The Hague Domestic Violence Project—Wipranik v. Superior Court, 63 Cal.App.4th 315 (1998)

Wipranik v. Superior Court, 63 Cal.App.4th 315 (1998)

Docket Number

B116728

Published

Yes

Decision Date

1998-03-04

Name of Court

Court of Appeals of California, Second Appellate District,Division II

Opinion by

Fukuto, Judge

Counsel for Petitioner

Taback, Joseph ; Brourman, Michael

Counsel for Respondent

Hilton, William M

Counsel for Court

Requesting State

Israel

Requested State

United States of America

Procedural History

On September 3, 1997, the Respondent/ father, the real party in interest, filed a Request for Return of Abducted Child with the Israeli Central Authority. The Petitioner/ mother then in turn filed a request to show cause for child custody. Then on October 17, 1997 the Respondent/ father filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction in the superior court of California, asking the court to find that the minor childs habitual residence was in Israel and for the return of the child. On October 28, 1997, the court (and respondent in this action) found that Israel had been the habitual residence of the child for the last three years, that the Respondent/father had custody of the child and had not consented to the removal of the child, and that the Petitioner/ mother had not met her burden of proof under the Hague Convention. The court ordered that the child be returned to Israel and ruled that Israeli courts had jurisdiction over the proceedings.

The Petitioner/mother then filed for a writ of mandate with the Court of Appeals seeking review of superior courts ruling on October 31, 1997 and the court issued a temporary stay of the respondent courts order. On November 25, 1997, the court issued an alternative writ of mandate ordering the respondent court to either vacate its order and set a rehearing or to show cause before this court why it should not issue a peremptory writ of mandate ordering the superior court to do so. The superior court elected not to vacate its order of October 28, 1997, and to set The Hague Convention petition for rehearing.

Summary of Facts

The Petitioner/ mother, and the Respondent/ father, Real Party in Interest, were both citizens of the U.S. and were married on November 27, 1984, lived in California. Their son was born February 21, 1980. In 1992, the respondent/ father initiated dissolution proceedings, but the family reconciled and in 1994 moved to Israel. The Petitioner/ mother claims that it was understood that the move was temporary so that she could care for her sick mother. She also claimed that after the death of her mother, she and the child stayed so that he could learn Hebrew, get to know his Israeli relatives and discover his heritage. The Petitioner/mother also claimed that since 1994, the Respondent/ father had been splitting his time between the U.S. and Israel and that he spent the greater portion of his time taking care of the family business in California. The Petitioner/ mother stated that the Respondent/ father often absented himself from the home and when he was home used marijuana on a daily basis, drank excessively, and verbally and physically abused herself and her child. She claimed that although she had a number of relatives in Israel, the Respondent/ father had no relatives there.

The Respondent/ father denies these claims. According to him, the move was understood as permanent and that since their move, two containers of the familys personal belongings, including a car, had been shipped to Israel. He admitted to social drinking and occasional use of marijuana as well as raising his voice, but denied ever physically abusing mother and child. Further, he denied being absent from the home.

During the time they were in Israel, the child completed first and second grade and was registered to begin 3rd grade in September of 1997. On August 29, 1997, the Petitioner/ mother moved the child back to California.

Oral argument was set for February 24, 1998 but on January 5th, the Respondent/ father informed the court that the Israeli Family Court of Tel Aviv and Central Districts conducted a hearing in which it found that Israel was the habitual residence of the minor child. However, because the Petitioner/ mother had not taken part in the proceedings, the court proceeded as planned.

During these proceedings, the Petitioner/ mother argued that she was not given enough time to prepare for the hearing because the ten days that she was given between October 17th and 28th, included two Jewish Sabbath days, and a Jewish holiday. She was an observant Jew and could not work or have time to obtain affidavits from friends and relatives who knew that the move to Israel was only temporary. The Respondent/ father claimed, however, that the Petitioner/ mother was not present during the October 17th hearing and that neither she nor her counsel made any objections to the October 28th hearing date. The court reviewed the reporters transcript which showed that at no time during the October 17th hearing did the Petitioner/ mother or counsel object to the hearing date or request a continuance to obtain additional evidence. The court also found that instead of asking for a continuance, she submitted a declaration which authorized the respondent court to make a finding under the Hague petition on her declaration alone. Because she did not ask for more time, the court did not find that she had an insufficient amount of time and thus, the respondent court did not abuse its discretion. Moreover, the court found that based on the evidence.

Defenses Raised

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

Statutes Considered (ICARA)

11601, 11603(c)

Articles Considered (Hague Convention)

13(b)

Cases Considered

David B. v. Helen O., 625 N.W.2d 436 (1995); In re Marriage of Stevenot, 154 Cal.App.3d 1051 (1984); Reifler v. Superior Court, 39 Cal.App.3d 1051 (1974)

Judicial Outcome or Order

Return Order Denied

Posted

2005-10-06

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.