Child Relocation - Legal Way - Other Parent Disagrees

Question: 

What is the difference between relocation and child abduction ? 

Answer: 

Relocation is the correct, legal process of getting permission from the court to raise a minor abroad, even against the other parent’s wishes, whereas child abduction is achieving the same unilaterally, and unlawfully.

Question: 

If a mother has been awarded custody by a court does that mean that she is entitled to live anywhere in the world with the child ?  

Answer: 

No ! The judgment relates to custody within Israel. To be legally entitled to live abroad permanently with the child the mother needs to file a plea for relocation, and gain a further positive judgment . Furthermore, although she is the custodian she is not entitled to take the child abroad without the father’s consent. If she does, she is likely to face child abduction proceedings.

Question: 

When will a court grant permission for a minor child to relocate abroad with his/her custodial parent if the non-custodial parent objects strongly to this ? 

Answer: 

A court in Israel will grant permission for a minor child to relocate abroad despite objections from the non-custodial parent where it finds this to be in the child’s good. It will consider many factors but this is the main one. Ultimately will only grant permission where it feels the reason for the custodial parent’s relocation is legitimate and justified and any price the child may bear is worth it. Primary jurisdiction for hearing relocation pleas lies with the family court, though exceptionally a religious court will have jurisdiction over the matter. 

Question:

If parents are divorced with children, do they have to be dragged into a legal battle over relocation and express a preference if the custodial parent applies to relocate with them ? 

Answer: 

No ! Although in Israeli law views of children over the age of ten – and sometimes slightly younger - who are found to be sufficiently mature are taken into account in relocation cases , they can choose to remain neutral and not express a preference. In September 2005 Tel Aviv family court granted permission for a custodial mother to relocate to England with children aged 10 and 8. According to the psychologist's report they actually expressed their wishes not to express a preference or take sides, saying they would manage in either country . The psychologist had found that neither child would be traumatized by relocating to the UK, where the mother planned to remarry, or would suffer emotional damage, as their father had claimed. When the court passed judgment, holding that relocation would be in the minors' good, given all the circumstances, it specifically mentioned that they had requested not to express a preference.

Question : 

After a nasty divorce battle at the rabbinical court I was awarded custody of our child. I want to apply for permission to raise the children in the States. I think I would have a greater chance of succeeding if the family court heard my plea. Can I file it at the family court even though the rabbinical court awarded me custody ? 

Answer: 

Yes, according to the Zohar case decided by the Tel Aviv & Central District Family Court on this point. This stated clearly that even where the rabbinical court has jurisdiction over child custody because it is tied to a divorce plea, or because the parties expressly agreed so, there is still need for separate, express agreement regarding jurisdiction over the subject of emigration. If this does not exist, then the family court can have jurisdiction over emigration even though the rabbinical court awarded custody in the first place.

Question: 

Can the family court hear an application from a custodial parent for permission to raise children outside of Israel – if the rabbinical court authorised the divorce agreement granting custody ? 

Answer: 

Yes, providing the divorce agreement makes no express mention of the rabbinical court retaining exclusive jurisdiction about matters concerning the children then the doctrine of continuing jurisdiction will not apply, and the family court can hear the plea when filed. This point was emphasised in a decision by the Family Court in Hadera in 2002 when it rejected an application by a mother to throw out a relocation  plea filed by the custodial father via Adv. Amihoud Borochov because of the doctrine of continuing jurisdiction. The court held that it had jurisdiction to hear the case even though a district rabbinical court had authorised the couple’s divorce agreement covering custody a few years previously – mainly because the parties had not agreed about the exclusive jurisdiction of the rabbinical court over matters concerning the children. Even if there is agreement regarding custody, separate express agreement is needed regarding emigration, it said.

Question: 

I would like to get permission from the court to raise my daughter abroad, in the country of my birth. I have custody which the rabbinical court awarded me when it authorized my divorce agreement. I discussed the idea with my ‘ex’. He sneered, reminding me that the divorce agreement specifically stated that the rabbinical court would retain jurisdiction regarding any dispute over the children. I did not have a lawyer at the time, while my husband did. I feel as a woman I would have a fairer hearing at a civil court. Is there any chance of being able to file for permission to emigrate with my daughter at the family court ? 

Answer: 

Yes – by filing an independent plea in the children's name, at the family court. A case decided in October 2002 supports the notion that a family court could have jurisdiction to hear an emigration plea even if the mother’s divorce agreement was authorized at a rabbinical court  and it said that future disputes concerning the minor would be continued to be heard there. 

In the case heard by the Tel Aviv Family Court the mother, who was a convert to Judaism, had signed a divorce agreement authorized at a district rabbinical court which was incorporated into its judgment. The original agreement signed by the parties stated that the family court would rule on any future disputes but before it was authorized the agreement had been altered by hand so that the words ‘the rabbinical court’ replaced the ‘family court’. Both parties signed the alteration but the wife was unrepresented at the time while her husband had a lawyer. The agreement also said that if the mother wished to emigrate with the children the whole question of custody would be re-opened. 

The children later brought their own independent plea, via their natural guardian, their mother, to relocate  – at the family court. Their father argued that the court lacked jurisdiction to hear the case – which lay with the rabbinical court. 

Finding for the mother, the family court held that the children had a constitutional right to bring their own independent action and were not restricted from doing so because of the divorce agreement signed by their parents concerning rabbinical court jurisdiction of disputes relating to them.

Editor’s Note-

The decision is controversial for two reasons. Firstly, children aged 5 and 7 are probably too young and immature to be capable of forming their own independent views on emigration. Secondly, the argument concerning emigration and maintenance agreements is inappropriate. A child’s right to maintenance, from either one or both of his parents, is a basic, absolute right recognized throughout the world’s legal systems. 

The right to relocate or emigrate is not a basic right, and is relative, being conditional upon awareness, understanding and desire. Where a child is a baby or of a tender age,he is  too young to form his opinion on the issue, whereas an older child, aged 10 or over, can form an opinion and express wishes on the subject , which will be taken into consideration by the court as it does in custody issues.

Question: 

What is the attitude of the rabbinical court towards allowing a divorced mother of young children to relocate abroad , to the country from which she emigrated to Israel ? 

Answer: 

In the rare cases in which the rabbinical court does have jurisdiction over relocation or emigration of minors, it is clear that it views the “child’s good” as remaining in the Jewish state of Israel, where the minor’s Jewish spiritual , religious and educational needs can be fulfilled more easily. However, where the child is young i.e. under the age of six, it is accepted that he/she should be with the mother, even if she relocates, provided that she can guarantee that he/she will be returned in time to begin education at school. Indeed, it has been held in one case that where there is such a guarantee, the father should not object to a mother’s relocation plea. 

Case: 

I am a foreign resident. I married an Israeli citizen , but we have now got divorced and I have no status in Israel . We have a three year old child. Will I be allowed to take our child abroad with me and raise her in my home country ? 

Answer: 

In general, a foreign resident divorced from an Israeli citizen, has a good chance of getting permission to raise their mutual child abroad , providing she has the normal capabilities of a parent, and the appropriate professional reports are favourable. 

In February 2004 Tel Aviv Family Court gave permission for a foreign resident Moslem mother, who was facing expulsion from Israel, permission for her minor child to emigrate to Uzbekistan. The father, the mother's ex-husband, who himself had a Jewish mother and a Moslem father, was an Israeli citizen. However, because of the couple's divorce the mother's application for residency/citizenship had been cancelled . The guiding principle was the "child's good", the court said . The best option for the Moslem child was being allowed to go with her mother to her native Uzbekistan, where Islam was the dominant religion, it held , with the father , who had no entry problems there, being allowed to visit her abroad three times a year, for 10 days at a time. In doing so, it adopted the recommendations of a professional appointed to report on the matter . As the mother had no status in Israel there were only two choices , the court said – either for the minor to be raised abroad with the mother to remain in Israel with the father. 

The mother had already been granted custody of the minor in earlier proceedings. She was the central and dominant figure in the minor's life , having looked after the child since birth. Although the child had a good relationship with her father, cutting her off from her mother would affect her stability, the report had stated.

Case:

I have remarried and am pregnant. My new husband is from the States and cannot make a living here, although he made ‘aliyah’. I want to relocate to the States but my ‘ex’ objects and has even filed for custody of our children here, although he doesn’t have an idea about bringing up kids, and was never involved with them when we were married.

Do I have a chance of relocating with them if my ‘ex’ objects ?

Answer: 

Yes ! Ultimately the court will decide , although it is preferable for the parents to reach agreement. The court will weigh up the parent’s conflicting rights i.e. the mother’s right to freedom of movement associated with the new family unit and the father’s right to actualize his parental role , putting the minors’ good first. It will no doubt appoint a professional to report on the matter and make recommendations. In a case decided by Jerusalem Family Court dealing with a mother’s application to relocate with her 6 year old daughter from her first marriage for employment reasons , after she had remarried and had another child, a professional appointed to make recommendations found that the father, who objected vehemently to the plea, lacked parental ability. It allowed relocation, giving the mother’s rights priority over the father’s and setting financial guarantees for the minor’s exit.

Question: 

My teenage daughter lives with her mother ( my ex-wife) in Israel but keeps telling me she wants to come and live with me in Canada. She is very unhappy because her mother remarried and she really does not get along with her mother’s new husband. My 'ex' is against our daughter leaving Israel to live abroad with me. Can I do anything about this ? 

Answer: 

Yes ! You can bring two legal actions simultaneously at your daughter’s local family court – one for custody and the other for relocation . It should be stressed that the wishes and opinion of a minor who is over 10 have considerable influence and effect on the decision of the court in issues of both custody and emigration.

Question: 

Will a court in Israel dealing with a plea for relocation of a minor abroad, filed by a divorced mother, and opposed by the father, automatically grant permission if she remarries and her new husband is based overseas? 

Answer: 

Not necessarily. Although marriage or remarriage to a spouse based overseas is a strong factor favourable to relocation, the court will still examine all the relevant factors, and whether the move would be in the child’s good. In particular, it will test the stability and quality of the new relationship, the child’s relationship with the new spouse, and other advantages of living abroad (e.g. proposed new environment/surroundings compared to present ones). Ultimately, the court will have to be persuaded that the reason for relocation is legitimate, and justified, in the minor’s good, and the price borne by the child is reasonable.

Question: 

I am a divorced mother . I have been conducting a long-distance relationship with a man who lives in Europe. He has his own business there and cannot live in Israel. I want to move to Europe with my children after we get married, but my ‘ex’ objects. Will the court take into consideration my ‘choice’ of new husband when it decides whether to allow the children to relocate abroad or not? 

Answer: 

Yes. The children’s relationship with a custodial parent’s new spouse or partner is one of many factors to be examined by a court dealing with a plea for the relocation of minors. It will also want to see whether the new relationship appears stable, and may even look at the family history of the new spouse. If the new spouse has children of his own, the court may want to check out how the minors relate to these proposed “step-siblings”. 

There is a catch – the children’s relationship with the new spouse should be reasonably good, but not too good. If the relationship is too positive, it could be argued that relocation will have a negative effect on the role of the biological, non-custodial parent.

Question: 

Might the prospective new spouse of a parent applying for relocation to the country where he/she lives be required to become involved in the legal process in Israel ? 

Answer: 

Yes, for example in September 2005 Tel Aviv family court granted permission for a custodial mother to relocate to England with children aged 10 and 8. Meetings with the plaintiff mother's prospective new husband, who lived in the UK, before the court-appointed psychologist – alone, with the plaintiff, and with her and the children – were part of the process. The expert recommended granting permission for relocation, which it said, was in the minors' interests, and would not cause them trauma or emotional damage, as their father had claimed.

Question: 

In relocation cases, is there any connection between the record of visitation between the child and the non-custodial parent and the success of the plea ?

Answer: 

Yes – a vital one. By its very nature, a relocation plea disturbs and changes the type and frequency of contact and communication with the non-custodial parent. The willingness of the custodial parent to facilitate and encourage visitation is a crucial factor when a court allows minors to relocate abroad. The court will examine whether the custodial parent planning to relocate with the children has honoured visitation, or whether he/she has put up barriers to it in any way. A parent who has consistently frustrated visitation or denied it in practice will not be allowed to relocate as such behaviour indicates a denial of the other parent’s role.

Question: 

When a court looks at a relocation plea concerning children, will it compare the proposed new environment abroad as opposed to the existing one in Israel ? 

Answer: 

Yes, the child’s connection with his/her environment and surroundings is one of the many factors that the court will examine. It is relevant in relation to older children. The following are particularly important when considering relocation of children who are roughly aged 10 and over : language, culture, social life, religion, relationship with peers, suitable educational frameworks, relationship with new enlarged family abroad. The child’s ability to adapt and feel at peace emotionally are important factors. It is common for a parent wishing to relocate abroad to offer to enrol the child in a private Jewish school so that he/she will nurture connections with the Hebrew language and Israeli culture which will in turn contribute positively to his/her connections with the non-custodial parent and his family in Israel, and with the country itself. At this age, the views of the child him/herself are taken into consideration, too.

Question: 

Is there any connection between the financial position of the custodial parent and the chances of success for his/her plea for relocation of minor children ? 

Answer: 

Yes, all things being equal, the more comfortably off the custodial parent is financially, the more likely the court is to allow relocation as it will be easier for him/her to finance the cost of visitation in Israel and abroad , and thus contribute to greater, and more frequent contact between the child and the non-custodial parent. 

However, this is but one of many factors which the court deciding on relocation will consider when it decides whether the move is justified and in the minor’s good.

Question: 

Is there any connection between geographical distance between Israel and the chances of the success of a relocation plea ? 

Answer: 

Yes, there is some connection, as the courts fear that the greater the geographical distance, the greater the potential for emotional distance between child and non-custodial parent. As relocation of minors abroad does impinge on the relationship between the non-custodial parent and the child in any case, the greater the distance, the less frequent visitation is likely to be, owing to the difficulty and cost in arranging visits. Accordingly where the country of proposed relocation is far -e.g. Australia or New Zealand – the more likely the court is to scrutinize just how the custodial parent proposes to maintain contact and minimize emotional damage to the child. However, if the custodial parent is comfortably off, or is marrying someone of substantial means, this can counter concerns of the court about relocation resulting in distancing and alienation, as it will be easier to finance visitation.

Question: 

Will the family court agree to a custodial parent’s plea for relocation abroad with the minor, if there is no real reason for it, other than a desire to be far away from the non-custodial parent ? 

Answer: 

No ! To succeed, a relocation plea must be reasonable and justified, and be filed in good faith, with a clear commitment and, if necessary, financial guarantee, that visitation with the non-custodial parent will be honoured. Where a court suspects that the real motive behind the plea is to distance the child, and the custodial parent, from the non-custodial one, then it will most probably reject the plea.

Question: 

I am a divorced foreign resident. I have applied for permission to raise my young daughter abroad, in the country of my birth, near my family, who are supportive, and where I have better job prospects. My ‘ex’ objects and at the preliminary hearing his lawyer tried to plant seeds of poison in court by fabricating stories about my real motives being to distance our daughter from his daddy and to punish him for leaving me for another woman. I am worried that the court will believe his lies and won’t allow me to raise our daughter abroad. 

Answer: 

The Supreme Court of Justice held in 2001 that the overriding principle in cases about custody, including relocation ones, is “the child’s good" and factors such as “the necessity” of relocation and parental conduct are not “relevant" unless the custodial parent “does not weigh up the child’s good, and concentrates only on his own good, and in that case it would be against the child’s good to be with that parent.” 

As relocation would have a major effect on the children , the court should decide what is the best option for them in the circumstances , without turning its attention away from the "child's good" towards the behaviour and motives of the custodial parent applying for relocation. 

It referred to a judgment of the Canadian Supreme Court in the Gordon V. Goertz case in 1996, where it was held that the parent’s motives for relocation should not be looked into unless he/she attached no importance to “the child’s good," otherwise the focus would shift from the best interests of the child to the conduct of the custodial parent, it said.

Question: 

If a mother in a relocation case admits that she will consider relocating without her child if he is not allowed to leave, could she lose the case ? 

Answer: 

Comments about relocating even without a child could be taken out of context and strengthen the father’s claims that the mother is not putting the child’s good first, but her own. This was one of the reasons why the district court allowed the appeal of a father against the judgment awarding the mother of a young child permission to raise her in England, where her second husband was based, after the birth of her second child. It held that her comments had negative implications for her parental capability, and it did not adopt the expert’s findings, as the family court had, it said. The expert’s report had overestimated the mother’s parental capability and the “tender years” presumption in favour of her, it said. 

However, the mother appealed against the district court ruling. The Supreme Court overruled it, and reinstated the original judgment, allowing the mother to leave with the daughter, aged 4, stating that the presumption in favour of the mother up to the age of six was still relevant. It stressed that as the motives and conduct of the mother were not relevant factors, so long as they do not impinge on the child’s good.

Question: 

How will an Israeli court deal with the objections of a non-custodial parent concerning the custodial parent’s plea for permission to raise their minor in South America when the former claims that it is more dangerous than Israel, and the latter the opposite ? 

Answer: 

The court will probably request evidence regarding the security situation in the particular South American country concerned, so that it can draw a comparison regarding the relative safety of the two locations . In August 2003 when the Tel Aviv Court rejected a mother’s application to cancel an order preventing her minor’s exit from Israel for a 17-day holiday to Guatemala it stated quite clearly that it would have to compare the relative safety of Israel and Guatemala as places to raise the minor when it considered the emigration plea the mother had filed on the minor’s behalf , after the Summer recess. 

Question: 

I have applied for permission to relocate with my young child following remarriage to someone based abroad. My ‘ex’ objects, but the psychologist appointed by the court has recommended that I be given permission. The judge suggested in one session that my ‘ex’ would get a better deal if he negotiates, but I know he won’t compromise , and will fight to the bitter end. I am worried that even if I get a favourable judgment, he will appeal and try to stop or delay our departure. Are my fears grounded? 

Answer: 

Clearly there are reasons for apprehension even if the family court does pass a favourable judgment permitting relocation. This is because the thwarted parent, here the father, can appeal to the district court and ask it to delay implementation of the judgment pending the result. The district court does, however, have discretion in the matter and may refuse to delay implementation, as Tel Aviv district court did in 1999. It rejected such an application from a father, who had appealed against the family court’s judgment permitting the mother to take the former couple’s children to the United States for two years. The family court had held that it would retain exclusive jurisdiction over the custody case ,despite the relocation, and the district court ruled that the mother should deposit a $25,000 bank guarantee to immediately guarantee enforcement of the judgment, even before the appeal was heard.

Question: 

If a parent loses an appeal case heard about the relocation of minor children abroad at the district court, does that mean that the matter is closed, and there is no hope ?

Answer: 

No. Application for permission to appeal can be made to the Supreme Court – and if granted, it is possible to win and get the District Court judgment overturned if relocation is held to be in the minors' good. 

For example, in May 2005 a mother of Canadian origin finally got permission from the Supreme Court to relocate to U.S. with her two daughters from her first marriage – even though the district court had accepted her ex-husband's appeal against the original family court judgment allowing them to do so. She filed permission to appeal at the Supreme Court which heard the case and overturned the district court's judgment . It held that there were insufficient grounds for not accepting the recommendations of the court appointed professional recommending that the girls relocate with their mother to the United States, where her new husband had set up a business.