JOHN A. ROSS, District Judge.
This action has been brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 22514 (the "Hague Convention"). The Hague Convention seeks to "protect children internationally from the harmful effects of their wrongful removal or retention" caused either by the removal of a child from the state of its habitual residence or the refusal to return a child to the state of its habitual residence. Hague Convention Preamble;
Petitioner Yaccov Cohen ("Father") filed his Complaint for Return of Child on November 25, 2015. (Doc. No. 1) On November 30, 2015, the Court issued an Order to Show Cause regarding the Complaint and set the matter for hearing on December 9, 2015. (Doc. No. 4) Respondent Ocean Ester Debora Cohen ("Mother") filed her answer to the Complaint on December 8, 2015. (Doc. No. 8) Father appeared for the show cause hearing through counsel; Mother appeared in person with counsel and the child named in the Complaint, O.N.C. Because the parties wished to conduct discovery, the Court ordered them to file a joint proposed scheduling plan by December 14, 2015. (Doc. No. 11) Upon receipt of the parties' joint proposed scheduling plan (Doc. No. 12), the Court adopted the plan submitted by the parties and issued a Case Management Order assigning the case to Track 1 (Expedited). An evidentiary hearing on Father's complaint was set for March 1, 2016. (Doc. No. 13) On February 18, 2016, the Court held a pre-trial conference on the record. Because Father resides in Israel and speaks limited English, counsel agreed that his testimony at the March hearing could be by telephone with the assistance of a Hebrew interpreter. (Doc. No. 26) The parties filed their trial briefs on February 26, 2016. (Doc. Nos. 35, 37)
An evidentiary hearing was held on March 1, 2016. Father appeared by telephone from Israel with the assistance of a Hebrew interpreter located in California; Mother appeared in person and with counsel. The Court heard arguments from both sides and admitted certain exhibits from Father and Mother into evidence. The hearing was extremely challenging and took several hours. On a number of occasions the Court lost the telephone connection, either with Father in Israel, or with the interpreter in California. At times the connection was not very good. It was difficult to get through Father's testimony, and counsel for both sides worked cooperatively with each other to get the case submitted. Following the hearing, the parties were granted sixty days to submit proposed findings of fact and conclusions of law. (Doc. No. 41) Both sides filed their submissions on May 2, 2016. (Doc. Nos. 43, 44)
On June 8, 2016, Father moved for leave to file supplemental evidence in the form of an affidavit in which he elaborates on the process he undertook with the U.S. State Department to obtain pro bono legal representation in this case. (Doc. No. 45) Father asserts this evidence is relevant to demonstrate that he acted as expeditiously as he could to file his claim under the Hague Convention within one year of Mother's allegedly wrongful retention of O.N.C. Mother objects and moves to strike Father's affidavit on the grounds that he did not obtain leave of court to file any post-trial exhibits and that the time for submission of exhibits has therefore passed. Mother also argues the evidence is not relevant to the issues in this case. (Doc. No. 46) Father did not file a response to Mother's objection. Given the difficulties associated with Father testifying telephonically through the use of an interpreter, both on deposition and at the hearing, the Court finds it is not unreasonable to grant Father leave to supplement his testimony with an affidavit. Moreover, Father's affidavit is relevant to Mother's argument, discussed below, that he failed to commence these proceedings in a timely manner. The Court has carefully considered all of the evidence submitted and the parties' proposed findings of fact and conclusions of law. The matter is now ready for disposition.
Father is an Israeli citizen and currently resides in Israel. Mother is a citizen of both the United States and Israel and currently resides in St. Louis, Missouri. The parties were married in Israel on November 4, 2008. They are the parents of a son, O.N.C., born December 6, 2009 in Israel. O.N.C. is also a citizen of the United States and Israel.
Father has an extensive criminal record in Israel with periods of confinement. Over the years he has accumulated substantial debt, including criminal fines, penalties and restitution payments. This has resulted in a Stay of Exit Order placed on his visa which prohibits him from leaving Israel.
In 2010, when O.N.C. was six months old, Father served eleven months of an eighteen month sentence of imprisonment for assault and using a vehicle without permission. During that time, Mother and O.N.C. moved in with her parents. After his release on six months house arrest, Father and Mother lived together with O.N.C. in her parents' apartment.
Shortly thereafter, the parties began discussing relocating to the U.S. Two of Mother's brothers, Noach and David Palatnik, were already living in St. Louis; a third brother, Yitzchak Palatnik, emigrated later. At that time, Noach was buying and "flipping" real estate and thought this work would be something Father could do and that a move to America would be a good opportunity for him. Although the parties disagree as to whose idea it was initially, they both testified that their plan was for Mother to move to the U.S. with O.N.C., find a place to live, enroll O.N.C. in school, and work to help Father pay off the debts which were preventing him from leaving Israel. Father would join them once his debts were paid off and they would live together in St. Louis.
According to Mother, they decided to move because their financial situation was difficult and they did not see a future for themselves and their son in Israel. Mother testified she told all her friends she was leaving Israel "basically for good except for visitations for holidays." It was Father's testimony that their intention was to come and live in the United States for three to five years to save enough money to buy a house in Israel.
With the agreement of Father, Mother and O.N.C. traveled to St. Louis, Missouri on December 3, 2012. At that time O.N.C. was three years old. Mother began working at an early childhood center with a focus on Jewish education. She found O.N.C. a pediatrician, enrolled him in a full-time educational program, and made arrangements for him to receive speech therapy services through the St. Louis Special School District. She bought a car, registered it, got a Missouri driver's license, and paid taxes. Mother and O.N.C. initially lived with her brother Noach, until they moved into a rented apartment of their own. At the time of the hearing, Mother was working for her brother David.
Father was in constant communication with Mother and O.N.C., and once she was settled and working, Mother began sending money to Father. She also borrowed $6,000 from her brother Noach to help Father pay off his debts. Despite these efforts, however, Father made little to no progress in reducing the amount of his debts, and the exit stay remained on his visa.
Over the next two years, Mother and O.N.C. returned to Israel twice, each time on round-triptickets. Their first visit was from May 22, 2013 to June 11, 2013. Mother, Father and O.N.C. stayed with Mother's parents at their apartment. At this point in time, the parties were still discussing their plan for Father to join them in the U.S. The obstacle to Father joining them continued to be his inability to pay off his debts.
Mother and O.N.C. traveled to Israel a second time from April 8, 2014 to April 24, 2014. The parties were still planning for Father to come to the U.S., but Mother's feelings about their relationship had become unclear and the marriage was deteriorating. Father became concerned that Mother would not return again and sought out a lawyer, Yaccov Halpern, to draft a "travel agreement" requiring her to return to Israel with O.N.C. if he was unable to join them in six months' time. The parties presented differing accounts of the circumstances surrounding the drafting and execution of this agreement. It was Mother's testimony that she felt she had no option but to sign the agreement, presented to her just hours before she and O.N.C. were scheduled to depart, because she was afraid that Father would not otherwise allow her to return to the United States with O.N.C. She signed it after a clause was added requiring Father to "stay away from crime and not get into trouble." If Father breached the conditions of this clause, then Mother was not obligated to return under the terms of the agreement. At the hearing, Father acknowledged he was not seeking to enforce the "travel agreement" and was offering it merely as evidence of their intent.
It was Mother's testimony that she intended for some time to reside in the United States. Once she was back in St. Louis, Mother filed for divorce in July 2014. In August 2014, Mother received a telephone call from Father telling her he had been arrested, jailed, and then placed on house arrest at his mother's residence in Dimona, Israel. Father testified that he learned of the divorce proceedings in early September 2014 after receiving an advertisement dated August 28, 2014 from a local St. Louis law firm. Father disputes that he was served with the Petition for Dissolution of Marriage; however, the record indicates service on Father at the address in Dimona on November 13, 2014.
According to his affidavit, on September 8, 2014, Father applied to the Israeli Ministry of Justice with a request to open a file to return O.N.C. to Israel. He filed a Request Pursuant to the Hague Convention with the Israeli Ministry of Justice seeking the international return of O.N.C. on January 22, 2015. By letter dated January 23, 2015, the U.S. State Department acknowledged receipt of Father's Hague Convention application and requested additional documentation from him including, inter alia, a legal assistance request form to determine his eligibility for pro bono legal services.
On March 13, 2015, the Circuit Court of St. Louis County, Missouri entered a Judgment of Dissolution of Marriage, granting Mother sole legal and physical custody of O.N.C. with supervised visitation to Father under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA").
On April 29, 2015, Father completed the legal assistance request form and the Israeli Ministry of Justice submitted it together with the additional documentation requested to the U.S. State Department that same day.
On June 14, 2015, Father was notified that the State Department had located Mother and O.N.C. in St. Louis. Between June 14, 2015 and October 2015, the State Department contacted a number of attorneys on Father's behalf. He signed an engagement letter with counsel on November 17, 2015 and filed his complaint in this Court for issuance of a show cause order under the Hague Convention on November 25, 2015. Father contends that Mother has wrongfully retained O.N.C. in the United States in violation of his custody rights under Israeli law. Father asserts that Israel was O.N.C.'s habitual residence prior to retention, and that the Court must order O.N.C.'s return consistent with their shared intent as evidenced by the parties' April 24, 2014 travel agreement. Mother contends, however, that the move from Israel to the United States effected a change in O.N.C.'s habitual residence such that there has been no wrongful retention in this case.
To establish a prima facie case for return under the Convention, a petitioner must show, by a preponderance of the evidence, that: (1) prior to removal or wrongful retention, the child was habitually resident in one Hague signatory country and then wrongfully removed to or retained in a different Hague signatory country
"[E]very Hague Convention petition turns on the threshold determination of the child's habitual residence; all other Hague determinations flow from that decision."
No single factor is necessarily dispositive of the habitual residence inquiry; instead, "[t]he determination of habitual residence ... is a practical, flexible, factual inquiry that accounts for all available relevant evidence and considers the individual circumstances of each case."
"The `settled purpose' of a family's move to a new country is a central element of the habitual residence inquiry."
In
Similarly in
Here, O.N.C. has experienced a clear change in geography and a substantial amount of time, over three years, has passed since the move to the United States. Sorenson, 559 F.3d at 873-74. The evidence demonstrates that both Mother and Father decided to have O.N.C. reside in the U.S. The parties disagree on whether the relocation was intended to be permanent, but again, settled purpose need not be to stay forever so long as there is a "sufficient degree of continuity to be properly described as settled."
The Eighth Circuit has instructed that parental intent, while not dispositive, is also taken into account in the habitual residence determination.
The Court has considered the "travel agreement" as potential evidence of the parties' intent; however, there is insufficient credible evidence in the record to support a conclusion that the parties mutually agreed to alter their intent. Moreover, habitual residence is determined by examining "past experience, not future intentions."
Having considered the factors relevant to the habitual residence inquiry in this case, the Court concludes that Father has failed to establish by a preponderance of the evidence that O.N.C.'s habitual residence is Israel. The change in geography, passage of time since the move to the United States, O.N.C.'s acclimatization to his current environment, the degree of settled purpose in his environment from his perspective, and the shared intent of the parties all point to the U.S. as O.N.C.'s habitual residence.
The availability of the return remedy depends on the child's habitual residence because the "retention of a child in the state of its habitual residence is not wrongful under the Convention."
Accordingly,
A separate Judgment will accompany this Order.
