IN THE COURT OF APPEALS OF IOWA

No. 13-2087

Filed February 11, 2015

IN RE THE MARRIAGE OF MICHELLE NICHOLE GARLAND STERN

AND MENACHEM MEDEL STERN

Upon the Petition of

MICHELLE NICHOLE GARLAND STERN,

Petitioner-Appellee,

And Concerning

MENACHEM MEDEL STERN,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Story County, Timothy J. Finn, 

Judge. 

A father appeals from the visitation provisions of the decree of dissolution. 

AFFIRMED AS MODIFIED AND REMANDED.

Ryan G. Koopmans and Keith P. Duffy of Nyemaster Goode, P.C., Des 

Moines, for appellant.

Nicole S. Facio of Newbrough Law Firm, L.L.P., Ames, for appellee.

Heard by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.

A father appeals the visitation provisions of the decree dissolving his 

marriage. Specifically, the father challenges a geographical restriction in the 

decree that limits the father’s summer visitation with his son to visitation within 

the United States until the child is sixteen years old. The father contends he 

should be able to exercise summer visitation with his son in Israel prior to the 

child turning sixteen. The father also challenges the duration of the winter-break 

visitation awarded him. He contends he should have two weeks’ winter visitation

rather than a single week. 

I.

The father, Menachem Medel Stern, is a dual Israeli-Canadian citizen, and 

the mother, Michelle Nichole Garland, is a dual Israeli-American citizen. The 

child, D.J.G.S., is a dual Israeli-American citizen. The parties met in 2000 when 

Michelle visited Israel, where Menachem lived and worked. In 2001, Michelle 

moved to Israel, with her two children from a previous marriage, to live with 

Menachem. The parties married in a religious ceremony according to the Jewish 

faith. Their child, D.J.G.S., was born in 2003. In 2005, Michelle was accepted 

into a Ph.D. program at Iowa State University. Menachem executed a written 

authorization for D.J.G.S. “to leave Israel and live with Michelle in the United 

States for as long as she is enrolled in her Ph.D. studies at Iowa State 

University.” Michelle moved with the children to Ames. Later in 2005, 

Menachem joined Michelle. The parties married in a civil ceremony in June 

2006. 
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In October 2007, Michelle commenced an action to dissolve the parties’ 

marriage. Menachem returned to Israel in February 2008. After a protracted 

series of court proceedings, including Menachem filing a child abduction action 

under the Hague Convention in federal court, the Iowa district court entered a

decree of dissolution of marriage in June 2011. The decree dissolved the 

parties’ marriage but ordered that child custody, physical care, visitation, and 

support be tried in future proceedings after the conclusion of the parties’ case 

arising under the Hague Convention. 

In July 2013, following trial, the district court resolved the outstanding 

issues regarding child custody, physical care, visitation, and support. The court 

ordered joint legal custody with Michelle having physical care. The court divided 

the visitation schedule into two periods: first, when Menachem “can visit the child 

in the United States,” and later, “when the court will allow Menachem to take the 

child with him to Israel.” The court determined all visitation must be held in the 

United States “until the child is sixteen years of age.” “After age sixteen, 

Menachem may file an application for specific visitation rights outside of the 

United States.” Specifically, the court ordered Menachem 

shall be entitled to take the child out of the United States, provided 

that prior to that time he either reaches a written agreement with 

Michelle or has applied [for] and obtained a court order concerning 

the application to take the child outside of the United States. The 

issue of whether Menachem should be required to post a bond will 

be addressed at that time.

The court found reasonable visitation for Menachem included one-half of the 

winter break from school and six weeks during the summer. Menachem filed this 

appeal.
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II.

We review dissolution decrees de novo. See In re Marriage of Brown, 776 

N.W.2d 644, 647 (Iowa 2009). “Although we decide the issues raised on appeal 

anew, we give weight to the trial court's factual findings, especially with respect to 

the credibility of the witnesses.” In re Marriage of Witten, 672 N.W.2d 768, 773 

(Iowa 2003).

III.

A.

Menachem requests D.J.G.S. “be allowed to visit his father and his 

siblings in Israel” prior to the time D.J.G.S. is sixteen years of age. Iowa courts 

have “long recognized the need for a child of divorce to maintain meaningful 

relations with both parents.” In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 

1984). Iowa Code section 598.41(1) (2013), provides the court shall order 

custody and “liberal visitation rights where appropriate” to “assure the child the 

opportunity for the maximum continuing physical and emotional contact with both 

parents.” Section 598.1(1) defines “best interest of the child” to include “the 

opportunity for maximum continuous physical and emotional contact possible 

with both parents.” The Code does not in any way limit these considerations 

solely because one of the parents resides outside the borders of Iowa or the 

United States. 

Our case law also does not recognize any limitation on visitation rights 

solely because one of the parents resides outside the borders of Iowa or the 

United States. “The world does not end at the borders of Iowa.” In re Marriage 
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of Hatzievgenakis, 434 N.W.2d 914, 917 (Iowa Ct. App. 1998). “Our hope for 

justice for our citizens in foreign courts can best be forwarded by our efforts to 

offer fair and equitable treatment to foreign nationals in our jurisdiction.” Id. 

D.J.G.S. is a citizen of two countries—he was born in Israel to Israeli citizens, 

lived there during the first two years of his life, has many extended family 

members there, including a half-brother and half-sister—and has a right to build a 

meaningful relationship with his father and fully experience his dual heritage. 

See id. (finding child should be allowed to visit father in Greece as the child “is a 

citizen of two countries and has a right to be introduced and exposed to both”). 

Michelle argues the restriction on international visitation is proper because 

Menachem is not likely to return D.J.G.S. to the United States following visitation. 

Michelle notes Menachem stated, in 2005, that he briefly considered leaving the 

country with D.J.G.S. During trial, Menachem admitted he briefly considered 

leaving the country with D.J.G.S. in 2005. He also testified he has not 

considered it since that time. We find his testimony credible. In contrast, the 

district court found Michelle’s testimony regarding her concerns with Menachem 

to be not credible. The court made several pointed credibility findings regarding 

Michelle, finding much of her testimony “fanciful,” “exaggerated,” and “simply not 

true.” We give great weight to the district court’s credibility determination. 

Michelle also notes the court has previously found Menachem in contempt 

for not complying with a visitation order. We conclude that isolated incident is of 

little probative value. As the district court noted, “some of this behavior was 

aggravated by Michelle’s attitude and inflexibility on visitation.” For instance, 
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“after the visitation schedule was adopted, Michelle moved from Ames to 

Postville, but she was not willing to be flexible on the midweek visitation times 

even though she and D.J.G.S. now lived 175 miles farther away than when the 

schedule was set up.” 

Michelle also argues the restriction on international visitation is proper 

because it would be incredibly difficult and expensive to have D.J.G.S. returned 

to the United States if Menachem did not voluntarily return D.J.G.S. Israel is a 

signatory of the Hague Convention on the Civil Aspects of International Child 

Abduction.

1

 The Hague Convention on the Civil Aspects of International Child 

Abduction is “an international treaty the purpose of which is to discourage 

international parental child abduction and to ensure children who are abducted or 

wrongfully retained in a party’s country are returned to their country of habitual 

residence.” In re Marriage of Rudinger, No. 09-0281, 2009 WL 3337609, at *3 

(Iowa Ct. App. Oct. 7, 2009). The United States State Department publishes a 

report regarding signatory country compliance with the Hague Convention. 

Areas of concern for the State Department are: (1) countries not compliant with 

the Convention; (2) countries with a pattern of non-compliance with the 

Convention; and (3) countries with enforcement concerns. During the last three

years, Israel has not been identified as non-compliant in any of these respects. 

See http://travel.state.gov/content/dam/childabduction/complianceReports. 

Although not an explicit rule or standard, “[g]enerally, courts have 

approved out-of-country visitation when the country is a signatory to the Hague 

 

1 See http://travel.state.gov/content/childabduction/english/country/hague-partycountries.html
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Convention and there is insufficient proof of an intention to wrongfully retain the 

child.” Abouzahr v. Matera-Abouzahr, 824 A.2d 268, 281 (N.J. Super. Ct. App. 

Div. 2003); see, e.g., id. at 282 (allowing father out-of-country visitation with his 

daughter in Lebanon, despite it being a non-signatory country, and noting father 

“has made no effort to sneak [his daughter] out of this country [when he has had 

previous visitation], although he had opportunities to do so”); In re Rix, 20 A.3d 

326, 329 (N.H. 2011) (“[W]e conclude that while a foreign country’s Hague 

Convention signatory status should be a significant factor for the trial court to 

consider, it cannot, standing alone, be determinative of whether it is in the best 

interests of a child to travel with a parent outside the country.”); Katare v. Katare, 

283 P.3d 546, 552-53 (Wash. 2012) (en banc) (denying father’s request to take 

children to India, a non-signatory nation, where father’s “pattern of abusive, 

controlling, punishing behavior put the children at risk of being used as tools to 

continue this conduct,” thus convincing the court of an increased risk of 

abduction especially in light of the father’s threats to take the children to India 

without permission). 

Considering the best interest of the child, the lack of evidence establishing 

that Menachem intends not to return D.J.G.S. to the United States following 

visitation, the fact that Israel is a signatory to the Hague Convention, and the 

factors set forth in Abouzahr, we conclude the district court should not have 

prohibited visitation in Israel until D.J.G.S. is sixteen years old. See 

Hatzievgenakis, 434 N.W.2d at 917 (vacating restrictions on out-of-county 

visitation where there was no evidence of intent not to return other than mother’s 
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generalized fears); see also Keita v. Keita, 823 N.W.2d 726, 732 (N.D. 2012) 

(finding father who lived in Mali, West Africa, was not a flight risk with the child 

because “[t]he record does not include specific evidence that [father] has an 

intent to abscond or flee with the child or that he hindered [mother’s] custody of 

the child”). Accordingly, we reverse those provisions of the court’s order that 

restrict visitation to within the United States and that require Menachem either to 

reach a written agreement with Michelle or to apply for and obtain a court order 

concerning the application to take the child outside of the United States.

The district court deferred the question of posting a bond until visitation in 

Israel was possible. Because we have vacated the geographic restriction on 

visitation prior to D.J.G.S. turning age sixteen, the issue whether Menachem 

should post a bond and in what amount is ripe for determination. Michelle 

requests a bond of $30,000 because she would not have the financial resources 

to fight abduction of D.J.G.S. by Menachem, while Menachem requests no bond 

based on the district court’s determination he earns only $14,950 per year, of 

which $6900 goes to child support. We remand this issue to the district court for 

determination.

Menachem requests that Michelle split the costs of having D.J.G.S. travel 

to Israel, either through direct payment by Michelle or through a reduction in 

Menachem’s child-support payments, while Michelle asserts she lacks the 

resources to pay half the costs of transportation as she only makes $16,347 per 

year, plus child support. Because of the district court’s restrictions on visitation 

until D.J.G.S. reached age sixteen, it did not address this issue. Based on our 
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removal of the geographic restrictions on summer visitation, we remand this 

issue to the district court for determination.

B.

Menachem next contends the court should have allowed him visitation for 

the two weeks of D.J.G.S.’s winter break from school. Menachem argues travel 

from Israel to Iowa is very expensive, and one week of visitation is not long 

enough for someone who has not been able to see their child for six months. 

Michelle agreed Menachem should be allowed visitation for the two weeks of 

winter break, so long as D.J.G.S. does not miss any school. We see no reason 

not to adopt the agreement of the parties. We modify the court’s order to provide 

that Menachem shall have visitation with D.J.G.S. during the winter school break, 

but he must return D.J.G.S. when school resumes. If the winter break is longer 

than two weeks, Menachem’s visitation shall be for the final two weeks of the 

school break.

C.

Michelle requests appellate attorney fees in the amount of $3000. “An 

award of appellate attorney fees is within the discretion of the appellate court.” 

Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006). “Whether such an award is 

warranted is determined by considering ‘the needs of the party making the 

request, the ability of the other party to pay, and whether the party making the 

request was obligated to defend the trial court's decision on appeal.’” Id. (citation 

omitted). Michelle claims this protracted litigation has cost her well over $35,000 

in total attorney fees and she therefore deserves $3000 in appellate attorney 
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fees. Based on the parties’ nearly equal financial positions and our resolution of 

the issues, we determine no award of appellate attorney fees is appropriate. 

Costs of this appeal shall be taxed equally to both parties.

AFFIRMED AS MODIFIED AND REMANDED.