Trial Transcript Part 1

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISIONOMER G. TSIMHONI,

Plaintiff, Case No. 10-10308-v-

MAYA EIBSCHITZ-TSIMHONI,Defendant.

____________________________________/

EVIDENTIARY HEARING, VOLUME IBEFORE THE HONORABLE ROBERT H. CLELAND

United States District JudgeTheodore Levin United States Courthouse

231 West Lafayette BoulevardDetroit, Michigan

Wednesday, March 3, 2010APPEARANCES:FOR THE PLAINTIFF: JAN REWERS MCMILLAN

400 Galleria OfficentreSuite 117Southfield, MI 48034

FOR THE DEFENDANT: AITAN D. GOELMANZuckerman Spaeder LLP1800 M Street, NWSuite 1000Washington, D.C. 20036

To Obtain a Certified Transcript Contact:Christin E. Russell, CSR, FCRR, RPR, CRR - (313) 964-2026

Proceedings recorded by mechanical stenography.Transcript produced by computer-aided transcription.

2:10-cv-10308-RHC-DAS Doc # 38 Filed 04/02/10 Pg 1 of 264 Pg ID 935

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TABLE OF CONTENTS_____________________________________________________

IDENTIFICATION PAGE

Plaintiff's Motion by Ms. McMillan................. 6Defendant's response............................... 25Court's Ruling on Motion........................... 34

WITNESSES FOR PLAINTIFF:MAYA EIBSCHITZ-TSIMHONI

Cross-Examination by Mr. Prather............ 36

OMER TSIMHONIDirect Examination by Ms. McMillan.......... 97Cross-Examination by Mr. Goelman............ 212

EXHIBITS MARKED RECEIVED

PX #131 66 68PX #132 73PX #113 85PX #101 100 100PX #103 131 133PX #114 138 139PX #118 153 156PX #115 161 162PX #116 163 164PX #106 167 168PX #119 169 171PX #107 173 174PX #108 181 181PX #122 183 183PX #134 186 189PX #133 192 198DX #18 223

Certificate of Court Reporter......................... 264


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HEARING - 3/3/2010

TSIMHONI vs. EIBSCHITZ-TSIMHONI - 10-10308

3

Detroit, Michigan

March 3, 2010

9:30 a.m.

* * *

(Call to Order of the Court; all parties present.)

THE CLERK: Calling case No. 10-10308, Tsimhoni

vs. Tsimhoni. Counsel, for the record, please?

MS. MCMILLAN: Good morning, your Honor. Jan

Rewers McMillan appearing of behalf of Plaintiff, Omer G.

Tsimhoni.

THE COURT: Good morning.

MR. PRATHER: Kenneth E. Prather, Sr., also

appearing for the plaintiff father.

THE COURT: Very well. And?

MR. GOELMAN: Good morning, your Honor. Aitan

Goelman for the defendant, Maya Eibschitz-Tsimhoni. With

me at counsel table is Jonathan Watkins, an attorney from

my firm, and Defendant, Maya Eibschitz-Tsimhoni.

THE COURT: Thank you, Counsel. Thank you for

your extensive briefing, for your earlier conversations

with me, status checks, scheduling conferences and the

like, both on and off the record.

I'm ready for a hearing at this point, which

will, I would expect, include testimony, at least the

opportunity for testimony. Counsel have both indicated


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that they intend to call some witnesses, certainly present

argument in the wake of presentations. And some documents

have already been submitted, likely agreed to, with respect

to the Court's ability to review these things that have

already been submitted. Although there is a residual

dispute, I recognize, about the form in which some of these

things have been submitted, and perhaps that's been

corrected and perhaps not.

I will listen to learn what the parties's view is

with respect to those things. But it seems to me that the

substance of these matters probably outweighs the

significance of the form. And the attorneys are, I trust,

prepared to go forward in this regard.

And, Ms. McMillan, you appear to be all lined up.

You have colored tabs and pens at your disposal.

MS. MCMILLAN: And a highlighter.

THE COURT: And a highlighter. That's fine. Mr.

Goelman is similarly equipped, I think.

MR. GOELMAN: No color tabs, your Honor.

THE COURT: But a computer.

MR. GOELMAN: Yes.

THE COURT: Okay. Well, I am ready to receive

your presentation, Counsel. My view is that this is

principally the attorneys' presentation. And I will ask

questions or direct you as I deem best or necessary in the


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course of this, especially if I think that we're veering

off into either repetitive matters or things that are not

particularly contested or not particularly significant for

the Court's principal determination, which is front and

center, did the children acclimatize in Israel sufficiently

to meet the standards that are announced in the Convention

or did they not. If that hurdle, by a preponderance of the

evidence, is not overcome, then the rest of these disputes,

it seems to me, become inconsequential.

So, Ms. McMillan, it's your lectern.

MS. MCMILLAN: Thank you, your Honor. And I

appreciate you're giving me some wide latitude, because I

do, at this time, intend to argue my motion. And my motion

is primarily the reason why we're here, the petition.

THE COURT: So I understand you to say, you're

going to suggest that you should have a judgment basically

without the necessity of presenting any live testimony.

Just based upon what has been a presented thus far, it's

going to be your argument here that the Court should simply

end the case with a judgment in Plaintiff's favor?

MS. MCMILLAN: Well, your Honor, I'm hoping that

that would be the outcome of the argument. But I do see

that there are some issues concerning the habitual

residence that are in dispute. And what I mean, is that in

this finite period of time in which we are addressing our


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focus, that the father has presented some objective --

some, has presented a good deal of objective factual data

about the building of the life that the children had in

Israel. The mother is coming forward in her position,

because she's now got a deck action for habitual residence

in the U.S. And she is saying lack of language,

assimilation, and so forth.

So you would have to adapt your decision in the

context of the fact that there is some distinction of fact

within that situation. So I can't say invariably that

assuming everything the mother says is true about the

habitual residence that -- well, let me retract that.

THE COURT: And as you're doing that, would you

pick the microphone stand up, please, and just move it a

little bit closer to the lectern? It's been -- and then it

bends. And just bend it in the direction of the speaker.

And I think that will pick your voice up a little bit

better.

MS. MCMILLAN: Let me rephrase this. Your Honor,

the answer is yes.

THE COURT: Okay.

MS. MCMILLAN: Yeah.

THE COURT: Okay.

MS. MCMILLAN: Yeah.

THE COURT: So we need to then assume for the


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purposes of your initial presentation here, that all of the

facts as stated, as proffered by the defendant are assumed

to be proven fully.

MS. MCMILLAN: Yeah, let's do that.

THE COURT: And even so, the plaintiff has met --

there can be no result other than that Plaintiff prevails

by a preponderance of the evidence. That would have to be

your position, right?

MS. MCMILLAN: Yeah. It is my position.

THE COURT: Okay. So explain it to me. How can

it be that a three-month stay in Israel, for children that

were born, raised and acclimatized, clearly acclimatized to

stated permanence in the United States, Ann Arbor,

Michigan, how can that be held inevitably to have

re-acclimatized them to a foreign land where they did not

speak the language, sufficiently to get along with their

playmates, sufficiently to do well in school -- though they

were, at least the oldest, recognized as being a quick

learners and so forth. How can that inevitably lead to a

determination of acclimatization of the convention, please?

MS. MCMILLAN: All right. The first aspect of

your discussion, Judge, about the being born here, raised

here, acclimatized to this society and this culture, all

goes to what was the children's habitual residence before

they moved to Israel, before the parties packed up their


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entire worldly possessions, sold the house, sold their

cars, had the garage sale. Anything that wasn't sold or

disposed of, packed and shipped over to Israel, along with

the children, and repositioned in a new locus, the site of

the new family.

Schools were abandoned in Michigan. Contacts

were abandoned in Michigan. Classes were abandoned in

Michigan. Friends were abandoned in Michigan. Jobs were

abandoned in Michigan. And the entire family shifted the

center of their lives to Israel from Michigan.

Now, this involved the rental of a home. Now,

the parties rented a house. But you know, there had been

several times before the actual move took place, that there

was a false start with the move. Your Honor, you may

recall we had a false start early in the year of '09, kind

of in the middle of the year in July of '09, and then it

finally took place in September.

And so the leased premises that were to have gone

forward in Israel initially had to be let go. So when they

got there, they had to get into temporary quarters and then

find a place. But a new home was located. This is a house

that was being leased for at least two -- $2,200 a month,

four bedroom, two bathroom house.

The container arrived at a couple weeks time

after their arrival. They unpacked the container. They


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may not have unpacked everything. I know when I move, if

there's some old memorabilia or something that I don't need

that I can store in the attic, I will do that until time

allows me to get to it.

The children came over. They were at the school

holidays at that time. When the holidays were over, the

children were each enrolled in a school, your Honor.

That's undisputed. Everybody admits the children were

enrolled in school.

Now, before they left, your Honor, this thing

about language seems to be becoming the main focus of the

case, at least as from the mother's perspective. And she

does advance it as a very strong factor that this Court

should consider in determining what the habitual residence

is, immediately preceding the removal. And it's my

submission that two things: One, that language is merely

one of many factors. If you read the case law, it may come

up from time to time as a factor, but in our controlling

authority, in Robert v. Tesson, you know, in Friedrich, of

course Friedrich I, it was merely one of the things spoken

of.

THE COURT: Every one of these cases is heavily

bound to the facts. The cases are, if not each sui

generis, certainly very, very much bound by the unique

factual circumstances that are found within them. And


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almost --

MS. MCMILLAN: Yes.

THE COURT: -- every case is going to have a

variety of factual influences.

MS. MCMILLAN: I think that's right, your Honor.

And I would agree with that. But Robert v. Tesson did lay

out a bit of a road map by citing to the Karkkainen case,

your Honor. When Robert v. Tesson set up the standard,

this was a new articulation of the standard. Before,

Friedrich had those five points, a child can have just one

habitual residence. It's not to be bound by rules of

common law domicile or residence. That it involves the

child's perspective, not the intentions of either parent.

That it involves a change of geography and the passage of

time and is not reliant on nationality of the parents.

So in that context, Robert v. Tesson developed a

new standard that it had assimilated from the Third

Circuit, Feder vs. Evans-Feder, your Honor. It said that

the habitual residence of a child should be the place at

which the child has had a sufficient amount of time to

become acclimatized, and to have some degree of settled

purpose.

So that standard is easily distinguished from

something like well settled, which is another standard

within Hague Convention judicature. If the Sixth Circuit


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wanted well settled to be the standard for habitual

residence, they would have said so. But instead, it's a

mere degree of settled purpose.

And for acclimatization and a degree of settled

purpose, the Court looked at Karkkainen. And in

Karkkainen, that was a case where the child had been in the

United States for three months. Yes, of course the fact,

fact specific. But in Karkkainen, the Third Circuit did

consider the parental intent. And it was the shared

parental intent in that case that contributed to the

decision.

The issue of language in that case was not first

and foremost as something that the Robert v. Tesson court

paid attention to. What they paid attention to was the

school, the social activities, the interaction with the

family, and the bringing of possessions from the one place

to the other, and literally the physical look and feel of

the number and amount of possessions that were transferred.

This was followed up in Jenkins, your Honor. In

the Jenkins case, it was found to be evidence of settled

purpose when everything that the family owned was either

shipped over to Israel, or sold, or disposed of in a

donation.

THE COURT: What circuit, for Jenkins?

MS. MCMILLAN: Jenkins is a Sixth Circuit Court


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of Appeals.

THE COURT: And that was looking at the family's,

the family's activities and simultaneously having a

child-centric view, as it's called?

MS. MCMILLAN: Yes. Well, the family's

activities --

THE COURT: And explained the impaired

inconsistency between considering heavily what the family

did, the parent. Children don't pack moving boxes and

engage international shipping agencies. Parents do that.

So what -- tell me about the interplay between the family,

the parents' activities and engaging the movers, and a

child-centric orientation.

MS. MCMILLAN: Well, I don't see that it -- it's

an interesting issue, Judge. But obviously it's impossible

for a child to move the habitual residence. And if you

consider that habitual residence is the ordinary residence

of the child, and the parents typically arrange for the

day-to-day functions, and ordering, and furnishing, and

supplying food and other lifestyle elements required for

the child --

THE COURT: Well, it seems to me --

MS. MCMILLAN: -- it has to happen by some adult.

THE COURT: It seems to me that acclimatization

is something not that a child does. But something that


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happens to a child over the course of time, the passage of

time, and the changing of circumstances and so on. Is that

consistent with your view?

MS. MCMILLAN: That's consistent with my view.

Absolutely, Judge.

THE COURT: Okay. So let's bring it down to

cases here. And you think that given all of the

circumstances, some of which, and only some of which I

articulated on behalf of the plaintiff, that it's

inevitable, a decision must be rendered in favor of re --

or acclimatization?

MS. MCMILLAN: Acclimatization.

THE COURT: If not re-acclimatization. But it

does seem to me that re-acclimatization is a fair concept

as well, because we do indeed have to have a starting point

to determine whether the change, the change has taken root.

All of these cases involve a change. Because that's the

whole argument, is that there has been acclimatization

different from what the status quo was, status quo ante, so

to speak.

MS. MCMILLAN: Right, because there's no question

that the habitual residence before the move was established

in the United States. But immediately preceding the move,

we're arguing that it had shifted.

And for all the reasons that, you know, we've set


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forth in our motion, the children were enrolled in classes,

they -- let me digress, though, your Honor. In an earlier

statement, I said there were two reasons about language.

And I didn't get to the second one. And I apologize.

The second one was that there is no dispute here

that the children did have a familiarity with Hebrew before

they left for Israel with the family, and all the

possessions, and moved everything over to Israel. That is

undisputed. It is also undisputed that the children have

some language skills in Hebrew, even today, and that they

existed in time, in the period September through December

of '09 in Israel, before they were taken.

What their circumstances are now, I don't know.

There could be some influence, or just simply coming back

into an environment where they are surrounded by only

English may have some effect.

But this isn't a situation where you took a

child, who had no background in Hebrew, from the United

States and just transported them in a bubble to Israel.

You've got children who were born of two Israeli natives,

who spoke Hebrew to each other at home. The father spoke

Hebrew to the children. The mother spoke both to the

children. The father spoke English, as well. So it was a

household in which the parents were raising the children on

both languages within the United States. So all that does


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is it gets picked up, carried over and taken to, to Israel.

Now, in that particular climate, in Ra'anana,

this is an area of Israel that was settled by English

speaking Jews, and in effect favored by English speaking

Jews because it has a little bit more Western style

approach. There are many English speaking immigrants. So

in this particular area of Israel, you are going to hear

both or other foreign languages, because Israel is a magnet

for people from many countries to settle.

So in that context, we are not going from ground

zero and moving forward. And I would submit that even if

it stayed the same, which would be hard to do, if you are

in an environment, particularly in a school where it's

being spoken almost exclusively to you, that you are going

to pick it up.

There's no dispute that the eldest child -- and

we haven't decided how to address the names of the children

here for the record, but that the eldest child was

taking --

THE COURT: I think, frankly, I just don't think

there's a heck of a lot of concern, frankly in simply using

their names. Their names appear various places in the

record, un-redacted, just because they are mentioned so

often. And I'm reasonably confident that their names are

spelled out verbatim un-redacted in Hebrew language


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presentations. I can't read it, but somebody who reads

Hebrew probably can.

MS. MCMILLAN: We did try to redact the Hebrew.

But you did have to notice, Judge, that the appellate cases

all named the children by name.

THE COURT: Right.

MS. MCMILLAN: And we go to such great lengths.

And I think they are in the same system we are.

THE COURT: Well, I think it's a -- we don't have

a situation in which children are, or a child is an alleged

victim of criminal activity, at least I don't think even

the worst allegations rise to that level at this point,

such as, you know, victim of child pornography, in a child

pornography prosecution or some sort of extraordinary

situation such as that. Sometimes regularly those names

are redacted or protected in some way.

And the electronic filing protocols have been

established in order to be sort of universally protective.

And I, I'm not sure that it's -- I'm not sure that the

parties would frankly particularly care about that. But I

leave that to the parties.

MS. MCMILLAN: Well, with the Court's permission,

I think I'll just go ahead and use the name Liam.

THE COURT: What do you think, Mr. Goelman?

MS. MCMILLAN: The eldest child?


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THE COURT: Mr. Goelman, have I struck a cord

with you as well?

MR. GOELMAN: Yes, your Honor. We don't have any

objection to using their proper names.

THE COURT: Okay. Fine.

MS. MCMILLAN: As I was saying, your Honor, Liam

--

THE COURT: Who is the eldest?

MS. MCMILLAN: He is the eldest.

THE COURT: The eight-year-old?

MS. MCMILLAN: The eight-year-old was not in the

traditional third grade school program because he did need

remedial education in Hebrew language before he could begin

full participation in the academic aspect of it. And so he

was taking not the traditional program, but taking what

were called studio classes to build his language skills.

So there was definitely some progress. This was observed

by my client and others. And even among the smaller

children as well, who were not taking official classes.

Obviously it can't help but to pick this up, it's spoken in

the home. And they were beginning to even speak among

themselves.

So language, I think, should be considered in the

mix of things. But I don't think it should be prioritized.

I think it should be down on the list of all the things to


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be considered. But in the context of the fact that we have

two Israeli parents, whose native tongue is Hebrew, and to

children who heard this growing up -- and I'm informed that

the younger children, the children even spoke for a while

with a little bit of an Israeli accent, spoke their English

with a little bit of an Israeli accent. And Liam had to

take diction lessons here to get rid of the Israeli accent

that he had here in the U.S.

So the bilingual nature of the family, I think,

can be understood from a context of their family

relationship, so it existed here and it existed there.

Obviously in the school setting, there's going to be a

little bit more difficulty. But this was certainly, as we

see from the report, the school teacher, was not an issue

as far as the schools were concerned; that he was

progressing well. He's a bright child, an extremely bright

child. I think we have very bright parents here, who are

highly intelligent and very well educated. And they are

going to produce children who might have the same

capacities as well. It doesn't mean that an eight-year-old

child is a mature adult, but it does mean that he has a

capacity for language skills and could easily have

progressed with that language, your Honor.

In addition, the children, in addition to going

schools, they also traveled. That's undisputed. Visiting


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the sites and sacred places. There had been some

discussion between my client and the children about living

in Israel, and what Israel was, and what it meant to him as

a Jew, and what the heritage of living in Israel meant.

The children attended the religious services,

just as in Jenkins, with the grandpa. And we have some

photos that we had provided as one of our late filed, as

Mr. Goelman calls them, exhibits from yesterday, showing

some of the participation of the children there in the

activities of both religious services and at those events,

going to the various sites, the Wailing Wall and other

places.

The children also had close connection with some

of their classmates, particularly the child who lived in

the unit next door. Their house was, as best I can

describe it, like a duplex where they had one half, and a

family had the other half. And the back garden apparently

had like a gap in the fence so that the kids could pass

through the gap between the houses, one to the other. And

Mrs. Eibschitz-Tsimhoni had the gardener re-pave the paths

so it made it easier for the kids to pass through back and

forth. And the child who lived in that home became a fast

friend with the three Tsimhoni children, your Honor.

But in addition, there were friends from school

with whom they played soccer. Classmates came over to the


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house. The children were enrolled in a six-month

membership at the local swimming pool. They -- I haven't

said birthday parties. There were a lot of birthday

parties. And the Sixth Circuit does talk about attendance

at birthday parties, because that does seem to be like the

dinner out with friends for children, just like school, I

think of as the full-time job for children.

We've already discussed the Hebrew. They went to

visit friends and relatives. And on this point, your

Honor, I'd like to point out that all of the parties's

relatives reside in Israel, with the exception temporarily

for this academic year, I'm correct. Mr. Tsimhoni's mother

is a visiting professor at Northeastern University in

Boston. But she'll be back home in Israel soon. So both

sets of grandparents, all siblings, everybody, aunts and

uncles, cousins, everybody is over there. The only people

who are here were Mr. and Dr. Tsimhoni.

So that the children did not have the relation --

ability to develop a relationship with the family here that

they then were able to develop in Israel. They played

soccer with friends. The mother said that she had looked

into a class for robotics. But at this stage, she said, of

his development with Hebrew, it wasn't going to be

particularly productive and that didn't carry on.

The kids liked to go to the Spaghetti


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restaurants. Apparently they still like to go to the

Spaghettim restaurants. And so whenever they were in a

village or on their travels, they would go to the chain

Spaghettim. And they did visit with the uncle, I'm going

to mispronounce his name, Moran, M-O-R-A-N, who came to the

house and played with them several times, and also met them

at the shore and played with them on the seaside.

The children had school on a daily basis, with

the exception of Saturday, from 8:30 to one o'clock. And

after that time, you know, their activity was free. And on

occasion, mom would pick them up and take them to the

beach. So the weather there was comfortable and warm in

the months that they were there. When we were starting to

get cold, they were September, October, November, and

December, and were able to be outdoors and be active. And

the pictures showed they were having some good times in the

process.

And then, of course, we've already talked about

the possessions. Everything that had been the center of

their existence, their toys, their lunch boxes, their

books, their games, their clothes, their stuff, came with

them, and with all of their furniture, their beds,

everything that was in the house. The inventory shows

everything from A to Z on there, your Honor. Two hundred

twenty-eight boxes that came and were shifted over. The


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HEARING - 3/3/2010


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family flew together as a unit, shifted over.

Again, so children pick up their cues from what's

happening around them. And they look to the parents to

provide the shelter and the love and the protection, you

know, that gives them the security.

To see the cars being sold and everything being

shipped up and flying over with 12 suitcases to Israel

would, I think, necessarily send a signal to the children

that the center of their existence is now being settled in

the new place.

Your Honor, the mother focuses on the language.

And I think I've explained the language issue to you. But

what I want to point out is that many of the defenses that

I find that the mother raises to habitual residence in

Israel deals with the custody determination, your Honor,

and the best interest matters.

One is that the children didn't -- well, that's

another issue. One is that returning the children to this

place would be harmful because they don't like it, they are

unhappy, and so on and so forth. And a preference not to

go back, is a preference that's the best interest

determination. I've briefed that both in this motion and

then also in the GAL motion, that these things are things

that you really can't consider in the matter, which place

is better? Were the schools better? Were the schools


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HEARING - 3/3/2010


23

easier? Were the houses bigger? Were they smaller? Was

the weather warmer or hotter? Was the food adequate or the

services adequate? That's a matter for the custody court

to decide, and you really can't focus in that area.

You cannot focus on a decision made by Liam, or

Natalie, or Roee as to where they felt at home. And this

is where I take issue with the report of Dr. Erard that's

been submitted. I think it's extremely weak in the

analysis section, and also in just giving some basic

foundation as to how he could have reached the conclusions

that he reached.

For example, he doesn't tell us how many times he

met with the children, for how long, if he met with them

alone and how they -- how it came to pass that they were

able to bring in a list, it seems, of almost six different

points, speak with one voice, unequivocally, that they

didn't like Israel, they didn't feel at home, this, that

and the other thing. And I'm not sure "home" is really the

way to describe habitual residence to a child and evoke the

right answer. Home to a child is going to be where the

parents are, where the focus of the life is at that present

time.

If Dr. Erard perhaps would have asked the

children where do you feel at home in November, or December

before they moved from Israel, I suspect they would have


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HEARING - 3/3/2010


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had a different answer. Home would have been where their

stuff is, where their house is, where they are in school,

where their parents are and where their friends are, and

family. So there's so much to discredit the report, that I

would suggest strongly that you give it very little weight,

if any at all.

And also, that you don't abrogate your

decision-making powers on the legal issue of habitual

residence to the small children because clearly, they are

incapable, no matter how bright, to determine, you know,

the legal standard in the case. And a trigger of home is

something that they can understand, but it's just not

applicable in this situation, your Honor.

Now, did you want me to speak only as to habitual

residence or also as to defenses, Judge? Because I agree,

habitual residence is everything, but habitual residence is

not just language.

THE COURT: It's the big hurdle.

MS. MCMILLAN: Yeah. It's just not language,

though.

THE COURT: Fair enough. Your presentation in

the form of an argument on your motion for judgment, based

upon all of the evidence, including the evidence proffered

by the defendant, and crediting all reasonable inferences

to that evidence is taken as an argument under Rule 56.


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25

Mr. Goelman should listen carefully, to this effect:

Plaintiff has pointed to the absence of any genuine issue

of fact in the motion, and the argument we've just heard

the last 30 minutes, that stands in the way of a judgment

in favor of Plaintiff on the issue of habitual residence or

re-acclimatization, as I've called it. And I think you

should pause, Ms. McMillan, and give Mr. Goelman a chance.

And his task then would be to present evidence.

Evidence has already been presented. So explain the

evidence that has been presented that, with reasonable

inferences drawn from it, would stand in the way of a

motion, or I'm sorry, of a judgment for Plaintiff in that

regard. And I'm only thinking here about habitual

residence.

Mr. Goelman, from the defendant's point of view,

what evidence stands in the way of a judgment for Plaintiff

on the issue of habitual residence?

MR. GOELMAN: Well, your Honor, to begin with, we

do rely heavily on language, and there's a reason for that.

And the reason for that is a kid cannot be at home in a

country, a kid cannot be acclimatized if they can't

communicate with other children. And the fact that

language is not the only issue that the other cases speak

to, is only because in those cases, language is a

non-issue.


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HEARING - 3/3/2010


26

In Friedrich, in Maynard vs. Maynard, which I

note that Mr. Prather represented one party and Ms.

McMillan represented another party in that case. And that

was in the Eastern District of Michigan. And that case

involved a kid who went to Australia, and was there for I

think from November to the following September. And what

the Court talked about -- in Australia, of course they

speak English. And what the Court talked about in their

opinion --

THE COURT: There's a little bit of dispute about

that.

MR. GOELMAN: Australian-English. And that's

what the Court talked about in its opinion. It said they

started to adopt Australian idioms, boot, football, mate.

This is the same language. And here, we're talking about

kids who can't even communicate in school. They don't even

understand what's going on in school.

So I agree language is not everything, but if you

can't get beyond language, I think it is just a deal

breaker. It is a condition precedent to feel at home in a

country that you can understand the language.

And Ra'anana, you know, despite the Wikipedia

article that is attached to the plaintiff's summary

judgment motion, Ra'anana is not a bilingual place. It's

not like San Diego or Los Angeles, where they teach English


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HEARING - 3/3/2010


27

language in classes. And the evidence in this case proves

it. It's in Israel. Yeah, there's some immigrants from

Russia, from Anglo countries, from other places. But they

speak English -- they speak Hebrew on the playground, they

speak Hebrew on the television, and they speak Hebrew in

the schools.

And these kids, your Honor, I disagree that they

had some familiarity with Hebrew when they went over there.

They had -- it's true, their parents, they had heard Hebrew

before. But remember, Ann Arbor is a place where --

there's a Hebrew day school in Ann Arbor. Liam didn't go

to Hebrew day school. He went to the non-denominational

private school. There's Hebrew schools, there's Saturday

religious schools in Ann Arbor. None of the kids went to

that. They didn't go to services. These kids had no

familiarity with Hebrew, except for occasionally hearing it

in the house.

So they go over there. They are absolutely

unable --

THE COURT: Do we know from the record that's

been presented, about religious affiliation in Ann Arbor,

in the United States?

MR. GOELMAN: I don't think there's --

THE COURT: Religious services, religious

affiliations and so forth?


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28

MR. GOELMAN: I don't think there's anything in

the record about that, your Honor.

THE COURT: All right. Is there anything about

it, other than mention of visiting the Holy Sites in

Jerusalem, for example, that was mentioned by Ms. McMillan,

there's some photograph I think, and other evidence of that

in the supplementals submissions. Is there significant

evidence about religious affiliation? Keeping in mind that

Jewish and being religious are two different things. I'm

starting at that proposition. So what do we know about

that in the record, with respect to the residence in

Israel?

MR. GOELMAN: We know that they went to Jerusalem

one time, and included in the trip to Jerusalem, they

visited the Wailing Wall. We know that they went to

services for I think Rosh Hashana in Haifa with the

maternal grandfather. We know -- or at least Liam did.

We know that they may have, there may be some

relevant, some reference in there to a meal, Sukkoth meal,

which is another holiday, another Jewish holiday in the

fall. And just to be fully accurate, I think there may be

a reference in the affidavit of Dr. Lichter to holiday

meals here in Ann Arbor, that he hosted the family at.

THE COURT: Okay.

MR. GOELMAN: In terms of them having some kind


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HEARING - 3/3/2010


29

of latent familiarity with Hebrew, once they were dropped

into this foreign culture, all of a sudden, they would be

able to converse, I think the evidence, your Honor, will

squarely be the other way.

And we do agree that language is not the "be all

end all." I think it is a condition precedent. And every

other case where there has held to be acclimatization, the

kids are fluent in the other language.

But even beyond language, there are real cultural

differences between Israel and the United States. And our

evidence will be that these cultural differences were felt

acutely by the children; that Liam felt terribly out of

place in his class; that his class was a zoo and Liam was a

very polite kid. And that there's a difference between

being an American kid and being an Israeli kid. And that

the plaintiff, Mr. Tsimhoni, actually recognized that

difference and encouraged Liam not to be as polite so he

would fit in better in Israeli schools.

And this idea, your Honor, they were playing

soccer, they were having play dates, they were going to

birthday parties. We are not painting a picture where

these kids were shut-ins and had no contact with the

outside world, not at all. But that was a very limited

amount of social interaction, because it necessarily was

limited, because they couldn't speak -- and you even have


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HEARING - 3/3/2010


30

their, Mr. Tsimhoni's complaint talks about a couple social

interactions. Talked about a kid whose name begins with a

"Y". And as long as we're -- well, I'll just keep it --

he's a classmate, name begins with a "Y". Angela Sturm is

his mother. There's a declaration in the record by Angela

Sturm.

And in his complaint, he says, oh, "Y" was a

friend. He played soccer with "Y". "Y" came over to

Liam's house. And she talks about that. And that's true,

they played soccer one time, and he came over to the house

one time. And if you read Angela Sturm's declaration, you

realize just how handicapped Liam was in interacting with

other kids. Because he's sitting there and the kid says,

do you want to play ball. And this is right before they

leave. This is in early December. And Liam doesn't react.

And it's not until Mr. Tsimhoni translates, he wants to

know if you want to play ball, into English, that Liam goes

and plays ball with the kid.

So there is -- there really can be no question

but that the kids didn't speak, didn't speak Hebrew. And

we are not claiming for a minute that they didn't improve.

Kids pick up language more quickly than adults. They were

in a Hebrew speaking environment. So obviously they spoke

and understood more in December than when they got there in

September. But the baseline, your Honor, was very, very


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HEARING - 3/3/2010


31

close to zero. I can expound on that if you want.

THE COURT: Well, that's the aspect of language.

All right. And you say it's not the "be all and end all."

I'm not sure how that differs from being a condition

precedent. But it is a matter of some significance, I

think it's fair to say, though it may not be the only

matter that weighs in the balance. It is, in this case, a

matter of significance to the Court.

Are there other facts within the evidence that's

been presented thus far, that Defendant would point to that

would, if credited, dispute the concept of acclimatization

in Israel?

MR. GOELMAN: There is, your Honor. We dispute

the idea that because midway through the stay in Israel the

container arrived, that somehow, that made this rental

house into their home.

We dispute the idea that, and I think Ms.

McMillan said that the home does not necessarily equal

habitual residence, and that was part of her criticism of

Dr. Erard's declaration. And I refer this Court to the

Robert case, the Holder case, where the court said habitual

residence is where -- I'm paraphrasing I'm not quoting --

is basically where the kid would call home. So it matters

where Liam, Roee and Natalie would call home in December.

We're not saying it matters where they would call home


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HEARING - 3/3/2010


32

today. But I think if you read Dr. Erard's declaration --

and there's a lot of criticism about how purportedly weak

and how shallow it is.

We hired Dr. Erard after receiving the Court's

determination that there wouldn't be a guardian ad litem

appointed. He spoke to the kids once. He is available,

and we'd be happy to bring him in as a witness if the Court

wants to hear from him, or if Ms. McMillan would like to

question him. So don't take his declaration as the sum

total of what Dr. Erard has to offer.

I also do not disagree with Ms. McMillan that the

kids can't determine the legal standard. And we are not

saying that Liam, Roee or Natalie should be asked where

their habitual residence was. But it is directly relevant,

and there are legion cases where the court has taken kids

and talked to them in camera. It is directly relevant

where these three kids, before they went back to the United

States on December 14th, what they would have called home.

And the idea that everything, all their

connections with Michigan and with the United States were

severed, that simply is not true, your Honor. And we'll

have evidence of that. The idea that the jobs were

abandoned - the mother took a leave of absence. The mother

was, the record shows, very concerned about maintaining her

immigration status. She wanted to get citizenship. Now,


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HEARING - 3/3/2010


33

if you're severing all roots from your old country, why

would that be a concern for you? Why wouldn't you actually

quit your job?

Finally, we have a disagreement about best

interest of the child. We agree that that's not the

Court's job, to decide best interest of the child. We're

not asking the Court to count play dates in Ann Arbor and

measure them against play dates in Ra'anana. But the idea

that just because something would be relevant to best

interest, that means it's necessarily irrelevant to a Hague

Convention case? I don't think there's anything to support

that, your Honor. There are certainly things that are

relevant under various articles, I hate to mention. And

just because they also would be relevant to best interest

determination, doesn't make them per se excludable.

That's all I have, your Honor.

THE COURT: Well --

MR. GOELMAN: I'm sorry. There's one additional

thing. We do agree that if the plaintiff cannot carry his

burden on habitual residence, the case is over. We do not

agree that if he can, the case isn't over because we do

think our defenses are substantial and carry the day in

that event. But I'm not going to address them now, unless

the Court wants to hear about that.

THE COURT: No. I invited Ms. McMillan to limit


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HEARING - 3/3/2010


34

her comments; and yours, accordingly, should be limited.

Thank you.

Ms. McMillan, it's my view, it was my view when

you began speaking, and it's my view now on all, assisted

to some extent by the things Mr. Goelman has pointed out,

that the evidence is sufficiently ambiguous and open to

interpretation on the question of habitual residence and

re-acclimatization; that a judgment on that question in

favor of the plaintiff is not warranted. And a motion for

judgment simply based upon the standards of Rule 56 is

denied accordingly.

And do you want to present any evidence beyond

what has been already proffered? Or do you want to rest on

what's been proffered and what the defendant present?

What's your desire?

MS. MCMILLAN: No. We present evidence, your

Honor.

THE COURT: Well, let's go ahead.

MS. MCMILLAN: All right.

MR. PRATHER: We call the defendant mother as our

first witness for purposes of cross-examination under the

Federal Rules of Civil Procedure.

MR. GOELMAN: We object to them calling the

mother in their case in chief. We intend to call her. I

think that this is something that the Court can deny based


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HEARING - 3/3/2010


35

on the Court's right to manage the trial. Having them

start with the cross-examination of the mother, and then

having us have to do a direct examination during our case

in chief, we think it is inefficient, unnecessarily

prolongs the process, and there's no reason to do it.

We're going to call her.

THE COURT: Well, I think that I don't see a

substantial basis to deny the request to put her on the

stand and question her. It's regularly done in civil

cases. This is a civil case, under the terms of the

Convention. Rules of Procedure apply, at least in general

terms, Federal Rules of Civil Procedure. So I think she

should take the stand. And to the extent you want to --

you are certainly not limited to cross-examination

techniques on your own, on your own witness. Although, I

think it actually opens that area up for you. It may be a

benefit accordingly. But I think she should take the

stand.

MR. GOELMAN: Yes, your Honor.

* * *

MAYA EIBSCHITZ-TSIMHONI

was called as a witness at 10:25 a.m., and after being

sworn to testify to the truth, was examined and testified:

* * *

CROSS-EXAMINATION


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MAYA EIBSCHITZ-TSIMHONI - CROSS

TSIMHONI v. EIBSCHITZ-TSIMHONI - 10-10308

36

BY MR. PRATHER:

Q. Dr. Tsimhoni, you realize I represent your husband and

the father of your three children?

A. Yes, I do.

Q. And it is a fact that you and the children and your

husband resided in Ra'anana, Israel from October the 10th,

until December the 14th, 2009?

A. It was October the 3rd.

Q. You resided there from October the 3rd?

A. Yes.

Q. And you're acknowledging the fact that you took the

children from Israel to Michigan on December the 14th,

2009?

A. Yes.

Q. And you filed -- and you returned to Michigan on what

date?

A. On December -- the flight was December the 14th, and

we arrived here December the 15th.

Q. And you filed a divorce case in the Oakland County

Circuit Court on December the 17th, 2009, did you not?

A. Yes.

Q. And you alleged in that complaint that you were a

resident of the County of Oakland for ten days before you

signed and filed your complaint for divorce, did you not?

A. Yes.


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37

Q. And that was a false statement, wasn't it?

A. No.

Q. Did you live in Oakland County for ten days before you

filed your complaint for divorce on December the 17th,

2009?

A. Yes. Not continuously, but yes.

Q. But you lived in Israel, you left Israel on December

the 14th, did you not?

A. I did. But when I, when I was running away from what

happened to me when my husband came to visit us in Ann

Arbor, I seek a shelter next to a friend of ours here,

Miriam Ducovny (phonetic), and I lived in this county for

awhile.

Q. But that was in December 23rd of 2008. I'm talking

about where you lived when you came back to the United

States. You did not live in Oakland County for ten days

before you filed your complaint for divorce, did you?

MR. GOELMAN: Objection to form, and asked and

answered.

THE COURT: Overruled as to form. And I think

she has answered it.

Go ahead. What else do you want?

BY MR. PRATHER:

Q. You actually lied to the Court?

A. I did not.


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38

MR. GOELMAN: Objection.

THE COURT: I think you've explored this

sufficiently. I don't think this is likely to be helpful

to the Court for further explanation.

Go ahead. Anything else?

BY MR. PRATHER:

Q. Let's, let's talk about what happened when the

children moved to Ra'anana. They lived in an apartment for

a little while?

MR. GOELMAN: Objection to the time. Just a time

frame, your Honor.

BY MR. PRATHER:

Q. When you arrived on October the 3rd, 2009, where did

you and the children live?

A. We actually arrived in Israel on September 10th. And

we lived in a one week apartment. And then that was a

temporary place, as my husband's parents would not allow us

to live in their house. They were out of the country for

sabbatical, but they said that I did not deserve to live in

their house. And, and so we had to live in a one-week

rental. And after that one week, we moved to a second week

one rental, one-week rental. And both of my kids were sick

and allergic to, to the dust and conditions of the, the

conditions of that place.

And then after the second week I was over, we had


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39

nowhere to move to. And I asked my husband again if we

could -- what to do. And we ended up going to a hotel for

one night. And then we couldn't stay at the hotel anymore.

So then we went to, for three days, in spite of his

disapproval, we had no choice, but we lived -- he agreed

that we would be at his parents' house for three days.

And during that time, he told me that when I

asked to stay there longer, he said that I do not deserve

it, and that the party is over for me. And when I asked to

use the computer in their house to look for a hotel, he

said there was no internet --

Q. Doctor, I'm asking you about where you lived. I'm not

asking about discussions you had with your husband.

I show you Plaintiff's Exhibit 107 and ask you if

you recognize this particular exhibit.

MR. GOELMAN: Your Honor, I would just ask that

when talking about exhibits, we have not been able fully to

conform the new numbers to those attached to their

pleadings. If they could just give us a cross-reference so

we can locate the exhibits.

THE COURT: What's the cross reference?

MS. MCMILLAN: Exhibit F to the complaint.

MR. GOELMAN: Exhibit?

MS. MCMILLAN: "F".

MR. GOELMAN: Six to the complaint?


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40

MS. MCMILLAN: Oh, I'm sorry. It's the lease

contract for the Hegalim house.

THE COURT: You don't have a conform --

consolidated set of those for the bench, do you, other than

what's already been filed electronically? Do you?

MR. PRATHER: We do not.

MR. GOELMAN: It's Exhibit 9 to the plaintiff's

complaint, your Honor.

THE COURT: In any event, he wants to know if you

recognize that.

THE WITNESS: I do.

BY MR. PRATHER:

Q. You did sign the lease. And it provided you would

reside in that apartment for 11 months; isn't that a fact?

A. The lease --

MR. GOELMAN: Objection, compound. Objection,

compound.

THE COURT: That's inconsequential.

THE WITNESS: The lease was initially not to, was

not to my satisfaction because it missed a paragraph that

would say that we can leave before -- that we can leave in

the middle of that period.

BY MR. PRATHER:

Q. Doctor --

A. And we changed the --


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Q. Doctor --

MR. GOELMAN: Objection to Counsel interrupting

the witness, your Honor.

THE COURT: Agree. Go ahead. Continue.

THE WITNESS: So the lease was initially designed

for nine months. But then I wanted to leave before nine

months, so we added a paragraph that says that we will be

able to leave before nine months. And that was --

BY MR. PRATHER:

Q. You and the children and your husband lived in that

apartment until you left on December the 14th. That's a

fact, isn't it?

A. Yes.

Q. And when you got to Ra'anana, you engaged in certain

activities with your husband and children. You went to see

sites and sacred places in Jerusalem, including the Wailing

Wall, did you not?

A. We went, there was one Saturday that we went to

Jerusalem. And we, when we got there, I asked someone

that, a tourist there -- because in all Jerusalem city,

there is a market. And there are lots of -- it's a very

touristic place. So I asked one of the tourists to take a

picture of us. And he was very nice man. And he was

commenting -- he was from Scotland -- Ireland, I'm sorry.

And he was happy to, the names of the kids reminded him of


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Irish names. He said Liam, and he thought it was Rory.

And he became very friendly. And he ended -- he told us

that he's a priest in Ireland. And he brought all his

group to meet us. And I remember that I thought he was

very nice.

And Omer said -- Omer was angry at me to how come

I'm coming to a sacred, special place for Jewish people and

end up communicating with someone from the church.

And then when we got to the Wall, and I told the

kids they could put a note in the Wall for to ask, to -- to

ask, to ask for special wishes. And Omer said that they

could not go with me to the Wall because in the Jewish

religion, men are more important and they should just go

with him. And so it ended up being a terrible visit.

So, and then he took the kids and went to -- it's

divided between women and men at the Wall. And the

religious people divide it like that. And the kids said,

mommy, why can't you come with us? And he said just, just

leave her alone and, and you need to come with me.

And so that was -- and then on the way back, when

we were at the market, my little one, Natalie said that she

wants to buy me a present. And she was going to -- she

chose something little at the market. And he just took it

away from her and gave it back to the man and said she

doesn't, she doesn't need any presents.


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And that's basically how he treated me the whole

time we were there, just saying that the party is over and

I'm done and it's the end for me. And --

THE COURT: I think that's a sufficient answer.

BY MR. PRATHER:

Q. Now, the family attended services at the synagogue in

Haifa; that's true, isn't it?

A. Yes. Yes, it is.

Q. Yom Kippur and Sukkoth with the grandpa, Saba Izy, you

attended that?

A. My father was, was at the synagogue. And for the

kids, it was a new adventure, because they -- it was an

opportunity to be with Grandpa. And they went inside. And

Omer didn't go with them. And he stayed outside, just

talking to friends. And my son said, mom, why can't you

come in? And because he was not used to -- he doesn't know

the religion. And he is not used to, to religious -- we

did not expose them to any religious ceremonies. And he

said, mom, why do you have to stay outside? Why only men

go inside? And I just said this is how it is for the

religious people. They just, women wait outside. And, and

he said, he said, you know, that's just not fair. How

about -- anyway. It was the time --

MR. PRATHER: Your Honor, I object to her

narrative testimony.


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THE COURT: Yes. I think that's, I think that's

a sufficient answer to that question.

BY MR. PRATHER:

Q. The oldest son --

THE COURT: It would be well to fairly directly

answer the questions. If there's reasonable explanation

needed, I'm certainly going to give you time to do that.

Go ahead.

BY MR. PRATHER:

Q. Liam attended school in Ra'anana. He started in the

third grade, did he not?

A. He did.

Q. And he did well in school?

A. He, he -- we at some point, the kids were very bored

and there was nothing to do. And they didn't even -- go to

the beach was -- they just was enough of the beach at some

point. And, and so school I thought they would be, it

would be kind of -- I told them, look, it's an adventure.

You can just see how it is. And they suffered a lot at

school. They were begging to -- they didn't say how --

MR. PRATHER: Judge, I have to object to her

testimony what the children said. The question is only

asking her whether the son, the oldest son attended school

in Israel. That was the answer.

THE COURT: No. Actually, your question was he


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did well in school, didn't he? And she is answering that

question. So did he do well in school? That's the

question.

THE WITNESS: He did not, because he really

suffered there. He told me that Hebrew to him is like

Chinese. He said, mom, it's like Chinese. I only learn --

I learn Spanish that is Latin, but this is like Chinese. I

don't understand anything that some people say to me.

And people are -- the kids were laughing at him

for his behavior. He, and he even said, mom, it's like I

feel like I came to -- I'm surrounded by monkeys. They all

want to touch me and they all feel like I'm something

different. And no one even -- and he says why are people

pushing each other and shouting? And why is the teacher

shouting? And why are people throwing things at each

other?

And Roee and -- and they didn't want to go to

school. And Roee and Nathalie didn't want to go. They

begged not to go to school. And I said guys, you know,

just, it's just interesting to see how, you know, people,

different people behave differently and it's interesting.

But they begged every day to stay home. And they

actually stayed home a lot, except for the times when they

were sick and didn't go. But they just, they just felt so

different. And kids there were laughing at them and


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throwing things at them. And they, they all begged me not

to go. And they kept saying we want, please, take us back

home. We just cannot -- and they were standing on the side

and --

THE COURT: That's a sufficient answer to that

question. Go ahead. Next?

BY MR. PRATHER:

Q. Did he continue to go to school until December the

14th, 2009?

A. He went sporadically to school because we all got the

swine flu. And we all had to stay home for, first Liam got

the swine flu and Roee got the swine flu, and then Natalie

got the swine flu. And we all stayed home when they all

got sick, because we didn't want to give it to anybody

else.

And even though we didn't have insurance, we

somehow find a physician that saw us in the backyard,

pretty much, and gave us Tamiflu. And they didn't want to

-- they couldn't even take the medications. They are not

used to the Motrin that they have here. They couldn't --

didn't like the taste. The whole day was spent convincing

them to take medication.

And so they, they went very, very little to

school in between, in between the sicknesses and in between

the rainy days and in between the -- I think Roee and


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Natalie went for about 20 days total to the kindergarten,

were very disturbed how, but by the different culture and

how kids are so violent and just, I don't know, just not

respecting the teacher. And how the teachers communicate

and how the kids communicate between themselves. And so

they were, they were -- they felt very out of place.

Q. Did you ever complain to the teachers that your son

was not doing well in school?

A. Actually, I didn't need to complain because the

teacher, Roee's and Natalie's teacher gave me a note of a

place that would -- she said she cannot attend to their

needs because she has many other kids in the class. And if

I wanted to, that I could teach them Hebrew in an afternoon

class. And she gave me the details of that. And she

suggested that they would -- she suggested that they are

out of place, but that it takes a long time to, to adjust.

And Liam's teacher said that he doesn't

understand anything and he seems bored. And she said, Liam

said that the kids are talking to him during the class.

And I told the teacher that. And she said, actually -- I'm

sorry, Liam said he can't even ask them to not talk to him

because then he would interrupt the class. But the teacher

kept saying that he does not -- that he, he -- she kept

commenting to how polite he is. And she wishes everybody

in that class would be like that. And she cannot -- how


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did -- how is this possible that the child would be so

respectful and so polite. And she wishes everybody else in

the class would behave like Liam.

And she kept commenting to how he can't

understand a word in Hebrew. So at some point, she said

she recommended to like go to a class that is like English

speaking class. And there was a teacher that spoke to him

in English. And that teacher commented to how -- and

that's one, one hour a week Liam would feel he's more

relaxed. And she feels like he needs that break out of the

misery of his week schedule.

MR. PRATHER: Judge, this is not responsive to my

question.

THE COURT: At this point, I agree. Go ahead.

Next question.

BY MR. PRATHER:

Q. Did you talk to your husband about Liam's problems

with the school? Did you talk to him about that?

A. Liam did.

Q. Did you talk to your husband, Omer, about it?

A. Liam told me.

Q. Did you?

A. Yes. We both, we all talked.

Q. When did you talk to your husband?

A. It was every, every time that they went, came back


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from school in the evening, they would say we don't want to

go back. It's terrible. Will you please take us home?

Q. And what did, what did Omer say in response to that?

A. You should stop being so polite. Stop saying thank

you and please. This is not the way it's done here. You

should just push. And in Israel, people push their way.

They are not standing on the side waiting to be invited.

You should be -- you shouldn't be so polite. You're not

from -- this is you just have to start to be -- you have to

be Israeli. This is not the way things are done here.

Stop. And but I want to say please and thank you. He

said, this is not the way it's done here. You should just

shout like everyone else. You should push your way. And

Liam said that's --

Q. Did his use in speaking the Israeli language, Hebrew,

did that improve during the time he was at school?

A. Yes, he improved. And the teacher said he's very

bright and that he's making nice progress. And he learned

the alphabet. And she -- they gave him a short -- he got

to start to read like "the little bunny" or "I am a big

boy," things like that. And she -- the school teacher

wanted to give him opportunity, and so she gave him like a

few sentence of I am -- this is a bunny, which is rhyming

in Hebrew, Hashafan Hakatan, and it's easy words. And so

he read in front of the class.


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And then later, Liam told me that all the

classmates were laughing at him for reading it like he

said, I feel like I'm a kid, like a baby. But he's a

bright, very, very bright boy. And he's, he learned a

little, he learned ulpan. The book just goes about the

early stages of languages. But he kept saying, mom, it's

like Chinese.

Q. You realized before you moved to Israel, that was a

different culture? That there would be a period of

adjustment for your children, did you not?

A. I didn't look at it as a period of adjustment. We

went for a little while to like -- like Liam says mom, if I

would want to go to do research on penguins in Antarctica,

we went like to observe, to enjoy, to have some time with

family. And of course, at that time, you know, I wanted

them to have time with Omer and, but they didn't go in the

purpose of adjusting. They went in the purpose of visiting

and taking a trip.

Q. But your children saw that you moved out of your home

in Ann Arbor. You sold the house on September the 8th,

2009 for $470,000? They realize that?

A. They realize that we start, we want -- the selling and

the packing started in January, when we were going to get a

divorce. Then we had to separate our belongings. And

that's when the house was -- that's when we decided to sell


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the house. And that's when we started packing. And it had

nothing to do with our move.

Q. So the children knew that the Ann Arbor home was no

longer going to be their home and they would have a home in

Israel. That's a fact, isn't it?

A. No, it's not. The children knew we were looking for a

new place here.

Q. It is a fact that you had delivered to Israel all your

personal belongings? There was no personal property that

was left behind?

A. No. That, that -- there was no personal property. We

packed, as I said, because we are going to get a divorce.

And the children, actually, the realtor said clean the

house from everything. The house will never sell with all

the junk of toys and old books.

And so they knew that we are going to spread

our -- divide our assets and move to a smaller place. And

my husband didn't give us much money to support our stay

here, because he said he would do -- he would make sure

that we wouldn't be able to stay here. And so --

MR. PRATHER: Judge, she's interjecting her

arguments against her husband. I'm just trying to

establish that they did move to Israel, and they

transferred all the property.

THE COURT: Why don't you re-cast the question


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and ask it directly. Go ahead.

BY MR. PRATHER:

Q. It is a fact that all of your personal property was

transferred to Israel?

A. No. Because most of our personal property was sold in

the garage sale before we left.

Q. Okay. Well, anything that was left after the garage

sale was transferred to Israel; isn't that a fact?

A. Not to my wishes. I asked to store it in our old

house on Traver. I asked to store it in the basement

there. And I said that that makes more sense.

Q. Doctor, the question isn't whether you asked. The

question is, in fact, did all the personal property go to

Israel? Did you leave any personal property back in

Michigan?

A. It was moved there only because my husband forced me,

insisted, and said that's the only option. He would not

allow me to store it here.

Q. And you bought a one-way airline ticket to Israel?

A. Not to my knowledge. I didn't purchase that ticket.

And I asked my husband not to do it through a -- I was

aware -- I was worried that he would use my move there as,

as putting check marks on some form that he has to show

that, that I got the ticket, that I am a returning citizen.

And I asked him please do not buy any tickets under


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returning citizen's disc

Documents

Trial Transcript Part 1