IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA DEPARTMENT 4 HONORABLE LLOYD VON DER MEHDEN, JUDGE GADY NADLER, Petitioner, vs. KATHERYN JOLLY (KATZ) NADLER, No. 186861 Respondent. _______________________________/ REPORTER'S TRANSCRIPT OF PROCEEDINGS DECEMBER 21, 1992 APPEARANCES: FOR THE PETITIONER: LAWRENCE MOSKOWITZ, ESQUIRE 3510 Unocal Place, No. 103 Santa Rosa, CA 95303 (707) 528-7277 FOR THE RESPONDENT: WILLIAM HILTON, ESQUIRE Box 269 Santa Clara, CA 95052 (408) 246-8511 and JOHN DAVID ROTHSCHILD, ESQUIRE Box 388 Sonoma, CA 95476 (707) 938-8409 OFFICIAL COURT REPORTER: LYNN A. ANDERSON, CSR #5213 DECEMBER 21, 1992 SANTA ROSA, CALIFORNIA PROCEEDINGS THE COURT: IN RE NADLER. ALL RIGHT. MAY I HAVE YOUR APPEARANCES, PLEASE? MR. HILTON: BILL HILTON APPEARING AS CO-COUNSEL WITH JOHN ROTHSCHILD, WHO HAS LOST HIS VOICE THIS MORNING, FOR MISS KATHERYN KATZ WHO IS PRESENT. MR. MOSKOWITZ: LARRY MOSKOWITZ APPEARING FOR GADY NADLER. THE COURT: THE PARTIES ARE PRESENT I SEE. I WANTED TO CLARIFY, FIRST OF ALL, SEVERAL ITEMS. IN REVIEWING THE VARIOUS RECORDS AND FILES IN THIS CASE, IT'S EVIDENT THAT TWO CASES HAVE BEEN CONSOLIDATED, AND THE NUMBERS ARE 186861 AND 186297. BEFORE THE COURT TODAY I BELIEVE THERE ARE SEVERAL MATTERS. PRINCIPALLY THE PLAINTIFF'S MOTION FOR ENFORCEMENT OF THE FOREIGN CUSTODY DECREE ISSUED FROM THE DISTRICT RABBINICAL COURT IN ISRAEL, AND FOR COSTS OF LOCATING THE CHILDREN AND FOR ATTORNEY'S FEES. FN-1 AND ALSO IT APPEARS TO THE COURT THAT THERE IS OUTSTANDING PLAINTIFF'S MOTION TO DISMISS IN THE FIRST ACTION, THE DOMESTIC VIOLENCE PREVENTION ACTION 186297. I DON'T THINK THAT'S ACTUALLY EVER BEEN RULED ON. IS THAT OUTSTANDING OR HAS THAT BEEN DROPPED OR DISMISSED? MR. MOSKOWITZ: WITH RESPECT TO THE RESTRAINING ORDER PORTION OF THAT, ORDERS HAVE BEEN MADE AND WE DON'T HAVE A PROBLEM. THERE WAS A REQUEST FOR COSTS IN THE DOMESTIC VIOLENCE ACTION AND THAT IS TIED TOGETHER WITH OUR REQUEST FOR ENFORCEMENT OF THE ISRAELI ORDER. THE COURT: IT'S IN EFFECT MERGED BUT A SEPARATE MOTION, BUT MERGED IN THE HEARING TODAY? MR. MOSKOWITZ: THAT'S CORRECT. AS I RECALL, THAT'S WHAT JUDGE REGAN DID WITH IT ON JANUARY 31ST OF '91. THE COURT: NOW, I ALSO WANT TO CLARIFY THE FIRST NAME OF GADY NADLER. IN SOME OF THE PLEADINGS THE FIRST NAME IS INDICATED AS -- MOST OF THE PLEADINGS AS GADY NADLER. IS THAT ONE AND THE SAME PERSON AS GEDALIYAHU? THAT'S A TERRIBLE PRONUNCIATION. MR. MOSKOWITZ: YES, YOUR HONOR. THAT'S THE SAME PERSON. THE COURT: ONE AND THE SAME PERSON AS GADY NADLER? MR. MOSKOWITZ: RIGHT. MY CLIENT. THE COURT: IS THERE ANY FURTHER COMMENT OR ARGUMENT BY EITHER PARTY? FIRST THE MOVING PARTY, MR. MOSKOWITZ? MR. MOSKOWITZ: NONE, YOUR HONOR. MR. ROTHSCHILD: JUST TO GO OVER HOUSEKEEPING. ON THE COSTS AND ATTORNEY'S FEES, THE COST OF LOCATING, ATTORNEY'S FEES, THAT'S BEEN SEPARATED BY A STIPULATION EARLIER. MR. MOSKOWITZ: IT MAY BE NECESSARY TO HEAR THAT MATTER. IT MAY NOT DEPENDING ON WHAT THE COURT RULES TODAY. WE HAVE AGREED TO BIFURCATE THAT ISSUE. FN-2 THE COURT: ANYTHING FURTHER? MR. MOSKOWITZ: NO. THE COURT: MATTER SUBMITTED? MR. HILTON: YES. MR. ROTHSCHILD: YES. MR. MOSKOWITZ: YES. THE COURT: IN THIS RULING BECAUSE OF THE SEVERAL PLEADINGS THAT HAVE BEEN CONSOLIDATED, INSTEAD OF USING THE TERMINOLOGY PLAINTIFF AND DEFENDANT, AND DEFENDANT AND PLAINTIFF, I'LL SIMPLY REFER TO GADY, REFERRING TO GADY NADLER AS THAT PARTY APPEARS AS A PLAINTIFF IN ONE ACTION, AS A DEFENDANT IN ANOTHER. AND TO KATHERYN, REFERRING TO KATHERYN NADLER-KATZ. THIS IS THE COURT'S ORAL TENTATIVE DECISION: THE COURT FINDS THAT THE HAIFA DISTRICT RABBINICAL COURT LOST SUBJECT MATTER JURISDICTION OF THE CUSTODY MATTER IN THIS CASE IN JULY 1990. AT THAT TIME KATHERYN, THE CUSTODIAL PARENT WITH THE CHILDREN, LEFT ISRAEL AND MOVED TO CALIFORNIA, GADY HAVING -- HAVING PREVIOUSLY MOVED AWAY FROM ISRAEL. FN-3 AT THAT TIME, NONE OF THE PARTIES OR CHILDREN RESIDED IN ISRAEL AND IT WAS NOT UNTIL JULY 1991 THAT -- APPROXIMATELY A YEAR THEREAFTER THAT GADY RETURNED TO ISRAEL, AND IN THIS REGARD THE COURT REFERS TO THE PUBLISHED DECISIONS OF KUMAR VERSUS SUPERIOR COURT, 32 CAL. AT PAGE 699. IN RE HOPSON, 110 CAL. APP. 3RD, PAGE 884. AND LOUGH, L-O-U-G-H, VERSUS SUPERIOR COURT, 8 CAL. APP. 4TH AT PAGES 141 TO 143. FURTHER, THAT THE MERE FACT THAT GADY MOVED BACK TO ISRAEL IN JULY 1991 IN THIS COURT'S OPINION DID NOT INVEST SUBJECT MATTER JURISDICTION IN THAT COURT, AND WITH THE --WITH THE REMOVAL OF ALL THE PARTIES FROM ISRAEL, THE ANALYSIS NECESSARILY BEGINS UNDER THE UNIFORM CHILD CUSTODY JURISDICTION ACT, PARTICULARLY SECTION 5152, FN-4 TO DETERMINE WHICH STATE OR COUNTRY HAS THE CLOSEST CONTACT. AND I REFER AGAIN TO KUMAR DECISION AT PAGE 699. SECONDLY, IN DECEMBER 1990, WHILE KATHERYN AND THE CHILDREN RESIDED IN THIS STATE, THE SUPERIOR COURT OF SONOMA COUNTY ASSERTED JURISDICTION IN THE FIRST ACTION THAT WAS FILED IN THIS CASE BY KATHERYN AGAINST GADY WHICH INCLUDED CUSTODY MATTERS, AND I'M REFERRING OF COURSE TO ACTION 186297. IN THAT CASE A PETITION AND AN ORDER TO SHOW CAUSE UNDER THE DOMESTIC VIOLENCE PREVENTION ACT WAS FILED, SERVED, OR A VOLUNTARY APPEARANCE WAS MADE BY GADY, AND ORDERS WERE ENTERED. THAT ACTION AS INDICATED WAS CONSOLIDATED WITH ACTION 186861. NOW, THE CALIFORNIA COURT FINDS -- THE COURT FINDS OF COURSE THAT THE CALIFORNIA COURT DID NOT DECLINE SUBJECT MATTER JURISDICTION. FN-5 FURTHER, UNDER SECTION 5152 FN-6 OF THE CIVIL CODE, THE COURT FINDS THAT CALIFORNIA HAS THE CLOSEST CONTACTS IN THIS CASE. SPECIFICALLY UNDER SECTION 5152(1)(B) FN-7 IN PARENS, THE COURT FINDS THAT IT IS IN THE BEST INTEREST OF THE CHILDREN THAT CALIFORNIA ASSUME JURISDICTION, AND THERE IS A -- THERE HAS BEEN A SUFFICIENT SHOWING THAT THE CHILDREN AND KATHERYN, THE CUSTODIAL PARENT, HAVE A SIGNIFICANT CONNECTION WITH CALIFORNIA AND THAT THERE IS AVAILABLE IN CALIFORNIA SUBSTANTIAL EVIDENCE CONCERNING THE CHILDREN'S PRESENT AND FUTURE CARE, PROTECTION, TRAINING AND PERSONAL RELATIONSHIPS. NOW, WITH RESPECT TO THE MEASURING DATE, THERE DOES APPEAR TO BE A CONFLICT IN SEVERAL OF THE COURT OF APPEAL DECISIONS. IN THE MATTER OF PLAS VERSUS SUPERIOR COURT, P-L-A-S, 155 CAL. APP. 3RD AT PAGE 1015, THE TEST DATE IS THE COMMENCEMENT OF THE ACTION. AND UNDER IN RE HOPSON, 110 CAL. APP. 3RD AT PAGE 894, THE MEASURING DATE UNDER -- FOR SECTION 5152(1)(D), FN-8 IN PARENS, PURPOSES, IS THE DATE OF THE HEARING. NOW, THE COURT NOTES THAT THE HOPSON CASE IS A REPORTED DECISION IN THE FIRST DISTRICT. FN-9 UNDER EITHER OR BOTH MEASURING DATES, THE COURT FINDS SUFFICIENT EVIDENCE OF THE ELEMENTS UNDER SECTION 5152(1)(B), FN-10 INCLUDING THE FOLLOWING: FIRST, THE FACT THAT THE CHILDREN RESIDED WITH KATHERYN, THE CUSTODIAL PARENT, SINCE JULY 1990 IN CALIFORNIA. THAT IS FIVE AND A HALF MONTHS APPROXIMATELY BEFORE COMMENCEMENT OF THE FIRST ACTION IN CALIFORNIA OR TWO AND A HALF YEARS BEFORE THIS HEARING. SECONDLY, THE CHILDREN ATTEND SCHOOL IN CALIFORNIA. THIRD, KATHERYN, THE CUSTODIAL PARENT, WAS BORN IN CALIFORNIA, ATTENDED COLLEGE IN THIS STATE, AND ALMOST ALL OF HER FAMILY MEMBERS RESIDE IN CALIFORNIA. NEXT, THE CHILDREN WHO ARE NOW TWELVE, FOURTEEN AND FIFTEEN YEARS OF AGE HAVE EXPRESSED THEIR DESIRE THAT THEY NOT BE COMPELLED TO RETURN TO ISRAEL, NOR TO ATTEND A RELIGIOUS SCHOOL IN THAT COUNTRY. FN-11 NEXT, THERE IS DOUBT IN THIS COURT'S MIND THAT THE CHILDREN WOULD COMPLY WITH AN ORDER THAT THEY RETURN TO ISRAEL WITH EITHER PARENT, AND GADY BY HIS WHAT THIS COURT CONSIDERS AN UNUSUAL REQUEST THAT THEY BE ORDERED TO BE PRESENT AT THIS HEARING AND THAT AN ADDITIONAL DEPUTY OR GUARD BE PRESENT TO POTENTIALLY RESTRAIN OR PHYSICALLY RESTRAIN THEM IS INDEED AN INDICATION, AN ACKNOWLEDGMENT OR AN ADMISSION THAT THE CHILDREN -- OF THE CHILDREN'S RESISTANCE TO HIS REQUESTED RELIEF. FN-12 FINALLY, THERE IS INSUFFICIENT SHOWING OF THE CHILDREN'S CONNECTION WITH ISRAEL AT THE TIME OF COMMENCEMENT OF THIS ACTION OR AT THE TIME OF THE HEARING AND THERE IS SOME EVIDENCE THAT KATHRYN'S REMARRIAGE ON COMING TO CALIFORNIA WOULD NOT BE RECOGNIZED IN ISRAEL IF SHE AND THE CHILDREN WERE TO BE RETURNED TO THAT STATE OR COUNTRY AND THERE COULD BE ADVERSE CONSEQUENCES VISITED UPON THE CHILDREN AS A RESULT OF THAT FACT. FN-13 MOREOVER, THE COURT FINDS UNDER SECTION 5152(1)(D), FN-14 IN PARENS, THAT NO OTHER STATE WOULD HAVE JURISDICTION UNDER THE PREREQUISITES SUBSTANTIALLY IN ACCORDANCE WITH PARAGRAPHS (A), (B) AND (C) IN PARENS OF THE SAME SECTION, 5152. FN-15 AND IT IS IN THE BEST INTEREST, THE COURT SO FINDS, OF THE CHILDREN THAT THE -- THAT THIS COURT AND CALIFORNIA ASSUME JURISDICTION. NEXT THE COURT FINDS THAT EACH OF THE FOLLOWING CUSTODY PROVISIONS OF THE INITIAL ISRAELI DECREE ARE NOT IN SUBSTANTIAL COMPLIANCE WITH THE UNIFORM CHILD CUSTODY JURISDICTION ACT. THERE ARE THREE PROVISIONS IN ALL. THE FIRST, AND I'LL QUOTE THESE FROM THE INITIAL ISRAELI DECREE. ANY MATTER CONNECTED WITH THE CUSTODY OF THE CHILDREN, THEIR EDUCATION AND UPBRINGING WILL BE SUBJECT TO THE SOLE AUTHORITY OF THE HAIFA DISTRICT RABBINICAL COURT AND ITS DECISION WILL BE BINDING ON THE PARTIES FOR ALL INTENTS AND PURPOSES IN ISRAEL AS WELL AS ABROAD. SECONDLY. IT IS AGREED BY THE PARTIES THAT THIS AGREEMENT AND THE JUDGMENT PASSED IN RESPECT TO IT BY THE COURT WILL BE VALID FOR ALL INTENTS AND PURPOSES IN THE U.S. AS WELL. THEN THE THIRD CLAUSE OF THAT ORDER. THE PARTIES UNDERTAKE AND DECLARE THAT THE RABBINICAL COURT IS THE ONLY INSTANCE OF JURISDICTION AUTHORIZED AND/OR THAT WILL BE AUTHORIZED TO JUDGE ALL THEIR MATTERS AND IN PARTICULAR MATTERS OF CUSTODY, EDUCATION AND ALIMONY OF THE CHILDREN. THERE ARE SEVERAL REASONS FOR THIS FINDING. FIRST, IS THE INITIAL ISRAELI DECREE WAS INDEED ENTERED BY AGREEMENT OR CONSENT OF THE PARTIES AND IT IS WELL ESTABLISHED THAT CHILD CUSTODY SUBJECT MATTER JURISDICTION CANNOT BE CONFERRED BY CONSENT, ESTOPPEL OR WAIVER. THERE ARE A NUMBER OF DECISIONS REFERRED TO IN THE BRIEFS. NOTABLY IN RE BEN-YEHOSHUA, AT 91 CAL. APP. 3RD AT PAGE 163. FN-16 FURTHER, AFTER JULY 1990, FN-17 THE ISRAELI COURT LOST SUBJECT MATTER JURISDICTION UNDER THE UNIFORM CHILD CUSTODY JURISDICTION ACT AND COMMENCING IN DECEMBER 1990, CALIFORNIA WAS EXERCISING SUCH JURISDICTION IN THE FIRST ACTION FILED BY KATHERYN. AND FINALLY, ONCE JURISDICTION WAS LOST IN THE ISRAELI COURT, IT IS NECESSARY UNDER THE ACT TO ANALYZE THE JURISDICTIONAL ELEMENTS OR FACTORS UNDER THE ACT, INCLUDING SECTION 5152, FN-18 WHICH IS DETERMINED TO BE THE EXCLUSIVE MEANS OF DETERMINING CHILD CUSTODY SUBJECT MATTER JURISDICTION. THE INITIAL ISRAELI DECREE DID NOT SO PROVIDE OR MAKE ANY SUCH REFERENCE AND IN THIS COURT'S OPINION DID NOT COMPLY WITH THE ACT. NEXT, THERE WAS AN INSUFFICIENT SHOWING IN THIS COURT'S OPINION THAT KATHERYN'S ACT OF LEAVING ISRAEL WITH THE CHILDREN IN JULY 1990 BOUND FOR CALIFORNIA WAS REPREHENSIBLE OR PROHIBITED CONDUCT UNDER THE ISRAELI DECREE. THERE IS NO PROHIBITORY OR NE EXEAT CONTAINED IN THE INITIAL ISRAELI DECREE. AT THE SAME TIME, THE ISRAELI COURT AS ALREADY DETERMINED LOST JURISDICTION AND HAD NO LAWFUL BASIS UNDER THE UNIFORM CHILD CUSTODY JURISDICTION ACT WITH THE ANALYSIS THAT IS REQUIRED THEREUNDER IN ORDER TO ASSERT JURISDICTION FOR ENFORCEMENT PURPOSES. FURTHER, THE PROVISION THAT THE CHILDREN QUOTE "WILL LIVE WITH HER IN ISRAEL," CLOSED, IS NOT CONSTRUED BY THIS COURT AS MANDATORY LANGUAGE IN LIGHT OF THE LANGUAGE EMPLOYED IN THE OTHER PROVISIONS OF THE SAME DECREE, INCLUDING THE REFERENCE TO THE DECREE BEING VALID IN THE U.S. AND ALSO THERE IS REFERENCE IN ONE OF THE CLAUSES WHERE IT REFERS TO FOR ALL -- BINDING ON THE PARTIES FOR ALL INTENTS AND PURPOSES IN ISRAEL AS WELL AS ABROAD. CONSTRUING THE DECREE IN ITS ENTIRETY AND UTILIZING THE LANGUAGE THAT WAS USED IN THAT DECREE AND THE ABSENCE OF A NE EXEAT ORDER, IT IS THE COURT'S FINDING THAT THE REMOVAL OF THE CHILDREN FROM ISRAEL WAS NOT REPREHENSIBLE CONDUCT ON THE PART OF KATHERYN. FINALLY, WITH RESPECT TO CIVIL CODE SECTION 5157, FN-19 IT IS THE COURT'S OPINION THAT THAT SECTION DOES NOT APPLY IN THIS CASE SINCE IT IS CLEAR THAT KATHERYN IS THE -- IS AND WAS THE CUSTODIAL PARENT UNDER THE INITIAL DECREE. ADDITIONALLY, THE COURT FINDS THAT THERE'S AN INSUFFICIENT SHOWING THAT KATHRYN'S CONDUCT OF REMOVING THE CHILDREN FROM ISRAEL IN JULY 1990 WAS WRONGFUL OR REPREHENSIBLE AS REQUIRED UNDER SECTION 5157. FN-20 BASED ON THOSE FINDINGS, THE COURT DENIES THE MOTION BY THE PLAINTIFF TO ENFORCE THE FOREIGN CUSTODY ORDER AND ALSO DENIES PLAINTIFF'S MOTION TO DISMISS IN ACTION 186297. FN-21 NOW, THE TWO FINANCIAL ISSUES APPARENTLY HAVE BEEN BIFURCATED WHICH WERE SOUGHT IN THE INITIAL MOTION. IS THERE ANY NEED FOR A RULING ON THAT BIFURCATION? MR. MOSKOWITZ: IS THERE A NEED FOR RULING ON THE BIFURCATION. I'M NOT -- MR. ROTHSCHILD: ON THE FINANCIAL ISSUES. THE COURT: YOU HAD INDICATED THAT THE FINANCIAL ISSUES WERE BIFURCATED. MR. ROTHSCHILD: THE ATTORNEY'S FEES AND COSTS FOR LOCATING THE CHILDREN. THE COURT: I ASSUME IN LIGHT OF THE COURT'S TENTATIVE RULING ON THE SUBSTANTIVE ISSUES, THAT THERE'S NO NEED FOR A RULING ON THAT. I'M UNCERTAIN AS TO WHAT YOUR ARRANGEMENT IS BETWEEN COUNSEL. MR. MOSKOWITZ: IN LIGHT OF THE COURT'S TENTATIVE DECISION, THERE IS NO NEED FOR A RULING ON THAT ISSUE. THE COURT: DO YOU AGREE? MR. ROTHSCHILD: WELL, WE DO AGREE. WE FEEL THAT IF THE TENTATIVE RULING BECOMES THE RULING OF THE COURT, THAT THE MOTIONS FOR COSTS AND ATTORNEY'S FEES SHOULD BE DISMISSED. MR. HILTON: OR ACTUALLY DENIED. MR. ROTHSCHILD: OR DENIED. THE COURT: THERE BEING SOME DOUBT AS TO WHAT THE ARRANGEMENT IS BETWEEN COUNSEL, IT IS AN ISSUE FRAMED BY THE MOTION. AND THE REQUEST FOR COSTS FOR LOCATING THE CHILDREN AND ATTORNEY'S FEES IS DENIED. THE COURT IS GOING TO DIRECT KATHRYN'S ATTORNEY TO PREPARE A FORM OF ORDER AND A STATEMENT OF DECISION IF REQUESTED, AND TO SUBMIT AND SERVE THOSE FORMAL ORDERS OR STATEMENT IN ACCORDANCE WITH APPLICABLE LAW WHICH IS CODE OF CIVIL PROCEDURE SECTION 632 AND RULE 232 OF THE CALIFORNIA RULES OF COURT. MR. MOSKOWITZ: YOUR HONOR, THERE IS ONE OTHER THING THAT NEEDS TO BE ADDRESSED. NOT NECESSARILY RULED ON IN THE MERITS THIS MORNING, BUT DEALT WITH, AND THAT IS THAT THE INITIAL FILING BY MISS KATZ IN THE DOMESTIC VIOLENCE ACTION DID REQUEST A CUSTODY ORDER, AND THE COURT HAS MADE INTERIM ORDERS ALONG THE WAY. IF THE COURT IS GOING TO ASSERT JURISDICTION, WE NEED TO HAVE SOME KIND OF ONGOING PARENTING ARRANGEMENT. THE COURT: ALL RIGHT. DO YOU WISH TO MEET AND CONFER AS TO THAT IN LIGHT OF THE COURT'S TENTATIVE RULING? (COUNSEL CONFERRING.) MR. ROTHSCHILD: WE'VE DISCUSSED THAT WHILE MR. NADLER IS HERE, WE WILL WORK OUT AS WE HAVE IN THE PAST SOME ARRANGEMENT FOR TIME FOR HIM WITH THE CHILDREN, AND AS FAR AS ANY FUTURE MATTERS, IT WOULD SEEM THAT AS THIS MATTER CAME FROM THE DOMESTIC OSC CALENDAR, THE THURSDAY CALENDAR, THAT PROBABLY IT SHOULD GO BACK TO THAT CALENDAR FOR ANY FURTHER PROCEEDINGS ON DEFINING THE CUSTODY ACCESS ARRANGEMENT, NOW THAT JURISDICTION HAS BEEN ESTABLISHED. THE COURT: IN THE INTERIM TIME, IS THERE A NEED FOR SOME TYPE OF A STIPULATION OR -- MR. ROTHSCHILD: I DON'T THINK SO. THE COURT: OR INTERIM ORDER AS TO CUSTODY AND VISITATION? MR. MOSKOWITZ: NO. THE ONLY THING THAT WE NEED TO MAKE SURE OF IN THE INTERIM IS THAT MISS KATZ IS ORDERED NOT TO CHANGE THE CHILDREN'S ADDRESS WITHOUT EITHER MR. NADLER'S PRIOR WRITTEN PERMISSION OR A COURT ORDER. WE AT LEAST WANT TO KNOW WHERE THEY ARE. THE COURT: COULD THE COURT REPORTER READ BACK THE LAST COMMENT? (RECORD READ.) THE COURT: YOU DON'T OBJECT TO THAT? MR. ROTHSCHILD: IT SEEMS TO ME THAT A NORMAL ORDER WOULD BE THAT SHE'S REQUIRED TO INFORM HIM WITHIN TEN DAYS OR -- OF ANY MOVE AND IF THEY WANT, PENDING FURTHER DISCUSSIONS THAT SHE NOT RELOCATE THE CHILDREN BEYOND THE COURT'S JURISDICTION. THE COURT: IS THERE A LOCAL -- ISN'T THERE A LOCAL CUSTODY ORDER PRESENTLY IN EFFECT? MR. ROTHSCHILD: THAT'S WHAT WE WERE GOING TO BRING JP. THAT IF I UNDERSTAND THE COURT'S RULING, THAT BECAUSE OF THE INITIAL RULINGS, FAILURE TO CONFORM WITH PROVISIONS OF THE UCCJA, THAT THE COURT HAS DENIED ENFORCEMENT OF THE ISRAELI CONDITIONAL CUSTODY ORDER, WHICH WOULD MEAN THAT THERE'S NO CUSTODY ORDER IN THIS CASE. AND PERHAPS THERE SHOULD BE A TEMPORARY CUSTODY ORDER PENDING THIS MATTER'S RESTORATION TO THE ORDER TO SHOW CAUSE CALENDAR. THE COURT: MORE SPECIFICALLY, IS THE -- ISN'T THE CUSTODY ORDER INITIALLY ORDERED BY JUDGE REGAN, OR I THINK IT'S JUDGE SATER UNDER 5152(1)(C) FN-22 STILL IN EFFECT? MR. HILTON: IT IS AT THIS TIME, YOUR HONOR, BUT THAT -- FOR ALL INTENTS AND PURPOSES, THE EMERGENCY PROVISIONS ARE GONE, AND SINCE THIS COURT HAS DECIDED CALIFORNIA SHOULD HAVE JURISDICTION, I THINK JUST TO CLARIFY THE RECORD, YOU COULD MAKE A RULING THAT THE MOTHER HAS CUSTODY OF THE TWO CHILDREN SUBJECT TO THE AGREED UPON OR COURT ORDERED VISITATION RIGHTS OF THE FATHER, JUST SO THIS IS CLEAR. FN-23 THE COURT: AND TO PLACE THE MATTER ON THE DOMESTIC CALENDAR FOR FURTHER HEARING? MR. HILTON: YES. THE COURT: IS THIS -- MR. MOSKOWITZ: WHAT I WOULD SUGGEST IN THE ALTERNATIVE, IS FOR AN ORDER THAT PENDING THE HEARING ON THE DOMESTIC CALENDAR, THE PARENTING PROVISIONS AND THE RESTRAINING ORDER PROVISIONS IN JUDGE SATER'S ORDER REMAIN IN EFFECT. WE'RE ONLY TALKING ABOUT A PERIOD OF A FEW WEEKS. AND THOSE ORDERS DO CONTAIN THE LANGUAGE THAT I'M CONCERNED ABOUT. UNDER THE NELSON CASE AND THE CURTIS CASE ON EMERGENCY, THE JURISDICTION GOES AWAY WHEN THE EMERGENCY GOES AWAY, AND I THINK THE COURT NEEDS TO AFFIRMATIVELY ORDER, BASED ON WHATEVER JURISDICTION IS ASSERTED TODAY, THAT THOSE PARENTING PROVISIONS AND THE PROVISIONS ABOUT CHANGING THE CHILDREN'S ADDRESS REMAIN IN EFFECT. THE COURT: AS AN INTERIM ORDER, IS THERE A STIPULATION -- MR. ROTHSCHILD: IT SOUNDS LIKE THERE IS A STIPULATION, THAT JUDGE SATER'S -- IS IT JUDGE SATER'S ORDER OR REGAN'S ORDER? MR. MOSKOWITZ: I THINK WE REPEATED THE LANGUAGE. MR. HILTON: THE IDENTICAL LANGUAGE -- JUDGE REGAN JUST CONFIRMED THE ORDER OF JUDGE SATER. KEPT IT IN EFFECT. MR. MOSKOWITZ: YES. I THINK WE'RE TALKING ABOUT PARAGRAPHS 5, 6, 7 AND 8 OF JUDGE SATER'S ORDER WHICH WAS FILED JUNE 6, 1991 IN THIS MATTER. THE COURT: IS THERE A STIPULATION THAT UNTIL FURTHER ORDER OF THE COURT KATHERYN SHALL CONTINUE TO HAVE SOLE CUSTODY OF THE THREE CHILDREN AND GADY SHALL CONTINUE TO BE ENTITLED TO VISITATION UPON THE TERMS SET FORTH IN PARAGRAPH 5? MR. ROTHSCHILD: YES. MR. HILTON: YES, YOUR HONOR. THE COURT: DO YOU SO STIPULATE? MR. MOSKOWITZ: SO STIPULATED, YOUR HONOR. THE COURT: JUST TO CLARIFY. THOSE TERMS ARE A, THE CHILDREN WILL BE WITH GADY EVERY OTHER SUNDAY FROM 12 NOON UNTIL 5 P.M. B, VISITATION SHALL BE SUPERVISED AND SHALL OCCUR IN DOYLE PARK IN SANTA ROSA. C, THE SUPERVISOR SHALL ALWAYS KEEP THE CHILDREN IN HIS SIGHT BUT SHALL BE FAR ENOUGH AWAY TO AFFORD GADY AND THE CHILDREN A REASONABLE DEGREE OF PRIVACY. D, UNTIL FURTHER COURT OF THE COURT, KATHERYN SHALL PAY THE COST OF SUCH VISITATION. MR. MOSKOWITZ: ALSO PARAGRAPHS 6, 7 AND 8 REGARDING PHONE CONTACT, CHANGE OF ADDRESS, AND KEEPING THE CHILDREN WITHIN THE NINE BAY AREA COUNTIES. AT LEAST PENDING THE NEXT HEARING. THE COURT: TO THE EXTENT OF PARAGRAPH 5 AS RECITED BY THE COURT AS WELL AS PARAGRAPH 6, 7 AND 8, DO BOTH PARTIES STIPULATE? MR. MOSKOWITZ: YES, YOUR HONOR. MR. ROTHSCHILD: WE HAVE NO PROBLEM, EXCEPT FOR NUMBER 8. 6 AND 7 ARE OKAY. BUT 8, THIS HAS BEEN IN EFFECT FOR ALMOST WHAT, OVER A YEAR, ALMOST TWO YEARS I GUESS AT THIS POINT. AND IT WOULD SEEM THAT IT'S SORT OF RESTRICTIVE FOR THE CHILDREN, FOR EXAMPLE, FOR SCHOOL TRIPS THAT THEY HAVE MISSED BECAUSE THEY HAVEN'T BEEN ABLE TO GO OUT OF THE NINE COUNTIES. IT WOULD SEEM THAT WE KEEP THEM IN CALIFORNIA, IT WOULD BE SUFFICIENT. AND WE SHOULD -- WHAT WE CAN PUT IN IS THAT MISS KATZ SHALL NOT CHANGE THE CHILDREN'S RESIDENCE, YOU KNOW, FROM SONOMA COUNTY, FROM SONOMA COUNTY, BUT AS FAR AS LIMITING THE TRAVEL IN THE STATE, IT SEEMS UNFORTUNATE AND UNNECESSARY. THE COURT: DO YOU HAVE ANY PROBLEM MODIFYING 8 TO READ WITHIN THE GEOGRAPHICAL LIMITS OF CALIFORNIA RATHER THAN THE NINE BAY AREA COUNTIES? MR. MOSKOWITZ: THAT'S FINE, YOUR HONOR. THE COURT: VERY WELL. WITH THAT MODIFICATION, BOTH PARTIES STIPULATE? MR. ROTHSCHILD: YES, YOUR HONOR. MR. MOSKOWITZ: YES, YOUR HONOR. THE COURT: SO ORDERED. COURT WILL BE ADJOURNED. MR. MOSKOWITZ: DO YOU NEED TO PUT THIS ON CALENDAR FOR THE CUSTODY ISSUE? THE COURT: YES. BACK ON THE RECORD ON THE NADLER MATTER. WHICH THURSDAY DO YOU DESIRE THIS TO BE ON? MR. MOSKOWITZ: MR. ROTHSCHILD HAS ALREADY SET A MATTER FOR THE 21ST. MR. ROTHSCHILD: THAT'S CORRECT, THE 21ST. THE COURT: 2lST OF JANUARY? 21ST OF JANUARY AT 1:30. WHICH DEPARTMENT? MR. MOSKOWITZ: AN ODD NUMBER CASE. BOTH OF THEM. THE COURT: WHAT DOES THAT MEAN? MR. ROTHSCHILD: THAT MEANS IT WILL BE IN THIS DEPARTMENT. THE COURT: DEPARTMENT 4, 8:30 ON THE 21ST. County of Sonoma ) ) ss. State of California ) I, LYNN A. ANDERSON, CSR No. 5213 do hereby certify that I am a Certified Shorthand Reporter in and for the State of California, County of Sonoma; That I reported the foregoing proceedings in stenotype and thereafter caused the same to be transcribed as is contained herein. I further certify that the transcript is a true and correct transcript of the proceedings had in said matter to the best of my ability. Dated: February 2, 1993 /s/ Lynn A. Anderson _______________________________ Lynn A. Anderson, CSR No. 5213 Notes 1. All footnotes were added by Wm. M. Hilton -------------------- 1. While not discussed in the decison, attorney fees and costs, including costs to locate the children, can be ordered pursuant to 9 ULA 15(b). 2. This is often the most practical approach since the actual fees and costs will not be known until the matter is completed. The usual rule is to submit the argument of fees and costs on written argument with an accounting of such fees and costs. 3. Mr. Nadler had left Israel several years before the mother and children left Israel. 4. 9 Uniform Laws Annotated [ULA] 3 5. See 9 ULA 7 6. 9 ULA 3 7. 9 ULA 3(a)(2) 8. 9 ULA 3(a)(4) 9. But see Auto Equity Sales, Inc. v Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321] where it was held that the decison of one district is not to be given more weight than that of another district. 10. 9 ULA 3(a)(2) 11. See also In re Marriage of Bolton (Mont.1984) 690 P.2d 401, 404 where the wishes of the children were also considered. 12. See The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention], Art. 13(c) where the wishes of the children can be used to prevent the return of the children to their Habitual Residence. 13. This would be similar to a defense under Art. 13(b). 14. 9 ULA 3(a)(4) 15. 9 ULA 3 16. This case was between Israel and California. 17. This is when the mother and the children left Israel. As previously noted the father had left some years before. Accordingly none of the parties or the children continued to live and/or reside in Israel, a necessary condition for Child Custody Subject Matter Jurisdiction (CCSMJ). 18. 9 ULA 3 19. 9 ULA 8 20. 9 ULA 8 21. In the strictest sense the Court's decision is technically incorrect since the matter that was before the Court was the enforcement of the initial Israeli decree which gave custody to the mother. During the prolonged court hearings (over two years) the father had obtained variations of the original order in Israel which in effect required the mother and children to return to Israel. The decision of the court in effect held that the subsequent orders were not valid and would not be enforced. At the same time the mother's action before the court was to modify the Israeli orders to account for her presence in California and to regularize access. 22. 9 ULA 3(a)(3) 23. Emergency Jurisdiction under the UCCJA is temporary only, to prevent harm to the child pending a hearing in that place that has CCSMJ under either the "Home State" or "Significant Connection" basis. See Shores v Shores (E.D.Tenn. 1987) 670 F.Supp. 774, 777.