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In Toren v. Toren, 191 F.3d 23 (1st Cir. 1999),
Rachael and Shlomo Toren were married in Israel in 1988. Two children
were born of this marriage. In December 1994, the couple was 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 agreement
also provided that the children would continue to reside in Israel for
at least two years after the divorce. The parties amended their
separation agreement via a written agreement dated May 20, 1996. This
agreement was also approved by the Jerusalem District Court. The amended
agreement provided that the children will live with their mother in
Massachusetts for a period of years, but not beyond July 21, 2000. The
agreement further provided that the children will not stay in the United
States or any other place outside of Israel after that date, and that
they will study in Israel during the 2000-2001 school year.
The amended agreement altered the father's visitation rights.
Specifically, the agreement entitles the father to have the children
stay with him every summer, for a period of up to sixty-five days.
According to the agreement, the mother is solely responsible for all of
the children's travel expenses to and from Israel for these summer
visits. The agreement also entitled the father to have the children
visit him in Israel during their school vacations at Thanksgiving, at
the end of the secular year, and in the spring. In addition, if the
father travels to the United States, the agreement entitles him to visit
with the children, provided he gives advance notice to the mother. The
agreement clearly states that "the visitation according to this
agreement is subject to change by agreement of the sides," and that
"sole jurisdiction over matters connected with this agreement is with
the District Court in Jerusalem or in the Family Court, whatever
applies."
In July 1996, the mother and the children moved to Massachusetts. On
July 1, 1997, just prior to the father's scheduled visit with the
children in Massachusetts, the mother filed a "Verified Complaint for
Custody" in the Massachusetts Probate and Family Court, seeking to
modify the terms of the divorce judgment issued by the District Court of
Jerusalem.
On July 1, 1997, after a hearing ex parte, the probate court granted
the mother temporary sole physical and legal custody of the children,
and temporarily suspended the father's rights to visitation and access
to the children.
On July 10, 1997, the probate court issued a "Further Temporary
Order" ordering that the mother continue to have sole legal and physical
custody of the children, subject to the mother being required to submit
any and all significant issues relative to the children's medical care
and education to a guardian ad litem or mediator. The order further
stated that "[n]either party shall remove the children from the
Commonwealth of Massachusetts without the written permission of the
other party or of the Court." On the same day, both parties also
stipulated to a visitation schedule.
On October 21, 1997, the mother amended her complaint, making
substantially the same allegations but also seeking: (1) modification of
support orders of the Israeli courts, including those relating to the
cost of visitation; and (2) that "any related custody provisions and
orders (including the requirement for joint legal custody) ... be
modified by the Probate and Family Court of the Commonwealth of
Massachusetts in a manner consistent with the children's best
interests."
On July 6, 1998, the father filed an action in the United States
District Court, alleging that the mother's actions have amounted to a
"wrongful retention" of the children within the meaning of Article 3 of
the Hague Convention. In his complaint, the father requested an order
requiring the immediate return of his children from Massachusetts to
Israel. The mother denied that there had been any retention (or removal)
or any wrongful retention (or removal).
The district court found that the children were "habitual residents"
of the United States--and not Israel--at the time of any allegedly
wrongful retention by the mother.
The court then concluded that because the mother was not retaining
the children away from their "habitual residence," there was no
"wrongful retention" within the meaning of Article 3, and thus the
protections of the Hague Convention could not be invoked.
The district court determined that the father had failed to bring his
action within one year of the allegedly wrongful retention, and thus
Article 12 of the Hague Convention, barred his action. See Toren, 26
F.Supp.2d at 244. Accordingly, the district court denied the father's
petition, and dismissed the father's action with prejudice. This appeal
followed.
The First Circuit agreed with the district court that the father's
petition for an order requiring that the children be returned to Israel
should have been dismissed.
However, it disagreed with respect to the proper grounds for
dismissal. It concluded that the district court jumped the gun by
addressing the issue of the children's habitual residence prior to
making the threshold determination as to whether there had been any
retention of the children at all within the meaning of the Hague
Convention.
Neither the Hague Convention nor ICARA defines the terms "retention"
or "removal." The language and structure of Article 3 of the Hague
Convention indicate that there must be an initial determination as to
whether there has been a removal or retention before any inquiry can be
made into whether such removal or retention was wrongful. Article 3
reads: "The removal or the retention of a child is to be considered
wrongful where...." The structure of this Article clearly establishes
the proper order of inquiry: first, the court should inquire into
whether there has been any removal or retention at all; and second, the
court should inquire into whether such removal or retention has been
wrongful. The Court held that the father failed to allege facts
sufficient to set forth a claim that the Toren children had been removed
or retained within the meaning of the Hague Convention. Absent such a
showing, the district court should not have exercised jurisdiction over
the father's claim.
The Circuit Court of Appeals held that neither the mother nor any
court denied the father access to his children. Although the mother
filed a complaint in the Massachusetts Probate and Family Court seeking
to modify the parties' agreement with respect to custody, visitation,
and financial support, the father continued to possess and exercise
albeit limited rights of access to his children. The father may have
valid legal arguments as to why the Massachusetts court should not
exercise jurisdiction over the mother's claims. However, the state
court--and not this court--is the proper forum for those arguments. It
concluded that the father has failed to allege facts sufficient to state
a claim for retention or removal, let alone "wrongful" retention or
removal.
For this reason, the district court erred in proceeding directly to
an inquiry into "wrongfulness." Absent a threshold showing that there
has been a retention or removal, the district court lacked jurisdiction
to grant or deny the father's petition. It vacated the district court
opinion and dismissed for lack of jurisdiction.
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