Velozny on behalf of R.V. v. Velozny

• Decision Date: 22 July 2021
• Docket Number: 20 Civ. 6659 (GBD)
• Citation: 550 F.Supp.3d 4
• Parties: Nir VELOZNY, ON BEHALF OF the minor children R.V., N.V., and E.V., Petitioner, v. Tal VELOZNY, Respondent.
• Court: U.S. District Court — Southern District of New York

550 F.Supp.3d 4

Nir VELOZNY, ON BEHALF OF the minor children R.V., N.V., and E.V., Petitioner,

v.Tal VELOZNY, Respondent.

20 Civ. 6659 (GBD)

United States District Court, S.D. New York.

Signed July 22, 2021

Marisa A. Marinelli, John M. Toriello, Holland & Knight LLP, Qian Shen, Stosh Michael Silivos, Holland & Knight LLP, Micheal Bradley Eisenberg, Steptoe & Johnson LLP, New York, NY, for Petitioner.

Michael Banuchis, Nancy M. Green, Richard Min, Burger Green & Min LLP, New York, NY, Robert David Arenstein, for Respondent.

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, District Judge:

Petitioner Nir Velozny, an Israeli citizen, petitions this Court for the return of his children, R.V., N.V., and E.V., ages 15, 12, and 4, respectively, to Israel pursuant to the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89 ("Hague Convention") and its domestic implementing legislation, the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. ("ICARA"). Petitioner moved for summary judgment, arguing that the children were wrongfully removed and are being wrongfully retained in the United States by their mother, Respondent Tal Velozny, who currently resides in New York. (Petr.’s Mot. for Summ. J. ("Petr.’s Mot."), ECF No. 38.) Respondent opposes Petitioner's motion and asserts several affirmative defenses under the Hague Convention. (Respt.’s Opp'n to Petr.’s Mot. for Summ. J. ("Respt.’s Opp'n"), ECF No. 53.) Petitioner's motion for summary judgment is GRANTED. As a result, Petitioner's petition for the repatriation of the children to Israel is GRANTED.

I. FACTUAL BACKGROUND

As with most Hague Convention cases, this case arises out of marital strife. Petitioner, Nir Velozny, is an Israeli citizen who currently resides in Israel. (May 25 Hr'g Tr. at 2:18-3:24.) Respondent, Tal Velozny, a U.S. citizen, is Petitioner's wife and currently lives in New York. (Id. at 152:17-19; 153:24-25.) The couple first met in 2001, were married in 2002 (in both the United States and Israel), and moved to Israel in 2005. (Id. at 153:11-12; 156:25-157:8.) The couple has three minor children: R.V., N.V., and E.V, all of whom were born in Israel. (Respt.’s Response to Petr.’s Local Rule 56.1 Statement ("Respt.’s Rule 56.1 Stmt."), ECF No. 55 at ¶¶ 2, 3.) Petitioner and Respondent shared a home in Tel Aviv with their children until approximately July 2019. (Id. at ¶ 7.) Around that time, Petitioner moved out of the family home and informed Respondent that he wanted a divorce. (Id. at ¶¶ 6, 9.)

In August 2019, Petitioner filed a petition with the State of Israel Rabbinical Courts to initiate a divorce proceeding. (Id. at ¶ 10.) An initial divorce proceeding before Israel's Rabbinical Court was scheduled for October 2, 2019. (Id. at ¶ 11.) The parties, through counsel, began negotiating a divorce and custody agreement and counsel held two meetings in August. (Id. at ¶ 12.) After one meeting, Petitioner's Israeli counsel instructed Respondent's Israeli counsel that the children were not to leave Israel without Petitioner's consent.

(Id. at ¶ 13.) The parties never executed the divorce and custody agreement.

On September 28, 2019, just days before they were to appear before the Rabbinical Court, Respondent booked a round-trip ticket for her and the children from Tel Aviv to the United States. (Id. at ¶ 16.) Respondent left in secret, never informing Petitioner that she was moving the children to New York. (Id. at 17; June 1 Hr'g Tr. at 291:17-19.) Nor did she tell the children that they were going to stay in the United States. (June 1 Hr'g Tr. at 291:20-22.) Petitioner discovered that Respondent and the children had left Israel when he went to the family home on September 28^th to check in with the children before the start of Rosh Hashana and found it dark. (Respt.’s Rule 56.1 Stmt. at ¶ 18.) Petitioner went to Respondent's parent's home where he was told by the doorman that Petitioner had left for the airport. (Id. ) Petitioner next went to the police station, where the police confirmed that Respondent and the children had left Israel. (Id. ) Respondent and the children have remained in New York (and not returned to Israel) since September 2019. (Id. at ¶ 19.)

II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). "An issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Gayle v. Gonyea , 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is material when it "might affect the outcome of the suit under the governing law." Gayle , 313 F.3d at 682 (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ) (internal quotation marks omitted).

The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, Inc. v. Simon , 310 F.3d 280, 286 (2d Cir. 2002). In turn, to defeat a motion for summary judgment, the opposing party must raise a genuine issue of material fact. See Caldarola v. Calabrese , 298 F.3d 156, 160 (2d Cir. 2002). To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts," id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ), and it "may not rely on conclusory allegations or unsubstantiated speculation," Fujitsu Ltd. v. Fed. Express Corp. , 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas , 143 F.3d 105, 114 (2d Cir. 1998) ) (internal quotation marks omitted). Rather, the opposing party must produce admissible evidence that supports its pleadings. See First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 289–90, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). In this regard, "[t]he ‘mere existence of a scintilla of evidence’ supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem., Inc. , 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).

In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the opposing party and draw all inferences in that party's favor. See id. However, "a court must not weigh the evidence, or assess the credibility of witnesses, or resolve issues of fact." Victory v. Pataki , 814 F.3d 47, 59 (2d Cir. 2016) (citation and internal quotation marks omitted). Summary judgment is therefore "improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel , 310 F.3d at 286.

III. PETITIONER HAS ESTABLISHED A PRIMA FACIE CASE UNDER THE HAGUE CONVENTION

The Hague Convention was adopted "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. The Convention was enacted "in response to the problem of international child abductions during domestic disputes," Abbott v. Abbott , 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), and the drafters of the Convention "were particularly concerned by the practice in which a family member would remove a child to jurisdictions more favorable to his or her custody claims in order to obtain a right of custody from the authorities of the country to which the child had been taken." Mota v. Castillo , 692 F.3d 108, 112 (2d Cir. 2012) (internal quotation marks omitted). Given these concerns, the Convention seeks to restore the status quo by securing "the prompt return of children wrongfully removed or retained" in any signatory state. Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, Acts and Documents of the 14th Session, vol. III 426, 429, ¶ 16 (1982) (the "Pérez-Vera Report"). Israel and the United States have been treaty partners under the Convention since December 1, 1990. See https://il.usembassy.gov/u-s-citizen-services/international-parental-child-abduction/.

A court considering a Hague Convention petition has jurisdiction only over the wrongful removal or retention claim and cannot consider the merits of any underlying custody disputes. See Hague Convention, art. 16. "[T]he Convention's focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings." Mota , 692 F.3d at 112 ; see 22 U.S.C. § 9001(b)(4) (providing that a court may only determine rights under the Convention, not the merits of custody disputes). Thus, a court's inquiry in a Hague Convention case is not " ‘the best interests of the child,’ as it is in a state custody case; rather it is the specific claims and defenses under the Convention." Hazbun Escaf v. Rodriquez , 200 F.Supp.2d 603, 610–11 (E.D. Va. 2002).

A person may exercise their rights under the Hague Convention by filing a petition in a court "authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." 22 U.S.C § 9003(b). Article 3 of the Hague Convention states that the "removal or retention of a child is to be considered wrongful where [(a)] it is in breach of the 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 a 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, for a petitioner to prevail on a claim under the Hague...