Shalit v Shalit (D. Alaska 1998) Case No A98-328 CV (JWS) 17 International Abduction [US 1998] =========================================================== UNITED STATETS DISTRICT COURT DISTRICT OF ALASKA Haim Shalit, ) ) Petitioner ) Case No A98-328 CV (JWS) ) vs ) ORDER FROM CHAMBERS ) Cheryl Coppe a/k/a Cheryl ) Gardner Shalit, ) ) Respondent ) ______________________________) I. INTRODUCTION 001 Petitioner Haim Shalit ("Shalit") filed this suit under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention") seeking his son Yarden's return to Israel. At docket 8, respondent Cheryl Coppe ("Coppe"), Yarden's mother, moves for summary judgment. The motion is opposed at docket 11 by Shalit, who also cross-moves for suramary judgment- Oral argument was heard on November 17, 1998. II BACKGROUND 002 Coppe and Shalit married in 1985 and divorced in 1989. FN01 They had one son, Yarden, who was born in 1987. FNO2 When Coppe and Shalit divorced in 1989, the Superior Court for the Third Judicial District in Anchorage, Alaska, ("Superior Court") awarded Coppe custody of Yarden. FN03 The Superior Court is an Alaska state court of general jurisdiction with full authority to determine custody and visitation rights. FN04 In April 1992, the Superior Court entered an order giving Shalit certain visitation rights, but leaving custody with Coppe. FN05 Again in May 1993, the Superior Court entered a custody order giving Shalit certain visitation rights, but otherwise leaving custody of Yarden with Coppe. FN06 Shalit participated in all proceedings and was represented by counsel. In the summer of 1995, Coppe verbally agreed to let Yarden live with Shalit in Israel for three years. FN07 In August 1998, Yarden visited Coppe in Alaska. FN08 Coppe retained custody of Yarden at that time. Shalit has not filed any motion to modify the Superior Court's custody or visitation orders. Shalit filed this action in the United States District Court for the District of Alaska. FN09 Shalit contends Yarden was wrongfully retained and seeks Yarden's return to Israel. III. STANDARD OF REVIEW 003 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if there is no genuine dispute as to material facts and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing that there is no genuine dispute as to material fact. FN10 The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact. FN11 Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. FN12 All evidence presented by the nonmovant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the norimovant. FN13 However, the nonmoving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial. FN14 IV. DISCUSSION 004 The Convention establishes procedures for resolving disputes related to international child abduction. FN15 The Convention "is designed to restore the 'factual' status quo which is unilaterally altered when a parent abducts a child and aims to protect the legal custody rights of the nonabducting parent." FN16 The Convention does not address the "merits of any custody issue." FN17 As described in President Reagan's Letter of Transmittal to the Senate: The Convention's approach to the problem of international child abduction is a simple one. The Convention is designed promptly to restore the factual situation that existed prior to a child's removal or retention. It does not seek to settle disputes about legal custody rights, nor does it depend upon the existence of court orders as a condition for returning children. FN18 005 Congress implemented the Convention's substantive provisions in the international Child Abduction Remedies Act, 42 U~S.C.  11601 et seq. ("ICARA" or "Act"). Under ICARA, the court's authority is limited to determining "rights under the Convention and not the merits of any underlying child custody claims." FN19 ICARA provides, in part: (e) Burdens of Proof (1) A petitioner in an action brought under subsection (b) of this section shall establish by a preponderance of the evidence- (A) in the case of an action for the return of a child, that the child has been wrongfully removed or retained within the meaning of the Convention; FN20 006 "Wrongful removal or retention" is defined as "removal or retention of a child before the entry of a custody order regarding that child." FN21 Shalit has the initial burden to establish Yarden was wrongfully removed or retained. FN22 The Convention defines wrongful removal or retention in Article 3: 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. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision. or by reason of an agreement having legal effect under the law of that State. FN23 007 To meet his burden, Shalit must first establish that Yarden's habitual residence was in Israel. FN24 If it was not, the inquiry ends and Shalit is not entitled to any relief. FN25 If Yarden's habitual residence was in Israel, the court must determine whether Coppe's retention of Yarden in Alaska was unlawful under Israeli law. A. Whether Habitual Residence Is Established 008 Habitual residence is an elastic standard. As one court recently observed in describing "habitual residence": The Convention does not define "habitual residence." The courts that have considered the matter in the last few years have determined a child's habitual residence on the basis of the peculiar facts and circumstances of the case at hand. Nevertheless, a consensus has emerged on some general principles. "Habitual residence" is not a technical term, like "domicile," and it should be understood as the child's "ordinary residence" at the relevant time. Moreover, in determining a child's habitual residence, "the court must focus on the child, not the parents, and examine past experience, not future intentions." An English court, frequently cited in American decisions, has said that for a particular place of residence to be considered habitual, "[t]here must be a degree of settled purpose.... All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." Whether a child's residence has become thus "settled" depends on "an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." FN26 009 The Restatement (Third) of Foreign Relations Law additionally offers some useful guidance: Habitual residence should be interpreted in light of the policy of deterring child-snatching. In general, a child is considered to have acquired a habitual residence in a state by living there for at least six months; residence in boarding schools, summer camps, and similar institutions away from home ordinarily is not "habitual residence." FN27 010 Here, Yarden lived in Israel by agreement of the parents for three years. He attended school in Israel. At times he left Israel for vacations with Coppe in Alaska and Florida. However, he always returned to Israel. Although, according to Coppe, it was anticipated Yarden would eventually be returned to Alaska, this does not affect his habitual residence. As one court commented: It does not matter that the United States was not intended to be the children's permanent residence, nor that it was intended when they came here that they were to return to Israel in 2000. What may happen in the future ordinarily has little, if any, relevance to whether the children have become so "settled" in their place of residence that it may fairly be described, in the present but by reference to the past, as their "habitual" residence. "The court must look back in time, not forward." FN28 011 Under the undisputed circumstances described above, Yarden's habitual residence was Israel in which he had a degree of settled purpose. FN29 The court therefore finds that Israel was Yarden's habitual residence. B. Whether Yarden Was Wrongfully Retained in Alaska 012 Yarden would be wrongfully retained in Alaska if Coppe kept him here before entry of a custody order. FN30 Custody rights are resolved by applying the law of the child's habitual residence. FN31 Shalit must establish Yarden was retained in Alaska in violation of Israeli law. This raises the issue whether Israel would recognize the custody order previously entered in Alaska. Although this court has found no authority directly on point, there is no reason to suppose that under the doctrine of comity Israel would not honor the custody order entered by the Superior Court. FN32 Shalit submitted as an exhibit extracts from what he describes as Israel's Capacity and Guardianship Law." Sections 24 and 25 of that Code recognize that courts have power to approve and determine guardianship. FN34 It therefore seems clear that Israel recognizes courts have power to determine custody. Israel is a signatory to the Convention, and the Convention declares one of its primary goals is to "ensure that rights of custody . . . under the law of one Contracting State are effectively respected in the other Contracting States." FN35 Accordingly, there is no reason in law or policy to conclude Israel would not honor the custody order in question. 013 In Meredith v. Meredith, FN36 the court denied a petition filed under circumstances similar to this case. In Meredith, the father secured an order from an Arizona state court awarding him legal custody of his daughter. A month later he regained physical custody of the child. Five months later the child's mother filed a petition alleging the child was wrongfully removed from England. The court noted the mother must establish lawful custody at the time of removal or retention in order to support her petition. FN37 The court then examined the underlying circumstances and found the mother's lawful custody had not been established, because the state court issued its order before the father had regained physical custody of the child. The court observed the custody order "was based on lawfiilly supported findings that Arizona had proper jurisdiction over the parties and that [the father] was entitled to custody [pursuant to the state court order]." FN38 014 This case is conceptually similar to Meredith. Alaska had proper jurisdiction over both Shalit and Coppe. A state court of competent jurisdiction entered a lawful custody order. The order was in place before Coppe retained Yarden in Alaska. Shalit participated in proceedings regarding the custody order and was duly represented. Shalit has not sought modification of the pre-existing custody order or visitation rights established by the custody order. The custody order remains valid. If necessary, Shalit may invoke the Convention to protect his visitation rights. FN39 015 Shalit raises two arguments opposed to the preceding analysis. First, Shalit contends that under the Convention a custody order does not preclude further inquiry into a child's custody status. Second, Shalit offers an affidavit discussed further below that contends Shalit has custody under Israeli law. 016 Regarding Shalit's first point, he correctly observes that the existence of a custody order does not, on its own, entitle Coppe to summary judgment. Article 17 of the Convention provides: The sole fact that a document relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. FN40 017 However, as explained in the legal analysis submitted to Congress, Article 17 is primarily concerned with preventing an abducting parent from securing a custody order after abduction but "before the court had notice of the wrongful removal or retention." FN41 The analysis observes: Even when custody rights are conferred by court decree, technically speaking the Convention does not mandate recognition and enforcement of that decree. Instead, it seeks only to restore the factual custody arrangements that existed prior to the wrongful removal or retention (which incidentally in many cases will be the same as those specified by court order). FN42 018 Here, the custody arrangement that existed prior to the allegedly wrongful removal or retention is the Superior Court's order. Recognizing and giving effect to that order simply restores the factual status quo. Furthermore, because wrongful retention only occurs when "it is in breach of rights of custody,"' the court must consider evidence defining those "rights of custody." FN43 This court's role is not to explore the underlying basis for custody, but simply to restore some degree of stability to the pre-existing custodial arrangement. FN44 Where, as here, a lawful custody order was entered with both parties subject to the court's jurisdiction and participating in the proceedings, this court should not ignore such an order . FN45 019 Concerning Shalit's second argument, he submits a legal opinion in the form of an affidavit from Mr. Shmuel Moran, FN46 and argues that Moran's opinion establishes he has rights of custody under Israeli law. FN47 As a preliminary point, the court notes Moran is Shalit's counsel in Israel who is representing him in proceedings filed there. FN48 Moran's legal conclusions should therefore be analyzed in light of his role as Shalit's advocate. Moran does not address any aspect of the choice of law question previously discussed. It is therefore unilluminating. Moran concludes the parties agreed to let Yarden live in Israel and that, therefore, under Israeli law this verbal agreement confers legal custody on Shalit. However, Moran's opinion is offered without benefit of Coppe's affidavit. Coppe contends the verbal agreement she made with Shalit provided that Yarden would only live in Israel for three years from the summer of 1995 until 1998. FN49 Shalit has not controverted Coppe's affidavit. Additionally, Moran's opinion addresses custody in the absence of a court order. But here a court order is in place. Finally, Moran's legal opinion is based on the assumption Shalit and Coppe made agreements regarding Yarden's custody. FN50 However, Shalit now argues that any verbal agreement the parties made regarding Yarden's custody should not be considered. FN51 Under these circumstances, Moran's opinion carries little, if any, persuasive force. 020 Shalit cannot establish as a matter of Israeli law that he enjoyed lawful rights of custody at the time of removal or retention. It follows that Shalit cannot establish Yarden was wrongfully retained in Alaska, and his petition fails. V. CONCLUSION 021 For the foregoing reasons, Coppe's motion at docket 8 is GRANTED, and Shalit's motion at docket 11 is DENIED. The petition is DISMISSED. The order at docket 2 is VACATED. DATED at Anchorage, Alaska, this 17Tth day November 1988. /s/ John W Sedwick ------------------------- JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE FOOTNOTES ------------------------- 1. Docket 1, exh. 6, at 3. 2. Id 3. Docket 8, exh, 1. 4. AS  22.10.020(a). 5. Docket 1, exh. 5. 6. Docket 8, exh. 2. 7. Coppe Affidavit,  3, at 2 (submitted as unmarked exhibit to motion at docket 8). 8. Petition, docket 1,  11, at 3; Answer to Petition, docket 7,  3, at 1. 9. Docket 1. 10. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 11. Id. at 323-325. 12. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9 (1986), 13. Id, at 255 14. Id, at 248-9. 15. Both the United States and Israel are signatories to the Convention. 16. Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). 17. Convention, art. 19. Mozes v. Mozes, _ F.Supp.2d ____ 1998 WL 514152, at *4 (C.D. Cal. 1998). 18. 51 Federal Register 10495 (March 26, 1986). 19. 42 U.S.C.  11601(b)(4). 20. 42 U.S.C.  11603(e). 21 42 U.S.C.  11603(f)(2). 22. 42 U.S.C.  11603(e)(1)(A). 23. Convention, art. 3. 24. Mozes v Mozes, __ F. Supp.2d ___, 1998 WL 514152, at *4 (C.D.Cal. 1998). 25. Id 26. Toren v. Toren, ___ F.Supp.2d ___, 1998 WL 756366, at *2 (D. Mass 1998)(citations omitted). 27. Restatement (Third) Foreign Relations Law,  485, comment c., at 621 (1987). 28. Toren, suora, ___ F.Supp.2d at ___, 1998 WL 756366, at *3 (citation omitted). 29. Wipranik v. Superior Court, 63 Cal.App.4th 315, 323, 73 Cal. Rptr. 2d 734. 73 9 (Cal.App. 1998) (child habitual resident of Israel where "child resided in Israel for three years, attended school there for two years, and had family and friends in Israel."). 30, 42 U.S.C.  11603(f)(2). 31. Meredith v. Meredith, 759 F.Supp. 1432, 1434 (D. Ariz. 1991). 32. At one time courts were reluctant to recognize custody orders from other states or foreign nations. Restatement (Second) Conflict of Laws,  79, cmt c, at 239-39 (1971). Within the United States. such issues are now resolved by statute. Id. at 78-81 (Supp. 1989). Regarding custody orders from foreign nations, the Restatement applies principles of comity and instructs such custody orders should be recognized provided adequate notice was given all concerned parties. Restatement (Third) Foreign Relations Law,  485, at 620 (1987). Courts now recognize foreign custody orders. Dixson v. Cantrell, 564 So.2d 1138, 1139 (Fla. App. 1990) (custody order from the Netherlands "entitled to recognition ... under the principle of comity."). 33. Docket 1, Exh. 3. 34. Docket 1, Exh. 3, at 4. 35. Convention, art. 1(b). 36. 759 F.Supp. 1432 (D. Ariz. 1991). 37. Id. at 1434. 38 Id. at 1435. 39. Convention, am 21. See also Letter of Submittal from Secretary of State to President, 51 Federal Register 10496-97 (March 26,1986) (for discussion regarding visitation rights). 40. Convention, art. 17. 41. 51 Federal Register at 10504. 42. 51 Federal Register at 10507. 43. Convention, art. 3. 44. Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). 45. Meredith, supra, 759 F.Supp. at 1435. 46. Docket 1, exh. 8. 47. Docket 11, at 6. 48. DoCket 1, Exh. 6, at 1. 49. Coppe Affidavit, submitted with motion at docket 8. 50. Docket 1, exh. 8, at 2-3. 51. Docket 11, at 13. =========================================================== COMMENT by Wm M Hilton The Disrtict Court states that ". . . If Yarden's habitual residence was in Israel, the court must determine whether Coppe's retention of Yarden in Alaska was unlawful under Israeli law . . ." This is an incorrect reading of Art. 3 which states: "(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;" All that is required is a showing that, under the Law of Israel, the father had a right of custody. No illegality of any sort is required. Whether Israel does or does not recognize the Alaskan custody order is not relevent. The issue is whether or not, under Israeli law, the father has a right of custody. The court then states that a principal purpose of The Convention is to restore the "factual status quo". The factual status quo was that the child's habitual residence was in Israel and that his father had de facto custody. What the court did here is restore the "legal" status quo and ignored the actual "factual" status quo. The argument that the court uses that Israel should recognize the Alaskan order as a matter of comity is, at best, speculation. In fact it is more likely than not that the Israeli courts (which regularly use and rely on English decisions) would follow the view of McKee v McKee [1951] AC 352, [1951] All ER 942, which held that it would be an abuse of discretion to enforce a foreign custody order without first holding a de novo best interest hearing. The court, while properly discounting the memorandum of law from Israel that held that the father had a right of custody, did not find that the father, under Israeli Law, had or had not a right of custody. The court merely held that the mother's custody order might be enforced in Israel, based on the U.S. theory of comity. That it was error for the court to have speculated that Israel might enforce the Alaskan order is even more evident by the terms of Art. 15 of The Convention: "The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination." What the court should have done is stay the proceedings and make an application to the Israeli Courts under Art. 15 to determine whether or not there was a wrongful retention by the mother.