No. 99-35004

D.C. No. CV-98-00328-JWS


Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding

Argued and Submitted
June 11, 1999--Seattle, Washington

Filed July 23, 1999

Before: Donald P. Lay,1 Alfred T. Goodwin and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown



Alison E. Mendel, Mendel & Huntington, Anchorage, Alaska,
for the plaintiff-appellant.

Kenneth C. Kirk, Kirk & Robinson, Anchorage, Alaska, for
the defendant-appellee.


McKEOWN, Circuit Judge:

In this difficult case of first impression, we are called upon
to decide whether the son of an American mother and an
Israeli father must be returned to Israel on the alleged basis
that the mother's retention of the child in Alaska was
"wrongful" within the meaning of the Hague Convention on
the Civil Aspects of International Child Abduction, Oct. 25,
1980, T.I.A.S. No. 11,670 (the "Hague Convention").

The parties, Haim Shalit and Cheryl Coppe, were divorced
in Alaska in 1989. The Alaska state court granted the mother
custody of their son, Yarden, with visitation rights for the
father. On the basis of a subsequent oral agreement, in 1995
Yarden moved to Israel to live with his father on a temporary
basis. At the end of what was expected to be a two-week
vacation in 1998, Coppe kept Yarden in Alaska. Shalit filed
a petition in federal district court in Alaska under the Hague
Convention, claiming that Coppe wrongfully retained Yarden
in violation of the Convention, and requesting that Yarden be
returned to Israel for the Israeli courts to decide the merits of
the custody dispute.

The district court granted Coppe's motion for summary
judgment, finding that Shalit failed to establish that Coppe's
retention of Yarden was "wrongful" under the Hague Conven-
tion. We agree and affirm.


Shalit and Coppe married in 1985. In 1989, the Alaska
Superior Court entered a decree of divorce, granting Coppe
"sole legal and physical custody" of Yarden, then two years
old. In 1992, the matter of custody was raised again; the state
court ordered custody to remain with Coppe and set forth cer-
tain visitation provisions. Less than a year later, the parties
reached a settlement regarding visitation details, including
visitation with the father in Israel. The court adopted the set-
tlement agreement nunc pro tunc and entered Findings of Fact
and Conclusions of Law. The agreement provided that
"[j]urisdiction of the courts of the State of Alaska shall be
retained" and designated a specific state court judge to resolve
"formal disputed issues."

In 1995, Shalit and Coppe orally agreed that Yarden would
live with his father in Israel for three years so that Coppe
could attend law school. This arrangement appeared to work
satisfactorily for some time, with Coppe and Yarden visiting
each other several times during those years, although Coppe
did not remain in law school. Shalit and Coppe did not put the
agreement in writing, did not amend the Alaska orders, and
did not discuss a specific date when Yarden would return to
his mother.

On August 2, 1998, Yarden traveled from Israel to Alaska
to visit his mother, holding a round-trip ticket with a return
date of August 19, 1998. During the stay, however, Coppe
decided that she would not return Yarden to Israel, claiming
alternately that she had concerns about his behavior and care
and that the three-year agreement had expired. Yarden has
since remained in Alaska.

After Shalit was notified that Yarden would not return to
Israel, he commenced a custody proceeding in Israel (which
apparently has not progressed beyond the initial filing), fol-
lowed by the filing of a visitation modification proceeding in
Alaska state court. The Alaska Superior Court denied him
relief and Shalit then filed his petition in federal court under
the Hague Convention. Upon consideration of cross-motions
for summary judgment, including declarations and briefing
from both parties, the district court found that Shalit had not
established that Yarden was wrongfully retained in Alaska
within the meaning of the Hague Convention and denied
Shalit's petition.


We review the district court's grant of summary judgment
de novo, Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998),
and the denial of a motion for reconsideration for an abuse of
discretion, Fireman's Fund Ins. Cos. v. Alaskan Pride
Partnership, 106 F.3d 1465, 1470-71 (9th Cir. 1997). In a
case brought under the Hague Convention, we review the dis-
trict court's findings of fact for clear error and its conclusions
about United States, foreign, and international law de novo.
Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)
("Friedrich II") (citing, e.g., Fed R. Civ. P. 44.1; Echeverria-
Hernandez v. INS, 923 F.2d 688, 692 (9th Cir. 1991) (ques-
tion of international law reviewed de novo)).


Shalit's petition seeking Yarden's return is governed by the
Hague Convention and its implementing legislation, the Inter-
national Child Abduction Remedies Act ("ICARA"), 42
U.S.C. SS 11601-11610.


The Hague Convention, adopted in 1980, addressed the
increasing problem of international child abduction in the
context of international law while respecting rights of custody
and visitation under national law. According to the Preamble,
the Convention aims "to protect children internationally from
the harmful effects of their wrongful removal or retention and
to establish procedures to ensure their prompt return to the
State of their habitual residence . . . ." Hague Convention,
Preamble, T.I.A.S. No. 11,670 at 4. The twin objectives of the
Hague Convention are (1) "to secure the prompt return of
children wrongfully removed [ ] or retained," and (2) "to
ensure that rights of custody and of access under the law of
one Contracting State are effectively respected in the other
Contracting States." Id., art. 1; see also In re Prevot, 59 F.3d
556, 558 (6th Cir. 1995).2 One of the paramount purposes of
the Hague Convention is to "restore the status quo and deter
parents from crossing international borders in search of a
more sympathetic court." See Nunez-Escudero v. Tice-
Menley, 58 F.3d 374, 376 (8th Cir. 1995).

Against this backdrop, Article 3 of the Hague Convention
spells out the parameters for determining whether a child has
been wrongfully removed or retained. Removal or retention of
a child is wrongful where:

       a. it is in breach of rights of custody attributed to
       a person . . . under the law of the State in which the
       child was habitually resident immediately before the
       removal or retention; and

       b. at the time of removal or retention those rights
       were actually exercised, either jointly or alone, or
       would have been so exercised but for the removal or

Hague Convention, art. 3, T.I.A.S. No. 11,670 at 4. Because
the language of the Convention is somewhat conclusory,
United States courts look to two sources of official commen-
tary for guidance: (1) the Explanatory Report by Elisa Perez-
Vera, the official Hague Conference reporter (the "Perez-Vera
Report"),3 and (2) the Legal Analysis of the Hague Conven-
tion on the Civil Aspects of International Child Abduction
("Legal Analysis") found in the Federal Register. 51 Fed.
Reg. 10503 (1986).4 As the Legal Analysis notes:

       [The Perez-Verez] explanatory report is recognized
       by the Conference as the official history and com-
       mentary on the Convention and is a source of back-
       ground on the meaning of the provisions of the
       Convention available to all States becoming parties
       to it.


We underscore that the Hague Convention analysis is
not a determination of custody rights. Under Article 19 of the
Hague Convention and 42 U.S.C. S 11601(b)(4),"a United
States district court has authority to determine the merits of an
abduction claim, but not the merits of the underlying custody
claim." See, e.g., Friedrich v. Friedrich, 983 F.2d 1396, 1400
(6th Cir. 1993) ("Friedrich I") (citing 42 U.S.C.
S 11601(b)(4)) (emphasis added). The court is to determine
only whether the removal or retention of a child was
"wrongful" under the law of the child's "habitual residence,"
and if so, to order the return of the child to the place of
"habitual residence" for the court there to decide the merits of
the custody dispute, unless the alleged abductor can establish
one of a few defenses. See, e.g., Ohlander v. Larson, 114 F.3d
1531, 1534, 1541 (10th Cir. 1997), cert. denied , 118 S. Ct.
702 (1998); Friedrich II, 78 F.3d at 1067. The Legal Analysis
states the proposition clearly:

       The obligation to return an abducted child to the per-
       son entitled to custody arises only if the removal or
       the retention is wrongful within the meaning of the

51 Fed. Reg. at 10506.


  In his petition, Shalit alleged that Yarden must be
returned to Israel because Coppe's retention of Yarden was
"wrongful" under Article 3 of the Hague Convention. Shalit
had the burden of proving by a preponderance of the evidence
that (1) Coppe retained Yarden away from his "habitual
residence," and (2) Coppe's retention of Yarden was in breach
of Shalit's rights of custody under the law of Yarden's habit-
ual residence. See, e.g., 42 U.S.C. S 11603(e)(1); Friedrich I,
983 F.2d at 1400. The district court correctly found that Israel
was Yarden's habitual residence at the time of the allegedly
wrongful retention, a finding which the parties do not seri-
ously challenge.5 Accordingly, we need only address the
wrongful retention issue.

  The question we face is whether Shalit satisfied his burden
of proving by a preponderance of the evidence that Coppe's
retention of Yarden was "wrongful" under Article 3. This
inquiry, in turn, requires us to determine whether Coppe's
action was in breach of Shalit's rights of custody under the
law of the state of Yarden's habitual residence. See Hague
Convention, art. 3, T.I.A.S. No. 11,670 at 4; Friedrich I, 983
F.2d at 1400; see also Perez-Vera Report at 435 (the law of
the state of habitual residence "is taken into consideration
only so as to establish the wrongful nature of the removal.").
We look first to the law of Yarden's habitual residence--
Israel--and then to the three sources of rights of custody as
enumerated in the Hague Convention.

A. Law of Habitual Residence -- Israel

[3] The Hague Convention's references to the "law of the
State in which the child was habitually resident " is purpose-
fully broad. It is not limited to internal or domestic law but
includes the conflict of law rules of the state of habitual resi-
dence. As explained in the Perez-Vera Report:

       [T]he Convention speaks of the `law' of the State of
       habitual residence, thus breaking with a long-
       established tradition of Hague Conventions . . . ,
       which refer to a particular internal law to govern the
       matters with which they deal. . . . [T]he adjective
       `internal' implies the exclusion of all reference to the
       conflict of law rules of the particular legal system.
       Therefore, since the Convention has abandoned its
       traditional formulation by speaking of `the law of the
       habitual residence,' this difference cannot be
       regarded as just a matter of terminology.

Perez-Vera Report at 445; see also Legal Analysis, 51 Fed.
Reg. at 10506 ("Nothing in the Convention limits this `law'
to the internal law of the State of the child's habitual resi-
dence. Consequently, it could include the laws of another
State if the choice of law rules in the State of habitual resi-
dence so indicate."). In determining whether Coppe's reten-
tion of Yarden was "wrongful," conflicts rules in Israel might
direct us to look to the law of the United States. Or, the con-
flicts rules might result in Israeli law as controlling authority.
Shalit, however, failed to provide any evidence regarding
Israel's conflict of law rules in this case, where the child is a
dual citizen, habitually resident in Israel and born in the
United States to an American mother who holds a state court
custody order in her favor.

B. Rights of Custody 

Shalit also failed to carry his burden of establishing that
Coppe's retention of Yarden breached his "rights of custody"
under the Hague Convention. Article 3 provides three poten-
tial sources of custody rights: (1) operation of law, (2) judicial
or administrative decision, or (3) an agreement having legal
effect under the law of that State. See Hague Convention, art.
3, T.I.A.S. No. 11,670 at 5.6

       1. Operation of Law

At summary judgment, Shalit offered only the declara-
tion of an Israeli attorney -- his own attorney in Israel --
explaining that Shalit had custody rights under Israeli law
because Israel's Legal Capacity and Guardianship Act of
1962 provides that both parents are the natural guardians of
a child and that the guardianship of both parents includes the
right to determine a child's residence.7  Simply filing a decla-
ration and saying it is so is not sufficient. Not only does Shalit
bear the burden of proof under the Convention, but our analy-
sis must be broader than the conclusory "evidence " offered by

As explained above, the "law " referred to in Article 3
encompasses the conflict of law rules of the state of habitual
residence, so that the inquiry into whether Shalit had custody
rights necessarily entails a determination of whether Israel
would apply its own or United States law in these circum-

       Thus, custody ex lege can be based either on the
       internal law of the State of the child's habitual resi-
       dence, or on the law designated by the conflict rules
       of that State.

Perez-Vera Report at 446; see also id. (noting that in case
where parents are French but child's habitual residence is
Spain, "wrongfulness" would be determined by French law
designated as applicable by Spanish conflict of law rules).
Because the declaration of Shalit's attorney entirely ignored
the conflict of law issue in concluding that Shalit had rights
of custody under Israeli law, this declaration was insufficient
to discharge Shalit's burden of proving by a preponderance of
the evidence that Coppe's actions breached his rights of cus-

       2. Judicial or Administrative Decision

The reference in Article 3 to a "judicial or administrative
decision" as a source of custody rights is "used in its widest
sense," specifically contemplating that such a decision "may
have been issued by the courts of the State of the child's
habitual residence as well as by the courts of a third country."
See Perez-Vera Report at 446-47.

The only custody determinations in this case are the
Alaska orders granting Coppe sole legal and physical custody
of Yarden, with visitation to Shalit. The declaration offered
by Shalit's attorney fails even to mention those decisions or
to analyze a crucial issue in this case -- the effect of the
Alaska orders in determining the scope of Shalit's rights of
custody under Israeli law. Shalit would have us ignore the
Alaska orders which predated the claim of wrongful retention,
but we are mindful that one of the purposes of the Hague
Convention is "to ensure that rights of custody and of access
under the law of one Contracting State are effectively
respected in the other Contracting States," Hague Convention,
art. 1b, T.I.A.S. No. 11,670 at 4.8 Neither Shalit's attorney's
declaration nor Israel's Legal Capacity and Guardianship Act
of 1962 provides any basis for us to assume that Israel would
disregard this Convention objective by refusing to acknowl-
edge the Alaska Superior Court's award of legal and physical
custody to Coppe. Indeed, while we do not undertake such a
determination, we note that at least one case from Israel sug-
gests otherwise. See Dine Israel, An Annual of Jewish Law:
Past and Present, Volumes X-XI 142 (1983) (discussing H.C.
386/78, Magnesi v. Magnesi, 32(3) P.D.I. 287, where the
Israeli High Court "recogni[zed] . . . the judgment of the Ital-
ian court" which had granted custody to the mother, and
ordered the father to return the child).

Under Article 17 of the Convention, a preexisting cus-
tody order should not be the "sole" reason for refusing to
order the return of a child. Hague Convention, art. 17,
T.I.A.S. 11,670 at 9. Although a preexisting custody order is
not entitled to dispositive weight, the district court may take
into account the reasons for and existence of such an order in
determining whether a removal or retention is "wrongful"
under the Hague Convention:

       The sole fact that a decision relating to custody has
       been given in or is entitled to recognition in the
       requested State shall not be a ground for refusing to
       return a child under this Convention, but the judicial
       or administrative authorities of the requested State
       may take account of the reasons for that decision in
       applying this Convention.

See Hague Convention, art. 17, T.I.A.S. No. 11,670 at 9; see
also Meredith v. Meredith, 759 F. Supp. 1432, 1434-36 (D.
Ariz. 1991) (relying on Article 17 to refuse the mother's
Hague Convention petition because the Arizona state court
had awarded the father "full, sole, and legal custody of the
minor child," so that the mother had "mere physical posses-
sion of the minor child . . . and [ ] did not have any legal
rights of custody of said child" at the time the father allegedly
wrongfully removed their daughter).

The rationale for this provision is to prevent abductors
from being able to rely upon either a " `dead' decision taken
prior to the removal but never put into effect," see Perez-Vera
Report at 464, or a decision obtained by an abductor in the
country of refuge "before the court had notice of the wrongful
removal or retention." Legal Analysis, 51 Fed. Reg. at 10504.
Neither of these circumstances is applicable here; the Alaska
orders were obtained (with Shalit's participation and repre-
sentation by counsel) and implemented for years prior to the
alleged wrongful retention. The Alaska orders were entered
because the parties were living in Alaska at the time of the
divorce and Yarden was resident in Alaska. Even upon modi-
fication of the original order, the parties stipulated that juris-
diction would remain in the Alaska courts. The orders were
not entered surreptitiously or to gain a jurisdictional or proce-
dural advantage in these proceedings.

       3. Agreement Having Legal Effect 

Shalit claims that he had rights of custody because Israel
permits parents living separately to agree upon matters relat-
ing to guardianship (such as the child's place of residence),
which Shalit and Coppe did by agreeing that Yarden would
live in Israel for three years. This argument, too, fails to meet
the preponderance of the evidence standard.

Article 3 states that rights of custody may arise "by
reason of an agreement having legal effect under the law of
[the state of habitual residence]." Hague Convention, art. 3,
T.I.A.S. No. 11,670 at 5. Again, even assuming that Israel's
"law" would point to its internal law under a conflicts of law
analysis, the declaration of Shalit's attorney ignores the fact
that Israeli law specifically provides that an agreement
between parents living separately "shall be subject to the
approval of the Court":

       Agreement between parents who live separately .
       Where the parents of the minor live separately . . .
       they may agree between them as to which of them
       shall . . . have custody of the minor and what shall
       be the rights of the other parent with regard to hav-
       ing contact with him. Such an agreement shall be
       subject to the approval of the Court. . . .

Israeli Legal Capacity and Guardianship Act of 1962, Article

[11] Shalit's and Coppe's oral agreement was never
approved by an Israeli or American court. Shalit does not
address this language or explain its legal effect. Based upon
the proof offered, the agreement is not a source from which
Shalit may derive rights of custody. Cf. Currier v. Currier,
845 F. Supp. 916, 921 (D.N.H. 1994) (rejecting argument
based on purported agreement between the parents because
such agreement "is, under German law, without legal effect
until approved by court order.").

In summary, the district court did not err in granting sum-
mary judgment to Coppe. Shalit failed as a matter of law to
discharge his burden of establishing by a preponderance of
the evidence that Coppe's retention of Yarden was in breach
of Shalit's rights of custody under the law of Israel and there-
fore "wrongful" under the Convention.


After entry of the order granting Coppe's motion for sum-
mary judgment and denying Shalit's motion for summary
judgment, Shalit filed a motion for reconsideration, this time
attaching the declaration of a different Israeli attorney as well
as a letter from the Israeli Ministry of Justice, both of which
opined that Coppe wrongfully retained Yarden under Article
3 of the Hague Convention.9

The law is clear that reconsideration is appropriate
only in very limited circumstances, and that "[t]he over-
whelming weight of authority is that the failure to file docu-
ments in an original motion or opposition does not turn the
late filed documents into `newly discovered evidence.' "
School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993) (citation omitted); see also
Rosenfeld v. Department of Justice, 57 F.3d 803, 811 (9th Cir.
1995) (no abuse of discretion in declining to consider an argu-
ment "raised for the first time on reconsideration without a
good excuse"); Hopkins v. Andaya, 958 F.2d 881, 887 n.5
(9th Cir. 1992) ("A defeated litigant cannot set aside a judg-
ment because he failed to present on a motion for summary
judgment all the facts known to him that might have been use-
ful to the court."). Shalit offered no reason for his failure to
present such evidence prior to entry of judgment against him,
and the district court did not abuse its discretion in denying
the motion for reconsideration.



1 The Honorable Dondld P. Lay, Senior United States Circuit judge for
the Eighth Circuit, siiting by designation.

2 The United States and Israel are both signatories to the Hague Conven-
tion. Hague Conference on Private International Law: Report of the Sec-
ond Special Commission Meeting to Review the Operation of the Hague
Convention on the Civil Aspects of International Child Abduction, 33
I.L.M. 225, 225 (1994).

3 Actes et documents de la Quatorzieme Session (1980), Volume III,
Child Abduction, edited by the Permanent Bureau of the Hague Confer-
ence on Private International Law, The Hague, Netherlands.

4 Not surprisingly, the case law in this area is very fact-specific and
dependent on the applicable country or state law for the determination of
"rights of custody" under the Convention. While we can glean from the
cases a framework for analysis that conforms to the Convention, in a case
such as this one, we have no precedent in our circuit and little guidance
from the other circuits.

5 It is undisputed that by the summer of 1998, Yarden had lived in Israel
with his father for approximately three years and held a round-trip ticket
to return after approximately two weeks. Three years is certainly enough
time for Yarden to be considered "settled" in Israel, regardless of Coppe's
claimed intention to have him return permanently to Alaska at some point
in the future. See, e.g., Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.
1995) (that the mother "did not intend to remain in Australia permanently"
after moving there from the United States with the father and child "does
not void the couple's settled purpose to live as a family" in Australia);
Toren v. Toren, 26 F. Supp. 2d 240, 243 (D. Mass. 1998) (habitual resi-
dence was in United States with mother, regardless of fact that parents had
agreed that children would return to Israel on a date certain and that
United States was not intended to be the children's permanent residence).

6 While we note that these sources are not exclusive, see Legal Analysis,
51 Fed. Reg. at 10506, Shalit did not offer or suggest any other basis for
his claim to enforceable rights of custody under the law of Israel.

7 Article 14 of the Hague Convention provides that a court "may take
notice directly of the law of, and of judicial or administrative decisions,
formerly recognized or not in the State of the habitual residence of the
child, without recourse to the specific procedures for the proof of that law
or for the recognition of foreign decisions which would otherwise be
applicable." Hague Convention, art. 14, T.I.A.S. No. 11,670 at 8. Thus, an
attorney's declaration as to the application of another country's law is gen-
erally acceptable in Hague Convention cases. Although the standards for
proof of foreign law are relaxed under the Convention, the district court
is not precluded from considering the source of the information, i.e., the
petitioner's own attorney.

8 We recognize that this objective is, as a practical matter, not on equal
footing with the first objective of the Convention -- the return of wrong-
fully removed or retained children. See Perez-Vera Report at 430. None-
theless, the determination of whether Coppe's retention of Yarden was
"wrongful" must be considered in light of this secondary purpose of the
Convention, and we in no way derogate from the goals of the Convention
by acknowledging its aim of ensuring that signatory nations respect the
rights of custody granted by the authorities of other nations.

9 Although it is unclear from both the briefs and the Notice of Appeal,
counsel stated at oral argument that Shalit intended to appeal from the
denial of his motion for reconsideration as well as the grant of summary
judgment in favor of Coppe.