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Caro v. Sher

October 30, 1996

EMILIO MARTIN CARO, PETITIONER,
v.
SUSAN SHER, RESPONDENT.



Hayser, J.t.c., temporarily assigned.

The opinion of the court was delivered by: Hayser

OPINION

HAYSER, J.T.C., temporarily assigned

Petitioner brings this action seeking the return of children to the place where they habitually resided, pursuant to the Convention on the Civil Aspects of International Child Abduction, adopted at the Hague on October 25, 1980 (the Convention). The threshold issue is whether this court should abstain from exercising any jurisdiction in this matter, beyond ordering the return of the children, in the absence of clear and convincing evidence that the custodial issues involved cannot be evaluated and resolved fairly by the courts where the children have habitually resided.

I. Factual History

Significant facts in this matter are not in dispute. The parties were married in 1983 in Spain, where they lived. Petitioner is a Spanish national, and respondent an American citizen who has lived in Spain substantially since 1975. Three children were born of the marriage, who are presently thirteen, eleven and seven years of age.

In September, 1992 respondent filed with the Spanish Tribunal of First Instance in Alicante, Spain for separation and custody of the children. In February, 1993 a provisional decree was entered, granting respondent a legal separation, as well as primary and residential or physical custody of the children. She was also granted use of the marital home, monthly marital support and payment of certain legal expenses. Respondent was also granted half of the children's Christmas, Easter and summer vacations, which she was free to take in the United States, after consultation with petitioner, or court intervention thereafter, if necessary.

Presumably, in reliance, in part at least, on the vacation relief granted respondent by the Spanish court, she traveled with her children for vacation in the United States in July, 1993, whereupon she immediately filed in this court for divorce and custody. Petitioner, thereupon, filed his first petition for the children's return to Spain, pursuant to the Convention.

Following a hearing on August 20, 1993, the trial Judge ordered the children's return to Spain, holding that it was the country of the children's "habitual residence" and that they were "wrongfully retained" from "their country of habitual residence." (Trial Court Opinion, decided August 20, 1993, pp. 4 and 5). *fn1 There was no successful appeal of this decision, and respondent's complaint for divorce and custody was thereafter dismissed with prejudice by stipulation. The children were returned to Spain.

In October, 1993 the provisional separation decree, which is presently under appeal by respondent, was finalized. In September, 1994 respondent filed with the Spanish court to finally leave Spain with the children and reside with them in the United States. This petition was denied on November 16, 1994, and a subsequent appeal to the Audiencea Provincial (Court of Appeals) of Alicante will not be heard until September 15, 1998, pursuant to that court's order of February 1, 1995. This decision was appealed on May 16, 1995, to the Constitutional Court of Madrid and is pending, also, at this time.

Between 1993 and the present, respondent has filed at least twelve petitions to enforce support payments by petitioner, all of which were granted by the Alicante court, with many decided in a period of approximately thirty days. Respondent has been represented by legal counsel throughout her various proceedings before the Spanish courts.

On June 28, 1996, respondent's counsel filed a petition with the Alicante trial court, giving notice that with petitioner's consent, she would again vacation with the children in the United States from July 8, 1996 to August 17, 1996, returning in time for the children to start school on September 9, 1996. *fn2 After leaving Spain, respondent's counsel filed a second petition with the Alicante court to finally leave Spain with the children and reside in the United States. This petition is also pending at this time.

Upon arriving in the United States, respondent advised petitioner that she would not be returning with the children to Spain. The present petition was filed under the Convention on September 9, 1996 before this court. A hearing was conducted on October 9, 1996, at which time testimony was given by respondent and her Spanish counsel, exhibits were admitted into evidence and arguments were presented as to the threshold issue. Supplemental memoranda were submitted by the parties, also, as to this issue.

II. Objectives of the Convention

The Convention was adopted at the Hague on October 25, 1980. This treaty became effective on July 1, 1988, in the United States, following the adoption of the implementing statute, the International Child Abduction Remedies Act (ICARA), 42 U.S.C.A. §§ 11601 to 11610 (1988).

One finding of the ICARA is that "persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 42 U.S.C.A. § 11601(a)(2). Congress declared that there is "the need for uniform international interpretation of the Convention," and that "courts in the United States [are empowered] to determine only rights under the Convention and not the merits of any underlying child custody claims." §§ 11601(b)(3)(B) and (b)(4). Moreover, the purposes of the Convention include "ensuring that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." (The Convention, art. 1(b)).

State courts have concurrent original jurisdiction with federal courts to enforce the Convention's remedies. 42 U.S.C.A. § 11603(a). However, four requirements must be met to invoke the Convention's relief:

1. The nations involved must be signatories to the Convention. Roszkowski v. Roszkowska, 274 N.J. Super. 620, 633, 644 A.2d 1150 (Ch. Div. 1993);

2. The children must be "habitual resident[s] in a Contracting State immediately before any breach of custody or access ...


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