Toren v. Toren, 98-11302-GAO.
| Decision Date | 21 October 1998 |
| Docket Number | No. 98-11302-GAO.,98-11302-GAO. |
| Parties | Schlomo Daniel TOREN, Plaintiff, v. Rachael Elisabeth TOREN, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
O'TOOLE, District Judge.
Invoking the Court's jurisdiction under the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-10, the plaintiff Schlomo Daniel Toren (the "Father") seeks an order from this Court requiring his former wife, the defendant Rachael Elisabeth Toren (the "Mother"), to return the parties' two minor children from Massachusetts, where she and the children presently reside, to Israel, where he resides. ICARA implements the terms of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"), to which both the United States and Israel are signatory States. Because the Court concludes that the children were not "habitual residents" of Israel at the time of their allegedly wrongful retention in the United States by the Mother, neither the Convention nor ICARA applies. The Father's motion is therefore denied, and the action is dismissed.
The record presented by the parties establishes the following facts. The parties were married in Israel on August 22, 1988. Two children were born of their marriage: D'Vora, now eight years old, and Yael, now five. In December, 1994 the parties were divorced by a judgment of the Rabbinical District Court in Jerusalem. The divorce judgment incorporated the terms of the parties' separation agreement, which provided for joint legal custody of the children. The parties agreed, and the judgment ordered, that the children would reside in Israel for at least two years after the divorce. In 1996, the parties executed an amendment to their separation agreement that provided, among other things, that the children would live with the Mother in Massachusetts for a period of years, but not beyond July 21, 2000. The amended agreement further provided that the children would not stay in the United States or any other place outside of Israel after that date, and that they would study in Israel during the 2000-2001 school year. The amended agreement also specified the Father's visitation rights.
On July 1, 1997, the Mother filed a complaint in the Massachusetts Probate and Family Court seeking to modify the parties' agreement (and the Israeli judgment) by eliminating the requirement that the children eventually return to Israel and instead allowing them to remain indefinitely in the United States. The Probate Court granted the Mother temporary legal and physical custody of the children. The Father has appeared in that action, and it remains pending. On July 6, 1998, the plaintiff filed the present complaint, seeking an order requiring the immediate return of D'Vora and Yael to Israel. He alleges that since July 8, 1997, the defendant has interfered with his rights of access to the children in violation of the orders of the Israeli court and the parties' own agreements and that this interference amounts to a "wrongful retention" of the children within the meaning of Article 3 of the Convention, entitling him to relief.
In brief, 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 non-abducting parent." Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). For purposes of the Convention, an abduction may occur either by a physical removal of a child from one country to another, or by a refusal to return a child who is temporarily away from its home. The latter circumstance, referred to as a "retention" of the child away from its residence, is what the plaintiff asserts occurred in this case. Under Article 3 of the Convention, the retention of a child is wrongful if it is in breach of the rights of custody attributable to a person under the law of the state in which the child was an "habitual resident" immediately before the removal or retention, and if the person was exercising (or attempting to exercise) those custody rights at the time of the retention. Hague Convention, Art. 3; see Wanninger v. Wanninger, 850 F.Supp. 78, 80-81 (D.Mass.1994).
To demonstrate that the defendant's attempted retention of the children in the United States is wrongful, the plaintiff must first show that the Mother is retaining the children away from their "habitual residence" in Israel, where the Father was exercising his legally conferred custodial rights. See Zuker v. Andrews, 2 F.Supp.2d 134, 136 (D.Mass. 1998). See also Mozes v. Mozes, 19 F.Supp.2d 1108, 1112-13, 1998 WL 514152, at *4 (C.D.Cal.1998). Accordingly, the first critical determination upon which the plaintiff's claim for relief depends is whether the children's "habitual residence" was in Israel at the time of the Mother's allegedly wrongful retention of them in Massachusetts. Mozes, 19 F.Supp.2d 1108, 1112-13, 1998 WL 514152, at *4. The plaintiff bears the burden of proof as to this issue. 42 U.S.C. § 11603(e)(1)(A).
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. See Zuker, 2 F.Supp.2d at 137-38 (reviewing cases). Nevertheless, a consensus has emerged on some general principles. "Habitual residence" is not a technical term, like "domicile," Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993), and it should be understood as the child's "ordinary residence" at the relevant time. Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.1995). 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." Friedrich, 983...
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