USA – FEDERAL – SHALIT – 1999 (Return denied, Lower court decision affirmed) SHALIT v COOPE-SHALIT. The case was appealed by the father. The appeals court found that the father failed to establish that the mother’s retention of the child was wrongful. The appeal was denied.
===========================================================
Shalit v Coppe (9th Cir. 1999)— F.3d —; No. 99-35004, 23 Jul 1999
9 International Abduction [USA 1999]
===========================================================
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAIM SHALIT,
Plaintiff-Appellant, No. 99-35004
v. D.C. No.CV-98-00328-JWS
CHERYL COPPE, a/k/a CHERYL
GARDNER SHALIT,
Defendant-Appellee.
OPINION
Appeal from the United States District Court for the
District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
June 11, 1999–Seattle, Washington
Filed July 23, 1999
Before: Donald P. Lay, FN01 Alfred T. Goodwin and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
COUNSEL
Alison E. Mendel, Mendel & Huntington, Anchorage, Alaska,
for the plaintiff-appellant.
Kenneth C. Kirk, Kirk & Robinson, Anchorage, Alaska, for the
defendant-appellee.
OPINION
McKEOWN, Circuit Judge:
001 In this difficult case of first impression, we are
called upon to decide whether the son of an American mother
and an Israeli father must be returned to Israel on the
alleged basis that the mother’s retention of the child in
Alaska was “wrongful” within the meaning of the Hague
Convention on the Civil Aspects of International Child
Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the “Hague
Convention”).
002 The parties, Haim Shalit and Cheryl Coppe, were
divorced in Alaska in 1989. The Alaska state court granted
the mother custody of their son, Yarden, with visitation
rights for the father. On the basis of a subsequent oral
agreement, in 1995 Yarden moved to Israel to live with his
father on a temporary basis. At the end of what was expected
to be a two-week vacation in 1998, Coppe kept Yarden in
Alaska. Shalit filed a petition in federal district court in
Alaska under the Hague Convention, claiming that Coppe
wrongfully retained Yarden in violation of the Convention,
and requesting that Yarden be returned to Israel for the
Israeli courts to decide the merits of the custody dispute.
003 The district court granted Coppe’s motion for summary
judgment, finding that Shalit failed to establish that
Coppe’s retention of Yarden was “wrongful” under the Hague
Convention. We agree and affirm.
BACKGROUND
004 Shalit and Coppe married in 1985. In 1989, the Alaska
Superior Court entered a decree of divorce, granting Coppe
“sole legal and physical custody” of Yarden, then two years
old. In 1992, the matter of custody was raised again; the
state court ordered custody to remain with Coppe and set
forth certain visitation provisions. Less than a year later,
the parties reached a settlement regarding visitation
details, including visitation with the father in Israel. The
court adopted the settlement agreement nunc pro tunc and
entered Findings of Fact and Conclusions of Law. The
agreement provided that “[j]urisdiction of the courts of the
State of Alaska shall be retained” and designated a specific
state court judge to resolve “formal disputed issues.”
005 In 1995, Shalit and Coppe orally agreed that Yarden
would live with his father in Israel for three years so that
Coppe could attend law school. This arrangement appeared to
work satisfactorily for some time, with Coppe and Yarden
visiting each other several times during those years,
although Coppe did not remain in law school. Shalit and
Coppe did not put the agreement in writing, did not amend
the Alaska orders, and did not discuss a specific date when
Yarden would return to his mother.
006 On August 2, 1998, Yarden traveled from Israel to
Alaska to visit his mother, holding a round-trip ticket with
a return date of August 19, 1998. During the stay, however,
Coppe decided that she would not return Yarden to Israel,
claiming alternately that she had concerns about his
behavior and care and that the three-year agreement had
expired. Yarden has since remained in Alaska.
007 After Shalit was notified that Yarden would not
return to Israel, he commenced a custody proceeding in
Israel (which apparently has not progressed beyond the
initial filing), followed by the filing of a visitation
modification proceeding in Alaska state court. The Alaska
Superior Court denied him relief and Shalit then filed his
petition in federal court under the Hague Convention. Upon
consideration of cross-motions for summary judgment,
including declarations and briefing from both parties, the
district court found that Shalit had not established that
Yarden was wrongfully retained in Alaska within the meaning
of the Hague Convention and denied Shalit’s petition.
STANDARD OF REVIEW
008 We review the district court’s grant of summary
judgment de novo, Margolis v. Ryan, 140 F.3d 850, 852 (9th
Cir. 1998), and the denial of a motion for reconsideration
for an abuse of discretion, Fireman’s Fund Ins. Cos. v.
Alaskan Pride Partnership, 106 F.3d 1465, 1470-71 (9th Cir.
1997). In a case brought under the Hague Convention, we
review the district court’s findings of fact for clear error
and its conclusions about United States, foreign, and
international law de novo. Friedrich v. Friedrich, 78 F.3d
1060, 1064 (6th Cir. 1996) (“Friedrich II”) (citing, e.g.,
Fed R. Civ. P. 44.1; Echeverria-Hernandez v. INS, 923 F.2d
688, 692 (9th Cir. 1991) (question of international law
reviewed de novo)).
DISCUSSION
009 Shalit’s petition seeking Yarden’s return is governed
by the Hague Convention and its implementing legislation,
the International Child Abduction Remedies Act (“ICARA”), 42
U.S.C. 11601-11610.
I. FRAMEWORK OF THE HAGUE CONVENTION
010 The Hague Convention, adopted in 1980, addressed the
increasing problem of international child abduction in the
context of international law while respecting rights of
custody and visitation under national law. According to the
Preamble, the Convention aims “to protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual residence
. . . .” Hague Convention, Preamble, T.I.A.S. No. 11,670 at
4. The twin objectives of the Hague Convention are (1) “to
secure the prompt return of children wrongfully removed [ ]
or retained,” and (2) “to ensure that rights of custody and
of access under the law of one Contracting State are
effectively respected in the other Contracting States.” Id.,
art. 1; see also In re Prevot, 59 F.3d 556, 558 (6th Cir.
1995). FN02 One of the paramount purposes of the Hague
Convention is to “restore the status quo and deter parents
from crossing international borders in search of a more
sympathetic court.” See Nunez-Escudero v. Tice-Menley, 58
F.3d 374, 376 (8th Cir. 1995).
011 Against this backdrop, Article 3 of the Hague
Convention spells out the parameters for determining whether
a child has been wrongfully removed or retained. Removal or
retention of a child is wrongful where:
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 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.
012 Hague Convention, art. 3, T.I.A.S. No. 11,670 at 4.
Because the language of the Convention is somewhat
conclusory, United States courts look to two sources of
official commentary for guidance: (1) the Explanatory Report
by Elisa Perez-Vera, the official Hague Conference reporter
(the “Perez-Vera Report”), FN03 and (2) the Legal Analysis
of the Hague Convention on the Civil Aspects of
International Child Abduction (“Legal Analysis”) found in
the Federal Register. 51 Fed. Reg. 10503 (1986). FN04 As the
Legal Analysis notes:
[The Perez-Verez] explanatory report is
recognized by the Conference as the official
history and commentary on the Convention and
is a source of background on the meaning of
the provisions of the Convention available to
all States becoming parties to it. Id.
013 We underscore that the Hague Convention analysis is
not a determination of custody rights. Under Article 19 of
the Hague Convention and 42 U.S.C. 11601(b)(4), “a United
States district court has authority to determine the merits
of an abduction claim, but not the merits of the underlying
custody claim.” See, e.g., Friedrich v. Friedrich, 983 F.2d
1396, 1400 (6th Cir. 1993) (“Friedrich I”) (citing 42 U.S.C.
11601(b)(4)) (emphasis added). The court is to determine
only whether the removal or retention of a child was
“wrongful” under the law of the child’s “habitual
residence,” and if so, to order the return of the child to
the place of “habitual residence” for the court there to
decide the merits of the custody dispute, unless the alleged
abductor can establish one of a few defenses. See, e.g.,
Ohlander v. Larson, 114 F.3d 1531, 1534, 1541 (10th Cir.
1997), cert. denied , 118 S. Ct. 702 (1998); Friedrich II,
78 F.3d at 1067. The Legal Analysis states the proposition
clearly:
The obligation to return an abducted child to
the person entitled to custody arises only if
the removal or the retention is wrongful
within the meaning of the Convention. 51 Fed.
Reg. at 10506.
II. SHALIT’S PETITION AT SUMMARY JUDGMENT
014 In his petition, Shalit alleged that Yarden must be
returned to Israel because Coppe’s retention of Yarden was
“wrongful” under Article 3 of the Hague Convention. Shalit
had the burden of proving by a preponderance of the evidence
that (1) Coppe retained Yarden away from his “habitual
residence,” and (2) Coppe’s retention of Yarden was in
breach of Shalit’s rights of custody under the law of
Yarden’s habitual residence. See, e.g., 42 U.S.C.
11603(e)(1); Friedrich I, 983 F.2d at 1400. The district
court correctly found that Israel was Yarden’s habitual
residence at the time of the allegedly wrongful retention, a
finding which the parties do not seriously challenge. FN05
Accordingly, we need only address the wrongful retention
issue.
015 The question we face is whether Shalit satisfied his
burden of proving by a preponderance of the evidence that
Coppe’s retention of Yarden was “wrongful” under Article 3.
This inquiry, in turn, requires us to determine whether
Coppe’s action was in breach of Shalit’s rights of custody
under the law of the state of Yarden’s habitual residence.
See Hague Convention, art. 3, T.I.A.S. No. 11,670 at 4;
Friedrich I, 983 F.2d at 1400; see also Perez-Vera Report at
435 (the law of the state of habitual residence “is taken
into consideration only so as to establish the wrongful
nature of the removal.”). We look first to the law of
Yarden’s habitual residence — Israel — and then to the
three sources of rights of custody as enumerated in the
Hague Convention.
A. Law of Habitual Residence — Israel
016 The Hague Convention’s references to the “law of the
State in which the child was habitually resident ” is
purposefully broad. It is not limited to internal or
domestic law but includes the conflict of law rules of the
state of habitual residence. As explained in the Perez-Vera
Report:
[T]he Convention speaks of the `law’ of the
State of habitual residence, thus breaking
with a long-established tradition of Hague
Conventions . . . , which refer to a
particular internal law to govern the matters
with which they deal. . . . [T]he adjective
`internal’ implies the exclusion of all
reference to the conflict of law rules of the
particular legal system.
Therefore, since the Convention has abandoned
its traditional formulation by speaking of
`the law of the habitual residence,’ this
difference cannot be regarded as just a matter
of terminology.
017 Perez-Vera Report at 445; see also Legal Analysis, 51
Fed. Reg. at 10506 (“Nothing in the Convention limits this
`law’ to the internal law of the State of the child’s
habitual residence. Consequently, it could include the laws
of another State if the choice of law rules in the State of
habitual residence so indicate.”). In determining whether
Coppe’s retention of Yarden was “wrongful,” conflicts rules
in Israel might direct us to look to the law of the United
States. Or, the conflicts rules might result in Israeli law
as controlling authority. Shalit, however, failed to provide
any evidence regarding Israel’s conflict of law rules in
this case, where the child is a dual citizen, habitually
resident in Israel and born in the United States to an
American mother who holds a state court custody order in her
favor.
B. Rights of Custody
018 Shalit also failed to carry his burden of
establishing that Coppe’s retention of Yarden breached his
“rights of custody” under the Hague Convention. Article 3
provides three potential sources of custody rights: (1)
operation of law, (2) judicial or administrative decision,
or (3) an agreement having legal effect under the law of
that State. See Hague Convention, art. 3, T.I.A.S. No.
11,670 at 5. FN06
1. Operation of Law
019 At summary judgment, Shalit offered only the
declaration of an Israeli attorney — his own attorney in
Israel — explaining that Shalit had custody rights under
Israeli law because Israel’s Legal Capacity and Guardianship
Act of 1962 provides that both parents are the natural
guardians of a child and that the guardianship of both
parents includes the right to determine a child’s residence.
FN07 Simply filing a declaration and saying it is so is not
sufficient. Not only does Shalit bear the burden of proof
under the Convention, but our analysis must be broader than
the conclusory “evidence” offered by Shalit.
020 As explained above, the “law” referred to in Article
3 encompasses the conflict of law rules of the state of
habitual residence, so that the inquiry into whether Shalit
had custody rights necessarily entails a determination of
whether Israel would apply its own or United States law in
these circumstances:
Thus, custody ex lege can be based either on
the internal law of the State of the child’s
habitual residence, or on the law designated
by the conflict rules of that State.
021 Perez-Vera Report at 446; see also id. (noting that
in case where parents are French but child’s habitual
residence is Spain, “wrongfulness” would be determined by
French law designated as applicable by Spanish conflict of
law rules). Because the declaration of Shalit’s attorney
entirely ignored the conflict of law issue in concluding
that Shalit had rights of custody under Israeli law, this
declaration was insufficient to discharge Shalit’s burden of
proving by a preponderance of the evidence that Coppe’s
actions breached his rights of custody.
2. Judicial or Administrative Decision
022 The reference in Article 3 to a “judicial or
administrative decision” as a source of custody rights is
“used in its widest sense,” specifically contemplating that
such a decision “may have been issued by the courts of the
State of the child’s habitual residence as well as by the
courts of a third country.”
See Perez-Vera Report at 446-47.
022 The only custody determinations in this case are the
Alaska orders granting Coppe sole legal and physical custody
of Yarden, with visitation to Shalit. The declaration
offered by Shalit’s attorney fails even to mention those
decisions or to analyze a crucial issue in this case — the
effect of the Alaska orders in determining the scope of
Shalit’s rights of custody under Israeli law. Shalit would
have us ignore the Alaska orders which predated the claim of
wrongful retention, but we are mindful that one of the
purposes of the Hague Convention is “to ensure that rights
of custody and of access under the law of one Contracting
State are effectively respected in the other Contracting
States,” Hague Convention, art. 1b, T.I.A.S. No. 11,670 at
4. FN08 Neither Shalit’s attorney’s declaration nor
Israel’s Legal Capacity and Guardianship Act of 1962
provides any basis for us to assume that Israel would
disregard this Convention objective by refusing to
acknowledge the Alaska Superior Court’s award of legal and
physical custody to Coppe. Indeed, while we do not undertake
such a determination, we note that at least one case from
Israel suggests otherwise. See Dine Israel, An Annual of
Jewish Law: Past and Present, Volumes X-XI 142 (1983)
(discussing H.C. 386/78, Magnesi v. Magnesi, 32(3) P.D.I.
287, where the Israeli High Court “recogni[zed] . . . the
judgment of the Italian court” which had granted custody to
the mother, and ordered the father to return the child).
023 Under Article 17 of the Convention, a pre-existing
custody order should not be the “sole” reason for refusing
to order the return of a child. Hague Convention, art. 17,
T.I.A.S. 11,670 at 9. Although a pre-existing custody order
is not entitled to dispositive weight, the district court
may take into account the reasons for and existence of such
an order in determining whether a removal or retention is
“wrongful” under the Hague Convention:
The sole fact that a decision 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.
022 See Hague Convention, art. 17, T.I.A.S. No. 11,670 at
9; see also Meredith v. Meredith, 759 F. Supp. 1432, 1434-36
(D.Ariz. 1991) (relying on Article 17 to refuse the mother’s
Hague Convention petition because the Arizona state court
had awarded the father “full, sole, and legal custody of the
minor child,” so that the mother had “mere physical
possession of the minor child . . . and [ ] did not have any
legal rights of custody of said child” at the time the
father allegedly wrongfully removed their daughter).
023 THe rationale for this provision is to prevent
abductors from being able to rely upon either a ” `dead’
decision taken prior to the removal but never put into
effect,” see Perez-Vera Report at 464, or a decision
obtained by an abductor in the country of refuge “before the
court had notice of the wrongful removal or retention.”
Legal Analysis, 51 Fed. Reg. at 10504. Neither of these
circumstances is applicable here; the Alaska orders were
obtained (with Shalit’s participation and representation by
counsel) and implemented for years prior to the alleged
wrongful retention. The Alaska orders were entered because
the parties were living in Alaska at the time of the divorce
and Yarden was resident in Alaska. Even upon modification of
the original order, the parties stipulated that jurisdiction
would remain in the Alaska courts. The orders were not
entered surreptitiously or to gain a jurisdictional or
procedural advantage in these proceedings.
3. Agreement Having Legal Effect
024 Shalit claims that he had rights of custody because
Israel permits parents living separately to agree upon
matters relating to guardianship (such as the child’s place
of residence), which Shalit and Coppe did by agreeing that
Yarden would live in Israel for three years. This argument,
too, fails to meet the preponderance of the evidence
standard.
025 Article 3 states that rights of custody may arise “by
reason of an agreement having legal effect under the law of
[the state of habitual residence].” Hague Convention, art.
3, T.I.A.S. No. 11,670 at 5. Again, even assuming that
Israel’s “law” would point to its internal law under a
conflicts of law analysis, the declaration of Shalit’s
attorney ignores the fact that Israeli law specifically
provides that an agreement between parents living separately
“shall be subject to the approval of the Court”:
Agreement between parents who live separately.
Where the parents of the minor live separately
. . . they may agree between them as to which
of them shall . . . have custody of the minor
and what shall be the rights of the other
parent with regard to having contact with him.
Such an agreement shall be subject to the
approval of the Court. . . .
Israeli Legal Capacity and Guardianship Act of
1962, Article 24.
026 Shalit’s and Coppe’s oral agreement was never
approved by an Israeli or American court. Shalit does not
address this language or explain its legal effect. Based
upon the proof offered, the agreement is not a source from
which Shalit may derive rights of custody. Cf. Currier v.
Currier, 845 F. Supp. 916, 921 (D.N.H. 1994) (rejecting
argument based on purported agreement between the parents
because such agreement “is, under German law, without legal
effect until approved by court order.”).
027 In summary, the district court did not err in
granting summary judgment to Coppe. Shalit failed as a
matter of law to discharge his burden of establishing by a
preponderance of the evidence that Coppe’s retention of
Yarden was in breach of Shalit’s rights of custody under the
law of Israel and therefore “wrongful” under the Convention.
III. SHALIT’S MOTION FOR RECONSIDERATION
028 After entry of the order granting Coppe’s motion for
summary judgment and denying Shalit’s motion for summary
judgment, Shalit filed a motion for reconsideration, this
time attaching the declaration of a different Israeli
attorney as well as a letter from the Israeli Ministry of
Justice, both of which opined that Coppe wrongfully retained
Yarden under Article 3 of the Hague Convention. FN09
029 The law is clear that reconsideration is appropriate
only in very limited circumstances, and that “[t]he
overwhelming weight of authority is that the failure to file
documents in an original motion or opposition does not turn
the late filed documents into `newly discovered evidence.’ ”
School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993) (citation omitted); see also
Rosenfeld v. Department of Justice, 57 F.3d 803, 811 (9th
Cir. 1995) (no abuse of discretion in declining to consider
an argument “raised for the first time on reconsideration
without a good excuse”); Hopkins v. Andaya, 958 F.2d 881,
887 n.5 (9th Cir. 1992) (“A defeated litigant cannot set
aside a judgment because he failed to present on a motion
for summary judgment all the facts known to him that might
have been useful to the court.”). Shalit offered no reason
for his failure to present such evidence prior to entry of
judgment against him, and the district court did not abuse
its discretion in denying the motion for reconsideration.
AFFIRMED.
Footnotes
—————————–
1 (Text missing)
2 The United States and Israel are both signatories to
the Hague Convention. Hague Conference on Private
International Law: Report of the Second Special
Commission Meeting to Review the Operation of the
Hague Convention on the Civil Aspects of
International Child Abduction, 33 I.L.M. 225, 225
(1994).
3 Actes et documents de la Quatorzieme Session (1980),
Volume III, Child Abduction, edited by the Permanent
Bureau of the Hague Conference on Private
International Law, The Hague, Netherlands.
4 Not surprisingly, the case law in this area is very
fact-specific and dependent on the applicable country
or state law for the determination of “rights of
custody” under the Convention. While we can glean
from the cases a framework for analysis that conforms
to the Convention, in a case such as this one, we
have no precedent in our circuit and little guidance
from the other circuits.
5 It is undisputed that by the summer of 1998, Yarden
had lived in Israel with his father for approximately
three years and held a round-trip ticket to return
after approximately two weeks. Three years is
certainly enough time for Yarden to be considered
“settled” in Israel, regardless of Coppe’s claimed
intention to have him return permanently to Alaska at
some point in the future. See, e.g., Feder v.
Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995) (that
the mother “did not intend to remain in Australia
permanently” after moving there from the United
States with the father and child “does not void the
couple’s settled purpose to live as a family” in
Australia); Toren v. Toren, 26 F. Supp. 2d 240, 243
(D. Mass. 1998) (habitual residence was in United
States with mother, regardless of fact that parents
had agreed that children would return to Israel on a
date certain and that United States was not intended
to be the children’s permanent residence).
6 While we note that these sources are not exclusive,
see Legal Analysis, 51 Fed. Reg. at 10506, Shalit did
not offer or suggest any other basis for his claim to
enforceable rights of custody under the law of
Israel.
7 Article 14 of the Hague Convention provides that a
court “may take notice directly of the law of, and of
judicial or administrative decisions, formerly
recognized or not in the State of the habitual
residence of the child, without recourse to the
specific procedures for the proof of that law or for
the recognition of foreign decisions which would
otherwise be applicable.” Hague Convention, art. 14,
T.I.A.S. No. 11,670 at 8. Thus, an attorney’s
declaration as to the application of another
country’s law is generally acceptable in Hague
Convention cases. Although the standards for proof of
foreign law are relaxed under the Convention, the
district court is not precluded from considering the
source of the information, i.e., the petitioner’s own
attorney.
8 We recognize that this objective is, as a practical
matter, not on equal footing with the first objective
of the Convention — the return of wrongfully removed
or retained children. See Perez-Vera Report at 430.
Nonetheless, the determination of whether Coppe’s
retention of Yarden was “wrongful” must be considered
in light of this secondary purpose of the Convention,
and we in no way derogate from the goals of the
Convention by acknowledging its aim of ensuring that
signatory nations respect the rights of custody
granted by the authorities of other nations.
9 Although it is unclear from both the briefs and the
Notice of Appeal, counsel stated at oral argument
that Shalit intended to appeal from the denial of his
motion for reconsideration as well as the grant of
summary judgment in favor of Coppe.