Wednesday, September 5, 2018

Ayn Traylor-Sadberry, In case of first impression, Ninth Circuit rules that American mother did not "wrongfully" retain child of Israeli father in U.S.

In case of first impression, Ninth Circuit rules that American mother did not "wrongfully" retain child of Israeli father in U.S. and holds that Child Abduction Convention requires choice-of-law analysis in determining "rights of custody" in state of child's habitual residence

Yarden is the young son of Haim Shalit, a dual citizen of the U.S. and Israel, and Cheryl Coppe, a U.S. citizen. The couple had divorced in Alaska in 1989, and the Alaska court had granted the mother custody of the son with visitation rights for the father. In 1995, Yarden had moved temporarily to Israel based on an oral agreement between the parents. Three years later, while Yarden was on vacation back in Alaska, Coppe decided to keep him there. 

Shalit then filed a petition in the Alaskan federal court. Claiming that Coppe had wrong­fully kept Yarden in the U.S., he asked that the court order Yarden's return to Israel so that the Israeli courts could decide the merits of the custody dispute. The court granted Coppe's motion for summary judgment and the U.S. Court of Appeals for the Ninth Circuit affirms.

A key question here is whether Coppe's act of keeping the child in Alaska was "wrongful" under the Hague Convention on the Civil Aspects of International Child Abduction [October 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89] and its implementing U.S. legislation, the International Child Abduction Remedies Act (ICARA) [42 U.S.C. Sections 11601-11610]. Both the U.S. and Israel are parties to the Convention. 

Under Convention Article 3, the removal or retention of a child is wrongful if "a. it is a breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." Article 19 of the Convention and 42 U.S.C. Section 11601(b)(4) provides: "a United States district court only has authority to determine the merits of an abduction claim, not the merits of the underlying custody claim." Thus, the court may only determine whether the removal or retention of the child was "wrongful" under the law of the child's "habitual residence." If so, it will order the child sent back to the place of "habitual residence."  There the court can decide the merits of the custody dispute under applicable family law.

In the Ninth Circuit's view, the lower court rightly found that Israel was Yarden's habitual residence at the time of the challenged retention. Thus, the Court has to decide whether Coppe's action had transgressed Shalit's custodial rights under Israeli law.

Since nothing in the Hague Convention limits this "law" to the internal law of the State of the child's habitual residence. it includes the choice-of-law rules of the resident state [this approach is often called "renvoi"]. Israel's choice-of-law rules might lead to applying either U.S. or Israeli domestic law as controlling authority. Shalit, however, failed to prove the content of Israel's choice-of-law rules.

Shalit also did not establish that Coppe's retention of Yarden breached his "rights of custody" under the Hague Convention.

Article three of the Convention lists three sour­ces of custody rights: (1) operation of law, (2) judicial or administrative decisions, and (3) agreements effective under the law of that State.

As for the "operation-of-law" test, Shalit merely offered a self-serving statement from his Israeli attorney that omitted to address the choice-of-law issues. Determining Shalit's custody rights under this test, however, would have required evidence of whether Israel would apply its own or U.S. law under these circumstances.

The "judicial or administrative decisions" test also does not help Shalit, in the Ninth Circuit's view. There is only the ruling of the Alaskan court and it had granted sole custody to Coppe. Since the orders came down when both parties were living in Alaska, neither side had any jurisdictional or procedural advantages.
Finally, as for "agreements having legal effect," the oral agreement to have Yarden live with Shalit temporarily did not give Shalit "custody" rights. Even assuming that Israel's "law" would point to its own internal law under a choice-of-law analysis, the Ninth Circuit concludes that a bare assertion of Shalit's attorney that Israeli law allows parents to make agreements about custody matters is not enough to show who has custody rights. For one thing, it overlooks Article 24 of the Israeli Legal Capacity and Guardianship Act of 1962. It makes such parental agreements "subject to court approval." 

Citation: Shalit v. Coppe, 182 F.3d 1124 (9th Cir. July 23, 1999).

*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: