Silverman v. Silverman

• Decision Date: 05 August 2003
• Docket Number: No. 02-2496.,02-2496.
• Parties: Robert Hechter SILVERMAN, Appellant, v. Julie Hechter SILVERMAN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

338 F.3d 886

Robert Hechter SILVERMAN, Appellant, v. Julie Hechter SILVERMAN, Appellee.

No. 02-2496.

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2003.

Filed: August 5, 2003.

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Susan A. McKay, argued, Edina, MN, for appellant.

M. Michael Baxter, argued, Lakeville, MN, for appellee.

Before LOKEN, Chief Judge, HEANEY, McMILLIAN, BOWMAN, WOLLMAN, BEAM, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, Circuit Judges.¹

BEAM, Circuit Judge, with whom LOKEN, Chief Judge, BOWMAN, WOLLMAN, MORRIS SHEPPARD ARNOLD, RILEY and SMITH, Circuit Judges, join.

Robert Silverman (Robert) appeals the district court's rulings on his claim under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), 19 I.L.M. 1501 (1980), as implemented by the United States in the International Child Abduction Remedies Act, 42 U.S.C. § 11601-11610 (ICARA). Because we find that the children's habitual residence was Israel at the time of their removal and that there is no grave risk of harm to the children if they are returned to Israel, we reverse the district court.

I. BACKGROUND

According to the facts found by the district court, Robert Silverman and Julie Hechter (Julie) met in Israel in 1988 and married in Seattle, Washington, in 1989. They moved throughout the United States and had two children, Sam and Jacob.² The family lived in Plymouth, Minnesota, until their move to Israel in late July of 1999.³ Both Robert and Julie testified in the district court that the move to Israel was Julie's idea and that she was the one pushing for the family to make the move. They sold their Minnesota home in January of 1999, Robert applied for and made Aliyah (immigration) to Israel,⁴ and the family moved all of their possessions and their family pets to Israel. While both Robert and Julie set the move up to be permanent, Julie stated in the district court that she was torn about the move, but went ahead with it as a final effort to reconcile the couple's failing marriage.⁵

Both Robert and Julie obtained employment in Israel. The family lived with relatives in Israel until November 1999, when they rented an apartment and signed a one-year lease. In October 1999, Julie flew to the United States to file for bankruptcy in Minnesota. Julie returned to Israel later that month to discover that Robert had obtained a Tzav Ikuv (restraining order), which prevented her from leaving Israel, and that he had put the children's passports and birth certificates in his father's safe deposit box. Robert told her at this point that he knew about the affair she had been having with a man from Massachusetts. Robert cancelled the restraining order on November 3, 1999, after they decided to try to reconcile their marriage. Robert testified in the district court that he would not have allowed Julie to leave Israel with the children at any point between October 1999 and June 2000. During this time, Julie stated that Robert threatened her, used force against her and attempted to coerce her.⁶ In January 2000, Julie and Robert returned to Minnesota without the children to complete bankruptcy proceedings and they both stated, under oath, that their permanent address was Plymouth, Minnesota. Both of them subsequently returned to Israel. In April 2000, Robert and Julie signed and filed a joint United States income tax form for 1999, which listed their address as Plymouth, Minnesota.

While in Israel, Sam enrolled in an elementary school and Jacob enrolled in preschool. They made friends, learned to speak Hebrew and did well in school. Sam participated in extracurricular activities at his school. During this time, Julie counseled with an Israeli attorney and was told she would probably not get custody of the children through the Israeli Rabbinical court if she separated from Robert in Israel.⁷ Robert found out about this discussion and filed for divorce in Rabbinical court. He later cancelled this proceeding.

At the end of June 2000, Robert allowed Julie to leave Israel with the two children for what she represented would be a summer trip to the United States. She purchased round-trip tickets with the return trip scheduled for August 30, 2000. At the airport before their departure, Robert threatened Julie, apparently because of his continuing concern that she would not return to Israel with the children, a fear soon realized. She testified that it was at that moment at the airport that she decided not to return to Israel. Julie filed for legal separation from Robert and for custody of the two children in Minnesota state court on August 10, 2000. Robert was served summons in Israel. Robert immediately moved for dismissal of the action, arguing that the state court lacked authority to hear the custody issues because there had not yet been the necessary determinations of "wrongful removal and retention" and "habitual residence" as mandated by the Hague Convention and ICARA, determinations designed to establish whether Israel or the United States had jurisdiction to hear a child custody case.⁸

The record reveals that on August 24, 2000, fourteen days after Julie's Minnesota action had been commenced, Robert filed in Israel a "Request for Return of Abducted Children" with the National Center for Missing and Exploited Children (NCMEC), pursuant to the Hague Convention. On September 22, 2000, a NCMEC agent contacted Robert's Israeli attorney and requested that the attorney obtain a determination from the Israeli courts as to whether Julie had wrongfully removed or retained the children within the meaning of the Hague Convention. Some time shortly thereafter, Robert filed a Hague Convention petition in Israel seeking such a determination. In addition to filing the Israeli action, Robert filed a Hague petition on October 5, 2000, in the United States District Court for the District of Minnesota seeking return of the children to Israel under the Convention. Julie was personally served summons in this matter on October 10, 2000.⁹ This filing and service preceded any determinations in the state custody matter. Indeed, it preceded the final order of the Minnesota trial court by almost seven months.

On October 17, 2000, although on notice of Robert's Hague filings,¹⁰ a state court referee issued an interlocutory administrative order granting Julie temporary custody of the children. Armed with this temporary order, Julie testified that in February 2001 she decided to move with the two children to Massachusetts to live with her paramour. They subsequently moved.

Within a month after the October 17, 2000, temporary order, upon the request of Julie, the district court dismissed the federal Hague claims on abstention grounds, Silverman v. Silverman, No. 00-2274 (D.Minn. Nov. 13, 2000), but we reversed and remanded the case for an evidentiary hearing, finding that abstention does not apply in Hague Convention cases. Silverman v. Silverman, 267 F.3d 788, 792 (8th Cir.2001). On November 16, 2000, while both the state custody and federal Hague matters were pending in various courts in the United States, the Israeli court ruled that Israel was the place of habitual residence of Sam and Jacob as defined in the Convention and that Julie's failure to return them to Israel was prima facie evidence of wrongful retention of the children in violation of the Convention.¹¹ A copy of this decision was furnished to the Israel Central Authority created by Articles 6 and 7 of the Hague Convention for use in the United States under the terms of Article 15 of the Convention.¹² On May 4 2001, the Minnesota trial court entered a final judgment awarding full child custody to Julie, child support from Robert and attorney fees to Julie. While this order specifically stated that the court was on notice of pending Hague Convention litigation, the court decided the custody issues anyway, applying only Minnesota law. The state court determined neither the "habitual residence" of the children nor the issue of "wrongful removal or retention" as required by and defined in the Hague Convention and ICARA. Indeed, it was not asked to do so. The court, in awarding Julie custody and child support, found that Minnesota was the children's "home state" as referenced in Minnesota Statutes § 518D.102. In section 518D.102(h), "home state" is defined as "the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence ... is part of the period." But, "state" is defined in the statute and includes only the fifty states, District of Columbia, Puerto Rico, Virgin Islands, and other United States territories and possessions. Thus, a determination of "home state" under the Minnesota statute is clearly not equivalent to a determination of "habitual residence" under the Hague Convention because under the Minnesota act, Israel could not have been determined to be the "home state" of the children.

No appeal was taken from the May 4, 2001, judgment but after the October 17, 2000, interlocutory order, Robert, on October 27, 2000, sought a writ of prohibition from the Minnesota Court of Appeals to restrain the implementation of the temporary ruling. Before this request was heard, however, the federal district court entered its abstention and dismissal order of November 13, 2000, an order later reversed by this court, as earlier noted. Without reviewing the Minnesota trial court order on the merits or considering any issues of federal law, including Hague Convention issues, the Minnesota Court of Appeals, using the federal court dismissal as a basis, denied the application for writ of prohibition as moot, indicating specifically that Robert was free to file a Hague petition in Hennepin County (Minnesota) Court. Silverman v. Silverman, Order C2-00-1879 (Minn.Ct.App., Nov. 21, 2000). So, to date,...