District Attorney v Officer (California 1996) Superior Court, County of Santa Barbara No. 215833 =========================================================== FILED Santa Barbara Superior Court Dec 17 1996 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA District Attorney, , ) No. 215833 County of Santa Barbara ) Petitioner, ) ) v. ) RULING ON MOTION ) FOR ORDER TO RETURN ) FOR ORDER TO RETURN Karen Ora Reuveni, , ) MINOR CHILD CHILD aka Karen Ora Officer ) ABDUCTION REMEDIES Respondent. ) ACT ______________________________) 42 USC 11601 et seq Respondent Karen Reuveni and Real Party in Interest Rachamin Reuveni married and had a minor child together in the State of Israel. Rachamin Reuveni is an Israeli national; Karen Reuveni is an American citizen; the minor child has entitlement to both nationalities. The parties agree that Israel was the minor's last "habitual residence" within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, codified in the United States as 42 USC sections 11601 et seq. This proceeding arises as a result of a petition on behalf of Rachamin Reuveni to compel the return of the minor child of the parties (Esther) to Israel. Rachamin Reuveni seeks to assert his rights under the Hague Convention and 42 USC 11601 to a court decree returning the child, on the grounds that he is a custodial parent and the child was removed from Israel without his consent. Karen Reuveni resists this request on three grounds: 1) that a decree of an Israeli court gave her sole custody subject only to certain visitation rights in Rachamin Reuveni, and so her removal of the child from Israel to the limited States was authorized by law; 2) that Rachamin Reuveni, by a letter dated October 6, 1996 which is in evidence, "acquiesced" in her removal of the child to the United States at a time when he was aware of his rights under the Hague Convention, and so has irrevocably waived the right to enforce the child's return; and, 3) that the child would be seriously endangered by an enforced return to Israel under present conditions. Rachamin Reuveni replies to these contentions by asserting that a reconciliation between the parties occurred after the decree of the Israeli court, thus nullifying the decree placing custody in Karen Reuveni; that the letter dated October 6, 1996 is not sufficient to constitute an acquiescence under the Hague Convention; and that the danger to the child now is not significantly greater, in the area in which the family resided, than it was when they all lived there before. After consideration of the evidence, the legal authorities, and the arguments of counsel, and the matter having been submitted to the court for decision, the court finds in favor of Karen Reuveni and against Rachamin Reuveni on the first two issues, the proper interpretation of the Israeli custody decree and the issue of acquiescence under the Hague Convention. The court reaches no conclusion on the issue of danger to the child in the event of return to Israel, but will address that reserved issue should it become legally necessary to do so in the future. The decree of the Israeli court upon the separation of the parties provides clearly for sole custody of Esther to Karen Reuveni, with visitation rights to Rachamin Reuveni. WMH FN1 Rachamin Reuveni argues that a later reconciliation occurred, but even if it did, this is insufficient to change the terms of a decree lawfully entered by the court. The decree does not contain a judicially-approved term automatically nullifying its provisions if the parties return to living temporarily as husband and wife, and in the absence of binding legal authority compelling the interpretation of such a term as implied by law, the court declines to supply such a term. The parties have presented no evidence that California or Israeli Law requires such a construction. The court finds that the Israeli decree on child custody and visitation continues in full force and effect until judicially modified by a court having jurisdiction of the parties and the subject matter. Article 13, section (a) of the Hague Convention provides expressly that a party not actually exercising custody rights at the date of removal may not compel return. The court therefore concludes that Karen Reuveni's removal of Esther to the United States was authorized by the laws of Israel and the United States at the time it occurred. (Friedrich v. Friedrich (6th Cir. 1993) 983 F.9d 1396.) Even if not, Rachamin Reuveni has "acquiesced" in Karen's retention of Esther in the United States, as that term is construed under the Hague Convention. When one has knowledge of one's rights to petition for return of a child under the Hague Convention and its domestic implementing legislation, and with knowledge of those rights offers consent or "acquiescence" to the child remaining in the foreign jurisdiction, the right to compel return is lost irrevocably. (Article 13(a), Hague Convention.) The burden on a party raising this contention is to establish it by a preponderance of the evidence (42 USC section 11603(e)(a)(B); Wanninger v. Wanninger (D. Mass. 1994) 850 F.Supp. 78, 81.) The letter states in material part: "I would never take Esther from you--from her mother. I am willing to sign whatever you ask me to, so that you know you both would not be hindered from leaving the country.... If you want your freedom, I do not want to stand in the way of your happiness." WMH FN2 This language constitutes an "acquiescence" in the retention of Esther in the United States in the custody of Karen. (Hague Convention, Article 13(a); 49 USC section 11603(e)(a)(A); Wanninger, supra, at p. 89; see also Currier v. Currier (Dist. N. H. 1994) 845 F.Supp. 916; see also Re S. (Minors: Abduction; Acquiescence) (Court of Appeal, United Kingdom, 1994) I FLR 819.) This court so finds by a preponderance of the evidence. The petition for an order compelling the return of Esther to Israel is therefore DENIED. It is so ordered. Counsel for Karen Reuveni is directed to present an appropriate Order After Hearing in the form required by the California Rules of Court, to give notice of this ruling and to transmit an exemplified and certified copy of this order to the appropriate authorities in Israel. Dated: December 17 1996. /s/ Thomas R. Adams _______________________________ THOMAS R. ADAMS, JUDGE -------------------- 1. The full text of the Israeli Order is attached as Exhibit A. 2. The full text of this letter is attached as Exhibit B. =========================================================== EXHIBIT A Reuveni v Reuveni (Israel 1995) Declaratory file No 23537/95; Civil file No 1398/95 ----------------------------------------------------------- REUVENI V REUVENI December 24, 1995 Declaratory file no 23537/95 Civil file no 1298/95 IN THE DISTRICT COURT IN JERUSALEM Hon Judge Ruth Orr DECISION After receipt of Dr. Perlmutter's opinion, I declare as follows: 1. Custody of the minor child of the couple -- will be with the mother. 2. a. The father will see his daughter every Monday and every Thursday of the week at 11:00 -- for two hours each time, during the month of January 96, with the accompaniment of a social welfare officer and without the mother being present. b. Beginning February 1, 1996, the father will see his daughter every Monday and every Thursday of the week -- from 10:00 until 1:00, but without the accompaniment of a social welfare officer. c. The father will receive the daughter for visitation at the office of the father's attorney at 1 Doioi Kishonim Street,Jerusalem on the days and at the hours designated above, and will return the daughter to the mother's possession in the same office at the conclusion of the above designated visitation hours. d. Beginning from February 96, the father will spend the visitation hours in the daughter's presence -- at any location as he will deem appropriate and without the mother being present. e. If for any reason, the couple prefers other visitation hours, they will notify the Court of same in order to make a decision in the matter. f. Should the father be prevented from taking his daughter on any of the visitation days -- he will so notify the mother in time reasonably prior to the visitation hour in order to prevent unnecessary hassle and disappointment to the daughter. 3. Beginning July 1, 1996, the father may take his daughter on week-ends (Friday or Saturday) for six consecutive hours on each occasion. Should there be a problem with setting the additional day (Friday or Saturday) or the place of the meeting on that additional day, the parties will advise the court what each of them regards as the appropriate location and the Court will decide the matter. 4. The social welfare office is requested to follow up concerning the child and report to the Court once per half-year or on any occasion when problems arise regarding the child. 5. The Court joins in Dr. Perlmutter's wise advice that the mother and father go for weekly, in-depth, counseling in order to assist each of them in all aspects of their live and especially regarding the relationship between them for the sake of their common child. 6. A copy of this decision shall be sent to the parties and the social welfare office. /s/ Ruth Orr ___________________ Ruth Orr, Judge December 24, 1995 [Handwritten Notation: Send pursuant to decision December 24, 1995] =========================================================== EXHIBIT B Jerusalem, Israel -- October 6 1996 Dear Karen, I have called you several times and have left a message on the answering machine. We can't be pulling Esther between us. I am longing to see her and also to see you. I do love you both and need you. I ask that you considering coming her to talk to me. We could have someone else, a third person present -- someone that you would approve of. We could talk as husband and wife (as human beings should do) to see what we have for each other. I am not like and animal that I can forget you. I would never take Esther from you -- from her mother. I am willing to sign whatever you ask me to, so that you know you both would not be hindered in leaving the country. I say again, I would never take Esther from you because I love you. I don't want ever to hurt you. I wanted to do right and all for your good in whatever I did. I am burdened for all the trouble that has come out of it. I do deeply love you and believe I can, with your help, understand whatever it is that needs to be worked out between us. We should not hide from each other. God gave Esther to us together and if we could some together again, it is possible that He might bless us with more children. Everything in life (good and bad) we could walk hand in hand together, helping and not hurting each other. My heart is heavy. I don't want our love to be destroyed. Trouble should not separate us. If we put love first, all else can be worked out. I am willing to do my part and ask that you help me once again. If you want your freedom, I do not want to stand in the way of your happiness. We have to work it out, at least, for me to visit Esther. If you do talk with the Rabbi there, I would like for the Rabbi to call me afterwards. I am anxiously awaiting your answer. /s/ Rachamin Reuveni =========================================================== William M. Hilton, CFLS FILED Attorney At Law, SBN 59503 SANTA BARBARA COUNTY Box 269 20 Feb 1997 Santa Clara, California 95052 TEL: (408) 246-8511 FAX: (408) 246-0114 Attorney for Karen S. Officer Special Appearance: 42 U.S.C. 11601 et seq. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA In re the Application of: ) No. 215833 ) Petitioner: District Attorney of ) Santa Barbara County ) ORDER, JUDGMENT & ) DECREE: DENIAL OF vs ) PETITION TO RETURN ) CHILD Respondent: Karen S. Officer, ) AKA Karen Or Reuveni ) ___________________________________) The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 International Child Abduction Remedies Act, 42 U.S.C. 11601 et seq 1.0 GENERAL 1.1 This matter was brought before the Superior Court of California, County of Santa Barbara by the PETITION AND ORDER APPOINTING DISTRICT ATTORNEY TO LOCATE MINOR CHILD (CFLC 3130, PC 278 et seq) (Filed 18 Oct 1996). 1.2 The matter was continued from time to time to 11 Dec 1996 for a hearing on the merits of Rachamin Reuveni's STATE OF ISRAEL -- REQUEST FOR RETURN OF ABDUCTED CHILDREN (Dated 22 Jul 1996). 1.3 Rachamin Reuveni was not present in court, but was represented by Paul A Pettine III, Esq. 1.4 Karen S. Officer was present in court with counsel: William M. Hilton, CFLS. 1.5 The Court took the matter under submission after argument by counsel for both parties. 2.0 FACTS 2.1 Karen S. Officer and Rachamin Reuveni are wife and husband and are the parents of Esther Chaia Reuveni, dob 30 Jun 1994 (Estee), born in Israel. Estee is a citizen of both the United States and Israel. 2.2 On 24 Dec 1995 the District Court of Jerusalem issed its DECISION wherein Karen S. Officer was granted sole cusotdy of Estee, with visitation rights to Rachamin Reuveni. 2.3 On or about 28 Jun 1996 Karen S. Officer and Estee permanently left Israel for the United States, without the consent of Rachamin Reuveni. 2.3.1 At the time Karen S. Officer and Estee left Israel, Israel was the "Habitual Residence" of Estee within the meaning of Art. 3 of The Convention. 2.4 On 22 Jul 1996 Rachamin Reuveni filed his REQUEST FOR RETURN OF ABDUCTED CHILDREN with the State of Israel. 2.5 On 06 Oct 1996 Rachamin Reuveni wrote a letter to Karen S. Officer wherein he state, inter alia, the following: "I would never take Esther from you--from her mother. I am willing to sign whatever you ask me to, so that you know you both would not be hindered from leaving the country.... If you want your freedom, I do not want to stand in the way of your happiness." 2.6 On 18 Oct 1996 Rachamin Reuveni's petition to compel the return of Estee to Israel was filed with this court. 2.7 The matter was argued and submitted on 11 Dec 1996. 2.8 After consideration of the evidence, the legal authorities, and the arguments of counsel, and the matter having been submitted to the court for decision, the court finds in favor of Karen Reuveni and against Rachamin Reuveni on the first two issues, the proper interpretation of the Israeli custody decree and the issue of acquiescence under the Hague Convention. The court reaches no conclusion on the issue of danger to the child in the event of return to Israel, but will address that reserved issue should it become legally necessary to do so in the future. 3.0 RIGHTS OF CUSTODY (Arts. 3 and 5) 3.1 The decree of the Israeli court upon the separation of the parties provides clearly for sole custody of Esther to Karen Reuveni, with visitation rights to Rachamin Reuveni. Rachamin Reuveni argues that a later reconciliation occurred, but even if it did, this is insufficient to change the terms of a decree lawfully entered by the court. The decree does not contain a judicially-approved term automatically nullifying its provisions if the parties return to living temporarily as husband and wife, and in the absence of binding legal authority compelling the interpretation of such a term as implied by law, the court declines to supply such a term. The parties have presented no evidence that California or Israeli Law requires such a construction. The court finds that the Israeli decree on child custody and visitation continues in full force and effect until judicially modified by a court having jurisdiction of the parties and the subject matter. Article 13, section (a) of the Hague Convention provides expressly that a party not actually exercising custody rights at the date of removal may not compel return. 3.2 The court therefore concludes that Karen Reuveni's removal of Esther to the United States was authorized by the laws of Israel and the United States at the time it occurred. (Friedrich v. Friedrich (6th Cir. 1993) 983 F.9d 1396.) 4.0 ACQUIESCENCE 5.1 Rachamin Reuveni has "acquiesced" in Karen's retention of Esther in the United States, as that term is construed under the Hague Convention. 5.2 When one has knowledge of one's rights to petition for return of a child under the Hague Convention and its domestic implementing legislation, and with knowledge of those rights offers consent or "acquiescence" to the child remaining in the foreign jurisdiction, the right to compel return is lost irrevocably. (Article 13(a), Hague Convention.) 5.3 The burden on a party raising this contention is to establish it by a preponderance of the evidence (42 USC section 11603(e)(a)(B); Wanninger v. Wanninger (D. Mass. 1994) 850 F.Supp. 78, 81.) 5.4 The letter states in material part: "I would never take Esther from you--from her mother. I am willing to sign whatever you ask me to, so that you know you both would not be hindered from leaving the country.... If you want your freedom, I do not want to stand in the way of your happiness." 5.5 This language constitutes an "acquiescence" in the retention of Esther in the United States in the custody of Karen. (Hague Convention, Article 13(a); 49 USC section 11603(e)(a)(A); Wanninger, supra, at p. 89; see also Currier v. Currier (Dist. N. H. 1994) 845 F.Supp. 916; see also Re S. (Minors: Abduction; Acquiescence) (Court of Appeal, United Kingdom, 1994) I FLR 819.) This court so finds by a preponderance of the evidence. 6.0 ORDER DENYING PETITION 6.1 The petition for an order compelling the return of Esther to Israel is therefore DENIED. It is so ordered. 7.0 ORDER REMOVING RESTRICTIONS TO TRAVEL 7.1 This Court's ORDER PENDING HEARING (Filed 31 Oct 1996) is dismissed in its entirety and in particular all restrictions on the removal of Estee from California and/or residence restrictions are removed. 7.2 The District Attorney of Santa Barbara County shall, upon request of Karen S. Officer, promptly turn over all the travel documents that are being held pending the result of the hearing in California. 8.0 ORDER, JUDGMENT AND DECREE 8.1 The Court has read the above order, finds that it conforms with its RULING ON MOTION FOR ORDER TO RETURN MINOR CHILD UNDER INTERNATIONAL CHILD ABDUCTIOLN REMEDIES ACT [42 U.S.C. 11601 et seq.] (Filed 17 Dec 1996) hereby ORDERS, ADJUDGES AND DECREES that the parties are to carry out each and every of its terms. /s/ Thomas R. Adams __________________________ Hon Thomas R. Adams, Judge Superior Court of California United States of America Date: 20 Feb 1997