R.B. v. K.G.
45 Misc. 3d 951
N.Y.C. Fam. Ct.2014Background
- Petitioner father B. seeks return of his children M.B. and G.B. to Israel under the Hague Convention after their removal to New York by mother G.; custody was previously governed by an Israeli divorce decree and mediation agreement.
- The 2007 Israeli agreement provided joint guardianship, with mother to have primary custody and specific procedures for disputes, including Haifa Family Court authority; a provision restricted minors from leaving Israel without joint consent, with limited travel exception.
- In 2012, the mother proposed, and the father partially consented to, a one-year stay in the United States for studying and English exposure, with various financial and return-date conditions that were never signed or finalized.
- Mother flew with the children to New York in August 2012; the parties disputed whether a second year beyond August 2013 was agreed, with emails showing opposing positions regarding extended stay.
- Father filed Hague petitions in 2014 after recognizing the continued retention of the children in the United States; the court registered the Israeli custody order and heard the return petition and related cross-claims.
- The court conducted in camera interviews of the children and determined that the retention after August 2013 was wrongful, and that the children did not have valid objections sufficient to override a return to Israel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was wrongful retention/removal under Hague ICARA | B. asserts wrongful retention after August 2013 under Hague ICARA. | G. contends there was no wrongful retention due to modifications to the agreement and the children's best interests in New York. | B. established wrongful retention; return ordered. |
| Habitual residence and timeliness of petition | B. filed within a year of wrongful retention against the 2013 retention. | G. argues habitually resided in New York with planned indefinite stay, affecting habitual residence. | Petition timely; no second-prong analysis needed. |
| Well-settled exception to return (habitual residence) defense | B. opposes continued stay and argues return to Israel is proper. | G. argues children are well-settled in New York, justifying non-return. | No sufficient well-settled evidence to foreclose return; still ordered return. |
| Wishes/objections of the children under art. 13 | B. seeks return despite children's preferences. | G. emphasizes the children’s stated preferences to remain in New York. | Children’s objections given little weight; not dispositive to override return. |
| Award of costs and attorney’s fees | B. seeks necessary expenses as prevailing party. | G. challenges the amount and necessity of fees. | Costs and fees to be determined after an evidentiary hearing; petitioner likely entitled. |
Key Cases Cited
- Gitter v Gitter, 396 F.3d 124 (2d Cir. 2005) (framework for Hague Convention purposes and habitual residence)
- Mota v Castillo, 692 F.3d 108 (2d Cir. 2012) (habitual residence and acclimatization analysis)
- Blondin v Dubois, 238 F.3d 153 (2d Cir. 2001) (factors for assessing well-settled status and departure consequences)
- Tsai-Yi Yang v Fu-Chiang Tsui, 499 F.3d 259 (3d Cir. 2007) (child’s age and maturity limits weight of views in return analysis)
- Redmond v Redmond, 724 F.3d 729 (7th Cir. 2013) (caution on state-court merits in Hague proceedings and return context)
- Mozes v Mozes, 239 F.3d 1067 (9th Cir. 2001) (age/maturity and objections in Hague return determinations)