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Lutman v Lutman, 2010 WL 3398985 (M.D.Pa.) [Isreal] [Habitual Residence]

Pnina and Eyal were married in 1986 in Israel, and their first child, a daughter named Hadar, was born in 1988. In 1989, Pnina and Eyal, who were both dual citizens of the United States and Israel, moved to Kansas. Another daughter, Meirav, was born in Kansas in 1990. In 1996, the family returned to Israel. Approximately four years later, they relocated to California. D.L. was born in California on April 10, 2001. The parties' entered into a marital separation agreement on June 22, 2005, and a California state court finalized their divorce on September 9, 2005. Pnina and Eyal also obtained a divorce decree from a Rabbinical Court in California, and they obtained a decision from a Rabbinical Court in Israel, acknowledging the California Rabbinical Court's decision. As a part of their divorce, their written separation agreement resolved the issue of custody of their children, by providing for joint legal and physical custody. The agreement stated that D.L. "shall primarily reside" with Pnina and that his older sisters "shall primarily reside" with Eyal. The custody provisions also forbid either parent from moving outside of Orange County, California, without further order of the court or written permission from the other party. Despite this provision, Pnina returned to Israel with D.L. and Meirav in 2005, shortly after the divorce. Eyal encouraged Pnina, D.L ., and Meirav to return to Pnina's family in Israel and he paid for their airfare. As a result of a change in his work assignments, undertaken at his request, Eyal also returned to Israel a few months later with Hadar. The California separation agreement provided that the parties agreed "to meet and confer regarding any necessary changes in their parenting plan" in the event that one of them moved, and that, if they could not negotiate a new agreement, they would "mediate the issue, equally sharing in the cost of the mediation." In order to reflect the change in their circumstances the parties voluntarily appeared before the Rabbinical Court of Haifa in Israel in 2007, which affirmed that D.L. is or will be in his mother's custody in Israel.

Eyal left Israel in 2007 and relocated to Ohio. Pnina encouraged D.L.'s relationship and regular contact with Eyal, not only during Eyal's residence in Israel, but also after Eyal returned to the United States. When Eyal invited his children to visit during their vacation in the summer of 2008, Pnina agreed to facilitate their visit.

Pnina was exercising her custody rights under the Rabbinical Court decree at the time she sent D.L., with arrangements of a round trip ticket, to the United States for this visit with his father. And she expected D.L.'s return on August 29, 2008, the date of Meirav's and D.L.'s return flight to Israel. On August 29, 2008, only Meirav returned to Israel, and Eyal retained D.L. in his custody. Eyal did not have Pnina's consent to retain D.L. in the United States, and he acted unilaterally to retain D.L. This was a last-minute, emotional decision by Eyal to violate the terms of the custody decree of the Rabbinical Court of Haifa. D.L. has never returned to Israel since the summer of 2008, despite Pnina's efforts to have him returned.

In May of 2009, Eyal and D.L. moved to Red Lion, in Pennsylvania. Pnina visited D.L. in Red Lion for approximately four weeks in August 2009, in an attempt to secure his return informally. Eyal initially permitted Pnina to stay in his residence during her visit in the United States. However, Pnina testified that Eyal became jealous of D.L.'s reunion with his mother and feared that D.L. would ask to return to Israel with Pnina. In order to prevent such an occurrence, Eyal contacted authorities and alleged that Pnina had sexually abused D.L. Authorities conducted a brief, fruitless investigation of the allegations of child abuse, which concluded with an "unfounded" finding. The district court found that Eyal's accusation was baseless. At the conclusion of the investigation, financial constraints required Pnina to return to Israel, and she returned without D.L. and without resolution of D.L.'s custody. Pnina continued to seek D.L.'s return, and she diligently pursued her rights under the Convention. She initially contacted authorities on the Hague Convention and began completing paperwork in August of 2009. In October of 2009, she commenced official proceedings under the Hague Convention, and she requested pro bono legal representation from the Legal Assistance Coordinator (the "LAC") in the U.S. Central Authority for the Hague Convention, which is the U.S. Department of State. It was not until March of 2010 that Pnina successfully retained a pro bono attorney. Pnina filed a petition pursuant to the Hague Convention.

D.L. was nine years old. D.L. departed from Israel on July 15, 2008, and his return flight was scheduled for August 29, 2008. Thus, the date of the allegedly wrongful retention is August 29, 2008. The record was clear that Eyal's retention of D.L. in the United States violated Pnina's custody rights. The Rabbinical Court of Haifa formally adjusted D.L.'s primary physical custody to his mother in Israel. Pnina was clearly exercising her custody rights at the time of D.L.'s retention in the United States. The court noted that even a minimal exercise of custody rights will satisfy this requirement. "Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights." Tsui, 499 F.3d at 277. Finally, the evidence support the conclusion that Israel was D.L.'s habitual residence immediately prior to his retention in the United States. According to the Third Circuit, "a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder, 63 F.3d 217, 224. The Third Circuit has observed that "a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." Under this standard, Israel qualified as D.L.'s habitual residence. Even though D.L. was physically present in the United States for slightly more than a month immediately prior to his retention, there was no evidence that D.L. had sufficient time to acclimate to life in the United States. Nor did the evidence indicate that D.L. would have perceived a "degree of settled purpose" in his father's Ohio home. D.L.'s trip to Ohio was intended as nothing more than a temporary summer vacation with his father. Hence, the United States did not become D.L's habitual residence prior to his retention.

Eyal alleged that Pnina consented to D.L.'s removal; that Pnina acquiesced in Eyal's retention of D.L.; and that Pnina failed to initiate proceedings under the Convention within one year of the retention, and that D.L. is well-settled in his current location. Eyal argued that the court should infer consent to retention by virtue of Pnina's willingness to send D.L. to the United States. The petition did not allege D.L.'s wrongful removal from Israel-rather, it complained that D .L. was wrongfully retained in the United States. D.L. went to Ohio with a round-trip ticket to return on August 29, 2008. There was no evidence that Pnina agreed that Eyal could retain D.L. in the United States after August 29, 2008. According to Eyal, "[t]he record is devoid of any evidence" that Pnina made efforts to secure D.L.'s return to Israel. He contended that Pnina failed to pursue any 11 custodial rights from August 29, 2008, until her visit to the United States in the summer of 2009. The record did not support this argument. To the contrary, Pnina's testimony was replete with evidence of her attempts to secure D.L.'s return: she never agreed to relinquish custody; during phone calls, she begged Eyal to return D.L.; and she searched (albeit unsuccessfully) for a lawyer in Israel. All of the evidence demonstrated that Pnina never acquiesced to Eyal's retention of D.L., and, therefore, the court rejects this affirmative defense.

The court noted that Pnina commenced proceedings under the Hague Convention in October of 2009, more than a year after the wrongful retention of D.L. on August 29, 2008. Eyal attempted to show that D.L. was well-settled in his current location, but his efforts were only been partially successful. In analyzing the applicability of the well-settled defense to a particular case, courts should look for "substantial evidence of the child's significant connections to the new country[,]" Castillo v. Castillo, 597 F.Supp.2d 432, 437-38 (D.Del.2009), and "consider any relevant factor informative of the child's connection with his or her living environment.". Considering all of the relevant factors together, the court could not find, by a preponderance of the evidence, that D.L. was well-settled. D.L. acclimated well to his studies during his one full year of elementary school in Red Lion, Pennsylvania. D.L.'s native language is Hebrew, but he was approaching fluency in English. His third grade teacher testified that D.L. assimilated into the classroom and that she observed appropriate academic progress and social interaction during the school year. D.L.'s elementary school experience weighed in favor of a finding that he was well-settled. However, there was sparse evidence that D.L. was settled with respect to the other factors that the court must consider in its analysis, including the child's age, stability in the child's residence, the child's participation in extracurricular or community activities, the presence of friends or relatives in the area, and the respondent's employment and financial position. Eyal presented limited evidence on each of these factors, but the evidence did not demonstrate that D.L. had a significant connection to the community where he currently lived. During the period of his wrongful retention in the United States, he resided in three different locations and attended three different schools. Although D.L. had connected with a handful of acquaintances and peers since that time, the network of friends surrounding him was limited. With respect to family and relatives, there was no doubt that he had far more connections in Israel. The record did not reflect that D.L. or Eyal established connections to any church or synagogue, engaged in any extracurricular activities or other community involvement in central Pennsylvania. There was no evidence of family relations in the area, with the exception of occasional visits by Hadar. D.L. has had several nannies, the most recent of which was retained approximately one month ago. D.L. appeared to spend a considerable amount of time watching television and playing video games. The court concluded that D.L. was not well-settled in his current location, and found that Eyal failed to prove that any of the exceptions listed in Article 13 of the convention apply to this case.

The court observed that Eyal had engaged in behavior that was manipulative and otherwise contravenes the purposes of the Hague Convention, and that he should not be rewarded for such behavior. At the last minute, Eyal unilaterally decided not to return D.L. to Israel, and he has confirmed his intent to keep D.L. in the United States permanently, with no regard for Pnina's custody rights. Eyal brought a baseless complaint of sexual abuse to authorities during Pnina's visit in Red Lion, in a desperate attempt to maintain control of D.L.'s custody. Eyal's improper conduct also compeled the court to exercise its discretion to return D.L. to Israel.