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Amsalem v. Amsalem

United States District Court, W.D. Texas, Austin Division

December 20, 2019

LORIN MOR AMSALEM, Petitioner,
v.
AVISHAY AMSALEM, Respondent.

          ORDER

          ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         This 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. 26).

         After 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[1] 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.

         II. FINDINGS OF FACT

         The following facts have been established by the preponderance of the evidence.[2] 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).

         After 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, at 69).

         Throughout 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 29).

         On 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.).

         By the 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.

         On 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).

         III. CONCLUSIONS OF LAW

         A. 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 exhibits:

• 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 and ...

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