David S. vs Zamira S.
Docket Number: V 196959-60/90, dated 31 Jan 1991
Hon PAULA J. HEPNER,
Judge of the Family Court
Family Court of the State of New york
County of Kings
283 Adams Street
New York, New York
Appeareances:
Mark A. Feldman, Esq., for the Petitioner
440 Avenue P
Brooklyn, New York 11223
Harvey S. Jacobs, Esq., for the Respondent
26 Court Street
Brooklyn, New York 11242
DECISION AND ORDER
On December 18, 1990 an order of the Supreme Court of
Ontario, dated November 27, 1990, was filed in this Court by the
petitioner. The order was filed pursuant to Section 75-p [9 ULA
15] of the Domestic Relations Law of New York State. On this same
day, the petitioner filed a petition for enforcement of the
Canadian order, which granted him temporary custody of the
parties’ two children, Pinhus S., and Sara Eta S., and directed
their return to Canada.
A warrant was issued for the respondent to produce the
children and before the end of the day, the respondent and the two
children were before this Court. Pursuant to 1022 of the Family
Court Act, the children were remanded to the temporary custody of
the Commissioner of Social Services of the City of New York to
assure their continued presence in this jurisdiction. fn.1
On December 19, 1990 the parties and their attorneys appeared
before this Court and entered into a stipulation by which the
children would be released from foster care and the petitioner
would be afforded visitation pending the outcome of the these
proceedings. fn.2 On December 20, 1990 the parties returned to
Court, and based on the respondent’s compliance with all of the
conditions precedent in the stipulation, the Court issued
temporary orders of custody and a temporary order of protection,
and released the children to the Court’s designated caretaker,
Rivka W.
The petitioner’s application for enforcement of the Canadian
decree is made pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction, 51 Fed. Reg. 10499
(1986) [hereinafter cited as “Hague Convention”], and, according
to the Hague Convention’s provisions, this Court advised the
parties that it lacks jurisdiction to adjudicate the merits of the
underlying custody dispute. fn.3 Since this Court’s power
initially is confined solely to matters pertaining to the removal
of the children from Canada, counsel for the parties were given an
opportunity to brief the following points prior to the Court’s
ruling on the petitioner’s application for enforcement:
(a) Whether the petitioner can prove that the children were
“wrongfully removed” from Toronto, Canada, where they resided from
birth until October 5, 1989;
(b) Whether respondent can prove that the removal of the
children was not “wrongful,” within the meaning of the Hague
Convention; and
(c) Whether, assuming the petitioner establishes “wrongful
removal,” the respondent can prove that any of the statutory
exceptions contained in the Hague Convention apply, and thus this
Court is not bound to order the return of the children to Canada.
HISTORY OF THIS MATTER
The parties are both Canadian nationals. They were married
on December 20, 1981. Two children, Pinhus and Sara Eta, were born
of the marriage. Pinhus was born on February 7, 1988 and Sara Eta
was born on September 21, 1989. Owing to marital difficulties, the
parties separated sometime in January, 1989, and thereafter lived
apart. On February 2, 1989, the petitioner gave the respondent a
religious divorce. No civil divorce has occurred as yet.
On April 6, 1989, the parties entered into a separation
agreement which gave custody of Pinhus to the respondent and
provided regular visitation between the petitioner and his son.
The separation agreement further provided that the respondent
“shall make Pinhus available [to the petitioner] within the
Metropolitan Toronto vicinity, and should either party plan on
relocating outside of the Metropolitan Toronto vicinity, then a
mutually agreed-upon intermediary will decide how and where [the
petitioner] will be able to continue visiting Pinhus.” Finally,
the agreement provided that “should either party be experiencing
any hardships regarding any of the above conditions, he or she has
the right to take matters to a rabbinic or secular court.”
Sara Eta was not born at the time of the separation
agreement, and therefore, it is silent as to her. This Court is
not aware of any custody or visitation agreement reached between
the parties subsequent to her birth. fn.4 Nor has the respondent
offered any evidence of a court order giving her custody of Sara
Eta. After Sara Eta’s birth, the petitioner applied for an
interim order from the secular courts of Ontario preventing the
respondent from removing the children from Ontario and form
obtaining passports for them. On October 5, 1989 the Supreme
Court of Ontario issued the orders the petitioner requested. fn.5
On or about October 5, 1989, the respondent and the children
left Ontario. Respondent followed the procedures set forth in the
Hague Convention to secure the return of the children. On
December 5, 1989, the Ontario Ministry of the Attorney General
forwarded an application for the return of Pinhus and Sara Eta to
the United States Department of State, the agency designated as
the “central authority” pursuant to the Hague Convention with
responsibility for carrying out its provisions. The Attorney
General of Ontario requested verification of the children’s
residence and the return of the children.
Subsequently, on a date unknown to this Court, the Department
of State communicated with the New York State Clearinghouse for
Missing and Exploited Children. It is believed that this agency
contacted the New York City Police, verified the children’s
residence in Brooklyn. Sometime in August, 1990, the petitioner
was advised by the New York State Division of Criminal Justice
Services that his children were in Brooklyn, New York.
In August, 1990, the petitioner returned to the Supreme Court
of Canada for an interim order granting him temporary custody of
both children. On September 21, 1990, on inquest, the Supreme
Court of Ontario made a finding that the respondent “wrongfully
and improperly removed the said children from this jurisdiction
[Ontario] and evaded or refused service, although duly served with
the Order of this Court, dated October 5, 1989.” The Court issued
an order giving temporary custody of the children to the
petitioner, directing the local law enforcement offices or
authorities to assist in the return of the children, and
scheduling a hearing on interim custody within seven days of the
children’s return.
On November 27, 1990, the Supreme Court of Ontario issued
another order, substantially equivalent in its terms to the order
of September 21, 1990. This order reiterated the Court’s finding
that the respondent “wrongfully removed” the children from Ontario
and supported its order further by adding that she is “currently
withholding the said children from [the petitioner] who is
entitled to custody and access to the said children.” On or about
December 5, 1990, the New York State Division of Criminal Justice
Services advised the petitioner to contact the Brooklyn Family
Court. Petitioner filed the instant motion for enforcement of the
November 27, 1990 order on December 18, 1990.
CONCLUSIONS OF LAW
The preamble to the Hague Convention declares that it was
adopted by the signatory states “to protect children 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, as well as to secure protection for
rights of access.” 51 Fed. Reg. 10498 (1986). The United States
and Canada are signatories to the Hague Convention. The United
States Congress enacted procedures to implement the Hague
Convention in the United States in 1988 by adopting the
International Child Abduction Remedies Act, 42 U.S.C. 11601
(1988) [hereinafter cited as “ICARA”]. The regulations
promulgated thereunder are published at 22 C.F.R. Part 94.
Under Article 3 of the Hague Convention, “wrongful removal”
is defined as “the removal or the retention of a child in breach
of the rights of custody attributed to a person under the law of
the State in which the child was habitually resident . . .
providing that at the time of removal those rights were being
actually exercised, or would have been so exercised but for the
removal.” fn.6 “Wrongful removal,” as defined in ICARA,
includes “a removal or retention of a child before the entry of a
custody order regarding the child.” 42 U.S.C. 11603(f)(2). This
court finds that both children were “habitually resident” in
Ontario immediately prior to their removal and that the petitioner
was exercising his rights, as to Pinhus, and would have exercised
his rights, as to Sara Eta, but for her removal.
Article 3 of the Hague Convention further provides that
rights of custody “may rise by operation of law, by reason of a
judicial decision, or by reason of an agreement having legal
effect under the law of the State.” Under the ICARA, “full faith
and credit” shall be accorded by the court of the United States
“to the judgment of any other contracting State’s court ordering
or denying the return of a child, pursuant to the Convention, in a
action brought under this chapter.” 42 U.S.C. 11603(g).
Finally, in determining whether a child shall be returned, the
Hague Convention contains specific provisions which govern the
decision-making process. Article 12 provides that when a
proceeding for the return of the child is commenced less than one
year from the date of the wrongful removal, the court shall order
the return of the child. If the proceeding for the return of the
child is commenced more than one year after the wrongful removal,
the court shall order the return of the child “unless it is
demonstrated that the child is now settled in its new
environment.” Article 13 of the Hague Convention provides that a
requested State (e.g. New York) is bound to order the return of
the child unless the respondent can show: “(a) that [the
petitioner] was not actually exercising the custody rights at the
time of removal, or had consented to or subsequently acquiesced in
the removal or retention; or (b) there is a grave risk the
[child’s] return would expose the child to the physical or
psychological harm or otherwise place the child in an intolerable
situation.” fn.7 51 Fed. Reg. 10499-10500 (1986).
The ICARA establishes which party has what burden of proof
with respect to these issues. It is the petitioner’s burden to
show, by a preponderance of the evidence, that the removal was
wrongful. 42 U.S.C. 11603(a)(1). The respondent has the burden
of showing, by clear and convincing evidence, that the child
should not be returned because of the exceptions set forth in
Articles 13(b) or 20. 42 U.S.C. 11603(e)(2)(A). The respondent
has the burden of showing, by a preponderance of the evidence,
that the child should not be returned because of the exceptions
set forth in Articles 12 and 13(a). 42 U.S.C. 11603(e)(2)(B).
The legal analysis of the circumstances of this case begins
with the laws of the Province of Ontario. This Court takes
judicial notice of Children’s Law Reform Act, Part III, Custody,
Access and Guardianship. Subsection 20(1) thereof provides that
“the father and mother of a child are equally entitled to custody
of the child.” Subsection 20(7) provides that “any entitlement of
custody or access is subject to alteration by an order of the
court or by separation agreement.”
The evidence provided to this Court shows that the parties
entered into a separation agreement on April 6, 1989, which gave
the respondent custody of Pinhus and the petitioner visitation
with the child. Therefore, it appears to this Court that
petitioner’s statutory right to custody of Pinhus was suspended by
virtue of the separation agreement.
There was no such formal agreement for the younger child Sara
Eta. Thus, with respect to her, the petitioner and respondent had
an equal right to custody. According to the April 6, 1989
separation agreement, contrary to respondent’s assertion, her
ability to relocate her residence with the children outside the
metropolitan Toronto area was restricted. If she desired to do so,
she was obligated to obtain the services of an intermediary to
decide how and where the visitation would be continued. The
respondent did not do this prior to leaving Toronto, and,
therefore, this Court finds she violated the terms of the
separation agreement. Since the petitioner feared the respondent
would take the children from Ontario, he sought and obtained an
order of the Supreme Court of Ontario on October 5, 1989,
prohibiting her from leaving the Province with the children. In
its order of September 21, 1990, the Ontario Supreme Court found
that the respondent was duly served with the October 5, 1989 order
and nonetheless left the country. Based on the foregoing, this
Court finds that the respondent acted in contempt of the Supreme
Court’s order of October 5, 1989 by leaving the country.
Respondent’s contention that the petitioner is not entitled
under the Hague Convention to have Pinhus returned, because he
only had visitation (“access”) rights and not custody, might have
some merit but for the respondent’s contemptuous conduct, and the
subsequent orders of the Supreme Court of Ontario which give
temporary custody of both children to the petitioner. Moreover,
respondent’s argument overlooks the fact that Sara Eta was not
included in the provisions of the separation agreement. Therefore,
the petitioner had an equal right to custody of Sara Eta when the
respondent left Ontario. Under 11603(f) of ICARA, this Court can
find there was a “wrongful removal” in the absence of any formal
declaration of custody.
Even though this Court did not request the petitioner obtain
a decision or other determination that the removal or retention
was wrongful within the meaning of Article 3 of the Convention,
fn.8 this Court finds that the Ontario Supreme Court’s orders of
September 21, 1900 and November 27, 1990 constitute such a
declaration. Accordingly this Court gives full faith and credit
to the orders of the Supreme Court of Ontario, including the
findings made therein, and holds that the Petitioner has met his
burden of showing, by a preponderance of the evidence, that the
removal of these children from Ontario was “wrongful.” Were this
Court to make its own independent finding, this record affords an
ample basis for this Court to find the respondent’s removal and
retention of the children was “wrongful” as that term is defined
in the Hague Convention, since the removal was in violation of the
laws of the Province of Ontario governing the Custody and
Guardianship of Children (as to Sara Eta), the terms of the
parties’ separation agreement (as to Pinhus), and the orders of
the Supreme Court of Ontario (as to both children).
The remaining question before the Court is whether this Court
must order the return of the children of Ontario. The only
exceptions in Articles 12, 13 and 20 which respondent seeks to
invoke are the exceptions contained in Article 12 and Article
13(a). Pursuant to Article 12, respondent alleges that the
children should not be returned to Ontario because the petitioner
delayed commencing this proceeding for more than a year after the
wrongful removal, and in the interim they are now “settled in
their new environment.” Pursuant to Article 13(a), respondent
alleges that the petitioner’s delay in commencing these
proceedings amounts to his acquiescence to their removal and
retention.
The respondent contends that she and the children have
“established a home, friendships, ties to the community and a way
of life that affords stability and meaning to them.” These
children are ages three and almost one and one half. They are not
yet involved in school, extra-curricular, community, religious or
social activities which children of an older age would be. The
children have not yet formed meaningful friendships. The
respondent does not allege the children attend nursery school,
pre-kindergarten, religious services or instruction. She offers
no evidence to show that despite their young ages they have
already established significant ties to their community in
Brooklyn. Respondent’s personal needs to be in Brooklyn so she can
be close to Boro-Park’s “population of available Orthodox Jewish
men” fn.9 and search for a new husband does not satisfy her
burden of proof. This Court believes the respondent has not met
the burden of showing, by a preponderance of the evidence, that
children are so settled in their new environment that they should
not be uprooted and returned to Ontario. Beyond this, respondent
has not rebutted the inference that these children continue to
have substantial, meaningful connections to Ontario.
Specifically, the children have numerous relatives (maternal and
paternal) living in Ontario, friends and acquaintances of both
parents reside there, there is a sizeable Orthodox Jewish
community in Toronto in which the children can become involved,
and the respondent continues to maintain an apartment in Toronto.
The Hague Convention prescribes a detailed procedure to be
followed by persons seeking the return of children wrongfully
removed. Under Article 8, the processing must be commenced by
application to the Central Authority of the country where the
children are believed to be. Upon receipt, the Central Authority
has certain responsibilities it must carry out, which are set
forth in Articles 7 and 10, and which include ascertaining the
location of the children and working toward their voluntary
return. The fact that the petitioner suspected he knew where the
children were residing at the time of his application to the
Central Authority in December, 1989 does not constitute
“acquiescence” on his part, because he did not institute legal
proceedings until December, 1990. The Hague Convention was
adopted to deter “self-help” and contains no procedure whereby the
petitioner could bypass its provisions. The petitioner’s claimed
“acquiescence” must be judged by when he initiated the application
to the Central Authority (December 5, 1989–three months after the
children’s wrongful removal); by when he received a response from
the Central Authorities of the United States (August, 1990); by
when he was advised to seek the assistance of this Court (December
5, 1990); and by when he instituted legal proceedings (December
18, 1990). Under the circumstances presented herein, this Court
does not find the petitioner’s proceeding to return the children
was untimely nor does this Court find he acquiesced in their
removal.
Finally, respondent is not correct in asserting that this
Court is obligated to conduct a de novo hearing on the issues of
custody and visitation. By filing his application to enforce the
decrees of the Supreme Court of Ontario, this petitioner, unlike
the petitioner in Sheikh v. Cahill, 145 Misc.2d 171 (Sup. Ct.
1989), did not submit himself to this jurisdiction so that this
Court could make a de novo custody determination.
Having found that the respondent’s removal of the children
was wrongful, that the respondent has not met her burden of
proving that one of the exceptions bars the return of the children
of Ontario, Palle v. Palle, Ill. Cir. Ct., Cook Cty., 16 Fam. L.
Rep. 1262 (1990) (no showing of grave risk of physical or
psychological harm or an impending intolerable situation); Becker
v. Becker, NJ Super. Ct., Morris Cty., 15 Fam. L. Rep. 1605 (1989)
(no showing of grave risk of psychological harm); Navarro v.
Bullock, Calif. Super. Ct., Placer Cty., 15 Fam. L. Rep. 1576
(1989) (no showing that the children were exposed to psychological
harm), this Court concludes that both children should be returned
to Ontario forthwith, where a preliminary hearing may be held, in
accordance with the Ontario Supreme Court’s order of September 21,
1990, to determine the issues of interim custody and visitation.
The temporary order of protection and the temporary orders of
custody are discontinued. Ms. W. is directed to release the
children to the petitioner, who has temporary custody of the
children under the September 21, 1990 and November 27, 1990 orders
of the Supreme Court of Ontario. The petitioner shall immediately
return the children to the Province of Ontario and immediately
advise the Supreme Court and the Central Authority upon their
return. A copy of this decision will be transmitted by fax to the
Central Authority of Ontario, so that the petitioner’s compliance
with this order can be monitored. Upon release of the children to
the petitioner, counsel for the respondent may return to her the
passports and money he has been holding in escrow.
Petitioner asks this Court to order the respondent to “help
defray the costs and expenses incurred by [him] in implementing
the return of [his] children.” The Hague Convention provides that
“judicial authorities may, where appropriate, direct the person
who removed a child . . . to pay necessary expenses incurred by or
on behalf of the applicant. fn.10 The provisions of ICARA also
address the costs incurred in civil action. ICARA specifically
states that “any court ordering the return of a child pursuant to
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 the proceedings, and transportation costs
related to the return of the child, unless the respondent
establishes that such order would be clearly inappropriate.” 42
U.S.C. 11607(b)(3). [Emphasis added.] Respondent has not opposed
this application nor made any legal arguments in response to it.
When the petitioner’s initial application was filed with the
Central Authority, he listed his occupation as “computer
programmer” and the respondent’s occupation as “homemaker.” During
the pendency of these proceedings, this Court was made aware of
the respondent’s limited financial resources. Notwithstanding the
respondent’s bad acts, she, too, has experienced financial
hardships in supporting herself and the children for one and one
half years in Brooklyn on the income she has from a small trust
fund. She has done this without child support from the petitioner.
While this Court does not condone her actions, this Court believes
it is not appropriate to grant the petitioner’s request for
monetary relief, beyond requiring the respondent to pay for the
plane tickets to return the children to Canada.
The foregoing constitutes the decision and order of this
Court.
———–Foot Notes——————————————
fn.1 The Central Authorities of the Contracting States to
the Hague Convention “shall take appropriate action to prevent
further harm to the child or prejudice to the interested parties
by taking or causing to be taken provisional measures.” Article
6(b) of the Hague Convention on the Civil Aspects of International
Child Abduction, 51 Fed. Reg. 10498 (1986). In the United States,
the authority of courts in furtherance of Article 7(b) includes
the power to “take or cause to be taken measures under Federal or
State law . . . to protect the well-being of the child involved
the final disposition of the petition.” International Child
Abduction Remedies Act, 42 U.S.C. 11604(a). This power is
limited, in that “no court may order a child removed from a person
having physical control of the child unless the applicable
requirements of State law are satisfied.” 42 U.S.C. 11604(b).
When the children were returned on the warrant and this Court was
faced with the very real issue of how to protect the children and
assure they would not be removed from New York, either by the
father or the mother, the only resource immediately available to
this Court was the Commissioner of Social Services. Accordingly,
the children were remanded on an emergency, interim basis to the
Commissioner, for this Court believed they would have been in
imminent danger if returned to either parent. If either parent
absconded with them, the children’s emotional well-being would
have been at risk. The children were remanded pursuant to 1022
of the Family Court Act of New York and were released two days
later. The parents were provided with the name and telephone
number of the agency social worker as soon as it became known on
the morning after the remand was issued.
fn.2 After conducting a hearing on the limited question of
where the children could reside pending the resolution of these
proceedings, a stipulation was entered into by the parties and
approved by the Court. Pursuant thereto, the children were to be
released to the temporary, protective custody of Rivka W., a
neighbor and landlord of the respondent. Ms. W. was directed to
arrange for the children to reside, sleep and eat in her home.
She was directed not to permit the mother or father to remove them
from her home. She was directed to supervise all visitation
between the children and their mother and father. Another
individual was named to whom Ms. W. could delegate these
responsibilities in an emergency. To secure the children’s
presence in Ms. W.’s home and the respondent’s presence in court,
the respondent deposited $10,000.00 in cash, to be held in escrow,
subject to forfeiture to the petitioner if she and/or the children
fled the jurisdiction. In addition, the passports of the
respondent and both children were surrendered and placed in escrow
as well. Finally, the Court issued a temporary order of
protection to further assure that neither the petitioner nor the
respondent would interfere with Ms. W.’s care and custody of the
children.
fn.3 Article 16 of the Hague Convention provides that,
“After receiving notice of a wrongful removal or retention of a
child, the judicial authorities of the State to which child has
been removed or in which it has been retained shall not decide the
merits of rights of custody until it has been determined that the
child is not to be returned under this Convention.” [Emphasis
added.]
fn.4 Appended to the respondent’s papers is a photocopy of
what purports to be a separation agreement drafted sometime in
April, 1990. This agreement (which provides for custody and
visitation of both children) does not appear to have been signed
by the parties, and lacks any legal force or effect.
fn.5 The Supreme Court issued the order upon the
respondent’s default, having found that she was properly served
with notice of the proceeding.
fn.6 Article 14 of the Hague Convention provides that “the
judicial authorities of the requested State [e.g. New York] may
take notice directly of the law of, and of judicial . . .
decisions of the State of the habitual residence of the child
without recourse of the specific procedures for the proof of that
law or for the recognition of foreign decisions which would
otherwise be applicable.” A similar provision exist in ICARA, 42
U.S.C. 11605.
fn.7 Article 20 provides that the return of the child may
also be refused “if this would not be permitted by the fundamental
principles of the requested State [e.g. the United States]
relating to the protection of human rights and fundamental
freedoms.” This ground is clearly unavailable to the respondent
under the facts of this case.
fn.8 Article 15 of the Hague Convention provides that a
Court may, “prior to making an order for the return of a child,
request that the applicant obtain from the authorities of the
State of habitual residence of the child, a decision or other
determination that the removal was wrongful within the meaning of
Article 3 of the Convention.
fn.9 Affirmation of Respondent’s Counsel, January 17, 1991,
16.
fn.10 Under Article 26, authorized expenses include travel,
costs incurred to locate the child, legal representation fees for
the applicant, and expenses in returning the child.