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In re Custody of AT.

Court of Appeals of Washington, Division 1

November 18, 2019

In the Matter of the Custody of AT. and ST., Children. MICHAEL TEPPER, Appellant, and ORIT TEPPER, Respondent.

          MANN, A.C.J.

         Michael Tepper appeals the trial court's order denying his action under the Hague Convention on International Child Abduction seeking the return of his two daughters to Israel. Michael[1] contends the trial court erred when it found: (1) that the children's habitual residence is in Washington, (2) that Michael failed to exercise his right to custody, [2] and (3) that one of his daughters would be subject to a grave risk of harm if she returned to Israel. We affirm.

         I.

         Michael and Orit Tepper were married in September 2004 in Caesara, Israel.[3]Shortly thereafter they moved to Renton where they had two daughters, AT and ST, born in 2005 and 2008, respectively. In October 2014, Orit filed a petition for legal separation in Washington, which was later dismissed without prejudice. The couple entered into two post nuptial agreements in late 2014 that provided that the family move to Israel. The family moved to Israel in July 2015.

         Within eight days of arriving, Michael departed Israel and returned to Washington. Michael's stated intent at that time was to remain in Washington and continue practicing medicine there until he was 75. In September 2015, Orit wanted to move back to the United States, but testified that Michael would not allow her to move back. In October 2015, Michael filed for divorce[4] before the Rabbinical Court of Israel.

         Michael obtained no-exit orders that precluded Orit from removing the children from Israel.[5] These orders effectively prevented Orit from leaving the state of Israel with the children. The no-exit orders were in place for two years, until November 5, 2017. During this time, Michael resided in Washington.

         On October 10, 2017, the Israel Rabbinical Court adopted the report of the social worker from Israeli social services and granted Orit primary residential time with the children. Michael was granted "staying times" of Sundays, Tuesdays, and every other weekend. The report summarized:

The mother and daughters came to Israel on 08/07/2015. For two years the father visited them in Israel once every two-three months for a period of one week to ten days at a time. He has recently rented an apartment, on a temporary basis in Haifa and has expressed his desire for determining regular staying arrangements including overnight stays.
In light of my last meeting with the father, where he expressed his desire to leave the country, contrary to what he said in the meeting we had before, where he expressed his desire to have a permanent relationship with his daughters, it is unclear where he will stay in the future.
The girls need stability and permanence in their lives. The lack of clarity experienced by the parents and the children in relation to the future of the spousal relationship and the place of residence creates confusion and distress for the girls, in addition to the immigration crisis they are experiencing, and may harm their emotional and physical development.

         On November 6, 2017, during a two-day gap between the no-exit orders, Orit and the children left Israel and returned to Washington. On March 19, 2018, Michael commenced an action in King County Superior Court to return the children to Israel under the Hague Convention.

         King County Superior Court Judge Matthew Williams, heard testimony and received evidence over multiple days beginning July 2, 2018. Judge Williams entered detailed findings of fact and conclusions of law on August 13, 2018.

         At trial, the parties provided conflicting testimony. Michael testified that he blamed Orit for not seeing the children frequently and he denied petitioning for custody to go to Orit. Although Michael claimed to have "custody," he was unable to explain what that meant, or how he had exercised his visitation rights. Michael testified that he intends to live in Israel. However, the trial court found that Michael's testimony did not demonstrate an intent to relocate to Israel. Michael did not agree that AT suffered from acute stress disorder, and provided inconsistent testimony about therapy and family counseling for her.

         The trial court did not find Michael's testimony credible, finding that he "testified inconsistently on many issues, and modified his testimony over the course of the trial to try to bring himself into alliance with the theory of the case being propounded by his attorneys."

         Dr. Joanne Solchany, a licensed therapist, testified as a qualified expert in child psychology. Dr. Solchany provided treatment for AT and ST, and prepared formal evaluations for trial. She opined to a reasonable degree of psychological certainty that AT would be at a grave or significant risk of physical and psychological harm if returned to Israel, and that AT would be in an intolerable situation if returned to Israel. She also opined to a reasonable degree of psychological certainty that ST would be at a grave or significant risk of physical and psychological harm if returned to Israel without her mother.

         Dr. Emitis Hosoda, Michael's former business partner, testified that Michael intended to reopen his practice in Maple Valley, Washington. Dr. Hosoda explained that Michael's "plan was to finish the court case in Israel, leave [Orit] in Israel, and return to the United States with the girls."

         Orit testified that AT and ST were "in distress" in Israel. AT testified that she was happy to return to Washington and was adamant that she did not want to return to Israel. AT testified that she was suicidal, depressed, and confused in Israel, and that she would become suicidal if she returned.

         The trial court denied Michael's petition on the basis that the credible evidence clearly established the children as habitual residents of Washington at the time Orit removed them from Israel. The court found that Michael failed to demonstrate by a preponderance of the evidence that Michael and Orit had a shared intent to relocate the family to Israel. Additionally, the court found that "significant other indicia," demonstrated that the children were completely acclimated in Washington. The court also found that the evidence clearly established that the only reason the children remained in Israel was due to the no-exit orders, and despite living in Israel for two years, the children never acclimated.

         The court also determined that Michael failed to prove by a preponderance of the evidence that he had exercised custody rights in Israel, which is an independent basis for denying the petition. Michael did establish that the Rabbinical Court in Haifa, Israel adopted a temporary visitation schedule, however he did not establish that he exercised his visitation rights from that schedule. The court also found that the testimony of Michael, Orit; and AT demonstrated that Michael did not follow the visitation schedule ordered by the Rabbinical Court.

         Finally, the court determined that Orit established an exception to Article 3 by clear and convincing evidence. The court found that the evidence is "unequivocal" that if AT were to be returned to Israel, there is a grave risk that she would be subject to harm by suicide. The court found that the evidence did not sufficiently demonstrate that ST would be at a grave risk of harm if returned to Israel.

         Michael appeals.

         II.

         Michael contends the trial court erred when it concluded: (1) that the children's habitual residence is in Washington, (2) that Michael failed to exercise his right to custody, and (3) that one of his daughters would be subject to a grave risk of harm if she returned to Israel.

         "Findings of fact are reviewed under a substantial evidence standard, defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true." Sunnvside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003). The party claiming error has the burden of showing that a finding of fact is not supported by substantial evidence. Fisher Props., Inc. v. Arden-Mavfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990).

         "If the standard is satisfied, a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently." Sunnvside Valley, 149 Wn.2d at 880. There is a presumption in favor of the trial court's findings. Fisher. 115 Wn.2d at 369. As the trial court is in a better position to evaluate the credibility of witnesses, we do not substitute our judgement for the trial court's when reviewing findings of fact. Fisher, 115 Wn.2d at 369-70.

         Here, because Michael failed to challenge specific findings of fact, we treat the trial court's finding as verities. In re Contested Election of Schoessler, 140 Wn.2d 368, 385, 998 P.2d 818 (2000).

         A.

         Michael's petition to return the children is governed by the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The United States adopted and implemented the terms of the Convention through passage of the International Child Abduction Remedies Act (ICARA), Pub. L. No. 100-300, 102 Stat. 437 (1988), which was codified at 42 U.S.C sections 11601-11610. The Convention provides that:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned stall order the return of the child forthwith.

Hague Convention, Article 12.

         Michael contended that the children were wrongfully removed from Israel. Article 3 of ...


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