Barzilay v. Barzilay

• Decision Date: 02 April 2010
• Docket Number: No. 09-2358.,09-2358.
• Citation: 600 F.3d 912
• Parties: Sagi BARZILAY, Plaintiff-Appellant, v. Tamar BARZILAY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

600 F.3d 912

Sagi BARZILAY, Plaintiff-Appellant, v. Tamar BARZILAY, Defendant-Appellee.

No. 09-2358.

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2010.

Filed: April 2, 2010.

COPYRIGHT MATERIAL OMITTED

Patricia Emily Apy, argued, Red Bank, NJ, for appellant.

Jonathan Daniel Marks, argued, Murray Aaron Marks, on the brief, St. Louis, MO, for appellee.

Before MURPHY and BYE, Circuit Judges, and STROM, District Judge.¹

MURPHY, Circuit Judge.

Sagi Barzilay appeals from the district court's² dismissal of his petition under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq., and the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). The petition claimed that Sagi's former wife, Tamar, had wrongfully retained their three children in Missouri, where they had lived since 2001, and sought an order compelling their relocation to Israel. We remanded to the district court for its consideration of the merits of the petition in Barzilay v. Barzilay, 536 F.3d 844, 853 (8th Cir.2008). The district court dismissed the petition after determining that the children's country of "habitual residence" within the meaning of the Hague Convention was the United States and that their retention in Missouri was therefore not wrongful. Sagi timely appealed, and we affirm.

I.

Sagi and Tamar, both Israeli citizens, were married in Israel in 1994.³ The eldest of their three children, born in Israel in 1996, is also an Israeli citizen. In 2001, Sagi and Tamar obtained American work visas through their employer and moved with their first child to Missouri from the Netherlands, where they had resided for approximately two years. The younger two Barzilay children were born in Missouri, in 2002 and 2004. They hold dual Israeli and American citizenship. Tamar and the children have resided in Missouri since 2001. The eldest child has not lived in Israel since her early years; the younger two have never lived there.

In January 2005 a Missouri state court dissolved Sagi and Tamar's marriage. The divorce decree awarded them joint physical and legal custody of the children and incorporated a written parenting plan. The parenting plan specified that Tamar would have "primary parental responsibility and physical custody" of the children. It also included the following provision (referred to below as the repatriation agreement):

In the event either party leaves Missouri to return to the State of Israel, and regardless of whether such move is voluntary or involuntary on her or his part, the other party shall forthwith take such steps to move back to Israel so that Husband and Wife and the children shall reside within the same country.

Sagi moved back to Israel in September 2005 and soon began pressuring Tamar to comply with the repatriation agreement. Tamar resisted committing to a definite timeline, but agreed to take the children to Israel for a summer visit in June 2006. She planned to return with them to Missouri on July 9.

While Tamar and the children were visiting Israel, Sagi sought and obtained an ex parte order from the family court in Kfar Saba prohibiting the removal of the children from the country. He argued that Tamar had violated the repatriation agreement by failing to make arrangements to move back to Israel with the children and sought to compel her compliance. At or about the same time, he filed a petition in the Kfar Saba court under the Hague Convention. Tamar retained Israeli counsel and, after intensive negotiations, the parties reached an agreement only hours before she and the children were to catch their flight back to Missouri. Sagi withdrew his pending claims, and the Kfar Saba court gave the parties' agreement (referred to here as the consent judgment) the "status of a verdict."

The consent judgment provided, inter alia, that Tamar and the children would repatriate to Israel by August 1, 2009 and that failing to do so could be "regarded as kidnapping as stated in The Hague treaty." It also provided that Tamar would not take any further action in the Missouri family court and that the "sole and only international authority in regards to the minors' immigration, repatriation and custody shall be the authority of the court in Kfar Saba."⁴

Tamar now asserts that her assent to the consent judgment was coerced, that she signed it only so she would be allowed to leave Israel with the children, and that she never intended to abide by its terms. Nor did she. Sagi therefore returned to the Kfar Saba court in December 2006, seeking an order of contempt because Tamar had refused to permit the children to visit Israel in accordance with the consent judgment. Tamar challenged the validity of the judgment, but the Kfar Saba court held her in contempt and its decision was affirmed on appeal.

Meanwhile, Tamar petitioned the Missouri court to remove the repatriation agreement from the original custody decree and limit Sagi's visitation rights. Sagi challenged the Missouri court's jurisdiction, but it nevertheless modified the custody decree in Tamar's favor.⁵

Sagi commenced this action by filing an ICARA petition in the district court in October 2007, claiming that Israel was the children's state of habitual residence within the meaning of the Hague Convention and seeking an order compelling them to move there. The district court determined that these claims had been raised in the Missouri court and therefore abstained from reaching the merits of the petition. We reversed, concluding that the Hague Convention issues had not been properly raised or fully addressed in the state court and that abstention was consequently inappropriate. See Barzilay, 536 F.3d at 852-53. We therefore remanded to the district court for consideration of the merits. After an evidentiary hearing and argument on the Hague Convention issues, the district court determined that the children's country of habitual residence was the United States. Because retention of a child in the state of its habitual residence is not wrongful under the Convention, it dismissed Sagi's petition.

Sagi timely appealed. His primary argument on appeal is that the repatriation agreement in the Missouri custody decree and the consent judgment from the Kfar Saba court conclusively establish that the children's state of habitual residence is Israel, and that the district court erred in failing to give effect to these agreements.

Determination of habitual residence under the Hague Convention raises mixed questions of law and fact, and we therefore review the district court's decision de novo. Sorenson v. Sorenson, 559 F.3d 871, 873 (8th Cir.2009) (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003) (en banc)). We defer to the district court's underlying factual findings, however, unless they are clearly erroneous. Id.

II.

A.

The Hague Convention, to which the United States and Israel are both signatories, was adopted to address the problem of child abduction by family members, which not infrequently occurs in connection with transnational custody disputes. The Convention's purpose is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence...." Convention on the Civil Aspects of International Child Abduction, Preamble, concluded Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 98. The Convention seeks to deter abduction by "depriving the abductor's actions of any practical or juridical consequences." Elisa Pérez-Vera, Explanatory Report, in 3 Hague Conference on Private Int'l Law, Acts and Documents of the Fourteenth Session, Child Abduction 426, 429 (1982) ("Pérez-Vera Report").⁶ It accomplishes this goal not by establishing any substantive law of custody, but rather by acting as a forum selection mechanism, operating on "the principle that the child's country of `habitual residence' is `best placed to decide upon questions of custody and access.'" Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 146 (2d Cir.2008) (quoting Pérez-Vera Report at 434-35). The purpose of proceedings under the Hague Convention is thus not to establish or enforce custody rights, but only "to `provide for a reasoned determination of where jurisdiction over a custody dispute is properly placed.'" Barzilay, 536 F.3d at 850 (quoting Yang v. Tsui, 416 F.3d 199, 203 (3d Cir.2005)).

In the United States, a person invokes the protections of the Convention by filing a petition in state or federal court under ICARA. 42 U.S.C. § 11603(a), (b) (2006). The court then "shall decide the case in accordance with the Convention." Id. § 11603(d). The petitioner bears the burden of proving "that the child has been wrongfully removed or retained within the meaning of the Convention." Id. § 11603(e)(1)(A).

"The key inquiry under the Convention is whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence." Barzilay, 536 F.3d at 847. According to the Convention,

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.

Hague Convention art. 3.

Thus, in order to determine whether an ICARA petition merits relief, "a court must ... determine when the removal or retention took place, what the habitual residence of the child was immediately prior to the removal, whether the removal or retention violated the petitioner's custody rights under the...