Silverman v. Silverman

338 F.3d 886 (8th Cir. 2003)

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Nature of the Case

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Facts

H and W met in Israel in 1988 and married in Seattle, Washington, in 1989. They had two children, Sam and Jacob. The family lived in Plymouth, Minnesota, until their move to Israel in late July of 1999. Both H and W testified in the district court that the move to Israel was W's idea and that she was the one pushing for the family to make the move. In October 1999, W flew to the United States to file for bankruptcy in Minnesota. W returned to Israel later that month to discover that H 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. W was having an affair with a man from Massachusetts. H canceled the restraining order after they decided to try to reconcile their marriage. During this time, W stated that H threatened her, used force against her and attempted to coerce her. In January 2000, W and H 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, H and W signed and filed a joint United States income tax form for 1999, which listed their address as Plymouth, Minnesota. At the end of June 2000, H allowed W 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, H threatened W. W testified that it was at that moment at the airport that she decided not to return to Israel. W filed for legal separation from H and for custody of the two children in Minnesota state court on August 10, 2000. H 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. Fourteen days after W's Minnesota action had been commenced, H 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. H filed a Hague Convention petition in Israel seeking such a determination. H then 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. After notice of The Hague filing a state court referee issued an interlocutory administrative order granting W temporary custody of the children. Armed with this temporary order, W testified that in February 2001 she decided to move with the two children to Massachusetts to live with her paramour. They subsequently moved. The district court dismissed the federal Hague claims on abstention grounds but this was reversed and remanded the case for an evidentiary hearing, finding that abstention does not apply in Hague Convention cases. An Israeli court ruled that Israel was the place of habitual residence of Sam and Jacob as defined in the Convention and that W's failure to return them to Israel was prima facie evidence of wrongful retention of the children in violation of the Convention. The Minnesota trial court entered a final judgment awarding full child custody to W, child support from H and attorney fees to W. 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. On May 9, 2002, the federal district court ruled in favor of W on H'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. H appealed.