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Cohen v. Cohen

United States District Court, E.D. Missouri, Eastern Division

September 1, 2016

YACCOV COHEN, Petitioner,
v.
OCEAN ESTER DEBORA COHEN, Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This action has been brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 22514 (the “Hague Convention”). The Hague Convention seeks to “protect children internationally from the harmful effects of their wrongful removal or retention” caused either by the removal of a child from the state of its habitual residence or the refusal to return a child to the state of its habitual residence. Hague Convention Preamble; see Barzilay v. Barzilay, 536 F.3d 844, 846 (8th Cir. 2008). The principal objectives of the Hague Convention are “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Hague Convention art. 1; see also Silverman v. Silverman, 338 F.3d 886, 897 (8th Cir. 2003). The Hague Convention is implemented in the United States by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601-11610 (1988). Chafin v. Chafin, 133 S.Ct. 1017, 1021 (2013). See also Abbott v. Abbott, 560 U.S. 1, 9 (2010); Barzilay, 536 F.3d at 846.

         I. PROCEDURAL BACKGROUND

         Petitioner Yaccov Cohen (“Father”) filed his Complaint for Return of Child on November 25, 2015. (Doc. No. 1) On November 30, 2015, the Court issued an Order to Show Cause regarding the Complaint and set the matter for hearing on December 9, 2015. (Doc. No. 4) Respondent Ocean Ester Debora Cohen (“Mother”) filed her answer to the Complaint on December 8, 2015. (Doc. No. 8) Father appeared for the show cause hearing through counsel; Mother appeared in person with counsel and the child named in the Complaint, O. N.C. Because the parties wished to conduct discovery, the Court ordered them to file a joint proposed scheduling plan by December 14, 2015. (Doc. No. 11) Upon receipt of the parties' joint proposed scheduling plan (Doc. No. 12), the Court adopted the plan submitted by the parties and issued a Case Management Order assigning the case to Track 1 (Expedited). An evidentiary hearing on Father's complaint was set for March 1, 2016. (Doc. No. 13) On February 18, 2016, the Court held a pre-trial conference on the record. Because Father resides in Israel and speaks limited English, counsel agreed that his testimony at the March hearing could be by telephone with the assistance of a Hebrew interpreter. (Doc. No. 26) The parties filed their trial briefs on February 26, 2016. (Doc. Nos. 35, 37)

         An evidentiary hearing was held on March 1, 2016. Father appeared by telephone from Israel with the assistance of a Hebrew interpreter located in California; Mother appeared in person and with counsel. The Court heard arguments from both sides and admitted certain exhibits from Father and Mother into evidence. The hearing was extremely challenging and took several hours. On a number of occasions the Court lost the telephone connection, either with Father in Israel, or with the interpreter in California. At times the connection was not very good. It was difficult to get through Father's testimony, and counsel for both sides worked cooperatively with each other to get the case submitted. Following the hearing, the parties were granted sixty days to submit proposed findings of fact and conclusions of law. (Doc. No. 41) Both sides filed their submissions on May 2, 2016. (Doc. Nos. 43, 44)

         On June 8, 2016, Father moved for leave to file supplemental evidence in the form of an affidavit in which he elaborates on the process he undertook with the U.S. State Department to obtain pro bono legal representation in this case. (Doc. No. 45) Father asserts this evidence is relevant to demonstrate that he acted as expeditiously as he could to file his claim under the Hague Convention within one year of Mother's allegedly wrongful retention of O. N.C. Mother objects and moves to strike Father's affidavit on the grounds that he did not obtain leave of court to file any post-trial exhibits and that the time for submission of exhibits has therefore passed. Mother also argues the evidence is not relevant to the issues in this case. (Doc. No. 46) Father did not file a response to Mother's objection. Given the difficulties associated with Father testifying telephonically through the use of an interpreter, both on deposition and at the hearing, the Court finds it is not unreasonable to grant Father leave to supplement his testimony with an affidavit. Moreover, Father's affidavit is relevant to Mother's argument, discussed below, that he failed to commence these proceedings in a timely manner. The Court has carefully considered all of the evidence submitted and the parties' proposed findings of fact and conclusions of law. The matter is now ready for disposition.

         II. FINDINGS OF FACT

         Father is an Israeli citizen and currently resides in Israel. Mother is a citizen of both the United States and Israel and currently resides in St. Louis, Missouri. The parties were married in Israel on November 4, 2008. They are the parents of a son, O. N.C., born December 6, 2009 in Israel. O. N.C. is also a citizen of the United States and Israel.

         Father has an extensive criminal record in Israel with periods of confinement. Over the years he has accumulated substantial debt, including criminal fines, penalties and restitution payments. This has resulted in a Stay of Exit Order placed on his visa which prohibits him from leaving Israel.

         In 2010, when O. N.C. was six months old, Father served eleven months of an eighteen month sentence of imprisonment for assault and using a vehicle without permission. During that time, Mother and O. N.C. moved in with her parents. After his release on six months house arrest, Father and Mother lived together with O. N.C. in her parents' apartment.

         Shortly thereafter, the parties began discussing relocating to the U.S. Two of Mother's brothers, Noach and David Palatnik, were already living in St. Louis; a third brother, Yitzchak Palatnik, emigrated later. At that time, Noach was buying and “flipping” real estate and thought this work would be something Father could do and that a move to America would be a good opportunity for him. Although the parties disagree as to whose idea it was initially, they both testified that their plan was for Mother to move to the U.S. with O. N.C., find a place to live, enroll O. N.C. in school, and work to help Father pay off the debts which were preventing him from leaving Israel. Father would join them once his debts were paid off and they would live together in St. Louis.

         According to Mother, they decided to move because their financial situation was difficult and they did not see a future for themselves and their son in Israel. Mother testified she told all her friends she was leaving Israel “basically for good except for visitations for holidays.” It was Father's testimony that their intention was to come and live in the United States for three to five years to save enough money to buy a house in Israel.

         With the agreement of Father, Mother and O. N.C. traveled to St. Louis, Missouri on December 3, 2012. At that time O. N.C. was three years old. Mother began working at an early childhood center with a focus on Jewish education. She found O. N.C. a pediatrician, enrolled him in a full-time educational program, and made arrangements for him to receive speech therapy services through the St. Louis Special School District. She bought a car, registered it, got a Missouri driver's license, and paid taxes. Mother and O. N.C. initially lived with her brother Noach, until they moved into a rented apartment of their own. At the time of the hearing, Mother was working for her brother David.

         Father was in constant communication with Mother and O. N.C., and once she was settled and working, Mother began sending money to Father. She also borrowed $6, 000 from her brother Noach to help Father pay off his debts. Despite these efforts, however, Father made little to no ...


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