www.international-divorce.com
A recent
case in Iowa illustrates some of the issues that arise when one parent wants to
take a child living in the United States to visit Israel.
In Marriage of Stern, 2015 WL 568584
(Table) (Iowa App.,2015), a father who resided in Israel successfully challenged
a geographical restriction that limited his visitation with his son to
visitation within the United States where the child lived with his mother.
The Iowa Court
ruled that, “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.’… ‘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.’”
Visitation in Israel was especially appropriate because the child was
born in Israel to Israeli citizens, lived there during the first two years of
his life, had many extended family members there, including a half-brother and
half-sister, and had a right to build a meaningful relationship with his father
and to fully experience his dual heritage.
While the mother asserted that she feared the child might be retained in
Israel, “generally, courts have approved out-of-country visitation when the
country is a signatory to the Hague Convention and there is insufficient proof
of an intention to wrongfully retain the child.”
While the court authorized such visitation, it should be noted that there
are particular concerns about visitation to Israel. For example, there is no
durational residency requirement for an Israeli court to exercise custody
jurisdiction and there is no statutory concept of a "home state" that
would require an Israeli court to enforce a U.S. court order or to defer to a
U.S. court as the appropriate forum.
In addition, it can be relatively easy for a parent to obtain a “stop” or
“stay of exit” order that will prevent the other parent from taking the child
out of Israel at least for a period of time. Such orders can be obtained ex-parte and upon issuance
are immediately sent immediately to the border police at all airports and
crossing points.