In the Matter of the Custody of AT. and ST., Children. MICHAEL TEPPER, Appellant, and ORIT TEPPER, Respondent.
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 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,  and (3) that one of his daughters would be
subject to a grave risk of harm if she returned to Israel. We
and Orit Tepper were married in September 2004 in Caesara,
Israel.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.
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 before the Rabbinical Court of Israel.
obtained no-exit orders that precluded Orit from removing the
children from Israel. 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.
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
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.
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.
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.
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."
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.
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."
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
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.
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
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.
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.
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
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.
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).
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.
contended that the children were wrongfully removed from
Israel. Article 3 of ...