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Monday, September 15, 2008

Eighth Circuit Concludes Abstention Inappropriate in Hague Convention Cases.

In Barzilay v Barzilay, 536 F.3d 844 (8th Cir. 2008) Sagi and Tamar Barzilay were both Israeli citizens. They had three children, all of whom were Israeli citizens. None of the children lived in Israel for an extended period of time. In 2001 the family moved to Missouri from the Netherlands, and Tamar and the children lived there since that time. On January 6, 2005 a Missouri state court entered a divorce decree in accordance with an agreement reached by the parties. It established joint custody of the children. In the decree the parties agreed that upon the repatriation of one parent to Israel, the other parent would "forthwith" return to Israel with the minor children to live. On September 15, 2005 Sagi repatriated to Israel, but Tamar and the children remained in Missouri. In June 2006 Tamar took the children to Israel for a visit, intending to return to the United States on July 9, 2006. On July 3, 2006 Sagi filed an ex parte request for stay of exit of minors in the family court of K'far Saba, Israel and argued that Tamar had violated the Missouri court decree by failing to repatriate to Israel with the children. The parties entered into a consent agreement in which Tamar agreed to an interim international parenting agreement pending her repatriation to Israel consistent with the Missouri divorce decree and to repatriate to Israel with the children by August 1, 2009. The parties agreed, among other things, that Tamar's repatriation by the appointed date was an "irrevocable commitment" and that the "sole and only international authority in regards to the minors' immigration, repatriation and custody" was the court in K'far Saba. The consent agreement was formalized in a verdict of the Israeli court. Tamar testified in an affidavit submitted to the federal district court that she only signed the Israeli consent agreement so that she would be permitted to leave the country with the children and that she had no intention of complying with its terms. On December 3, 2006, Sagi sued Tamar in the Israeli court, on the grounds that she had not complied with the consent decree by refusing to permit the children to visit Israel as agreed upon in the consent agreement. On July 3, 2007, the Israeli court issued a judgment holding Tamar in contempt of court for failing to return the children to Israel for a visit as required under the agreement and ordered her to do so by July 10, 2007. She appealed, but the lower court was affirmed on November 26, 2007. Meanwhile on June 6, 2007, Tamar filed a petition in Missouri state court to modify the couple's divorce decree to restrict Sagi's visitation rights with the children and a month later she moved for a temporary restraining order to prevent the enforcement of the Israeli judgment requiring her to send the children to Israel by July 10. Sagi entered an appearance for limited purpose in state court to challenge its jurisdiction, but at no time did he file a Hague petition there. On October 16, 2007, the state court issued an order denying Sagi's motion to dismiss or in the alternative to decline jurisdiction. In its two page order the court stated that "[t]he mere presence of the minor children on vacation in Israel is insufficient to establish a 'habitual presence' [under ICARA]." Sagi filed suit in the Eastern District of Missouri on October 18, 2007, seeking immediate access to the children and their return to Israel under ICARA.3(b). The district court abstained from hearing the case pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971 to avoid interfering with a state court ruling on what it considered the merits of a Hague Convention claim.
The Eighth Circuit reversed. It pointed out that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). However, the Supreme Court has articulated several abstention doctrines as exceptions to this rule, one of which is the Younger doctrine. In order for a federal court to abstain under the Younger doctrine there must be an ongoing state proceeding which implicates important state interests and which affords an adequate opportunity to raise the federal issues. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Silverman I, 267 F.3d at 792. It noted that the Hague Convention requires that state court custody proceedings be stayed until the resolution of the Hague litigation. ("[T]he judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention.") Yang v. Tsui, 416 F.3d 199, 201 (3d Cir.2005). It is consistent with this purpose that it is the custody determination, not the Hague Convention Petition, that should be held in abeyance if proceedings are going forward in both state and federal courts." The pendency of state custody proceedings does not support Younger abstention in the Hague Convention context. Moreover, given that Sagi obtained a custody determination from an Israeli court and Tamar obtained a custody determination from a state court in this country, the federal district court was uniquely situated to adjudicate the question of whether Israel or Missouri was the habitual residence of the Barzilay children and whether they were wrongfully removed from that residence. Although the state clearly has an important interest in child custody matters, that interest has not been considered to be a significant factor in terms of abstention where ICARA is involved. See Yang, 416 F.3d at 204 ("It would make the Hague Convention and ICARA meaningless if a federal court abstained in a Hague Convention Petition because child custody was being disputed in state court."). The Court found that the state court proceedings did not afford Sagi an adequate opportunity to raise the Hague Convention issues. The controlling case in the Eighth Circuit was Silverman I, which concluded that abstention was inappropriate in Hague Convention cases. 267 F.3d at 792. The district court sought to distinguish Silverman I, citing the Third Circuit's decision in Yang which recognized situations in which the Hague Convention issues could be litigated in state court. The Eighth Circuit noted that it is the "petitioner [who] is free to choose between state or federal court." Yang, 416 F.3d at 203. Neither Tamar nor Sagi filed a Hague petition in state court. Tamar merely referenced the Hague Convention twice, in her motion to modify the divorce decree, and in her motion for a temporary restraining order. At no time did Tamar file a Hague petition in the Missouri court. She did not request the state court to make a habitual residence determination under the Hague Convention. She did not allege or ask the state court to rule that Sagi had wrongfully removed the children to Israel or wrongfully retained them there. Sagi's special appearance in Missouri was for the "limited purpose of opposing [the state court's] jurisdiction." Sagi restricted his state court arguments to jurisdictional issues. He never raised the Hague Convention before the state court except to contest its exercise of jurisdiction. Sagi never engaged in an argument in the state court on the merits of the Hague Convention considerations--habitual residence and wrongful removal. Rather, he informed the state court that he intended to file a Hague petition in federal district court to litigate the merits of the Hague issues in that forum. Because neither parent filed a Hague petition in state court, the Eighth Circuit concluded that the Hague Convention issues were not properly or fully raised in that proceeding. The parties did not litigate the merits of such issues, and any statement by the state court touching on an issue under the Hague Convention inquiry is not controlling. It is "the petitioner [who] is free to choose between state or federal court," Yang, 416 F.3d at 203, and in the absence of a Hague petition the state court proceeding did not present an adequate opportunity to litigate ICARA issues. It was therefore an abuse of discretion for the district court to abstain.

Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceedings

Domestic Relations Law § 240, subdivision 1 (a) was amended to provide that a good faith allegation of abuse cannot be held against the accuser in child custody proceedings. The amendment to the statute is intended to ensure that the accuser engaging in a good faith effort to protect or seek treatment for the child due to the child abuse or neglect cannot have these actions used against them when determining custody or visitation. If a parent makes a good faith allegation based on a reasonable belief which is supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent may not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court must consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. Laws of 2008, Ch 538, effective September 4, 2008.

Saturday, August 23, 2008

CPLR 5241 Amended. New Proceeding No Longer Necessary to Assert Mistake of Fact

Until now, New York law required that where an income execution is served on a debtor, the debtor had 15 days to reply and, where the income execution contained an error as defined in CPLR 5241(a)(8), to bring a petition under CPLR Article 4 for mistake of fact. The CPLR Advisory Committee believed that it should not be necessary that a new proceeding be brought to challenge an error in an income execution and recommended removal of the burden of commencing a new, separate, enforcement proceeding, together with payment of a new index number fee and fee for a request for judicial intervention, solely to correct the error. The last sentence in CPLR 5241(e) was amended to require that, in actions to enforce a money judgment, applications to assert a mistake of fact in Supreme Court be made by order to show cause or motion on notice to the creditor in the same action in which the order or judgment sought to be enforced was entered. This petition is in aid of a court order, i.e., either a Supreme Court order in a matrimonial proceeding or a Family Court order in a support proceeding. Laws of 2008, Ch 94, effective May 27, 2008.

Sunday, August 17, 2008

Seventh Circuit Holds That by Virtue of Doctrines of Patria Potestas and Ne Exeat, Venezuelan Father Had "Rights of Custody"

In Vale v. Avila, 2008 U.S. App. Lexis 17068 (7 Cir. 2008) the parties, Venezuelan citizens, were married in Venezuela in 1999 and the following year Avila gave birth to twins. She met an American man on the Internet and in 2005 the parties divorced by mutual agreement. The divorce decree gave Avila physical custody of the children but gave both parents the right (and duty) of patria potestas. That is Latin for "paternal power," and in Venezuela, it is defined (so far as bears on this case) as "all the duties and rights of the parents in relationship to their children who have not reached majority, regarding the care, development and education of their children." Ley Organica para la Proteccion del Nino y del Adolescente [Organic Law for the Protection of Children and Adolescents], tit. IV, ch. 2, § 1, art. 347. The duties and rights "include the physical custody, representation and administration of the property of the minor child(ren) subject to such authority." Id., art. 348. The divorce decree also gave Vale unlimited visitation rights, custody of the children for two weekends a month, and the right of ne exeat, another civil law doctrine, whereby his consent was required before the children could leave the country. Id., § 5, art. 392. The following year, Avila asked Vale for his consent to her taking the children with her to attend a wedding in Florida. She told him they'd be gone from Venezuela for only five days. She lied. She moved to the United States with the children in order to marry the man she had met through the Internet. Vale agreed to let her take the kids to Florida for the wedding. She took them to Peoria, Illinois, and married her Internet pal. Vale filed a petition for the children's return under the Hague Convention. The district judge conducted an evidentiary hearing. After the hearing the parties agreed that the children be allowed to stay in the United States but spend every summer, every spring vacation, and every other Christmas vacation with their father in Venezuela, and that because Vale (who has a serious disability) has a low income, while Avila's new husband has (he said) an income of between $ 100,000 and $ 150,000 a year, Avila with his help would pay the children's travel expenses. The parties signed an agreement containing these terms. A provision captioned "resumption of Hague proceedings" states that if Avila fails to comply with the terms of the agreement, Vale "can refile a Hague Petition in either State or Federal court in the United States to seek the return of the children." The settlement agreement provided that the children's habitual residence was now Illinois and that Vale would dismiss his suit, which he did. Avila submitted a copy of the agreement to an Illinois court, which issued an uncontested judgment declaring in accordance with the agreement that the children were now habitual residents of Illinois. Avila did not comply with the duties that the settlement agreement placed on her, and so this year Vale returned to the federal district court in which he had filed his Hague Convention petition and moved the judge to set aside the judgment dismissing his suit, on the ground that the judgment had been procured by fraud, and to reinstate the suit. Fed. R. Civ. P. 60(b)(3). The judge conducted an evidentiary hearing at the conclusion of which he set aside the judgment. The judge proceeded to the merits of Vale's petition for the return of the children under the Hague Convention, conducted an evidentiary hearing, and concluded that the removal of the children to the United States had indeed violated the father's "rights of custody." He ordered the children sent to Vale in Venezuela, precipitating this appeal by Avila. The Seventh Circuit rejected Avilla’s argument that the District Court no longer had jurisdiction. It held that Rule 60(b) has the force of a federal statute, and federal statutes override conflicting state law. A federal court can set aside a judgment by it that was procured by fraud, and the effect is to reinstate the proceeding that the judgment had concluded. The Court then held that Avila's removal of the children to Illinois violated Vale's "rights of custody" under Venezuelan law and was therefore in violation of the Hague Convention, since before she removed them to the United States, Venezuela was their habitual residence. It indicated that the Convention does not speak simply of "custody," but of "rights of custody," and these are broadly defined to include "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." The enumeration is not necessarily exhaustive. By virtue of the doctrine of patria potestas, Vale, the father, had rights relating to the care of the person of the child, and, by virtue both of that doctrine and by virtue of the doctrine of ne exeat, the right to determine that the child's place of residence would remain Venezuela rather than the United States. The Court pointed out that no more is necessary to establish that Vale had "rights of custody," which Avila infringed. (Citing Furnes v. Reeves, 362 F.3d 702, 714-16 (11th Cir. 2004); Whallon v. Lynn, 230 F.3d 450, 458-59 (1st Cir. 2000); In re B. del C.S.B., 525 F. Supp. 2d 1182, 1196 (C.D. Cal. 2007); Garcia v. Angarita, 440 F. Supp. 2d 1364, 1378-79 (S.D. Fla. 2006); Gil v. Rodriguez, 184 F. Supp. 2d 1221, 1225 (M.D. Fla. 2002). The Court noted that several cases, (Villegas Duran v. Arribada Beaumont, Nos. 02-55079, 02-55120, 2008 WL 2780656, at *4 (2d Cir. July 18, 2008); Fawcett v. McRoberts, 326 F.3d 491, 499-500 (4th Cir. 2003), [*12] and Croll v. Croll, 229 F.3d 133, 138-41 (2d Cir. 2000) hold that the doctrine of ne exeat does not create a right of custody, reasoning that if it did the effect would be to send the child to a parent who did not have custodial rights but merely a right to prevent the child from being removed to another jurisdiction. The Court specifically stated that it need not decide whether the doctrine of ne exeat creates custody rights, for in none of the cases that answer the question in the negative did the plaintiff also have the right of patria potestas. Only Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002), was cited for the proposition that patria potestas does not confer a custody right, and all that case actually holds, besides that the doctrine of ne exeat does not by itself create a right of custody, is that patria potestas is a default doctrine and does not override rights conferred by a valid custody agreement between the parents. The father in Gonzales had access rights as well as ne exeat, but not patria potestas. There was no such override here. The divorce decree gave Avila physical custody of the children subject to Vale's right of patria potestas. It provided: "The Father and the Mother shall both EXERCISE THE PATRIA POTESTAS over our children as we have been doing and as established by the Law. The aforementioned children shall remain under the Guard of the mother, with whom they are currently living." The Court concluded that when the parent who does not receive physical custody is given the rights and duties of patria potestas, he has custody rights within the meaning of the Hague Convention.

DRL 111-c Added to Grant Foreign Adoptions Full Faith and Credit in New York State

Section 111-c was added to the Domestic Relations Law. It provides the same rights to foreign adoptions as adoptions in New York State, provided that either adopting parent is a resident of this state and the validity of the foreign adoption has been verified by the granting of an IR-3 immigrant visa, or a successor immigrant visa, for the child by the United States Citizenship and Immigration Services. It grants foreign adoptions full faith and credit by the courts of New York State and provides that they shall be enforced as if the order were rendered by a court within New York, unless the foreign country violates the fundamental principles of human rights. No action is required. An adoption is considered "final" under the laws of New York state upon either adopting parent being a resident of this state and the granting of an IR-3 immigrant visa, or a successor immigrant visa. However, either adoptive parent or a guardian or a guardian ad litem may register the order in this state with the judge or surrogate of the county in which the adoptive parent or parents reside. It appears that a petition must be filed to register the foreign adoption order. If the court finds that the foreign adoption order meets complies with this section, the court must issue an order of adoption to the party who has petitioned for such an order and upon registration a birth certificate shall be issued. Laws of 2008, Ch 329, §1, effective October 19, 2008.