Jeremy
D. Morley*
When parents are separated and one wants to take a
child to visit Israel, the other parent often worries that the child will not
be returned, especially if the taking parent is Israeli or has expressed a
desire to live in Israel. Such concerns should not be brushed aside. Obviously,
if the taking parent is, for example, a homesick expat Israeli or a Jew who yearns
to make aliyah to Israel or a person
whose own parents live in Israel, the concerns of many left-behind parents will
normally be greatly enhanced.
Both Israel and the United States are parties to the
Hague Convention on the Civil Aspects of International Child Abduction. This
treaty requires that children who are wrongfully retained away from the country
of their habitual residence must normally be promptly returned to that country.
Israel Indeed, any lawyer handling international child custody cases will be
well aware that many of the major U.S. decided cases on the Hague Convention
are cases with a significant Israeli connection.
However, the Convention does not work automatically
and children are often not returned. The left-behind parent must establish
certain matters before the court in the foreign country and the taking parent
may rely on any of the six exceptions (sometimes described as defenses) to the
Convention. Hague cases are invariably stressful to both parents, and they can
be extremely expensive.
Furthermore, some parents may take advantage of some
of the unique features of the Israeli legal system once they have successfully
taken a child into Israel. In particular, they may obtain a “stop” order that
will prevent a child from being taken out of the country. Such orders are
routinely issued and they incentivize a parent who wants the child to remain in
Israel – either because of a belief that it would be better for the child to
live there or in order to create leverage over the other parent in financial or
child custody negotiations - to delay the custody case for as long as possible.
If the taking
parent commences a custody case in an Israeli Family Court, such an order may
even be issued ex parte (without
notice to the other party) and transmitted immediately to the border police at
all airports and border crossings. Or if the taking parent commences a divorce
case in a religious court in Israel, a stop order may be issued by that court.
It can be difficult, expensive and nerve-wracking to
try to overturn a stop order. It often provides powerful leverage to the taking
parent who might be using such tactics with the left-behind parent.
We
often work with parents in the United States who want to prevent their children
from being taken to Israel because of such concerns or who want to create the
strongest possible documentation and court orders that will authorize visits on
terms that will drastically minimize the risk. There are various steps that can
and should be taken to substantially reduce the risks.
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*Jeremy D.
Morley is a New York lawyer who handles international child matters globally,
working always with local counsel as appropriate. He frequently
handles complex and highly charged U.S.-Israeli child custody matters. He is the author of the American Bar
Association book, The Hague Abduction Convention: Practical Issues and
Procedures for Family Lawyers. He may be reached at jmorley@international-divorce.com