not there was a wrongful retention by
the mother.