USA – FEDERAL – TOREN – 1998 (Return denied) TOREN v TOREN, The father filed for the return of the children from Massachusetts, USA. The court rules that the children were not habitual residences of Israel at the time of their alleged retention. Therefore the Convention and ICARA do not apply.


Toren v Toren (D.Mass. 1998)Civil No 98-11302-GAO
15 International Abduction [US 1998]






October 21, 1998


001 Invoking the Court’s jurisdiction under the
International Child Abduction Remedies Act (“ICARA”), 42
U.S.C.  11601-10, the plaintiff Schlomo Daniel Toren (the
“Father”) seeks an order from this Court requiring his
former wife, the defendant Rachael Elisabeth Toren (the
“Mother”), to return the parties’ two minor children from
Massachusetts, where she and the children presently reside,
to Israel, where he resides. ICARA implements the terms of
the 1980 Hague Convention on the Civil Aspects of
InternationaL Child Abduction (the “Convention”), to which
both the United States and Israel are signatory States.
Because the Court concludes that the children were not
“habitual residents” of Israel at the time of their
allegedly wrongful retention in the United States by the
Mother, neither the Convention nor ICARA applies. The
Father’s motion is therefore denied, and the action is


002 The record presented by the parties establishes the
following facts. The parties were married in Israel on
August 22, 1988. Two children were born of their marriage:
D’Vora, now eight years old, and Yael, now five. In
December, 1994 the parties were divorced by a judgment of
the Rabbinical District Court in Jerusalem. The divorce
judgment incorporated the terms of the parties’ separation
agreement, which provided for joint legal custody of the
children. The parties agreed, and the judgment ordered, that
the children would reside in Israel for at least two years
after the divorce. In 1996, the parties executed an
amendment to their separation agreement that provided, among
other things, that the children would live with the Mother
in Massachusetts for a period of years, but not beyond July
21, 2000. The amended agreement further provided that the
children would not stay in the United States or any other
place outside of Israel after that date, and that they would
study in Israel during the 2000-2001 school year. The
amended agreement also specified the Father’s visitation

003 On July 1, 1997, the Mother filed a complaint in the
Massachusetts Probate and Family Court seeking to modify the
parties’ agreement (and the Israeli judgment) by eliminating
the requirement that the children eventually return to
Israel and instead allowing them to remain indefinitely in
the United States. The Probate Court granted the Mother
temporary legal and physical custody of the children. The
Father has appeared in that action, and it remains pending.
On July 6, 1998, the plaintiff filed the present complaint,
seeking an order requiring the immediate return of D’Vora
and Yael to Israel. He alleges that since July 8, 1997, the
defendant has interfered with his rights of access to the
children in violation of the orders of the Israeli court and
the parties’ own agreements and that this interference
amounts to a “wrongful retention” of the children within the
meaning of Article 3 of the Convention, entitling him to


004 In brief, 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 non- abducting parent” Feder v. Evans-Feder
63 F.3d 217, 221 (3d Cir. 1995). For purposes of the
Convention, an abduction may occur either by a physical
removal of a child from one country to another, or by a
refusal to return a child who is temporarily away from its
home. The latter circumstance, referred to as a “retention”
of the child away from its residence, is what the plaintiff
asserts occurred in this case. Under Article 3 of the
Convention, the retention of a child is wrongful if it is in
breach of the rights of custody attributable to a person
under the law of the state in which the child was an
“habitual resident” immediately before the removal or
retention, and if the person was exercising (or attempting
to exercise) those custody rights at the time of the
retention. Hague Convention, Art 3; see Wanniger v. Wanniger
850 F.Supp. 78, 80-81 (D. Mass. 1994).

005 To demonstrate that the defendant’s attempted
retention of the children in the United States is wrongful,
the plaintiff must first show that the Mother is retaining
the children away from their “habitual residence” in Israel,
where the Father was exercising his legally conferred
custodial rights. See Zuker v. Andrews 2 F.Supp.2d 134, 136
(D. Mass. 1998). See also Mozes v. Mozes — F. Supp.2d —,
1998 WL 514152, at *4 (C.D. Cal. Aug. 11, 1998).
Accordingly, the first critical determination upon which the
plaintiff’s claim for relief depends is whether the
children’s “habitual residence” was in Israel at the time of
the Mother’s allegedly wrongful retention of them in
Massachusetts. “[I]f the United States is the children’s
habitual residence, then they have not been wrongfully
retained here and the protections of the Convention cannot
be invoked. On the other hand, if Israel is the habitual
residence of the children, then they may have been
wrongfully removed, and the Court must continue its
inquiry.” Mozes 1998 WL 514152, at *4. The plaintiff bears
the burden of proof as to this issue. 42 U.S.C. 

006 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. See Zuker, 2 F.Supp.2d at 137-38 (reviewing cases).
Nevertheless, a consensus has emerged on some general
principles. “Habitual residence” is not a technical term,
like “domicile,” Friedrich v. Friedrich, 983 F.2d 1396, 1401
(6″ Cir. 1993), and it should be understood as the child’s
“ordinary residence” at the relevant time. Rydder v. Rydder,
49 F.3d 369, 373 (8th Cir. 1995). 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.” Friedrich 983 F.2d at 1401. 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.” In re Bates, No. CA 122-89,
High Court of Justice, Family Div’l Ct., slip op. at 10,
Royal Courts of Justice, United Kingdom (1989). 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.” Feder, 63 F.3d at 224.

007 Applying these considerations to this case, it is
clear from the record before the Court that the children’s
habitual residence was in the United States at the time of
the alleged wrongful retention. The children had been taken
to this country in 1996 by the Mother in accordance with the
parties’ agreement. It was the expectation of both parents
that the children would live in the United States for as
long as four years. At the time the Mother filed her
complaint in the Probate and Family Court to modify the
custody arrangements, which is when the plaintiff contends
the wrongful retention commenced, the children had been
living here for approximately a year. During that time, they
formed significant relationships here with other family
members and with their peers. They also became “settled” in
their community and its institutions, such as their school
and synagogue. Both have apparently ongoing therapeutic
relationships with medical professionals in the Boston area.

008 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.” Friedrich 983 F.2d at 1401.

009 Because the children’s habitual residence at the
relevant time was in the United States, not Israel, the
Father’s claim of wrongful retention must fail. The
protections of the Convention cannot be invoked; the
plaintiff is not entitled to an order that the children be
returned to Israel. See Mozes 1998 WL 514152, at *8.

010 There is an alternate route to the same conclusion.
Under Article 12 of the Convention, a child is not to be
ordered returned if more than one year passed between the
wrongful retention and the commencement of proceedings
seeking return and the child “is now settled in its new
environment.” Those conditions are met here. The Mother
acted to “retain” the children by filing the Probate Court
action and obtaining an ex parte order granting temporary
custody on July 1, 1997. This action was filed July 8, 1998,
more than one year later. The plaintiffs argument that the
date he learned of the Probate Court filing should be
considered the date of the retention is unpersuasive. The
language of the Convention is unambiguous, measuring the
one-year period from the “date of the wrongful …
retention.” Hague Convention, Art. 12. It might have
provided that the period should be measured from the date
the offended-against party learned or had notice of the
wrongful retention, but it does not. That is not surprising,
since the evident import of the provision is not so much to
provide a potential plaintiff with a reasonable time to
assert any claims, as a statute of limitation does, but
rather to put some limit on the uprooting of a settled
child. Thus, even in the unlikely event that the potential
plaintiff had no notice of the wrongful retention until
after a year had expired, it is the Convention’s
prescription that the child who is settled in a new
environment ought not to be ordered returned under the
Convention’s auspices. Here, for the same reasons that the
children are “settled” so that their “habitual residence” is
Massachusetts, they are settled within the limitation on
return imposed by Article 12.


011 For the reasons set forth above, the plaintiff’s
Motion for Preliminary Restraining Orders and Mandatory
Orders is DENIED. In addition, because the protections of
the Hague Convention cannot be invoked in these
circumstances, the action is DISMISSED with prejudice.


21 Oct 1998 O’Toole
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