United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE
the Court is Lorin Mor Amsalem's petition filed pursuant
to the Hague Convention on Civil Aspects of International
Child Abduction (the “Convention”), codified by
the International Child Abduction Remedies Act
(“ICARA”), 22 U.S.C. 9000 et seq.,
seeking the return of her children to Israel. (Compl., Dkt.
1). This Court held a full evidentiary hearing, during which
the Court received evidence and heard sworn testimony. Having
considered the evidence, testimony, and oral arguments
presented during the hearing, along with the applicable law,
the Court now enters the following findings of fact and
conclusions of law pursuant to Federal Rule of Civil
Procedure 52(a). Any findings of fact that should be
construed as a conclusion of law is adopted as such. Any
conclusion of law that should be construed as a finding of
fact is adopted as such.
case arises out of a child custody dispute between estranged
parents Lorin Mor Amsalem and Avishay Amsalem. Petitioner
Lorin Mor Amsalem (“Lorin”) alleges that
Respondent Avishay Amsalem (“Avishay”) has
wrongfully retained their three children in the United States
and seeks their immediate return to Israel. (Compl., Dkt. 1,
at 3-4). Approximately three months after Lorin filed her
Hague petition, she filed a motion for preliminary injunction
asking the Court to (1) issue a temporary restraining order
without notice to Avishay, (2) expedite the preliminary
injunction hearing, (3) consolidate the preliminary
injunction hearing with a trial on the merits, and (4) order
the Williamson County court to refrain from determining
custody of the children until this action has been resolved.
(Mot. Prelim. Inj., Dkt. 2, at 16). The Court denied the
motion upon finding that Lorin had cited no facts clearly
showing the risk of immediate and irreparable injury and did
not certify her efforts to give notice to Avishay or explain
why such effort should not be required. (Order, Dkt. 5, at
2-3). The Court set this case for an evidentiary hearing on
November 13, 2019. (Dkt. 14). Both parties submitted trial
briefs. (Pet. Br., Dkt. 18; Resp. Br., Dkt. 19). The hearing
lasted two days. (Hr'g, Dkt. 20, 22). During the hearing,
three witnesses testified: Lorin, Avishay, and Lorin's
mother. (Id.). The Court heard closing arguments
over the telephone on November 21, 2019. (Closing Arg., Dkt.
Lorin's counsel presented her case in chief, she moved to
admit all exhibits attached to Lorin's motion for
preliminary injunction pursuant to 22 U.S.C. § 9005.
(Exs. 1-8, Dkt. 2). Avishay objected to the automatic
admissibility of these documents. (Hr'g, Dkt. 20). While
the Court admitted several of the documents during the course
of the hearing, the Court did not rule on the admissibility
of seven exhibits filed as attachments to Lorin's motion
for preliminary injunction, (Dkt. 2). The Court took
Avishay's objection as to the remaining exhibits under
advisement and ordered supplemental briefing on the issue of
admissibility under 22 U.S.C. § 9005. The Court
addresses the admissibility of these exhibits in this order.
See infra Part III.A.
FINDINGS OF FACT
following facts have been established by the preponderance of
the evidence. Lorin and Avishay are Israeli nationals
who married in 2005 in Israel. (Pet. Br., Dkt. 18, at 2).
They are the parents of three children: I.M.A., A.A., and
R.M.A. (Id.). I.M.A and A.A., the two eldest
children, were born in Israel in 2010 and 2012, respectively.
(Resp. Br., Dkt. 19, at 1). Their third child, R.M.A., was
born in the United States on March 22, 2017. (R.M.A. Birth
Certificate, Dkt. 28-2, at 71). The family resided in Israel
until November 30, 2015, when Avishay accepted a job at
Polycom USA, and the family moved to Austin, Texas. (Resp.
Br., Dkt. 19, at 1). Before leaving Israel, Lorin notified
her employer that she was moving to the United States and
that her last day of work with the company would be November
25, 2015. (Resignation Letter, Dkt. 28-1, at 29 (“[I]n
light of an opportunity that has come my way to move to the
United States and to get to know a different culture, and a
new job . . . I have no choice but to leave and seek new
horizons.”)). The family arrived in Austin, Texas on
L-visas valid for five years. (Resp., Br., Dkt. 19, at 1;
Amsalem Family L-visas, Dkt. 28-1, at 32-35).
living in the United States for less than a month, Avishay
signed a three-year car lease. (Lease Agreement, Dkt. 28-4,
14-16). Lorin's uncle co-signed the lease.
(Id.). In the spring, Lorin inactivated her Israeli
bar membership and applied for a U.S. work authorization
permit. (Letter from the Israeli Bar Association, Dkt. 28-1,
at 38; I-765 Application for Employment Authorization, Dkt.
28-1, at 36). Around the same time, Polycom agreed to sponsor
the Amsalem family for permanent residency in the United
States in exchange for Avishay's commitment to remain
with the company for an additional two years. (Polycom
Sponsorship Letter, Dkt. 28-2, at 47). In the fall of 2016,
Avishay and Lorin notified the Israeli government they were
no longer residents of Israel. (Lorin's Residency Letter,
Dkt. 28-2, at 66; Avishay's Residency Letter, Dkt. 28-2,
at 58). On October 13, 2016, Lorin received confirmation from
the Israel National Insurance Institute that she was deemed a
nonresident of Israel “[f]rom 01/01/2016
onwards.” (Nonresident Confirmation Letter, Dkt. 28-2,
2016, both Lorin and Avishay participated in the process of
applying for legal permanent residency. (USCIS Form I-693,
Dkt. 28-2 at 1; Amsalem Family Green Cards, Dkt. 28-2, at
29). This process involved submitting an application for
legal permanent residency, getting fingerprinted, obtaining
the necessary medical examinations, and attending family
interviews at U.S. Citizenship and Immigration Services
(“USCIS”) centers. (Hr'g, Dkt. 20, 22;
see also WhatsApp Msg., Dkt. 28-4, at 29 (showing
Lorin inquiring about the status of the family's green
cards). Because Lorin was pregnant at the time, she sought a
waiver from USCIS's immunization requirement.
(Immunization Waiver, Dkt. 28-2, at 10). When Avishay learned
that the family's application for permanent residency had
been approved, he texted Lorin, “[w]e are officially
permanent residents of the United States.” (WhatsApp
Msg., Dkt. 28-4, at 29). On October 28, 2016, the Amsalem
family received their green cards. (See Timeline,
Dkt. 28-4, at 32; Amsalem Family Green Cards, Dkt. 28-2, at
March 22, 2017, the couple's third child, R.M.A, was
born. (R.M.A. Birth Certificate, Dkt. 28-2, at 71). The
family took no steps to register him as an Israeli citizen.
(Hr'g, Dkt. 20). Instead, the couple applied for and
ultimately obtained a U.S. Social Security number and U.S.
passport for R.M.A. (R.M.A. Social Security Card, Dkt. 28-2,
at 72; R.M.A. Passport, Dkt. 28-2, at 73). On August 18,
2017, the couple signed a new one-year lease for a house in
Cedar Park, Texas. (See Timeline, Dkt. 28-4, at 32).
Approximately two weeks before the family's two-year
anniversary in the United States, the couple purchased
roundtrip airline tickets to Israel to visit family and
friends. (Roundtrip Airline Tickets, Dkt. 28-2, at 74-98). On
November 30, 2017, the family's two- year anniversary in
the United States, the family still resided in Texas.
(Hr'g, Dkt. 20). The family took no steps at that time to
return to Israel. (Id.).
spring of 2018, the couple's marriage had deteriorated
and Lorin began demanding that the family return to Israel.
(Resp. Br., Dkt. 19, at 2). While the couple negotiated the
terms of a possible return to Israel and signed an agreement
in May 2018 stating they would “[s]tay in the U.S. till
December 2019 [w]hether the relationship is successful or
not, ” they never moved back to Israel. (Avishay's
Letter to Lorin, Dkt. 28-5, at 7; Avishay's Letter to
Lorin, Dkt. 27-1, at 9; Agreement, Dkt. 28-5, at 1-3). On
June 12, 2018, Avishay filed for divorce in Williamson
County, Texas. (Pet. Br., Dkt. 18, at 3). The following day,
the Williamson County court issued an ex parte temporary
restraining order prohibiting the removal of the children
from Texas or the United States and restricting the
children's residence to Williamson County, Texas. (Pet.,
Br., Dkt. 18, at 3). The order further required Lorin to
surrender the children's passports. (Id.).
Accordingly, June 13, 2018 serves as the date of the alleged
wrongful retention of the children in the United States.
February 15, 2019, after the Williamson County action had
been pending for approximately eight months, Lorin filed a
Verified Petition for Return of Minor Children to Their
Habitual Residence (Israel) pursuant to the Hague Convention
and the International Child Abduction Remedies Act, 22 U.S.C.
§ 90001 et seq. (Compl., Dkt. 1). She did not
request issuance of summons until May 4, 2019. (Mot. Request
Summons, Dkt. 3). Lorin filed a Motion for Preliminary
Injunction that same day. (Mot. Prelim. Inj., Dkt. 2). The
Court denied the motion without prejudice. (Order, Dkt. 5).
CONCLUSIONS OF LAW
Admissibility of Documents under 22 U.S.C. §
9005 During the evidentiary hearing held on
November 13, 2019, Lorin moved for the admission of all
exhibits attached to her motion for preliminary injunction,
(Dkt. 2), pursuant to 22 U.S.C. § 9005. While many of
these documents were admitted during the hearing, the Court
has yet to rule on the admissibility of the following
• Exhibit A-1, Petitioner's Letter to Respondent
with translation, Dkt. 2-1, at 2-7;
• Exhibit A-4, Respondent's Text of July 4, 2018
with translation, Dkt. 2-1, at 18-21;
• Exhibit A-5, Respondent's Text of July 7, 2018
with translation, Dkt. 2-3, at 22-24;
• Exhibit C-1, Respondent's 18-month apartment
lease, signed July 2018, Dkt. 2-3, at 2-13;
• Exhibit C-2, Petitioner's month-to-month apartment
lease, Dkt. 2-3, at 14-21;
• Exhibit F, Respondent's Williamson County Divorce
Petition, Dkt. 2-6;
• Exhibit H, Authorized Translation of Israel Capacity