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Halaf v. Halaf

February 24, 2009

AVI HALAF, PLAINTIFF,
v.
AYELET BAZON HALAF DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Petitioner Avi Halaf brings this petition against respondent Ayelet Bazon Halaf pursuant to the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 (the "Hague Convention"), T.I.A.S. No. 11,670, 19 I.L.M. 1501; see also Declaration of Christopher R. Thomson dated November 5, 2008 ("Thomson Decl."), Exhibit ("Ex.") 1 (copy of applicable articles of Hague Convention), as implemented in the United States by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq.; see also Thomson Decl. Ex. 2 (copy of applicable sections of ICARA). Presently before this Court is petitioner's request for an order directing the return of his son, Tohar Israel Halaf (the "Child") to Israel pursuant to the Hague Convention. Upon the findings of fact and conclusions of law set forth below, the request is denied.

BACKGROUND

The following allegations of fact are derived from the parties' submissions in connection with the verified Petition for Return of Child to Petitioner, as well as from testimony at an evidentiary hearing held on January 21 and 27, 2008, at which both parties and several witnesses testified.

Petitioner is an Israeli citizen, fluent in Hebrew, but not in English. Affidavit of Avi Halaf dated November 3, 2008 ("Avi Aff.") ¶ 1. He resides in Israel at Moshav Azaria, house no. 95, 99792. Id. Respondent is an Israeli and American citizen, currently residing at 105-24 63rd Road, Forest Hills, New York 11375. Pet. ¶ 10; Affidavit of Ayelet Bazon dated January 7, 2009 ("Ayelet Aff.") ¶ 1. Respondent lived in the United States with her parents between the ages of one and 18, when her family moved to Israel. Ayelet Aff. ¶ 2.

Petitioner and respondent met in Israel approximately five years ago, and they were married in Israel on February 23, 2005. Avi Aff. ¶ 2; Ayelet Aff. ¶ 3. According to respondent, from the day petitioner and respondent met, petitioner showed great interest in respondent's American citizenship and told respondent it was "his dream to live in New York." Ayelet Aff. ¶ 5. While married, petitioner and respondent lived in a separate apartment in respondent's parents' home. Ayelet Aff. ¶ 4; Avi Aff. ¶ 3.

Sometime in February 2006, petitioner and respondent began discussing the idea of relocating to the state of New York, where respondent's extended family resides. Avi Aff. ¶ 7. In November 2006, while respondent was pregnant with the Child, petitioner and respondent traveled to New York. Ayelet Aff. ¶ 6. According to respondent, petitioner's enthusiasm for New York redoubled during this trip, and petitioner tried to convince respondent that the family should relocate to New York.*fn1 Id. Respondent, however, was concerned about the jobs and benefits petitioner and respondent would leave behind in Israel. Id. At that time, petitioner was employed by the municipality of Modin, Israel as a construction engineer and city building inspector. Id., Avi Aff. ¶ 11; Hr'g Tr. at 6:19-23. Respondent was employed as an administrator at El Al, an Israeli airline, where she had been offered union membership and shares in the company. Avi Aff. ¶ 11; Ayelet Aff. ¶ 6.

The Child was born on May 1, 2007, in Be'er Ya'aqov, Israel, and is an Israeli citizen. Avi Aff. ¶ 3; Ayelet Aff. ¶ 7; see also Thomson Decl. Ex. 4 (copy of Child's birth certificate). Respondent states that she has always been the Child's primary caregiver. Ayelet Aff. ¶ 7. According to petitioner, however, he participated in the care of the Child on a daily basis in Israel, including changing the Child's diapers, feeding him, taking him to and from day care, and watching him in the evening, when respondent would help her brother after work. Hr'g Tr. at 9:20-10:3. Although respondent acknowledges that petitioner took the Child to day care in the morning because the day care facility was on the way to petitioner's workplace, respondent denies that respondent ever changed the Child's diapers, and states that the Child was left in the care of someone other than herself only "on very rare occasions." Hr'g Tr. at 85:15-86:17; Ayelet Aff. ¶ 7. The day care where the Child was cared for following respondent's maternity leave is operated by respondent's sister, Avi Aff. ¶ 4; Ayelet Aff. ¶ 7, and is now based in New York. Ayelet Aff. ¶ 7. I find that both parents participated in the care of the Child.

Following the Child's birth, according to respondent, petitioner made the decision that he, respondent and the Child would relocate to New York. Id. ¶ 8. Respondent agreed and the family began preparations to leave Israel. Id. Petitioner states that he and respondent agreed that if petitioner could not find work in New York, then respondent and the Child would not follow him to New York and petitioner would return to Israel. Avi Aff. ¶¶ 9-10.

As a result of petitioner and respondent's decision to move to the United States, respondent's family also decided to relocate to New York. Ayelet Aff. ¶ 9; see also Hr'g Tr. at 143:13-24; 144:20-21 (respondent's mother's testimony that she sold her house in Israel and moved to New York). Respondent's family had previously lived in New York and still maintained businesses in New York. Ayelet Aff. ¶ 9. Petitioner was aware of respondent's family's businesses in New York, and in fact began to learn the locksmith trade from respondent's brother's locksmith business in Israel so that he could work in New York upon arrival. Id. ¶ 10; see also Affidavit of Eitan Ben Aharon dated January 13, 2009, ¶¶ 1, 4-5 (statement from petitioner's teacher, employed by respondent's brother, confirming petitioner's successful completion of locksmith trade course); Hr'g Tr. at 159:15-24 (respondent's brother's testimony that he taught petitioner the locksmith trade).

Beginning in August of 2007, petitioner and respondent sold substantially all of their belongings in Israel, including furniture, kitchen equipment, televisions, beds, two cars and the Child's personal items.*fn2 Ayelet Aff. ¶ 11. Respondent has submitted without objection by petitioner a number of affidavits from members of petitioner's and respondent's family and community in Israel who either reviewed or purchased the family's belongings, or with whom petitioner spoke about the move to New York. See Affidavit of Yehudit Flint, Affidavit of Yaakov Bason, Affidavit of Eitan Ben Aharon, Affidavit of Esther Suliman, Affidavit of Yafit Jeanette Katan, Affidavit of Liat Benita, and Affidavit of Avner Tzafani, all dated January 13, 2009.

In addition, petitioner and respondent each wrote letters of resignation to their respective employers declaring their intention to move to New York. Ayelet Aff. ¶ 13; see also id.

Ex. A (copy of letter dated December 23, 2007 from El Al Airlines to respondent confirming receipt of respondent's December 16, 2007 resignation letter). According to a colleague, however, petitioner told him that if things did not go as planned in the United States, he would return to Israel with respondent and the Child. See Affidavit of Yifat Blibaum-Emanuel dated January 25, 2009. Petitioner's last day of work was either December 31, 2007, or January 1, 2008. Ayelet Aff. ¶ 13; Avi Aff. ¶ 11.*fn3

Respondent's last day of work was January 15, 2008, as some of respondent's benefits were not available to her until that date. Ayelet Aff. ΒΆ 13. Respondent's manager at El Al airlines recommended respondent for a job in El Al's New York offices. See id. Ex. B (email dated November 25, 2007 from ...


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