Ben-Even v Tal (USDC Nevada 2001) United States District Court, District of Nevada No CV-S-01-0475-KJD (RJJ) 12 International Abduction [USA 2001] =========================================================== UNITED STATES DISTRICT COURT DISTRICT OF NEVADA DANI BEN-EVEN, | CV-S-01-0475-KJD (RJJ) Petitioner, | | v. | | ORLY TAL, | ORDER Respondent. | _____________________| 001 This matter is before the Court on DANI BEN-EVEN's Petition for Return of Child to Petitioner (#1) and Respondent ORLY TAL's Motion to Dismiss (#12). The Court has jurisdiction pursuant to 42 U.S.C.  11601 -11610, the International Child Abduction Remedies Act ("ICARA"). ICARA implemented the provisions of the 1980 Hague Convention on the civil aspects of international child abduction. Petitioner DANI BEN-EVEN requests that the Court determine that Shirelle Ben-Even, the minor child of the parties, was wrongfully removed from the country of Israel and is being wrongfully retained in the United States by Respondent. FACTUAL HISTORY 002 Both Petitioner and Respondent were born in Israel. Respondent moved to the United States In 1979 and later became a naturalized citizen. Petitioner moved to the United States in 1980 and later became a naturalized citizen, also. The parties each hold dual citizenship in the United States and Israel. Petitioner and Respondent were married in the state of California on December 14, 1991. Shirelle Ben-Even, the female minor child of the parties, was born September 24, 1993 in Los Angeles, California The parties lived together in Los Angeles, California throughout their marriage and until separation in December 1995, when Respondent flied for divorce. Soon thereafter, Respondent and the minor child moved to Las Vegas, Nevada to live with Respondent's parents. Petitioner continued to reside in California. The Decree of Divorce entered between the parties in the Superior Court of California, County of Los Angeles, awarded joint legal custody of the minor child to the parties with physical custody awarded to the mother (Respondent) and specific visitation awarded to the father (Petitioner). The Decree further provided for the right of each party to take the minor child to Israel. However, each party waived any right to initiate legal proceedings under Israeli law, on behalf of the minor child, against the other spouse for issues "arising out [of] and relating to the marital settlement agreement" regarding property purchased in Israel. The Decree further provided that "neither party shall remove the minor child from Nevada or California without first obtaining the written consent of the other", and granted Respondent custody of the child's passport. The Decree also provided for cooperation between the parties In the event both became residents of the same state or country. It also provided that the Decree should be subject to and interpreted exclusively under the laws of the State of California. The Decree was filed August 12, 1998. 003 In March of 1999. Petitioner moved to Israel. Before leaving the United States, he obtained a written agreement from Respondent modifying the Decree of Divorce and that agreement was flied with the Superior Court of Los Angeles on December 2, 1998. The modification provided that, in the event Petitioner should take up permanent residence in Israel, he would have visitation with the minor child in Israel each summer for four weeks during in the years 1999 and 2000 and for six weeks during the years thereafter. Beginning in 2002, the Petitioner would additionally have visitation with the minor child in Israel for up to fourteen days during alternating winters. Respondent was to contribute the lesser of 50% of the cost of airfare for the child and accompanying adult or $1,500.00, with Petitioner to pay the balance. Respondent later attempted to have the modification set aside, but her request was denied. 004 Shortly after Petitioner moved to Israel in 1999, he requested and Respondent agreed that the child be sent to spend time with him during the spring break. That visitation occurred and the child was returned to the United States. Petitioner took the child to Israel again on July 4, 1999 where she stayed until retrieved by Respondent on July 29, 1999. Respondent alleges that when she went to Israel to pick up the child in July of 1999, the child cried over the fact that the long flights to Israel were upsetting her and that she missed her mother and her home and did not want to do the trip anymore. According to Respondent, the behavior was so disturbing that she started considering the possibility of moving closer to the Petitioner and hoped that living closer would end his threats to kidnap the child. Further, according to Respondent, on August 16, 1999, she advised Petitioner that she was going to make an attempt to move to Israel with the daughter for a trial period, but that she was not committing to live there on a permanent basis and if at any time either Respondent or daughter were not happy, they would return to the United States. See Affidavit of ORLY TAL, #17 and #18. In October of 1999, Respondent and the child moved to Israel. On June 13, 2000. Respondent returned to the United States and commenced legal proceedings to change the custodial arrangements between the parties. ISSUES PRESENTED 005 Petitioner alleges, and Respondent denies, that the country of Israel became the country of habitual residence of the minor child. Petitioner points to several acts which he claims evidence the intent of Respondent and the minor child to abandon the United States as the place of habitual residence. Petitioner relies on the fact that Respondent and child came to Israel with financial assistance from the Israeli government under that country's "right of return" laws. Petitioner also asserts that Respondent obtained full time employment in her chosen field, took a one-year lease on an apartment, enrolled the child in school, and obtained government sponsored medical coverage. 006 Petitioner denies that there was any intention on her part to abandon the United States as the child's place of habitual residence. She points to several facts which support her claim. First, Respondent renewed her driver's license on September 16, 1999, twenty days before the flight to Israel, even though the license was not due to expire until December 17, 1999. Second, she did not cancel her American citizenship or relinquish Nevada residency or cancel social security accounts. Third, she left personal belongings with a friend to be stored and requested that her employer keep an open door in the event she decided to return. Respondent also states that she requested the director of the Jewish Community Day School in Las Vegas, Nevada to hold a place open far the minor child and claims that she rented a post office box for the purpose of continued receipt of mail. Respondent also denies that her receipt of financial assistance under "Right of Return" laws obligated her to live in Israel for any specified time. She asserts such assistance is a "privilege" available to certain individuals who left Israel before the age of 14, and not a commitment to live in Israel for any specified period of time. 007 It appears that the parties continued to have difficulties even with all family members living in the country of Israel. Respondent alleges that the daughter begged to return to Las Vegas and that her anxiety and crying end pleading became more frequent and severe after each visit with Petitioner. Again, according to Respondent, during the month of May 2000, there were incidents at the child's school, witnessed by the school principal, when the child stated that she was not happy in Israel and wanted to return to the United States. Following meetings with the school principal, the child's teacher, and a psychologist, and after consultation with attorneys in Israel, Respondent left with the minor child for the United States, without notice to Petitioner. 008 The Respondent's affidavit and other pleadings make numerous references to coercive threats on the part of Petitioner, including cutting off support, taking the daughter to Israel and not returning her, and death threats against Respondent. Petitioner denies those threats and denies that the child was having any difficulties or problems in Israel. 008 Although the Court recognizes that it is without authority to make custodial determinations during this stage of the proceedings, the factual dispute over whether the child was comfortable in Israel does have clear relevance to the determination of whether Israel became the child's place of habitual residence. The Court also notes that although Petitioner disputes the allegations of misconduct on his part, those allegations, if substantiated, would bear directly on the determination of whether either Respondent or her daughter ever formed a settled intent to make Israel their place of residence as alleged by Petitioner, or an experimental or trial place of residence as alleged by Respondent. The Court also notes that Respondent's affidavit asserts that there are independent witnesses to the difficulties the child was having at school in Israel and the death threats from Petitioner. See Affidavit of ORLY TAL #17 and #18. 009 Following her return to the United States, Respondent filed petitions for modification of the Decree of Divorce in California (which denied jurisdiction based upon Nevada residency) and thereafter, in Nevada. LEGAL ANALYSIS 010 The Court will first address Respondent's Motion to Dismiss. In support of that motion, Respondent argues that the identical issues raised by Petitioner in the instant case have already been litigated in the Nevada State District Court and that therefore this action should be dismissed with prejudice. 011 The Court has thoroughly reviewed the documentation submitted by the parties in support of their positions on the issue of res judicata and the Younger Abstention Doctrine and finds that although the Hague Convention issues were presented to the Nevada State District Court, that Court never ruled on the central issue presented by the instant petition. The state court did issue certain interim child custody rulings, but never addressed the merits of the Hague Convention petition. In January of 2001, the state case was transferred from one department to another, but the transferee judge stated that the case would have to be restarted for any decision on the merits of the petition. 012 This Court finds that no hearing has been held by the transferee judge, or decision rendered on the state court petition, that any petition pending in state court would not deprive this Court of jurisdiction and that the policy of the Hague Convention that issues be promptly determined, combined with the Court's concurrent jurisdiction pursuant to 42 U.S.C.  11603, are factors strongly suggesting that this Court proceed with the required determinations. Accordingly, the Motion to Dismiss is denied. DETERMINATION OF PLACE OF HABITUAL RESIDENCE 013 In order for the Hague Convention to apply, the subject child must have been "habitually" residing In a contracting state immediately before any breach of custody or access rights and then taken to or retained in another contract state. See Hague Convention, art. 3. It is undisputed that the provisions of the Hague Convention are in force between the United States and Israel. Pursuant to Article 12 of the Convention, if a petition is filed within a year of child's wrongful removal or retention, the Court shall order the return of the child forthwith. It is undisputed that the petition flied April 25, 2001 in this district was within one year of the child being taken from Israel on June 12, 2000. Article 3 of the Convention further provides that 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, 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 at the time of removal or retention those eights were actually exercised, either joIntly or alone, or would have been so exercised but for the removal or retention. Application of the foregoing provision requires a determination of four issues: (1) When did the alleged removal or retention take place; (2) Immediately prior to removal or retention, which state was the child's habitual residence; (3) Did removal or retention breach custody rights of the petitioner under the law of habitual residence; and (4) Was petitioner exercising those rights at the time of removal or retention. 014 It is undisputed that Respondent removed the child from Israel on June 12, 2000, when she left without notice to return to the United States. 015 The place of habitual residence of Shirelle is disputed by the parties. The burden of proof under the Convention is on Petitioner. See Shalit v. Shalit 182 F.3d 1124, 1129 (9th Cir. 1999). It is clear that prior to leaving the United States for Israel in March of 1999, the child's place of habitual residence was the United States. The child Is a natural born citizen of the United States with a United States passport. The child spent almost all of her life in the United States prior to October of 1999. The child was living with the mother and going to school in Las Vegas, Nevada and there is no dispute that she was doing well. 016 The first step in acquiring a new habitual residence is an intention to abandon the prior residence. Although an intention need not be declared, where there are contradictory actions, declarations regarding intent are relevant and should be considered. The Convention (Article 13) permits the Court to decline to order the child returned if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child's views. Shirelle is not yet age 8 and thus, too young to have her views taken directly into account. However, her views must be taken into account indirectly because Respondent has stated that her decision on whether to stay in Israel was to be contingent in large part upon whether the child felt comfortable living there. Although children are not in a position to make independent choices as to where they wish to reside, see Gonzalez v Reno, 212 F.3d 1338 (11th Cir. 2000), there is nothing to prevent a parent who has authority to make such a determination from considering the wishes of the child, see Fedder v. Evans-Fedder, 63 F.3d 217 (3rd CIr. 1995). The issue here is which parent had the authority to make that decision. As noted above, the decree provided for joint legal custody between the parties with actual physical custody in Respondent subject to Defendant's rights of visitation. The decree further provided that it would be interpreted under the laws of the State of California. Cases recently decided under California law give the parent having actual physical custody the right to determine place of residence. See In Re Marriage of Burgess, 913 P.2d 473, 13 Cal. 4th 25 (Cal. 1996); In Re Marriage of Conden 73 Cal. Rptr.2d 33, 62 CaL App.4th 533 (Cal.App. 1998). 017 Burgess involved a couple with joint legal custody, with the mother retaining sole physical custody. The California Supreme Court held that the mother, seeking to relocate, had no burden of demonstrating that the move was necessary, that such parent has the right to change the residence of the child subject to the power of the court to restrain removal that would prejudice the rights or welfare of the child. See Burgess, 913 P.2d at 481, 13 Cal.4th at 36. 018 In Conden, both parents had joint legal and physical custody. The Court found that the mother was the primary caretaker regardless of the provisions of the decree and that the mother had, for the preceding nine months, been away from the father before she and the children moved to Australia. In that case, the court affirmed that California law allows a spouse with primary physical custody of a child to move away unless the other spouse can demonstrate the move would be against the best interests of the child. ~ Conden, 73 Cal.Rptr.2d at 40, 62 Cal.App. 4th at 542-43. 019 In the instant case, Respondent had physical custody under the California decree. The decree provided that the agreement would continue to be interpreted under the laws of the State of California. It is therefore clear that under the laws of California, Respondent had the right to determine the residence of the child. Respondent has stated in her affidavit that her decision on the place of the child's resIdence would be based on how the child was doing. Her conduct is consistent with the assertions of her affidavit in that regard. She avers that she moved to Israel to see if the separation anxiety being suffered by the child could be alleviated by the presence of both parents. 020 Even if, as argued by Petitioner, the California residence was abandoned upon Respondent's move to Nevada that fact would not yield a different result. Nevada's statute on authority of a custodial parent to remove a child is Section 125C.200 of the Nevada Revised Statutes. Recent Nevada cases have made it clear that the burden is on the non-custodial parent to prove that allowing the custodial parent to remove a child to another state is not in the best Interest of the child. See. e.g., Jones v. Jones, 885 P2d 563, 110 Nev. 1253 (Nev. 1994). Section 125C.200 is primarily a notice statute and is not to be used to prevent the custodial parent from freely pursuing life outside Nevada when a reasonable alternative for visitation Is possible. See Trent v. Trent, 890 P.2d 1309, 111 Nev. 309 (Nev. 1995). The move to Nevada and later Israel would not of itself change or defeat the terms of the decree. 021 Respondent had the right to determine the residence of the child. It is of some significance that the Decree of Divorce provides for Respondent to have custody of the child's passport. The trial period in Israel did not work out. Therefore, the Court finds that Respondent's return to the United States with the minor child was not in breach of Petitioner's custody rights. The Court further finds that the contingencies upon which Respondent and the minor child moved to Israel1 namely that adjustment problems and separation anxiety experienced by the child when she was away from her mother would be alleviated, were never realized and thus there did not congeal any settled intention to make Israel the state of habitual residence. The Court further finds that Israel did not supplant the United States as the locus of the child's family and social development. Shirelle never became settled in Israel and simple consent to her presence in Israel was not enough to shift her residence there. The Ninth Circuit Court of Appeals has stated that unless there is sufficient evidence of a shared intent between the parents, a prIor habitual residence should be deemed supplanted only when "the objective facts point unequivocally" to that conclusion. Mozes v. Mozes, 239 F.3d 1067, 1081-2 (9th Cir. 2001). The facts relied upon by Petitioner do not unequivocally support the conclusion that Israel replaced the United States as the place of habitual residence far the child. CONCLUSION 022 The place of habitual residence for Shirelle Ben-Even is the United States. The child's trip to and stay in Israel in the company of her mother for a period of eight months was temporary and contingent upon adjustment of the child to life in that country. That adjustment never occurred. Israel did not supplant the United States as the child's place of habitual residence. Respondent has the right to determine place of residence of the child under the Decree of Divorce and amendments thereto. Her exercise of that right Is consistent with both California and Nevada law. There has been no wrongful removal under the principles of the Hague Convention. Accordingly, IT IS HEREBY ORDERED that Respondent's Motion to Dismiss (#12) is Denied. IT IS FURTHER ORDERED that The Petition for Return of Child to Petitioner (#1) is Denied. Because the Petition for Return of Child is denied, the Court need not consider or rule on Respondent's Article 13(b) claims under the Hague Convention. DATED this 31st day of July 2001. /s/ Kent J Dawson ___________________________ Kent J. Dawson United States District Judge