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In dispute between Israeli citizens over child custody, Eighth Circuit rules that habitual residence of children was in U.S. based on Hague Abduction Convention and implementing statute and Court rejects argument that Israeli consent decree and Missouri divorce decree determine children's habitual residence.

In 1994, Sagi (F or father) and Tamar (M or mother) Barzilay, both Israeli citizens, got married in Israel. Their first child arrived two years later. In 2001, their employer transferred the family to the U.S. where they had two more children. The relationship eventually became rocky, however, and so they divorced in January 2005 in Missouri. The divorce decree gave them joint custody, with M having "primary parental responsibility and physical custody." The divorce decree also contained a repatriation clause, which required F, M and the children to live in the same country. Thus, if either F or M moved back to Israel, the other party must do the same.

F moved to Israel in September 2005 but M refused to do the same. She did, however, take the children for a summer visit in June 2006. During that visit, F obtained an ex parte order in the Kfar Saba court that prohibited the removal of the children from Israel. Shortly before M's and the children's scheduled return to the U.S., the parties filed a consent judgment with the court. It provided [1] that M would repatriate to Israel in August 2009, [2] that M would not take any further action against F in Missouri family court, and [3] that the Israeli court is to be the sole authority as to the children's immigration, repatriation and custody.

Nevertheless, M went ahead and petitioned a Missouri court to remove the repatriation agreement from the original decree, and to limit F's visitation rights. The Missouri court granted the petition. In 2007, F filed the instant case in federal court pursuant to the International Child Abduction Remedies Act (ICARA), 42 U.S.C. [section] 11601, and the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49 (the Convention).

In his complaint, F alleged that Israel was the children's "habitual residence" within the meaning of the Convention, and that M and the children had a legal duty move back to Israel. Disagreeing, the District Court found that the U.S. had become the children's habitual residence, and dismissed F's petition because retention of a child in the state of his or her habitual residence is not wrongful under the Convention.

M appealed. The Eighth Circuit, however, affirms. The controlling issue is the children's habitual residence since the Convention does not bar the retention of a child in the state of its habitual residence.

"The Hague Convention, to which the United States and Israel are both signatories, was adopted to address the problem of child abduction by family members, which not infrequently occurs in connection with transnational custody disputes. The Convention's purpose is '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....'"

"... The Convention seeks to deter abduction by 'depriving the abductor's actions of any practical or juridical consequences.' ... It accomplishes this goal--not by establishing any new substantive law of custody--but rather by acting as a forum selection mechanism, operating on 'the principle that the child's country of 'habitual residence' is 'best placed to decide upon questions of custody and access.' ... The purpose of proceedings under the Hague Convention is thus not to establish or enforce custody rights, but only 'to 'provide for a reasoned determination of where jurisdiction over a custody dispute is properly placed." ... " [...]

"'The key inquiry under the Convention is whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence." ... According to the Convention,"

"The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, 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. Hague Convention art. 3."

"Thus, in order to determine whether an ICARA petition merits relief, 'a court must ... determine [1] when the removal or retention took place, [2] what the habitual residence of the child was immediately prior to the removal, [3] whether the removal or retention violated the Petitioner's custody rights under the law of the habitual residence, and [4] whether the Petitioner was exercising those rights at the time of the removal or retention.' ..." [...]

As the Court reminds us: "Proceedings under [Art. 19 of] the Hague Convention and pursuant to ICARA do not reach the merits of an underlying custody dispute. ('A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.'); 42 U.S.C. [section] 11601(b)(4) [('The Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.')]. Rather, 'the district court is to ascertain "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.' ..." [916-7].

The Court then applies Convention law to the case at hand. "The first step in determining a child's habitual residence is to discern when the alleged wrongful removal or retention took place, for 'the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time 'immediately before the removal or retention.' ... Because this case does not present the typical abduction scenario, it is not entirely clear when the alleged wrongful retention commenced.

... Based on [F's] testimony and a series of e-mails exchanged between the parties, the district court determined that it began in early Spring 2006, by which time F had informed M that he considered her to be in breach of the repatriation agreement." [...]

"Having concluded that the alleged wrongful retention began in early 2006, the district court proceeded to consider the factors relevant to the determination of habitual residence: '[1] the settled purpose of the move to the new country from the child's perspective, [2] parental intent regarding the move, [3] the change in geography, [4] the passage of time, and [5] the acclimatization of the child to the new country.' ..."

"The 'settled purpose' of a family's move to a new country is a central element of the habitual residence inquiry.... 'This settled purpose need not be to stay in a new location forever, but the family must have a 'sufficient degree of continuity to be properly described as settled.' ... Because two of the Barzilay children had lived their whole lives in Missouri, the eldest had lived there for five years, and there was no indication in the record that the children had spent any significant amount of time in another country, the district court concluded that--from the children's perspective--the settled purpose of the family's residence in Missouri was to remain there permanently." [...]

"Finally, the district court considered 'the change in geography, the passage of time, and the acclimatization of the children to the new country.' ... It concluded that the children were well acclimatized to life in the U.S.. The eldest child was, after all, the only one who had experienced a significant change in geography, and by 2006, she had been in the U.S. for approximately five years ... The younger two had lived their entire lives in Missouri...."

"Based on the foregoing considerations, we agree with the district court's conclusion that the children's country of habitual residence under the Hague Convention was the United States. [F] has pointed to no evidence suggesting [that] the district court's factual findings are clearly erroneous or that its analysis is otherwise unsound. Indeed, he has offered no evidence that his children have spent any significant amount of time outside the United States since 2001 or that they have been given any reason to believe [that] their home is anywhere but Missouri. The United States is the country where the Barzilay children have spent most or all of their young lives, and there can be little question that it is consequently their habitual residence within the meaning of the Hague Convention...." [...]

"We also reject the claim that either the Kfar Saba consent judgment or the Missouri repatriation agreement is an enforceable stipulation of the children's habitual residence. We have held that 'habitual residence may only be altered by a change in geography and passage of time.' ... The notion that parents can contractually determine their children's habitual residence without regard to the actual circumstances of the children is thus entirely incompatible with our precedent. Indeed, [F] has not cited a decision by any court anywhere in the world embracing such a proposition." [...]

"Any idea that parents could contractually determine their children's habitual residence is also at odds with the basic purposes of the Hague Convention. The Convention seeks to prevent the establishment of 'artificial jurisdictional links' as a means to remove the child from the 'family and social environment in which its life has developed.' ... It is difficult to imagine a jurisdictional link more artificial than an agreement between parents stating that their child habitually resides in a country where it has never lived." [...]

"... [W]hile [F] characterizes the Missouri repatriation agreement and the Kfar Saba consent judgment as prospective stipulations of habitual residence, they are in fact [merely]custody decrees. ... Indeed, F must agree with that proposition, for they are the bases for his claim that retention of the children in Missouri is wrongful. See Hague Convention art. 3 [('The removal or retention of a child is to be considered wrongful where ... it is in breach of rights of custody attributed to a person....').]"

"Once the agreements are seen in this way, the fundamental problem with [F's] argument becomes clear. He is trying to use the Hague Convention as a vehicle to enforce his custody rights, simply by relabeling them as stipulations of habitual residence. ... Regardless of how they are labeled, however, these agreements amount to provisions relating to the custody of the children, and 'the Convention is certainly not a treaty on the recognition and enforcement of decisions on custody.' ..."

"While [F] has framed this case as a complex matter of first impression, it is in fact relatively simple. Immediately before the alleged wrongful retention in this case began, the children's habitual residence under the Hague Convention was in Missouri, where they had lived without interruption for five years. Under the Convention, it was consequently for the courts of Missouri to determine whether [M's] refusal to bring the children back to Israel was indeed wrongful and if so, to fashion an appropriate remedy."

"Instead of seeking to enforce his custody rights in the Missouri courts, however, [F] went to the court in Kfar Saba because, as he candidly testified in the district court, 'it proposed better chances for me winning.' Having obtained a favorable judgment there, he then turned to the federal court seeking enforcement of his newly minted custody rights through an ICARA petition. This course of litigation not only betrays a fundamental misunderstanding of the Hague Convention, but also precisely the sort of international forum shopping the Convention seeks to prevent. The district court correctly withheld the relief [F had] requested." [600 F.3d 918-922]

citation: Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010).
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Title Annotation:CHILD ABDUCTION
Publication:International Law Update
Geographic Code:7ISRA
Date:Apr 1, 2010
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