This section deals with the legal possibilities open to a parent who objects to the other parent's plan to relocate outside of Israel with their mutual child/children.
Relocation – Father Fears Becoming ‘ Distant Uncle’
Question :
I am in the process of divorcing in Israel . My wife wants custody and wants to relocate to the United States, where she was raised, taking our son with her. To me this is unimaginable as I am sure that instead of being a father I would turn into a distant uncle. What legal action should I take ?
Answer:
If a husband is negotiating for divorce and child custody with his wife and cannot come to a suitable agreement, then if she applies to court for custody and permission to relocate, he should object strongly in his written defence pleadings, and even consider counter-filing for custody. His argument should be based on the fact that as a parent he has a constitutional right to have an on-going relationship with his child, and vice versa. When all the parties rights are to be weighed up the child’s interest/rights should take priority and not be endangered by the mother’s plans. No doubt the court will appoint a suitably qualified professional to make a report and recommendations on custody and emigration.
In December 2002 in a case brought by a father to enforce visitation rights consistently infringed by the custodial mother over a three year period the Tel Aviv family court referred to one of many reports prepared by a professional it appointed . The report was made in response to the mother’s plea to emigrate to Mexico with the former couple’s children. It strongly recommended that the court reject the plea and stated the importance of the children having contact with both parents . It warned : ‘ they are going to lose their father.’
Cancellation of Exit Order Delayed Pending Appeal Re Emigration
Question:
My wife has applied for permission to raise our child abroad. The clinical psychologist has made a report recommending emigration and I think the judge will accept her findings. What can I do ?
Answer:
Firstly, it is possible to ask for permission to cross examine the professional who submitted the report and attempt to show that the findings were based on mistaken conclusions or poor exercise of discretion in an attempt to persuade the court not to accept the recommendations. Secondly, if this fails, and the court does accept the recommendations of the report, it is possible to appeal against the successful emigration plea and immediately ask for a delay in the implementation of the judgment – i.e. a delay in cancelling any temporary orders preventing the child’s exit from Israel – pending the results of the appeal.
Father Challenges Family Court Jurisdiction
Question:
Can a father who wishes to fight an emigration plea filed at the family court on the children’s behalf by the mother, claim that it has no jurisdiction to hear the case because his ex-wife agreed to the rabbinical court having jurisdiction over custody during their divorce hearings ?
Answer:
No ! Once the parties are divorced, the father can no longer rely on the mother’s consent to rabbinical court jurisdiction for issues related to the children that was given in the context of divorce plea hearings . Once there is a divorce plea the custody issue is automatically bound to the plea but once the couple are divorced the rabbinical court can only gain custody where there is mutual consent of the parties. That means the consent of the mother, and of the minors. These points were made clear by the Supreme Court of Justice in January 2004.
Plea To Relocate – Negative Reason
Question:
My ‘ex’ wife wants to emigrate abroad with our children. She wants to go to New Zealand , where her sister lives, and where she says she can give the children a better quality of life. She is a qualified nurse, and says she can earn much more there. I think she just wants to neutralize me and distance me from the children. She says if I do not agree, she will file for permission from the court. What can I do ?
Answer:
If an ‘ex’ spouse , who has custody of the mutual children files a plea for their relocation, the non-custodial parent can take legal steps to oppose this, by filing defence pleadings which are aimed to show that the reasons and motives behind the action are not legitimate, or justified. The non-custodial parent can try and persuade the court that the real motives are revenge and distancing of the children, and that the so called reason – financial – is not true, or justified. He can try and show that the custodial parent can find reasonable employment in Israel, and that any financial gain is not justified, because the emotional price of relocation that the children would have to bear – being cut off from their father – is too high, and not in their interests.
Relocation of Minors –Zionist Arguments
Question:
Are Zionist and Jewish-Nationalistic arguments of any use to a non-custodial parent opposing a plea for the relocation of minor children ?
Answer:
Not really nowadays. In the early Post-Holocaust days of the foundation of the State, judges regarded Israel as the best place for Jewish children to be raised . It was felt that cutting off a Jewish child from Israel and allowing him to be brought up abroad could have negative results – assimilation and a straying from the Jewish and Zionist paths. Today this is not so, and when the family court deals with a plea for relocation of a Jewish child abroad it will recognize the fact that it is possible for Jews to have a educational, social and religious life abroad, and keep up their knowledge of Hebrew , Israel and Judaism.. The proximity of the child to Jewish schools and Jewish communities and the willingness of the custodial parent to permit the minor to have contact with them may be a factor it will take into consideration.
Appeal Chances Against Child’s Temporary Relocation
Question:
My ex-wife has been granted permission to take our two children to the States so that she can do her doctorate there – after a professional appointed by the court recommended this . I am considering appeal. Is there any chance that I might get the ruling overturned , or get a better visitation deal ?
Answer:
Without knowing the details of the case it is impossible to predict chances of appeal in a relocation case, as much depends on the findings and recommendations of the report made by the professional appointed by the court. Usually in relocation cases the court is guided by the recommendations of the professional who will endeavour to analyse what is in the minor/s’ best interests where the interests of the parents clash – e.g. where there are the conflicting interests of professional advancement versus parenthood.
However, if both parents are found to have parental capability, then it is possible that the parent fighting relocation can improve his/her deal by appealing. For example, in one 90’s case the Supreme Court dealt with an appeal by a father against a ruling of the Jerusalem District Court which had granted permission for a mother to move abroad with her 9 year old daughter for two years to complete her academic studies. After ordering a professional to make a report and recommendations it had granted permission for the mother to relocate with the child, but ordered visitation of 45 days during the Summer, at the mother’s expense, and telephone contact., and various bank guarantees. It stressed that continuity was important for the mother, despite the fact that the father also had parental abilities. Although the Supreme Court rejected his appeal, reaffirming permission for the minor to go abroad for two years, it did increase visitation both in the United States and Israel and include arrangements about additional communication by letter between father and child.
Relocation: Alternatives Where New Relationship Involved
Question:
What are the key questions to be asked by a court dealing with a plea, heavily contested by the father, for relocation of a minor due to the mother’s new relationship with a partner /spouse with connections abroad ?
Answer:
A court dealing with a contested relocation plea in the above circumstances will consider these questions/ alternatives, in the light of the report presented by a suitable professional :
Should custody be transferred to the father in Israel ?
Should custody remain with the mother, but in Israel ?
Has the new partner/spouse made an attempt to live in Israel ?
Are the reasons for relocation legitimate and how do they fit in with the child's good ?
Relocation- Presumption in Favour of Mother Still Relevant
Question:
In today’s modern times, where mothers as well as fathers work, do the latter have a chance of overturning the inbuilt advantage towards a mother getting custody of a young child and permission to relocate with him ?
Answer:
Only a very slim one. Only if the father,, too, has good parental capability, following testing from a psychologist appointed by the court, or if the mother’s own parental capability is in doubt. In general, all matters being equal, a mother will have an advantage in custody and relocation cases where the child is under 6.
In a leading Supreme Court case , after referring to American professional literature, in 2001 it was held: “ The equal responsibility of both parents towards their children, arising out of the equality between men and women and the reality of the modern family, should not be underestimated. Together with this, usually the connection between children of tender years to their mothers is still stronger than that to their fathers. So it is apparent from many contemporary pieces of research, dealing with the special psychological connection which is built between a mother and her child, and the damage which is likely to be caused to the children, especially of tender years, as a result of being cut off from the mother who cared for them since their birth and who gave them warmth and love, and that is even in the cases where the father had a significant role in the children’s lives.”
The court quoted literature supporting the “Tender Years Doctrine” which said:
”Even where the father has participated significantly in the child’s daily care existing evidence indicates that unless the father rather than the mother is the primary caregiving parent or the mother’s care has been significantly deficient , there is greater disruption and risk of immediate and long range emotional damage for the child in separation from its mother than from its father”.
Ex-husband's Chances of Blocking Child's Relocation
Question:
If my ex-wife , who has custody of our child, remarries, and brings legal action against me in any Israeli court, to relocate our daughter abroad, do I have any chance of preventing that ?
Answer:
Only if the professional that the court is likely to appoint recommends that relocation would not be in the child's good i.e. it would be likely to result in severe emotional damage, or if the report is favourable to the mother, it can be proved that the evidence against the findings of the report is so weighty, that its recommendations should not be adopted.
In a case in November 2006, a father fighting a plea filed by his ex-wife at Tel Aviv Family court to relocate their 6 year old son over whom she had custody, to France, where her new husband lived and ran a business, argued that the experts had not sufficiently taken into account certain factors, and that their findings and conclusions should not be adopted . He argued that they had not given sufficient weight to the potentially damaging effect on him of the mother's impending second birth. He also claimed that as the new husband would not promise to allow the mother to return to Israel with his son if he were unhappy in France, this proved that the child's welfare was not being put first.
The court rejected his arguments, and adopted the findings of the experts it had appointed, which said that the relocation of the minor to France with his mother, who had been the dominant parent since birth, following her remarriage, was the best option for him in the circumstances.
Relocation Judgment – Delaying Implementation
Question:
Can a parent who has just lost a battle for custody and relocation filed by the other parent, and is considering appealing against it, prevent the minor from leaving Israel meanwhile ?
Answer:
Yes, the non-custodial parent can apply to the court granting the judgment for a delay in execution. That court will have discretion on the matter. The non-custodial parent will have 45 days to appeal against the first-instance judgment by the family court . However, if no delay in execution of that initial judgment is granted by the family court , once an order preventing the minor's departure from Israel is cancelled , the custodial parent can leave the country with the child. The appeal court will only have jurisdiction over delaying implementation if the family court rejected the application for delay in judgment, either fully or partially, or if an appeal is actually filed.
In November 2004 immediately after a father was read the judgment by Tel Aviv Family Court granting the mother, represented by Advs. Amihoud and Louise Borochov, custody and permission to relocate to England with the three year old child, he applied for an order delaying its implementation. He asked for a 30 day implementation to give him time to consider whether to appeal and for a gradual parting from the child.
After hearing oral reaction from the mother's counsel , the family court immediately ordered a fortnight's delay in implantation, to give the father time to appeal to the district court. Two days before the deadline ran out, the father applied to the district court for an order to delay the execution of the judgment even longer, claiming he planned to file an appeal. After a written reaction was filed by the mother, the district court set a hearing for the day before the mother 's planned departure with the child. The delay in execution would remain in force until a decision was made on the current application to delay execution, the district court held. It also gave the father until the hearing to file his appeal. The father filed the appeal within the time set and at the hearing a compromise, suggested by the judge, was accepted by both parties, and no further delay in execution of the judgment was granted.
The mother and child left Israel and arrived in England the following day.
Child Maintenance Even Following Contested Relocation Abroad
Question:
Does a father still have to pay his minor children maintenance if their mother, whom he divorced, relocates abroad with them, and he was against this ?
Yes ! A father is obliged to pay child maintenance for his minor children under Israeli law, whether they live in Israel or abroad. His obligation to support them financially is not dependent on their territorial or geographic location. Furthermore, it does not matter if he was against the relocation either, and his 'ex' had to file and win court permission for it.
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