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Adam Hofmann v. Marina Abigail Sender

May 14, 2013

ADAM HOFMANN, PETITIONER-APPELLEE,
v.
MARINA ABIGAIL SENDER, RESPONDENT-APPELLANT.



The opinion of the court was delivered by: Hall, Circuit Judge:

13-01

Hofmann v. Sender

Argued: April 12, 2013

Before: HALL, DRONEY, Circuit Judges, RESTANI,*fn1 Judge.

Petitioner-Appellee initiated proceedings pursuant to Article 3 of the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 679, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10, 494 (Mar. 26, 1986), implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (2000), and has sought return of his children to Canada from New York in order to allow the Canadian courts to determine which parent is to be awarded custody of the children. Respondent timely appeals the district court's determination that the children were habitually resident in Canada under the Convention and ICARA and, therefore, were ordered returned to Canada for further legal proceedings. We agree with the district court that at the time Respondent commenced processes in the New York courts to terminate her marital relationship with Petitioner, Petitioner and Respondent's intention that the children reside in the United States was, insofar as Petitioner was concerned, conditioned on their moving to New York as an intact family, and this condition was never fulfilled. For purposes of the Hague Convention, therefore, the Petitioner and Respondent's last shared intent with respect to their children's residence was that they reside in Canada. Moreover, this appeal has not been rendered moot by the fact that the children have been returned to Canada pursuant to the district court's order. The decision of the district court is hereby AFFIRMED.

Petitioner-Appellee initiated proceedings pursuant to Article 3 of the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 679, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10, 494 (Mar. 26, 1986) ("Hague Convention" or "Convention"), implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (2000), which "seeks 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." Abbott v. Abbott, 130 S.Ct. 1983, 1989 (2010) (internal quotation marks omitted). He has petitioned for return of his children to Canada from New York in order to allow the Canadian courts to determine which parent is to be awarded custody of the children. Respondent timely appeals from the judgment of the district court challenging that court's determination that the children were habitually resident in Canada under the terms of the Convention and ICARA and that the children must therefore be returned to Canada for further legal proceedings.

I. Proceedings Below

After a five day evidentiary hearing in this case, the district court made extensive findings of fact, as follows. Petitioner Adam Hofmann is a Canadian citizen. He was born, raised, educated, and continues to work in Montreal, Quebec. ROA Doc. 28 at 4.*fn2 He is not a citizen of, nor does he have a visa to work in any other country. Id. Respondent Abigail Sender is a United States citizen. She was born and raised in the United States and attended medical school beginning in 1999 at McGill University in Montreal, Quebec. Id. She was formerly a permanent resident of Canada. At one time she applied for, but never received, Canadian citizenship. Id. Hofmann and Sender met and began dating while they were residing in Montreal and serving as medical residents at McGill. Id. at 5. Both parties earned medical degrees that are recognized as the equivalent of a comparable degree in the United States. Hofmann, however, is unable to work in the United States due to his immigration status. In Montreal, the parties attended the Spanish and Portuguese Synagogue. They were married there in February 2008 and lived together in Montreal as husband and wife until May or June of 2011. Id. at 5-6. Their first son, R, was born in Montreal in January, 2009. Id. at 6. After the baby's birth, Sender traveled to New York so that her family could help her care for the child. Id. In the fall of 2009, Hofmann took two months of unpaid leave in order to spend time with his wife and child at the home of his in-laws in New York. Id. At that time, Hofmann and Sender discussed their marital difficulties, including problems they were having with their families. They also discussed the possibility of having a second child and of relocating outside of Canada. Id. They took various trips to communities in New York and New Jersey in order to see whether any would make a suitable future home. They were particularly concerned about finding an Orthodox Jewish community where they could raise their family. Id. at 7. Hofmann and Sender returned to Montreal with their son later in 2009, but they kept open the possibility of relocating to New York at some point in 2010. Id.

Around this time, the relationship between the parties' families broke down entirely. As a result, Hofmann cut all ties with his immediate family, stopped speaking with his parents, and did not attend his brother's wedding. Id. In the summer of 2010, Hofmann and Sender both finished their medical training, and Hofmann received an offer to work at Sacre-Coeur Hospital in Montreal. Sender agreed that Hofmann should accept the position because of his interest in working in an academic institution and the possibility that he could "moonlight" at other hospitals. Id. Hofmann and Sender also continued to discuss a possible relocation to the United States. Toward this end, Hofmann exchanged emails with recruiters and other doctors in order to explore opportunities for work in the United States. Id. ex. BL, BM. The parties, however, did not make a final decision to relocate at any point in 2010, and at that time Hofmann took no steps to obtain legal resident status in the United States. Sender continued to travel to New York and New Jersey to look at schools and communities that might suit the parties' needs if they were to relocate. Id. at 9.

The lease for the parties' Montreal apartment, where they had resided since their wedding, expired in the summer of 2011. Hofmann's employment with Sacre-Coeur Hospital also ended around the same time, and the parties moved to another apartment in Montreal. The new apartment was less expensive, but was still close to the Spanish and Portuguese Synagogue. On July 19, 2011, the parties' second son, A, was born in Montreal. At some point that summer, the parties decided that Sender would take the children to stay for a prolonged period at her parents' home in Rifton, New York in order that her parents could help with the children. Doc. 28 at 9. On August 15, 2011, Sender and the children departed for New York, taking with them certain personal and family belongings for their stay. Hofmann switched to a position covering for doctors who had gone on leave so that he could have more flexibility to spend time with his family in New York. The new position was less prestigious than his former academic career path, but it allowed him to spend approximately half of his time with his wife and children in Rifton.

In the hearing before the district court, the parties vigorously contested the purpose of the trip to Rifton. Hofmann asserted that the trip was intended as a temporary visit, and that Sender and the children intended to return to Montreal after the winter. Doc. 28 at 10. Sender, by contrast, claimed that the move to Rifton was the first step in the family's permanent relocation to New York. Id. On this point, the district court found that Sender's testimony was "specific and in large part credible," id., noting that Sender's testimony was supported by the actions of the parties, which included moving clothes, toys, and other essentials to Rifton, consistent with a lengthy stay. After Sender had gone to New York, Hofmann periodically brought more of his and Sender's belongings to her parents' home in Rifton. The district court found that the second Montreal apartment did "not seem suitable for a long-term family residence," because of its smaller size. Id. at 10-11. The parties made renovations to a room in Sender's parents' house in order to accommodate their family for an extended period of time. Id. at 11. In September 2011 the parties opened a joint bank account in New Paltz, New York. Between the end of 2011 and the beginning of 2012 they transferred over $200,000 to that account. Id. Their older son, who was three at the time, began attending classes in New York. Id. The district court found, however, that the parties had not "reached the unequivocal decision to relocate to New York," by August 15, 2011. Id. at 12. Although Sender had abandoned her pursuit of Canadian citizenship by this point, the court found that as late as November and December of 2011, the parties were still considering the possibility of permanently settling in a new residence in Montreal. Id. The evidence showed that the parties had no intent of residing permanently in Rifton because it does not have an Orthodox community or an Orthodox school for the parties' children, and until August 2012, Sender had not found a permanent residence in New York.

Sender returned to Canada "at least once in the fall of . . . 2011 and once in the winter of 2011/2012." In the fall of 2011, Sender renewed her Quebec car insurance. During Sender's 2012 visit, Hofmann and Sender "met with an attorney to execute a divestiture of assets that [Hofmann] held" in a company owned by his family. Id. at 12. In the fall of 2011 and the winter of 2012, Sender also continued to receive certain tax credits and maternity leave from her job in Montreal. Those "payments were predicated precisely on the understanding that she would return to the job at some point in the future." Id. at 13 citing Ex. 57.

On this record, the district court determined that Hofmann had "acquiesced" to the children's removal to New York in August of 2011. The court also found "that until September 2012, the parties believed that, if they were relocating permanently to New York . . . they were doing [it] as a family." Id. at 13. The court determined that while this condition may not have been expressly stated, "it was understood by the parties, and it certainly was understood by [Hofmann]." In the court's view, "both petitioner and respondent specifically and persuasively testified to their shared understanding of this condition." Id. On direct examination, Hofmann "testified that he consented to respondent's travel to New York with the children based on his understanding that he . . . and the children, would stay as a family . . . 'come what may.'" The court found this statement was consistent with Hofmann's other actions including his institution of this Hague Convention proceeding immediately after he was served with divorce papers. Similarly, the court found that Sender "testified, both on direct and on cross [examination], that it was her understanding and assumption that she and [Hofmann] were relocating to New York as a family." Sender admitted on cross examination that "the only reason" Hofmann had allowed her to take the children to New York in 2011 was his belief that he would remain part of the family. She also stated that the parties had agreed to move to New York as a family, and that it was an attempted "rebirth" of their marriage. Id. at 14.

Throughout the spring of 2012, the parties continued to search in New York for a suitable community for the family and a suitable school for the children. Id. at 15. Hofmann continued his work "moonlighting" at the hospital in Montreal but did not take a permanent position. Id. at 14-15. Hofmann paid Canadian income taxes, while Sender filed tax returns in both Canada and the United States. Id. at 15. In February or March of 2012, Sender cancelled her Quebec health insurance, informed her employer that she would not be returning to work, and repaid $25,000 to the insurance plan. Id. at 16. Hofmann continued to make regular trips to New York to visit his family, and in the spring the parties' older son was accepted for enrollment at Breuers Yeshiva in New York. Id. at 16. In May of 2012, the parties shipped their belongings to a storage unit in New York. That year Sender filed tax returns only in the United States. Id. Between February 14, 2012 and September 5, 2012, Sender was indicating to Hofmann that she was looking for a suitable family home in the metro New York area. Id. In the summer of 2012, however, Sender had become increasingly discontent in her marriage and began to speak with divorce attorneys. In August, she found a home for herself and the children near the school the parties had selected. Throughout this period the parties and their children, sometimes accompanied by Sender's mother, continued to go on family vacations on the weekends. Id. Sender never mentioned the possibility of divorce to Hofmann, and, in fact, she took pains to hide the fact that she was seeing attorneys, including making all attorney's fee payments in cash. Id. at 16-17. At some point in 2012, the parties spoke to an attorney in New York about changing their family ...


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