In Silverman v Silverman, 338 F.3d 886 (8th
Cir, 2003) the father brought action against the mother, under the
International Child Abduction Remedies Act (ICARA). The United States
District Court granted judgment for the mother. The Court of Appeals
reversed, holding that the "habitual residence" of children changed from
Minnesota to Israel and the mother failed to show that Israel was "zone
of war."
Robert Silverman
and Julie Hechter (Julie) met in Israel in 1988 and married in Seattle,
Washington, in 1989. They had two children. The family lived in
Plymouth, Minnesota, until their move to Israel in July of 1999. The 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, 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. 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.
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. 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.
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.
On October 17, 2000, although on notice of Robert's
Hague filings, a state court referee issued an interlocutory
administrative order granting Julie temporary custody of the children.
In February 2001 she decided to move with the two children to
Massachusetts to live with her paramour. They subsequently moved.
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. 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. 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 court pointed out that
"A court may get notice of a wrongful removal or retention in some
manner other than the filing of a petition for return, for instance ...
from the aggrieved party (either directly or through counsel) ...." 51
Fed.Reg. 10494(III)(H) (Mar. 26, 1986)
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.
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
On May 9, 2002, the federal district court ruled in
favor of Julie on Robert's Hague Convention claim, finding that
Minnesota was the "habitual residence" of the children
and, alternatively, that even if
Israel was their habitual residence, that there was a grave risk in
returning the children to Israel under the Article 13(b) exception to
the Convention. Robert appealed.
The Circuit court found that the habitual residence of
the children had never changed to Israel, but remained in Minnesota the
entire time. It held that wrongful removal from a country does not
change a child's Hague Convention habitual residence. Therefore, if the
children's habitual residence changed when they moved to Israel, it did
not change back when Julie removed them back to Minnesota.
It concluded that the Rooker- Feldman doctrine did not
divest the lower federal courts of subject matter jurisdiction to
consider and review the Hague Convention and ICARA controversies raised
by Robert in the federal district court. This doctrine holds that the
inferior federal courts lack jurisdiction to review a state court's
final judicial determination. "Under the legislation of Congress, no
court of the United States other than [the Supreme] court [can]
entertain a proceeding to reverse or modify the [state court] judgment
....
It was also probable that the state judgment of May 4,
2001, was of dubious validity because the November 16, 2000, Israeli
court order, finding both habitual residence of the children in Israel
and wrongful removal of the children from Israel, was enforceable in the
United States under the treaty and ICARA. The Israeli order directed the
filing of a copy of the order with the Central Agency of Israel for use
in the United States under Article 15 of the treaty. Upon such a finding
and filing, Article 16 of the Convention specifically precluded
Minnesota from determining custody issues involving these children.
The court articulated that the standard of review for
habitual residence determinations under the Hague Convention raise mixed
questions of fact and law and therefore should be reviewed de novo.
Julie conceded that she retained the children in the
United States without Robert's permission and that Robert was
exercising, and would have continued to exercise, his custody rights in
Israel except for the removal. She argued, however, that the removal was
not from the country of the children's "habitual residence," thus the
Hague Convention does not apply. The district court agreed with her
contention.
It stated that "Habitual residence" is not defined in
the language of the Hague Convention or by ICARA. However, the text of
the Convention directs courts to only one point in time in determining
habitual residence: the point in time "immediately before the removal or
retention." Additionally, the text of the Convention points to the
child's, not the parents', habitual residence. A person may have only
one habitual residence, and it should not be confused with domicile.
Federal courts are agreed that "habitual residence" must encompass
some form of "settled purpose."
This settled purpose need not be to stay in a new location forever, but
the family must have a "sufficient degree of continuity to be properly
described as settled." Additionally, the settled purpose must be from
the child's perspective, although parental intent is also taken into
account.
The Court of Appeals held that the District court should
have looked at the habitual residence of the Silverman children at the
time Julie removed them from Israel, keeping in mind that they could
only have one habitual residence. The court should have determined the
degree of settled purpose from the children's perspective, including the
family's change in geography along with their personal possessions and
pets, the passage of time, the family abandoning its prior residence and
selling the house, the application for and securing of benefits only
available to Israeli immigrants, the
children's enrollment in school, and, to some degree, both parents'
intentions at the time of the move to Israel. Fairly assessing these
facts, there was only one acceptable legal conclusion regarding the
children's habitual residence: they were habitual residents of Israel.
The district court found that even if the children's
habitual residence was in Israel, they need not be returned to Israel
because they will face a "grave
risk of physical harm" there. The district court reached this
conclusion, in part, because the violence in Israel makes it a "zone of
war," which is dangerous for the children. The Court of Appeals held
that the "grave risk of physical or psychological harm" defense is an
affirmative defense under Article 13(b) of the Convention that Julie
must prove with clear and convincing evidence. The District Court did
not court cite any evidence that these children are in any more specific
danger living in Israel than they were when their mother voluntarily
moved them there in 1999. Rather, the evidence centered on general
regional violence, such as suicide bombers, that threaten everyone in
Israel. This is not sufficient to establish a "zone of war" which puts
the children in "grave risk of physical or psychological harm" under the
Convention.
