מאת אדווין פרידמן [2003] [אנגלית]
פורסם : דיני משפחה בינלאומי
Child Custody
The married parties were parents of three children. The father filed for custody. The mother was in need of medical treatment but refused to comply. An attorney was appointed as guardian ad litem for the children. The mother was found to be inciting the children against the father.
Held: The court considered the potential damage to the children should the mother continue inciting them against the father. The court granted the father’s petition for custody, expressing its concern that continued incitement by the mother could lead to Parental Alienation Syndrome.
Family Court file 4630/98, Judge Tovah Sivan, Tel Aviv
The parties were parents of a one year old child. The father petitioned the court for visitation rights that would include arrangements for the child to sleep at the father’s house once a week in addition to every other weekend.
Held: The court, relying on the book “ To Sleep Like a Baby” by an Israeli psychologist, held that there is no justification for permitting a child less than two years of age to sleep over at the home of the non-custodial parent.
Family Court file3438/99, Judge Yehudah Granit, Tel Aviv.
HAGUE CONVENTION
An Israeli mother married an American father in California. Their son was born and raised there. The parties divorced and the mother was given primary physical custody. The mother subsequently decides to petition the court for permission to return to Israel with their nine year old child. The court appointed a psychologist to evaluate the parties and make a recommendation. The court appointed expert, after much hesitation, recommended that the mother’s petition be granted.
The court rejected the expert’s opinion, determining that should the petition be granted the mother would deny future access to the father. The court denied the petition and awarded custody to the father. Several days subsequent to the court’s decision, the mother unlawfully removed the child to Israel.
The father filed a petition for return under the Hague Convention. The mother claimed an Article 13b defense, stating that the child would commit suicide should he be returned. The court appointed a psychiatrist to evaluate the likelihood of a potential suicide. The expert opined that there was a serious possibility that the child would fulfill his threat. After cross-examination, the court ruled that the expert’s opinion did not provide a sufficient basis for a ruling and ordered a second expert to evaluate the child. Although both parties appealed this decision to appoint a second expert, the Family Court’s ruling was upheld.
Despite several attempts, the second expert was unable to speak with the child, who refused even minimal cooperation. Thus the second court appointed expert was unable to do an evaluation. The Family Court then made its decision based on the first psychiatrist’s opinion. It held that although the child had clearly been brainwashed by the mother, the threat of suicide was real and therefore an Article 13b defense was established. The court took the unusual step of awarding costs and fees to the father even though his petition was rejected.
The father appealed the judgment of the Family Court to the District Court. The three judge panel unanimously rejected the appeal, not making any mention of the fact that a second expert opinion was requested by the court and could not be produced due to the incitement of the child by the mother. The court agreed that the mother had brainwashed the child and that proper psychological care could be obtained in California, but was concerned that the child may commit suicide before safely reaching his state of habitual residence.
The father then requested leave for appeal to the Supreme Court of Israel. The Supreme Court, after six months, agreed to hear arguments on the motion for leave to appeal. The court rejected the motion, holding that the Family Court acted properly in making its ruling based on the first expert’s opinion alone, even though the burden of proof to establish a 13b defense requires clear and convincing evidence.
Motion for Leave to Appeal file 5253/00, Supreme Court, Justice Shlomo Levin, Vice President and Justices Y. Englard and Ayelah Proccachia, January 21, 2001.
Child Support – International Jurisdiction
As the parties are of different religious affiliations, they could not marry in Israel where civil marriages are not possible. The couple arranged a “Paraguayan marriage” which permits couples to marry without residency or citizenship requirements. The marriage is executed through the mail without any requirement for one party to be physically present in Paraguay.
The parties had two children in Israel, but moved to Poland at least one year prior to the filing of the petition. The mother continued to travel regularly between Israel and Poland. The mother filed for maintenance and child support in Israel and served the summons on the father while he was visiting in Israel. He claimed that Israel had no jurisdiction.
According to the rules of international jurisdiction, both substantive and local, proper the claims should be litigated in Poland. That was the jurisdiction where the parties last shared a common residence and where the plaintiffs continue to live.
Held: The court held that when personal service is made in Israel, the court acquires jurisdiction. As to the argument regarding proper forum, the court relied on the Family Court rules of procedure. The rules refer to local jurisdiction as being determined by the place of the marital residence. If there is no common residence, then the last place of common residence is determinative. The court held that the rules refer to common residence in Israel, therefore it looked to the last place of common residence in Israel. Since that was in the Tel Aviv area, the court held that it was a proper forum to here the case.
The court then deliberated on the applicable law. The applicable law is that of the domicile of the minor when the action is for child support. Here the court ruled that since the children are domiciled in Poland, the law of that country is applicable. However, the burden of proving the foreign law is on the petitioning party. As the mother made no offer of proof as to the Polish law regarding child support, the court permitted her an extension to submit a relevant expert opinion.
Family Court file no.12850/00, Judge Gal Gutzagen, Tel Aviv, November 5, 2000