Korn v Korn [US 2002] 10th Judicial Circuit of Alabama Civil Action Number DR 01 1348 RAF 01 International Abduction [USA 2002] ======================================================== CIRCUIT COURT Tenth Judicial Circuit of Alabama Civil Action Number DR 01 1348 RAF MICHAEL KORN ) FILED IN OPEN COURT ) 25 JAN 2002 Plaintiff ) R. A. Ferguson ) Circuit Judge Vs. ) ) Katerina Korn, ) ) Defendant ) FINAL JUDGMENT OF DIVORCE 001 THIS CAUSE came on for trial the 17th day of December 2001 and continued day by day and concluded on December 20, 2001 and submitted to the Court for a final judgment upon the pleadings on record in this cause. The Plaintiff, appearing individually, was represented by and through his attorney of record, Jack E. Held. The Defendant, appearing individually, was represented by and through her attorney of record, La Tresia L. Kinnell. The Court has made a finding of facts as follows: a) Both the Plaintiff and Defendant are Russian immigrants that resided in Israel prior to coming to the USA. Neither the Plaintiff or Defendant is a US citizen. The Plaintiff has a work permit and has applied for a Green card. The Defendant does not have a work permit neither has she applied for one nor applied for a Green card. b) That the minor child, Libby Korn, born May 17, 1999, was born in the USA, is a citizen of the US and has joint citizenship in Israel; c) That the Defendant has been the primary care giver of the child both in the USA and in Israel. The Plaintiff is employed by the Alabama Symphony Orchestra giving private lessons, working continually and for long hours, up to 7 days per week; d) That the Defendant has been unemployed for the most part since the child was born and has shown no ability to gain employment in the USA at this time. Further, while in the physical custody of the Defendant, said minor child had extensive tooth decay to her upper baby teeth which required immediate dental attention that Plaintiff provided. e) The Plaintiff has extended family living in the USA, but out of state; Defendant has extended family living in Israel. The Plaintiff and Defendant have both testified on the day-to-day dangers of living in Israel due to military and suicide bombings having occurred on random basis. Both Plaintiff and Defendant differ on how safe living conditions are in Israel; f) That the Defendant has informed this Court that she has plans on returning to Israel with or without the child within a reasonable time after this Court enters its Orders; and g) That this Court finds that it would be in the best interest of the minor child that her residence should be in the USA. 002 Upon consideration thereof, together with all of the legal evidence, ore tenus testimony and argument by counsel for the parties, the Court is of the opinion the following Order should be entered. Accordingly, it is ORDERED and ADJUDGED by the Court: 003 1. That the bonds of matrimony heretofore existing between the parties are dissolved, and the said Michael Korn (hereinafter referred to as "Plaintiff") and said Katerina Korn, (hereinafter referred to as "Defendant") are divorced each from the other. 004 2. That neither party shall marry again except to each other until sixty (60) days after the date of this Judgment of divorce, and if an appeal is taken (which must be instituted within forty-two [42] days from this Judgment, or from the date that a post-trial motion is denied), then neither party shall again marry except to each other during the pendency of the appeal. 005 3. That the costs of Court accrued herein are hereby taxed as paid. 006 4. That the Court finds from all of the competent, material and relevant evidence that it is in the welfare and best interest of the minor child of the parties, namely: Libby, the care, custody and control of the said minor child be and the same is hereby awarded as shared legal custody. 007 I. Shared parental responsibility (Joint Custody) for a minor child means that both parents retain full parental rights and responsibilities with respect to that child and requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly. 008 II. Both Plaintiff and Defendant desire to be involved in the various activities of their minor child. These include academic, religious, civic, cultural, athletic, medical and dental activities of the minor child. The Plaintiff and Defendant agree that they will consult with each other prior to initiating any such activity with the minor child. Plaintiff and Defendant agree to cooperate with one another in adjusting their schedules to assure that the child is delivered to and returned that both parties will consult with one another regarding all such activities. It is further agreed and understood that both parties will consult with one another regarding all such activities. It is further agreed and understood that the Plaintiff and Defendant will notify one another as to any conferences, programs or events relating to such activities in such a way that both parties will have an opportunity to participate in such activities of the minor child. 009 III Should Plaintiff and Defendant be unable to agree on any aspect of the academic, religious, civic, cultural, athletic or medical and dental activities of the minor child, the following party is hereby designated as having the primary authority and responsibility regarding the involvement of the minor child in said activity: ACADEMIC - Defendant RELIGIOUS - Defendant CIVIC - Defendant CULTURAL - Defendant ATHLETIC - Defendant MEDICAL. - Plaintiff DENTAL - Plaintiff 010 The exercise of this primary authority is in no way intended to negate the responsibility of the parties to notify and communicate with each other as set forth herein above. 011 5. That the Plaintiff have physical custody of the minor child of the parties as follows: (a) The first and third full weekends of each month from 6:00 p.m. on Friday until 6:00 p.m. the following Sunday; (The first weekend of a month beginning on the first Friday of each month); (b) Each Christmas Day from 3:00 p.m. until 3:00 p.m. on the following New Year's Day; (c) Thirty-one (31) consecutive days during the summer (to be taken between June 10th and August 15th), to be selected by the Plaintiff but upon written notice to Defendant at least thirty (30) days in advance of such visitation; (d) During the odd years, A.E.A. (Spring Break) vacation from 9:00 a.m. Saturday until the following Saturday at 6.00 p.m.; (e) During the even years, Thanksgiving vacation from 6:00 p.m. Wednesday until Sunday at 6:00 p.m.: (f) Every other birthday of the child from 6:00 pin on said date until 8:00 a.m. of the following day beginning with the next birthday; (g) Every Father's Day from 9:00 until 6:00 p.m., of the same day. The child shall be with the Defendant on Mother's Day. If that day falls on a visitation weekend, the child shall be returned to Defendant by 9:00 a.m. on that Sunday; (h) On the birthday of the Plaintiff from 3:00 p.m. on said date until 8:00p.m. of the same day; (i) At such other times as agreed upon between the parties. 012 Each parent shall keep the other informed on a current basis as to the primary residence address and telephone number where the child resides or visits. 013 6. That the Defendant shall have physical custody of the minor child of the parties at all other times not given to plaintiff in Paragraph 5 herein above. 014 7. That should the Defendant decide to leave the USA to reside elsewhere, this shall be deemed a material change in circumstances such that the legal custody shall immediately change and vest with the Plaintiff without further legal proceedings by the Plaintiff or Defendant, and the Defendant will immediately surrender physical custody to Plaintiff. Further, the Defendant will have the following visitation rights with the minor child of the parties: (a) Six (6) weeks during each summer between June 30 and August 15 at a rime to be selected by the Defendant provided, however, that Defendant shall have mailed by registered mail a written notice to the Plaintiff of the dates of the intended visitation at least thirty (30) days prior to such visitation; (b) Each Christmas, beginning December 26 at 9:0O a.m. and ending New Year's Day at 3:00 p.m. if the Defendant is in the USA; (d) Any other reasonable times the Defendant is in the town air which the minor child resides. Defendant shall give 48 hours' notice and the visitation shall be reasonable taking into consideration the child's schooling; (e) During any periods of visitation, after the child reaches the age of (12) years, the said child may travel by commercial airliner, provided: (1) The Plaintiff and Defendant shall equally pay and be responsible for all airfares for the transportation of said child; (2) The flight shall be either non-stop or direct and no change of planes will be involved until the child reaches the age of 14 years (3) All travel arrangements shall be made by the Defendant; (4) The Defendant shall notify the Plaintiff not less than ten (10) days of the date of visitation, of the date, time, airline and flight number of proposed carrier; (5) The Plaintiff shall send to the Defendant his share of the round, trip airline tickets within 10 days after notification from the Defendant of the intended visitation; (6) The Defendant shall ensure that either she or the child notifies the Plaintiff of the arrival of the child as soon as possible after the child is met by Defendant (7) At the end of the period of visitation, the Defendant shall notify the Plaintiff of the dates, time, carrier and flight number of the child's return. The Defendant shall notify the Plaintiff twenty-four (24) hours prior to the time of departure and (8) On the return of the child, the Plaintiff shall ensure that either he or the child notifies the Defendant of the child's return. (f) The Defendant shall enjoy the rights telephone visitation on each Thursday. Between the hours of 700 p.m. and 8.00 p.m. local tune with the minor child, at the Defendant's expense. The Plaintiff shall neither interfere with nor listen in or be party to the telephone conversation during the said period of time; and (g) Each parent shall keep the other informed on a current basis as to the primary residence address and telephone number. where the child resides or visits. 015 7. That child support shall remain the same pursuant to the Order entered October 25, 2001. However, if the Plaintiff receives legal custody pursuant to Paragraph 7 herein above, the Plaintiff's obligation to pay child support is terminated and future child support will be reserved due to the Defendant unemployment and the. Costs associated with visitation. Further, if custody is transferred to the Plaintiff pursuant to Paragraph 7 herein above, the Plaintiff by and through his attorney of record, shall notify the Court for the termination of the Income Withholding Order that is currently in place with the Plaintiff's employer. 018 8. That each party to this action is awarded and shall retain the personal property presently in their respective possession. 019 9. That the Plaintiff and Defendant shall pay and be responsible for the paying the individual debts in their respective names. In addition thereto: a. The Plaintiff shall pay and be responsible for paying all unpaid debts of the marriage and shall hold the Defendant harmless from any claims and. expenses thereon. 020 10. That the Plaintiff and Defendant shall pay and be responsible for paying their respective attorney of record for professional services rendered in this cause. 021 DONE and ORDERED this the 24th day of January, 2002. /s/ R. A. Ferguson R. A. FERGUSON, JR. CIRCUIT JUDGE ------------------------------ 23 Feb 2002 Comment by: William M. Hilton, CFLS Fellow, International Academy of Matrimonial Lawyers Attorney At Law and Certified Family Law Specialist, State of California This case was not brought under the Convention on the Civil Aspects of International Child Abduction, done at The Hague on 25 Oct 1980 (The Convention), but is in fact a "Move Away" case. See, e.g. In re Marriage of Burgess (Cal. 1996) 13 Cal.4th 25 for the leading California case on this issue and In re Marriage of Condon (Cal.App. 2 Dist 7 Div 1998) 62 Cal.App.4th 533, which applies Burgess to an international relocation. One of the issues before the Alabama court was the personal safety of the child as a factor in awarding custody, including the possibility of the child residing in Israel. Both parties presented testimony as to the safety of Israel at the present time. See, e.g., Frier v Frier (E.D. Mich. 1986) 969 F. Supp. 436 for techniques that were used to make a similar evaluation. The Alabama Court, in making its order, held that it would be in the best interest of the child for her residence to be in the USA and conditioned its award of custody of the minor child to the mother on the express requirement that the child live in the USA. The interesting part of this decision is that if the custodial parent decides to leave the USA, custody of the child is automatically transferred to the non-custodial parent, without any form of hearing. It is doubtful that this automatic transfer of custody provision would survive a judicial challenge since it awards custody of a child to the other parent at some time in the future based solely on a move of the present custodial parent from the USA to any where in the world. This is in the form of a punitive order which are looked upon with severe disfavor. See. e.g. In re Marriage of Hopson (Cal.App. 1 Dist. 1980) 110 Cal.App.3d 884, 907; Marlow v Marlow (Sup.1983) 471 N.Y.S.2d 201, 207. It is also contra to the requirement that "Best Interests" be used to determine the issues of custody and visitation at the specific time in question. What the Alabama court should have done was to make a finding that, at the present time, it appears to be in the best interests of the child for that child to be in the care, custody and control of the mother and that there be a ne exeat order in place prohibiting the removal of the child from a specific geographical location that could only be lifted after there was a full changed circumstances hearing over the issue of custody and/or access to the minor child. The changed circumstances hearing could then take into account all of the factors that would then be available to the court at the time the request to remove the child was made, which would include, inter alia, relocation to a new geographical area. There is also a potential issue of who gets to modify the existing Alabama order when all parties have moved from Alabama to other forums.