The Hague Domestic Violence Project - The Hague Domestic Violence Project—Silverman v. Silverman (III), 338 F.3d 886 (Minn. 2003)

Silverman v. Silverman (III), 338 F.3d 886 (Minn. 2003)

Docket Number

No. 02-2496

Published

Yes

Decision Date

2003-08-05

Name of Court

United States Court of Appeals

Opinion by

Beam; Melloy; Heaney

Counsel for Petitioner

McKay, Susan A

Counsel for Respondent

Baxter, M. Michael

Counsel for Court

Requesting State

Israel

Requested State

United States of America

Procedural History

On August 24, 2000, the Petitioner/father 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, an agent at NCMEC contacted Petitioner/father's Israeli attorney and requested that the attorney obtain a determination from the Israeli courts as to whether Respondent/mother had wrongfully removed or retained the children within the meaning of the Hague Convention. Petitioner/father filed a subsequent Hague petition on October 5, 2000, in the United States District Court for the District of Minnesota against Respondent/mother requesting the return of his two children, Sam, age 10, and Jacob, age 6. On October 17, 2000, a Minnesota state court referee issued an order granting Respondent/mother temporary custody. On October 27, 2000, Respondent/father petitioned the Minnesota Court of Appeals seeking to restrain implementation of the temporary order, but the court dismissed the petition as moot. The Respondent/mother moved in the District Court to have the case dismissed on abstention grounds. On November 13, 2000, the District Court dismissed the Hague petition on abstention grounds. Respondent/father appealed the District Court decision and on October 4, 2001, the Court of Appeals reversed and remanded the case saying that abstention did not apply in Hague Convention cases. (see Silverman v. Silverman, 267 F.3d 788 (Minn) 2001).

Concurrently, on November 16, 2000, an Israeli court held that the children's habitual residence was Israel and the Respondent/mother's failure to return them was prima facie evidence of wrongful retention. On December 12, 2000, Respondent/mother requested the Israeli court reverse its decision, but, after a hearing, the court refused to do so on October 30, 2001. On May 9, 2002, the federal District Court ruled in favor of Respondent/mother on Petitioner/father's Hague Convention petition on the grounds that Minnesota was the habitual residence of the parties' children, and that in the alternative, that there was grave risk in returning the children to Israel. (see Silverman v. Silverman (I), 2002 WL 971808 (D. Minn.)) Respondent/father appealed the decision in Silverman I to the United States Court of Appeals, 8th Circuit. On December 11, 2002, the court of appeals affirms the district court's denial of the return order. (see Silverman v. Silverman, 312 F.3d 914 (8th Cir. 2002)) Petitioner/father filed an appeal for rehearing of the decision of the 8th Circuit Court of Appeals. Rehearing was granted en banc.

Summary of Facts

(see Silverman v. Silverman (I), 2002 WL 971808 (D. Minn.))

Defenses Raised

Hague Article 4: Habitual Residence

Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country

Statutes Considered (ICARA)

11601(b)(4), 11603(e)(2)(A), 11603(g)

Articles Considered (Hague Convention)

1, 3, 6, 7, 13, 15, 16

Cases Considered

Asakura v. City of Seattle, 265 U.S. 332 (1924); Ballinger v. Culotta, 322 F.3d 546 (8th Cir. 2003); Breuer v. Jims Concrete of Brevard Inc, 123 S.C. 1882 (2003); Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) ; Cerit v. Cerit, 188 F.Supp.2d 1239 (D.Haw. 2002); District Court of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026 (9th Cir. 2001); Egervavy v. Young, 159 F.Supp.2d 132 (E.D.Pa 2001); Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995); Freier v. Freier, 969 F.Supp. 436 (E.D. Mich. 1996); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) ; Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996); Lemonds v. St. Louis County, 222 F.3d 488 (8th Cir. 2000); Holder v. Holder, 305 F.3d 854 (9th Cir. 2002); In re: Bates, No. CA Court of Justice, Fam. Divl Ct. Royal Court of Justice 122-89 (UK 1989); March v. Levine, 249 F.3d 462 (6th Cir. 2001); McNeilus Truck and Mfg., Inc. v. Ohio ex. rel. Montgomery, 226 F.3d 429 (6th Cir. 2000); Mendez Lynch v. Mendez Lynch , 220 F.Supp.2d 1347 (M.D. Fla. 2002); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995); Ornelas-Ledesma v. United States, 517 U.S. 413 (1998); In re Application of Ponath, 829 F.Supp. 363 (D.Utah 1993); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) ; Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045 (E.D. Wash. 2001)

Judicial Outcome or Order

Return Ordered

Posted

2004-11-12

Why this Project?

We are a team of individuals from various professional backgrounds who are dedicated to creating a comprehensive resource that will enable mothers, domestic violence advocates, attorneys and judges to better prepare themselves for Hague Convention cases in the United States' legal system.