USA – NY – COHEN – 1993

USA – NY – COHEN – 1993 (Return denied) COHEN v COHEN. (Habitual Residence) The father seeks the return of the children to Israel. The mother feels that the residence of the children is the United States and feels that any custody decisions should be made in the US. The father took the children to Israel for a visit (as claimed by the mother). The father failed to return the children. The mother went to Israel and left with the children for the US. The father applies for their return. The court ruled the habitual residence was the US and denied the petition for return. (See Mr. Hilton’s footnotes)




In the Matter of REUVEN COHEN and By: William Rigler, J.
INDEX NO 22490/93


This is an unusual proceeding under the Hague Convention on
Civil Aspects of International Child Abduction (hereinafter “Hague
Convention”). Unusual even given the fact that the Hague
Convention and its application in the United States is still
relatively new. The proceeding is apparently one of first
impression concerning the term “Habitual Residence” as used in the
Hague Convention. This term is undefined in the Hague Convention
as well as the federal enabling statute, International Child
Abduction Remedies Act (hereinafter “ICARA”) (42 USC 11601 et
sec). What is clear is that this case involves two young children
who have lived in Cleveland, Ohio, Brooklyn, New York, the State
of Israel and Brooklyn, New York again, all in less than one year.
What is unusual is the fact that 1) a Hague Convention proceeding
could have been brought in Israel before the children were
returned to this country but it was never undertaken and 2) there
has not been a determination from the requesting country (Israel)
that it was the habitual residence of the children. Hence, the
question of which country is the habitual residence of the
children is central to this proceeding. Hence, this court must at
least partially define a heretofore undefined term “habitual
residence” as used in an international treaty and federal statute.

Petitioner-father, who now lives in Israel, seeks the return
of two children to that country. Respondent-mother lives in
Brooklyn. She objects to the return. She asserts that any custody
determination concerning the children should be made in the courts
of the United States of America.


The parties were married in Israel. Respondent was apparently
unhappy in Israel so they moved to Cleveland, Ohio. The parties
are still married to each other.

The children who are the focus of this petition are Reuven
and Elisha Cohen. Reuven, the younger child, was born on March 6,
1990. Elisha was born on March 12, 1989. The children were born in
Cleveland, Ohio. The children apparently have dual citizenship.
They are citizens of the United States of America as well as the
State of Israel. It is conceded by the parties that until December
6, 1992 the children resided in the United States.

The parties originally resided together with the children in
Cleveiand, Ohio. In approximately June, 1992 respondent moved with
the children to New York City. The parties at that time were
having marital difficulties. At some point during the summer of
1992 petitioner came to New York as well. However, he soon
returned to Cleveland. Petitioner did try to visit with the
children on a regular basis. Thereafter, during the fall of 1992
petitioner moved back to New York. The parties were attempting a

It is at this point that the parties’ view of the events
diverge. The court will first set out what it views as objective
facts as brought out in the trial of this matter. These facts
formed the framework within which both parties presented their

In late fall petitioner purchased one-way tickets to Israel
for himself and the children. The purchase was made in cash. He
also sold many of his tools. On December 6, 1993 he took the
children to Israel. He did not take all of the children’s clothing
or belongings. In fact, for the three of them he apparently only
checked a total of two bags for the flight to Israel. Tickets were
not purchased for respondent.

Once in Israel petitioner enrolled the children in a daycare
program. He also started working as a security guard. In
February, 1993 respondent contacted the United States State
Department seeking help to effectuate a return of the children. An
application for the return of the children under the Hague
Convention was not transmitted by the United States’ Central
Authority to the Israeli Central Authority until April 22, 1993.

In conjunction with respondent’s actions with the State
Department or in addition to her actions with the federal
authorities, respondent also sought relief in the New York State
courts. On March 11, 1993 she petitioned Family Court, Kings
County for an order of custody. She received a temporary Order of
custody at that juncture. She was not, however able to serve it
upon petitioner.

During this same period respondent was in telephone contact
with petitioner and the ohiidren on a regular basis. She thus
maintained contact with the children.

On May 17, 1993 respandent travelled to Israel. She lived in
an absorbtion center. She apparently visited the children
everyday. On May 28, 1993 there was an altercation between
petitioner and respondent. Respondent told petitioner that she
wanted to take the children for the weekend. The police were
called. Petitioner promised the police that she would not leave
the country with the ahildren. The children were released to her

Respondent immediately went to the United States Embassy to
obtain new passports for the children and to obtain plane tickets
for the trip back to the united States. She pledged her passport
to obtain the tickets. The Embassy provided transportation to the
airport. Respondent and the children boarded a plane to the United
States that same day. They did make a stop-over in Italy.
Respondent did not violate any existing orders from any court when
she removed the children from Israel.

At no time during the children’s stay in Israel were there
custody proceedings in that country. Petitioner never sought
custody of the children until after She children were removed from
Israel. Petitioner first sought the help of the Israeli Central
Authority in mid-June, 1993. The referral to the Central
Authority of the United States was made on either June 18, 1993 or
June 21, 1993. This proceeding was commenced in papers signed by
petitioner on July 7, 1993.

Once backin the United States respondent applied for an order
of protection against petitioner. That application was made in
Family Court, Kings County. This Hague proceeding resulted in the
proceeding in Family Court being stayed.


Petitioner contends that respondent wrongfully removed the
children from Israel without his permission. He argues that
Israel was the habitual residence of the children and thus they
should be returned to that country.

Petitioner testified that in December, 1992 the parties
decided to move to Israel. He originally wanted to move back to
Cleveland but respondent insisted on having the children go to
Israel. Respondent, in fact, was the one who called petitioner’s
parents who lived in Israel to arrange for money for the tickets.
Respondent helped petitioner buy the tickets for himself and the
children. Respondent was to follow them to Israel in a few months;
once petitioner and the children were settled.

As further proof of their intention to resettle in Israel
petitioner and his witness point out that he sold most of his
tools of trade while in New York. He used the money to pay the
parties’ debt to their landlord. Additionally, they only bought
one-way tickets to rsrael. He asserts that if the intention was
only to have the children visit in Israel then round-trip tickets
would have been purchased.

Petitioner also teistified that when respondent did come to
Israel he met her at the airport. She lived in an absorption
center while in Israel. This, he says, proves the intent was for
the family to move to Israel. Thus, the habitual residence of the
children was Israel at the time that respondent improperly removed
them from that country.


Respondent’s position is easy to state: petitioner was moving
to Israel but the chiidren were only going to visit with their
grandparents for a few weeks. Thus, the habitual residence of the
children was always the United States of America.

Respondent testified that the parties were separated at the
time that petitioner left far Israel. They had been having marital
problems for a long time. Petitioner was not even sufficiently
supporting the family. Respondent and the children were on welfare
and the rent was never paid (this contradicts petitioner’s
testimony). In fact, she was evicted.

Respondent presented witnesses who testified that petitioner
bought one-way tickets because he could not afford round-trip
tickets. His plan was to work in Israel for his sister to earn
money for the return of the children. Furthermore, they testified
that there was never a going-away party for the children.

Respondent noted that the children had always lived with her.
They continued to live with her even when the parties separated
with petitioner living in Cleveland and respondent living in New
York City. Respondent never intended to move to Israel nor did she
intend to have the children move to Israel. When the children left
she only packed clothing for two or three weeks.

Respondent did admit that she called petitioner’s parents to
obtain money so that the children could make the trip to Israel.
She asserted that she did this because she wanted the children to
meet their grandparents whom they had never seen.

The bulk of respondent’s testimony concerned her actions
after the children were in Israel. When she talked to petitioiner
on the telephone she requested that he come back with the
children. She attempted to have the State Department act on her
behalf. She made applications in Family Court, Due to her lack of
funds respondent was unable to obtain counsel in Israel to use the
Hague Convention for her benefit. Finally, she went to Israel in
order to retrieve the children. She admits that she used a ruse in
Israel to obtain housing from the absorption authorities because
she did not have funds for accomodations. Respondent did not
reside with petitioner in Israel. Thus, indicating that there was
never an intent to move to Israel as a family. Respondent also
admits that she lied to the police on May 28, 1993 so that they
would release the children to her.

She knew that onae she had possession of the children the
United States Embassy in Israei would help her return to the
United States with them. She had learned from the State Department
department handbook “International Parental Child Abduction” that
if a parent has possession of a child and the child is a United
STates citizen and there is no order preluding the child from
leaving that particular country, the Embasey will assist that
parent in removing the child from the foreign country. That is
exactly what happened once she presented herself to the Embassy
with the children.


As this court recently wrote:

The purpose of the Hague Convention on the Civil
Aspects of International Child Abduction is to
prevent the international movement of children
in custody disputes. Chapter I, Article I of the
Convention reads:

The objects of the present Convention are –

(a) to secure the prompt return of children
wrongfully removed to or retained in any
contracting State: and

(b) to ensure that rights of custody and of
access under the law of one Contracting State
are effectively respected in the other
Contracting States.

(Green v. Green, New York Law Journal, July 6, 1993, p. 33 col.
2). The analysis in an Hague Convention matter does not involve
the determination of the ultimate issue of custsdy as between the
parents. The determination only concerns the validity of the
retention or removal of the subject child. The ultimate question
really is: where should the issue of custody be tried if it is
going to be tried?

There are two threshold hurdles that must be crossed before a
petitioner may be found to be entitled to Hague Convention relief:
1) it must be shown that the petitioner had lawful rights of
custody at the time of the removal or retention; and 2) it must be
shown that the removal and retention WMH FN02 is from the child’s
“habitual residence.” (see, Articles 3 and 5 of the Hague

In the case at bar there is no real question that at the time
of respondent’s removal of the child from Israel both parties had
custodial rights as that term is used in Article 5 of the Hague
Convention. It is also obvious that respondent removed the child
from Israel without petitioner’s permission. The question is
whether these facts alone are sufficient to grant petitioner the
Hague Convention relief of the return of the child to Israel. As
one court has written:

Custody rights are determined by the law of the
child’s habitual residence. “Habitual residence”
is an undefined term in the Convention. It is
apparent that it must be determined by the facts
and circumstances presented in each particular

(In re Meredith v. Meredith, 759 F.Sup. 1432, 1434). WMH FN3

In the case before this court the key issue is determining
the country in which the children habitually resided when they
were removed from Israel. As noted in the Meredith case this is a
factual determination. It really is a creditability question. The
court must decide which version of the story concerning how the
children travelled to Israel is to be believed.

Clearly the children habitually resided in this country prior
to their trip to Israel. This status would not change unless it
was changed by the parties. Using an analysis borrowed from the
cases surrounding the issue of domicile (obviously very analogous
to “habitual residence”); “The law is well settled that an
existing domicile [substitute habitual residence] continues until
a new one is acquired” (Matter of Urdana — AD2d — [599
N.Y.S.2d 60, 61). The Appellate Division, Second Department
continues that it is the burden of the party seeking to show a
change of domicile (habitual residence) to prove the change. In
the case at bar that would be petitioner. The Second Department
wrote in Urdana (a probate case):

To meet this burden, the movant must establish
the decedent’s intention to effect a change of
domicile from her acts, statements, and conduct
(See, Matter of Pinapank, 134 AD2d 263, 265 [520
N.Y.S.2d 596). The element of intent is
essential (Laufer v. Hauae, 140 AD2d 671, 673
[528 N.Y.S.2d 878). The question of whether
there has been a change of domicile is a mixed
question of fact and law “and it frequently
depends upon a variety of circumstances, which
differ as widely as the peculiarities of
individuals” (Matter of Brunner, 41 N.Y.2d 917,
918 [394 N.Y.S.2d 621], quoting Matter of
Newcomb, 192 N.Y. 238, 250 [84 N.E. 950). “In
order to acquire a new domicile there must be a
union of residence and intention” (Matter of
Newcomb, 192 N.Y. 238, 250 [84 N.E. 950,

(Urdana, supra — AD2d — at —, [599 N.Y.S.2d at 61). The
application of this analysis to the determination of habitual
residence in the present case is appropriate. The only difference
would be in Urdana the burden of proof was by “clear and
convincing evidence” while the petitioner’s burden of proof in a
Hague Convention matter is “preponderance of the evidence” (ICARA,
42 USC 11603 (e)(l)). WMH FN04

If the intent of both parties was that the children were only
going for a visit to Israel then there was no intent to change
their habitual residence from the United States. Therefore,
petitioner would not have met one of the two requirements under
the Hague Convention and he would not be entitled to relief under
the treaty. WMH FN05

If the intent of the parties was to relocate the children to
Israel, then petitioner may be entitled to relief under the Hague
Convention because it would appear that the children’s habitual
residence would have shifted to Israel. Petitioner would then have
met the criteria to invoke the treaty. There would still exist,
however, the questions as to when exactly does the habitual
odsidence of a child change and whether one party may change their
mind as to a move to another country and thereby negate an
apparent change in the child’s habitual residence. This court will
not need to address these latter questions.

This Hague Convention case is thus reduced to who was more
credible, petitioner and his witnesses or respondent and her
witnesses? The court determines after careful analysis of all the
evidence presented that respondent presented the more credible

These parties were in the midst of marital difficulties. They
had just been separated for several months. During that period
respondent was the sole caretaker of the children. In fact, the
children had always been under her care. It does not seem
credible to this court that she would then have the children
relocate to a foreign country without being with the children.
There was nothing tying her to the United States at that time. Why
would she stay here instead of going with her children. It makes
much more sense that the children were going for a visit to Israel
at the same time that petitioner was relocating to that country.

This analysis is supported by the testimony of respondent’s
witnesses. There was no party to say farewell for these children;
who petitioner contends were about to move permanently thousands
of miles away. Petitioner did not take many of the children’s
belongings with him. This suggests that they were only going for a
short visit. Finally, respondent was attempting to have the
children returned to United States soon after they had left.
This comports with her contention that they were to be in Israel
for a short period of time but were retained there by petitioner.
All of respondent’s actions, even those conceded by petitioner,
indicate that it was not respondent’s intention to relocate to
Israel nor was it her intention to have the children relocate to
that country.

The only real strength of petitioner’s position is that he
only bought one-way tickets for the children and himself. This,
however, is not conclusive of his position that the intent was to
relocate to Israel. These are clearly not people of means. The
expense of round-trip tickets would have been prohibitive for

Since this court determines that it was not the mutual intent
of the parties to move the children to Israel and, in fact, the
intent of one of the parties was merely to permit a visit to that
country, the habitual residence of the children was not changed
from the United States of America. WMH FN06 Thus, Israel was not
the habitual residence of the children at the time of their
removal from that country. Petitioner has failed to meet one of
the requirements for relief under the Hague Convention (the
removal or retention is from the child’s “habitual residence”).
Hence, the petition must fall.

Accordingly, pursuant to Article 27 of the Hague Convention,

IT IS ORDERED that petitioner’s petition for relief under the
Hague Convention is denied, and it is further

ORDERED that at this juncture any questions of custody as
between these two parties should be determined by the courts of
New York State, and it is further

ORDERED that any stays enjoining proceedings in Family Court,
Kings County including that contained in the order of this court
dated July 27, 1993 are vacated.

ORDERED that the passports held by the court shall be released to
the parties – petitioner’s to petitioner and the children’s to

This constitutes the order of the court.

/s/ William Rigler


The facts show that the children were taken to Israel from New
York and that, at some point in time, an action for Return of the
Children would have been heard before the Israli courts. The
Israeli courts would then, under The Hague Convention, determine
if there had been a “Wrongful Removal” or “Wrongful Retention”
from New York and then return the children to New York if there
was a “Wrongful” event.

A problem with this case is that it might possibly be construed as
encouraging self-help in that the mother admits removing the
childen from Israel by the use of a ruse and by lying to the
Israeli authorities.

Since one of the puposes of The Hague Convention is to discourage
self help and to resort to the legal system instead, it is
suggested that the following scenario could have been considered:

The New York Court issues a stay of all proceedings and further
issues a Ne Exeat order prohibiting the removal or concealment of
the children by anyone. The New York Court then orders that the
parties bring an action under The Hague Convention in Israel and
let the Israeli courts make a determination as to whether or not
the children should be returned to New York. If the Israeli
courts make such a finding then the children would remain in New
York pending furthr action in the Family Courts as to the merits
of the custody case. If the Israeli courts find that there was
no “Wrongful” event, then the children would be returned to Israel
for further proceedings on the merits of the custody case in

By doing this the proper courts are utilized and a protocol is
established when this type of situation occurs. It also keeps the
movement of the children to a minimum: If the children had been
sent back by New York to Israel and then Israel determines that
the original act was “Wrongful” the children would then be flown
back to New York, a needless trip.

All footnotes are by William M. Hilton, CFLS (SYSOP)
1. Judge Rigler is correct in his statement that Habitual
Residence is undefined in the Hague Convention and
elsewhere, but this is deliberatly so. The reason for this
is given most recently in Application of Ponath (D.Utah
1993) 829 F.Supp. 363: “The term ‘habitual residence’ is
not defined by either the Hague Convention or 42 U.S.C. Sec.
11601-11610. “The intent is for the concept [habitual
residence] to remain fluid and fact based, without becoming
rigid.” Levesque v Levesque (D.Kan 1993) 816 F.Supp. 662,
665.” Accordingly any definition given in this decision
must be understood to relate only to the facts of this case
and that it is not a “generic” definition of the term
“Habitual Residence.”

2. This should read “. . . removal or retention . . .”

3. See Foot Note 1, above.

4. The issue of “Domicile” and “Habitual Residence” are
frequent topics of discussions in cases involving The Hague
Convention. Nearly all of the cases cite In Re Bates, No.
CA 122.89, High Court of Justice, Family Div’n Ct. Royal
Court of Justice, United Kingdom (1989). In Bates, the
court held the following: “It is greatly to be hoped that
the courts will resist the temptation to develop detailed
and restrictive rules as to habitual residence, which
might make it as technical a term of art as common law
domicile. The facts and circumstances of each case should
continue to be assessed without resort to presumptions or
pre-suppositions.”. See also Friedrich v. Friedrich (6th
Cir. 1993) 983 F.2d 1396

5. See also the decisions under 9 Uniform Laws Annotated (ULA)
3(5), which states that a temporary absence is considered to
be part of the “Home State” time of the child.

6. This is a point of interest: Here the court finds that it
takes a mutuallity of interest to change the Habitual
Residence of a child. If one of the parents does not agree
to this change then the Habitual Residence remains Forum One
and there is then a “Wrongful Removal” or “Wrongful
Retention” and therefore Art. 12 would apply.