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: www.TraylorSadberry.com
