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Distler v. Distler

October 29, 1998


The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge


SIMANDLE, District Judge

This matter comes before the Court on an application for attorneys fees and costs under 42 U.S.C. § 11607(b)(3) following petitioner's successful petition before this Court for the return of her children to the State of Israel under the Hague Convention on the Civil Aspects of International Child Abduction, 42 U.S.C. § 11601, et seq. *fn1 For the reasons stated below, this Court will grant the application for necessary costs as requested by the petitioner, albeit with a few modifications.


The undisputed facts are as follows. Talia and Kenneth Distler were a married couple living in the State of Israel with their two minor children, Roy, age ten, and Eleanor, age eight. On August 11, 1998, respondent Kenneth Distler took his children, with the knowledge and consent of petitioner Talia Distler, to New Jersey for a two week visit with the children's grandmother, respondent's mother. Midway through the vacation, Kenneth Distler told Talia Distler that he would be keeping the children and taking a job in the United States. On the date that the children were supposed to return to Israel, respondent's attorney, Michael A. Taylor, Esq., sent a letter to petitioner's attorney in Israel, Shmuel Moran, Esq., notifying petitioner that the children would not be returning. Mr. Taylor refused to tell petitioner where the children were exactly, but assured her that they were still in New Jersey. In fact, Mr. Taylor engaged in advocacy with Mr. Moran, indicating that his client was within his rights to retain custody of the children and explaining that his client planned on making a life for himself and his children in the United States, for their mother had financially and emotionally abandoned them in Israel. (See Arenstein Certif. Ex. A.)

Petitioner did get to speak to her children often in their absence at respondent's mother's home in New Jersey. In early September, Mr. Distler removed them from New Jersey; his attorney, Mr. Taylor, provided their new telephone number in Pennsylvania to Mrs. Distler's Israeli attorney on September 9, 1998, without any additional information as to their actual whereabouts and without any offer to provide for the safe return of the children. *fn2 During that time, unbeknownst to petitioner, respondent had found a job in the Poconos region of Pennsylvania, enrolled his children in school, rented a home, and obligated himself to monthly payments for an $11,000 Jeep. According to respondent, it was his intention to support his children here with an income he never could have made in Israel.

Meanwhile, on September 1st, petitioner and her Israeli counsel had contacted the offices of Robert Arenstein, Esquire, for help in returning her children to Israel, paying Mr. Arenstein a $10,000 retainer for his work. (Id. at Ex. B.) Mr. Arenstein and his associate, Michielle Spector, Esquire, retained an Investigative Service to help locate respondent and the children and prepared the necessary pleadings, affidavits, and memoranda in support of this case.

On September 11, 1998, Mr. Arenstein filed a Notice of Petition and Petition for Return of Children with this Court. On September 15, this Court ordered respondent's counsel, Mr. Taylor, to serve as a special agent for service of process on the respondent, whose exact whereabouts were still unknown to petitioner and, according to Mr. Taylor, only vaguely known by respondent's counsel. The Court entered an order compelling respondent Kenneth Distler to appear and to show cause why the children should not be returned and set a hearing for September 17, 1998.

Both petitioner and respondent appeared on that date. Petitioner Talia Distler had flown overnight from Israel, arriving at court directly from the airport. Respondent Kenneth Distler, having been served with process through his attorney, obeyed the Court's order to appear. Through the eventual negotiation of the parties at this hearing, this Court entered a consent order whereby the children would be returned to their habitual residence under the Treaty, namely their home in Israel. The order also allowed respondent to keep the children several more days, through the end of Rosh Hashana (the Jewish New Year), until they would fly home with their mother. Petitioner spent those few days with friends in New York while respondent spent the Jewish New Year with his children. The children were in fact returned without a problem. Only this dispute regarding attorneys' fees and costs remains to be decided.


Now before this Court is petitioner's motion for attorneys fees and costs pursuant to 42 U.S.C. § 11607(b)(3). This section of the International Child Abduction Remedies Act ("ICARA") provides:

Any Court ordering the return of a child pursuant to an action brought under section 4 shall order the respondent to pay the necessary expense, incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of the proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such an award would be clearly inappropriate. Id. See also Roszkowski v. Roszkowska, 274 N.J. Super. 620, 638, 644 A.2d 1150, 1159 (N.J. Super. Ct. Ch. Div. 1993) (noting that the court, as a sanction against the abducting parent, may order the respondent to "pay legal and travel expenses and costs incurred in locating the child. . ."). Under this provision, petitioner seeks reimbursement for a total of $9,562 in counsel fees and costs for Mr. Arenstein's firm, $2,560 in counsel fees for Shmuel Moran, and $1,823 for petitioner in repayment for plane tickets, all of which petitioner seeks to have remitted through Mr. Arenstein's office. As the following discussion will explain, petitioner's motion will be granted in part.

Respondent argues that petitioner is not entitled to the bulk of what she asks for because almost none of what was done was necessary. It is respondent's contention that much of this could have been avoided through discussion with him after he sent letters to the Israeli counsel and without 100 pages of pleadings and exhibits prepared by petitioner's counsel and filed in this Court. I could not disagree with respondent more.

This sudden abduction of petitioner's children created an emergency situation; in handling an emergency, one takes no chances. When plumbing springs a leak in the middle of the night, one does not hesitate to pay the plumber $100 an hour to fix the emergency instead of waiting to pay $50 an hour in the morning when more damage has been done. Similarly, when the worry is not plumbing, but one's children, there are no doubts as to what one must do. ICARA was created exactly for situations like this. The steps petitioner took to assert her ICARA ...

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