The Hague Domestic Violence Project - The Hague Domestic Violence Project—Silverman v. Silverman, No. CIV. 00-2274(JRT), 2002 WL 971808 (D. Minn. May 9, 2002)

Silverman v. Silverman, No. CIV. 00-2274(JRT), 2002 WL 971808 (D. Minn. May 9, 2002)

Docket Number

No. CIV. 00-2274 (JRT)

Published

Decision Date

2002-05-09

Name of Court

United States District Court, D. Minnesota

Opinion by

Tunheim

Counsel for Petitioner

Anderson McKay, Susan

Counsel for Respondent

Baxter, Michael

Counsel for Court

Requesting State

Israel

Requested State

United States of America

Procedural History

On May 9, 2002, the Federal District Court ruled in favor of the Respondent/mother on the 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.

Summary of Facts

The parties married in the U.S. on July 16, 1989, and lived in several U.S. cities including Plymouth, Minnesota from May 1995 until July 1999. In 1997 the couple contacted a realtor in Israel to inquire about buying property in Israel and began the process of immigrating to Israel where the Respondent/mother already possessed Aliya (residency status) from a prior period of residence in Israel. Neither party contested that it was their intention to move to Israel permanently and raise their children there. The family left the United States on July 26, 1999 and arrived in Tel Aviv on July 27, 1999.

On October 1999, the Respondent/mother flew back to Minnesota to file for bankruptcy without the children. The Petitioner/father testified that he refused to let the children go with her during the October 1999 trip to the U.S. January 2000, both parties returned to the U.S. to complete the bankruptcy proceedings. At the bankruptcy hearing both testified that their permanent residence was Plymouth, Minnesota. April 2000, both parties filed 1999 joint tax return listing Plymouth, Minnesota as their address and both parties signed the return.

During the period of October 1999 through June 2000, the Respondent/mother testified that the Petitioner/father threatened her, and used force and coercion to prevent her from leaving Israel. June 2000, the Respondent/mother left Israel with both children for a summer trip to the U.S. and Canada with the Petitioner/father's written consent. Round trip tickets were purchased for all three. On the way to the airport, the Petitioner/father threatened the Respondent/mother who, at the time of the threat decided not to return to Israel. The Respondent/mother testified that the Petitioner/father was physically violent toward her and threatened to take the children away from her. He had slammed her up against a stone wall in their apartment and said he would see her dead before he would see her divorced. The Petitioner/father admitted that on one occasion the couple had a violent argument in the car and opened the passenger side door, where the Respondent was seated, while driving at 40-55 miles per hour.

On August 10, 2000 the Respondent/mother filed for legal separation and custody of children in Minnesota. The Petitioner/father received service of the petition for divorce in Israel that time. On October 17, 2000, the state referee of Minnesota issued an order granting the Respondent/mother temporary sole legal custody and temporary sole physical custody of both children and granted the Petitioner/father the right to reasonable visitation. On May 4, 2001, the state court issued its finding of fact that the parties move to Israel was temporary and that the Respondent/mother had been prevented from returning to the United States from Israel in August 1999.

Defenses Raised

Hague Article 12: Child had become 'well-settled' in the new environment

Hague Article 13a: Child has reached age of maturity and objects to return

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

Statutes Considered (ICARA)

11601(b)(4), 11603(a), 11603(e)(1)(A), 11603(e)(2)(A), 11607(b)(3)

Articles Considered (Hague Convention)

3, 12, 13, 13(b), 19, 20

Cases Considered

Blondin v. Dubois, 238 F.3d 153 (2nd Cir. 2001; Cohen v. Cohen, 602 N.Y.S.2d 994 (Sup.Ct. 1993); Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir. 1995); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); Freier v. Freier, 969 F.Supp. 436 (E.D. Mich. 1996); In re A., 1 F.L.R. 365 (Eng. C.A. 1988); In re: Bates, No. CA High Court of Justice, Fam. Divl Ct. Royal Court of Justice 122-89 (UK 1989); Levesque v. Levesque, 816 F.Supp. 662 (D. Kan. 1993); Miller v. Miller , 240 F.3d 392 (4th Cir. 2001); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995); Ponath v. Ponath, 829 F.Supp. 363 (D.Utah 1993); Rydder v. Rydder , 49 F.3d 369 (8th Cir. 1995); Shah v. Barnet London Borough Council and other appeals, 1 Al E.R (Eng. H.L.) 226 (1983); Thomson v. Thomson, 119 D.L.R. 253 (Can. 1994); Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045 (E.D. Wash. 2001)

Judicial Outcome or Order

Return Order Denied

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.