GITTER v. GITTER

DAVID TRAGER, District Judge

This action is brought pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the "Convention") and the International Child Abduction Remedies Act, 42 U.S.C. § 11601-11610. Petitioner Yossi Gitter seeks the return of his son, Eden, to Israel. Eden currently resides with his mother, respondent Miriam Gitter, in New York. An evidentiary hearing was held on October 2, 2003.

I. Findings of Fact

The Gitters were first married in New York in 1999, Tr. 7, and their son Eden was born in the United States in December 2000, Tr. 8. The Gitters lived near Mrs. Gitter's family in Monsey, New York. Tr. 6, 9. At that time, Mrs. Gitter was working as a bank teller, and Mr. Gitter was working at night for friends who bought and sold used cars. Tr. 26, 10.

Page citations refer to the transcript of the October 2, 2003 evidentiary hearing.

Mr. Gitter was not doing well financially and the arrival of Eden only added to his financial burden. Tr. 99. On the other hand, he had a support system in Israel. Tr. 16. He knew he could work as a bus driver for his mother's company. Tr. 11. Mr. Gitter argued to his wife that by living with his mother, they would save money since they would not have to pay rent. Tr. 99. Moreover, Mr. Gitter testified that he thought that his wife should spend more time with their infant, which would limit her ability to assist in providing for the family. Tr. 11.

Although Mrs. Gitter was unwilling to move to Israel indefinitely, her husband persuaded her to try living in Israel for one year. Tr. 99-100. In March 2001, all three went to Israel and began living with Mr. Gitter's mother in her home. Tr. 9. The Gitters did not dispose of their belongings in the United States before leaving for Israel. Instead, initially they put most of their furniture and personal property into storage in New York. Tr. 12, 100. Later they gave or sold these possessions to Mrs. Gitter's sister. Tr. 13, 115. While Mr. Gitter claimed they decided to take everything out of storage and give it away because they were not going to use it, he also acknowledged that the cost of storage was a factor. Id.

Mrs. Gitter's limited ability to speak and understand Hebrew made it difficult for her to communicate with people in Israel. Tr. 101, 119. Mr. Gitter admitted that she made no friends of her own that were independent of her husband's extended network of family and friends. Tr. 34. She engaged in few activities outside of the home, apart from exercising at a gym, Tr. 32, 101, which she belonged to for only three months, Tr. 119. Her attempt to start her own business providing nail-care services was a failure. Tr. 25, 119. Eden spent much of the day in day care. Tr. 27-28.

In February 2002, Mrs. Gitter took Eden back to New York to visit her sister. Tr. 120. Mr. Gitter joined her a week later. Id. While they were in New York, Mrs. Gitter told her husband that she was unhappy living in Israel and would not go back. Tr. 122. He was only able to convince her to return, with the help of a third party, Lord Aristo, by promising a second trial period, this time six months. Tr. 123. Lord Aristo, a mystic who had advised Mr. Gitter's family on previous occasions, Tr. 135-136, talked to Mrs. Gitter on the phone from Israel and told her that he would help repair the Gitters' marriage by meeting with them in Israel, Tr. 123. He guaranteed that if she was still unhappy in six months, she could return to New York. Id. Mr. Gitter told his wife he loved her and would change, and so she went back to Israel with him. Tr. 125. However, Mrs. Gitter remained unhappy in Israel, and she returned to New York, with Eden, on June 30, 2002. Tr. 36, 106.

Although the exact date is not clear, the evidence demonstrates that Mr. Gitter became aware of his wife's intention to remain in the United States with their son well before a phone call in which he made some sort of physical threat. Whatever the exact contents of this threat, it prompted Mrs. Gitter to visit the police on July 10, 2002. See Respondent's Ex. 2. Accordingly, Mr. Gitter's testimony that he first learned of her intention not to return to Israel on July 12, and that he was completely shocked to discover she was unhappy in Israel and in their marriage, is simply not credible. Tr. 40.

Although Mrs. Gitter did not disclose, before leaving Israel on June 30, her intent to remain with her son in the United States out of fear of her husband's reaction, Respondent's affidavit ¶ 13, Mr. Gitter was also clearly lying about being oblivious to his wife's unhappiness while they were in Israel. He largely corroborated her account of a fight they had in June 2002 a few days before she and Eden left. Tr. 82. The Gitters were having an argument, and Mr. Gitter took Eden's passport from Mrs. Gitter, and would not return it until at least the next day. Tr. 83. Indeed, the argument appears to be about whether she could bring Eden to the United States with her. Mr. Gitter's clear reluctance at allowing his wife to bring their son to the U.S. suggests he was aware even before their departure that there was a risk she would be unwilling to return to Israel in August. It is not surprising that he would have such doubts about her return, considering the difficulty he had persuading her to come back after the last time they visited her family, in February.

Mr. Gitter testified: "I don't really remember what it was about exactly . . . I don't think it was relevant to that trip. So, maybe it was maybe it was even about the kid and that's why I don't know. Maybe. So, I went to the night stand, I took the baby's passport and I said, Okay, let's talk. She saw I had the passport and she pulled it out of my fingers and she said, The baby goes with me. So what I did was I took the passport from her fingers like she took it from my fingers, took it back and this is it, that was the whole thing." Tr.83. Mrs. Gitter testified that "somehow he sensed that I was going and I was going to stay with the child and he said, you know, give me the child's passport, you're not going with the child . . . After that he said you better take a good look at your son, that's the last time you're going to see him, and he started leaving the room and he said I want you to get out of here, I don't care what happens to you, I don't care where you go, just get out." Tr.103-105. When asked what conversation had led to her conclusion that he decided she was not going to return to Israel, Mrs. Gitter replied: "I had told him first he said, you know, you can go to America, I don't care if you go to America. The child is staying here." Tr.106.

Mr. Gitter testified that he called his wife several times on July 10th, but got the answering machine each time. Tr. 44. He claimed that his wife called him back on July 12, and told him to send her divorce papers or she would cancel his green card, and then after he inquired about his son, she added that he wouldn't see Eden until he sent her divorce papers. Tr. 40. He testified that this was the first time divorce had ever been mentioned, and that they had a "great relationship." Tr. 41. However, under cross-examination, he admitted that in a phone conversation with his wife's sister Zelda, sometime in July, Zelda told him that she was taping the phone call and planned to bring it to the police. Tr. 73. Although he denied that he made any threats against his wife or Zelda, Tr. 72, he must have said something which prompted Zelda to tell him she would report his remarks to the police. Furthermore, it is illogical to suppose that Zelda could have made such a remark to Mr. Gitter before he had any reason to believe his wife was unhappy in their marriage and unwilling to return to Israel. Also, Zelda presumably made that comment before she and Mrs. Gitter went to the police. The police report demonstrates that Mrs. Gitter went to the police on July 10. Respondent's Ex. 2. Therefore Mr. Gitter must have known before July 10 that something was wrong in his marriage and that Mrs. Gitter had no intention of returning to Israel.

The significance of this fake picture of marital happiness painted by the petitioner is not only its relevance to one of the respondent's defenses. More to the point, it tends to corroborate his wife's account about her reluctance to go to and remain in Israel and the temporary trial nature of their move to Israel.

II. Habitual Residence

The Convention provides for children under sixteen to be returned to the country that was their "habitual residence" immediately prior to their wrongful removal or retention. The petitioner seeking return of the child has the burden of establishing by preponderance of the evidence that the child was wrongfully removed or retained within the meaning of the Convention. 42 U.S.C. § 11603(e)(1)(A).

The threshold issue is whether Israel or the United States was the "habitual residence" of Eden in June and July of 2002. If Eden's habitual residence has always been the United States, as Mrs. Gitter contends, the Convention does not apply and the issue of custody is properly resolved in the state courts of New York. Mr. Gitter must prove by a preponderance of the evidence that Israel was Eden's habitual residence, or the petition for return of the child to Israel must be denied.

It is clear that Eden's habitual residence was the United States from his birth until March 2001. The difficult question is whether Eden's habitual residence shifted to Israel after March 2001. The Convention does not define the term "habitual residence," nor has the Second Circuit articulated a standard for determining habitual residence. The words should be interpreted according to their "ordinary and natural meaning," Armiliato v. Zaric-Armiliato, 169 F. Supp.2d 230, 237 (S.D.N.Y. 2001) and courts have emphasized that "the determination of habitual residence' depends largely on the facts of the particular case." Harkness v. Harkness, 577 N.W.2d 116 (Mich.App., 1998).

Although some courts have emphasized that habitual residence must be determined based on the "settled purpose" from the point of the view of the child, see, e.g., Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995), courts have generally turned to the mutual subjective intent of the persons entitled to fix the child's residence, see, e.g., Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir. 2001). Particularly when the child is very young, as is Eden, the child does not have any "settled purpose" beyond the intentions of his parents. See In re Morris, 55 F. Supp. 1156, 1161 (D. Colo., 1999). Because the Convention seeks to prevent one parent from unilaterally determining in which country the child will live, habitual residence can not be shifted without mutual agreement. As a result, courts have "generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence." Mozes, 239 F.3d at 1077. Similarly, a child's prior habitual residence is not abandoned where "even though the exact length of the stay [abroad] was left open to negotiation, the court is able to find no settled mutual intent from which such abandonment can be inferred." Id.

The facts of the instant case are similar to those of McKenzie v. McKenzie, 168 F. Supp.2d 47 (E.D.N.Y. 2001). The McKenzies moved to the U.S. from Germany with the understanding that Mrs. McKenzie would be free to return to Germany if she was unhappy. Id. at 49. Mrs. McKenzie expressed to her husband her desire to return to Germany during the nine months they lived together in New York. Id. When the McKenzies returned to Germany, Mr. McKenzie believed it was for a vacation, but Mrs. McKenzie intended to remain, with her daughter, and not return to New York. Id. at 50. The court in McKenzie found that the child was not "settled in the United States with any sort of permanence," and that "at all times relevant to this proceeding, Germany remained the child's habitual residence." Id.

Although Eden was living in Israel from March 2001 until February 2002 and again from February to June 2002, I find that his parents only mutually agreed to move to Israel on a conditional basis — namely, that Mrs. Gitter would be satisfied with the new arrangements. It is undeniable that she was not. Being unable to find settled mutual intent to make Israel Eden's permanent home, I conclude that Mr. Gitter failed to meet his burden of establishing, by a preponderance of the evidence, that Eden's habitual residence ever shifted to Israel. I find and conclude that Eden's habitual residence in June and July of 2002 remained in the United States.

Although Mr. Gitter did point to some indicators tending to suggest their stay in Israel might be of indefinite duration, this evidence only suggests that Mr. Gitter himself never had any intention of returning to live in New York. He emphasized that he closed their U.S. bank accounts and opened Israeli accounts, Tr. 12, 17, sold their cars in N.Y. and leased a new car in Israel, Tr. 12, 25, gave away their furniture that had been in storage and bought new furniture in Israel, Tr. 13, 24, and spent considerable time and money on renovations to his mother's house, Tr. 24. I find he took these actions while telling his wife they could move back to New York if she wanted to do so after a trial period. These actions can not be read as reflective of Mrs. Gitter's intentions or the Gitters' mutual agreement. Even though Mrs. Gitter closed her bank account, she did so at her husband's direction, and he controlled how the money she had earned was spent. Respondent's affidavit at ¶ 12, Tr. 138. Mrs. Gitter presented a consistent, credible portrait of her husband's controlling treatment of her. See, e.g., Tr. 101-102 ("Assuming I wasn't answering my phone, he would call the gym and make sure I was there. . . . He has to know where I was all the time, what I was doing all the time."), Tr. 116 ("I didn't really have access to bank accounts and things like that."), Respondent's affidavit at ¶ 5 ("I placed my signature on numerous documents at his direction.").

III. "Settled in its New Environment" Exception

Having concluded that the United States is Eden's "habitual residence," it is not necessary to reach respondent's defenses. Nevertheless, it is appropriate to comment on one of these. Article 12 of the Convention specifies that if "the proceedings have been commenced" after a period of one year or more "has elapsed from the date of the wrongful removal or retention," the court need not order the return of the child where "the child is now settled in its new environment."

The proceedings are considered to be commenced on the day of the filing of the petition with this Court. Mr. Gitter's petition for the return of his son was filed on July 10, 2003. If Israel were to be considered Eden's habitual residence, Mrs. Gitter's retention of Eden in New York became wrongful under the Convention as soon as Mr. Gitter became aware of her intention not to return to Israel. See, e.g., Zuker v. Andrews, 2 F. Supp.2d 134, 140 (D.Mass. 1998) ("The retention occurred when [petitioner] knew that [respondent] was not going to return [their child] to [his habitual place of residence]."). Although Mr. Gitter claims Mrs. Gitter's intention to remain in the U.S. was a complete surprise when he first learned of it on July 12, I find Mr. Gitter is lying on this score. As discussed above, Mrs. Gitter must have communicated her intentions to him before July 10, the day she sought police protection. The exact date of the alleged wrongful retention or removal of Eden need not be determined, since I find that it occurred before July 10, 2002, at least one year prior to the filing of the petition. Therefore, Mrs. Gitter can overcome the petition for Eden's return, regardless of his habitual residence, if she can demonstrate that Eden is now well settled in New York.

To prevail under this defense, the respondent must present "substantial evidence of the child's significant connections to the new country." State Dep't Report, 51 Fed. Reg. at 10, 509. To determine whether a child is well-settled, the court must consider various factors, such as "the age of the child, the stability of the child's residence in the new environment, whether the child attends school or day care consistently, whether the child attends church regularly, the stability of the mother's employment, and whether the child has friends and relatives in the new area." In re Koc, 181 F. Supp.2d 136, 152. Many of these issues were explored only in several off-the-record settlement discussions after the hearing. For this reason, and because the United States was Eden's habitual residence at all times, I decline to make a determination as to whether or not Eden is currently well-settled in the United States absent a full hearing on that issue.

Conclusion

Accordingly, based on the foregoing findings of fact and conclusions of law, the Petition for Return of Child is denied.

SO ORDERED.