Shalit v. Coppe

• Decision Date: 11 June 1999
• Docket Number: No. 99-35004,99-35004
• Citation: 182 F.3d 1124
• Parties: (9th Cir. 1999) HAIM SHALIT, Plaintiff-Appellant, v. CHERYL COPPE, a/k/a CHERYL GARDNER SHALIT, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1124

182 F.3d 1124 (9th Cir. 1999)

HAIM SHALIT, Plaintiff-Appellant, v. CHERYL COPPE, a/k/a CHERYL GARDNER SHALIT, Defendant-Appellee.

No. 99-35004

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 11, 1999--Seattle, Washington

Filed July 23, 1999

As Amended on Denial of Rehearing and Rehearing En Banc September 14, 1999

COUNSEL: Alison E. Mendel, Mendel & Huntington, Anchorage, Alaska, for the plaintiff-appellant.

Kenneth C. Kirk, Kirk & Robinson, Anchorage, Alaska, for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-98-00328-JWS

Before: Donald P. Lay,¹ Alfred T. Goodwin and M. Margaret McKeown, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

In this difficult case of first impression, we are called upon to decide whether the son of an American mother and an Israeli father must be returned to Israel on the alleged basis that the mother's retention of the child in Alaska was "wrongful" within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the "Hague Convention").

The parties, Haim Shalit and Cheryl Coppe, were divorced in Alaska in 1989. The Alaska state court granted the mother custody of their son, Yarden, with visitation rights for the father. On the basis of a subsequent oral agreement, in 1995 Yarden moved to Israel to live with his father on a temporary basis. At the end of what was expected to be a two-week vacation in 1998, Coppe kept Yarden in Alaska. Shalit filed a petition in federal district court in Alaska under the Hague Convention, claiming that Coppe wrongfully retained Yarden in violation of the Convention, and requesting that Yarden be returned to Israel for the Israeli courts to decide the merits of the custody dispute.

Upon consideration of the parties' cross-motions for summary judgment, the district court granted Coppe's motion for summary judgment, finding that Shalit failed to establish that Coppe's retention of Yarden was "wrongful" under the Hague Convention. We agree and affirm.

BACKGROUND

Shalit and Coppe married in 1985. In 1989, the Alaska Superior Court entered a decree of divorce, granting Coppe "sole legal and physical custody" of Yarden, then two years old. In 1992, the matter of custody was raised again; the state court ordered custody to remain with Coppe and set forth certain visitation provisions. Less than a year later, the parties reached a settlement regarding visitation details, including visitation with the father in Israel. The court adopted the settlement agreement nunc pro tunc and entered Findings of Fact and Conclusions of Law. The agreement provided that "[j]urisdiction of the courts of the State of Alaska shall be retained" and designated a specific state court judge to resolve "formal disputed issues."

In 1995, Shalit and Coppe orally agreed that Yarden would live with his father in Israel for three years so that Coppe could attend law school. This arrangement appeared to work satisfactorily for some time, with Coppe and Yarden visiting each other several times during those years, although Coppe did not remain in law school. Shalit and Coppe did not put the agreement in writing, did not amend the Alaska orders, and did not discuss a specific date when Yarden would return to his mother.

On August 2, 1998, Yarden traveled from Israel to Alaska to visit his mother, holding a round-trip ticket with a return date of August 19, 1998. During the stay, however, Coppe decided that she would not return Yarden to Israel, claiming alternately that she had concerns about his behavior and care and that the three-year agreement had expired. Yarden has since remained in Alaska.

After Shalit was notified that Yarden would not return to Israel, he commenced a custody proceeding in Israel (which apparently has not progressed beyond the initial filing), followed by the filing of a visitation modification proceeding in Alaska state court. The Alaska Superior Court denied him relief and Shalit then filed his petition in federal court under the Hague Convention. Upon consideration of cross-motions for summary judgment, including declarations and briefing from both parties, the district court found that Shalit had not established that Yarden was wrongfully retained in Alaska within the meaning of the Hague Convention and denied Shalit's petition.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998), and the denial of a motion for reconsideration for an abuse of discretion, Fireman's Fund Ins. Cos. v. Alaskan Pride Partnership, 106 F.3d 1465, 1470-71 (9th Cir. 1997). In a case brought under the Hague Convention, we review the district court's findings of fact for clear error and its conclusions about United States, foreign, and international law de novo. Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996) ("Friedrich II") (citing, e.g., Fed R. Civ. P. 44.1; EcheverriaHernandez v. INS, 923 F.2d 688, 692 (9th Cir. 1991) (question of international law reviewed de novo)).

DISCUSSION

Shalit's petition seeking Yarden's return is governed by the Hague Convention and its implementing legislation, the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. SS 11601-11610.

I. FRAMEWORK OF THE HAGUE CONVENTION

The Hague Convention, adopted in 1980, addressed the increasing problem of international child abduction in the context of international law while respecting rights of custody and visitation under national law. According to the Preamble, the Convention aims "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 . . . ." Hague Convention, Preamble, T.I.A.S. No. 11,670 at 4. The twin objectives of the Hague Convention are (1) "to secure the prompt return of children wrongfully removed [ ] or retained," and (2) "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Id., art. 1; see also In re Prevot, 59 F.3d 556, 558 (6th Cir. 1995).² One of the paramount purposes of the Hague Convention is to "restore the status quo and deter parents from crossing international borders in search of a more sympathetic court." See Nunez-Escudero v. TiceMenley, 58 F.3d 374, 376 (8th Cir. 1995).

Against this backdrop, Article 3 of the Hague Convention spells out the parameters for determining whether a child has been wrongfully removed or retained. Removal or retention of a child is wrongful where:

a. it is in breach of rights of custody attributed to a person . . . 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, T.I.A.S. No. 11,670 at 4. Because the language of the Convention is somewhat conclusory, United States courts look to two sources of official commentary for guidance: (1) the Explanatory Report by Elisa PerezVera, the official Hague Conference reporter (the "Perez-Vera Report"),3 and (2) the Legal Analysis of the Hague Convention on the Civil Aspects of International Child Abduction ("Legal Analysis") found in the Federal Register. 51 Fed. Reg. 10503 (1986).⁴ As the Legal Analysis notes:

[The Perez-Verez] explanatory report is recognized by the Conference as the official history and com mentary on the Convention and is a source of back ground on the meaning of the provisions of the Convention available to all States becoming parties to it.

Id.

We underscore that the Hague Convention analysis is not a determination of custody rights. Under Article 19 of the Hague Convention and 42 U.S.C. S 11601(b)(4),"a United States district court has authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim." See, e.g., Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) ("Friedrich I") (citing 42 U.S.C. S 11601(b)(4)) (emphasis added). The court is to determine only whether the removal or retention of a child was "wrongful" under the law of the child's "habitual residence," and if so, to order the return of the child to the place of "habitual residence" for the court there to decide the merits of the custody dispute, unless the alleged abductor can establish one of a few defenses. See, e.g., Ohlander v. Larson, 114 F.3d 1531, 1534, 1541 (10th Cir. 1997), cert. denied ,__ U.S. ___, 118 S. Ct. 702, ___L.Ed.2d ___(1998); Friedrich II, 78 F.3d at 1067. The Legal Analysis states the proposition clearly:

The obligation to return an abducted child to the per son entitled to custody arises only if the removal or the retention is wrongful within the meaning of the Convention.

51 Fed. Reg. at 10506.

II. SHALIT'S PETITION AT SUMMARY JUDGMENT

In his petition, Shalit alleged that Yarden must be returned to Israel because Coppe's retention of Yarden was "wrongful" under Article 3 of the Hague Convention. Shalit had the burden of proving by a preponderance of the evidence that (1) Coppe retained Yarden away from his "habitual residence," and (2) Coppe's retention of Yarden was in breach of Shalit's rights of custody under the law of Yarden's habitual residence. See, e.g., 42 U.S.C. S 11603(e)(1); Friedrich I, 983 F.2d at 1400. The district court correctly found that Israel was Yarden's habitual residence at the time of the allegedly wrongful retention, a finding which the parties do not seriously challenge.⁵ Accordingly, we need only address the wrongful retention issue.

The question we face is whether Coppe's retention of Yarden was "wro...