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העתקה בינלאומית של מקום מגוריהם של קטינים

מאת אדווין פרידמן [2007] [אנגלית]
פורסם : פורסם בכנס האקדמיה הבינ"ל לתחום משפחה, מרץ 2007

I. Parental Rights

1. Both parents share joint decision making authority regarding their children’s place of residence. (Legal Capacity and Guardianship Law – 1961, Sec. 15).

2. In the event that both parents cannot agree as to the child’s place of residence, the court is authorized to make that determination. (Id., Sec. 19).

3. Any agreement between parents regarding the custody or visitation arrangements of their children requires court ratification. (Id., Sec. 24).

4. Both parents are equal as the natural guardians of their children. (Women’s Equal Rights Law – 1951, Sec 3a).

5. The above cited section does not in any way derogate from the authority of the courts to act in matters concerning the guardianship of children according to their best interests only. (Id., Sec. 3b).

II. Criteria in Determining Relocation

6. Development of case law: Goldman vs. Goldman, (Tel Aviv Dist. Ct., Aug. 27, 1993, Personal Status File No. 2069/93, Judge Haim Porat) – Court developed a balancing test for determining relocation petitions. The child’s best interest is the principle factor which needs to be evaluated using the following guidelines:

a. Criteria should be flexible.

b. Burden of proof to convince the court is on the parent requesting to relocate.

c. Relationship of both parents to the child is considered.

d. Impact of the move on the visitation schedule of the non-custodial parent, which may be seen as a parental right and not just an obligation.

e. The future impact of the move on the child is unknown, while the present impact can be determined, so more weight is given the later.

f. Stated reasons for relocation. The motivation for the move must be to improve the family situation and not to interfere with the non-custodial parent’s relationship with the child.

g. Cultural and national identification to be considered.

h. Custody agreements between parents, including those with a radius clause, are subordinate to the best interests of the child.

i. The court, as the child’s guardian, may consider all relevant information, even if the parents do not attach importance to a particular matter.

7. Emphasis Placed on the Right’s of the Child

a. Impact of the UN Convention on the Rights of the Child. Signed by Israel in 1991 but not adopted into Israeli Law. Nonetheless, greater consideration is now given to the child’s preferences. “Rights of the child … is a normative legal concept guided by the aspiration to recognize the best interests of the child.” (Anonymous vs. Anonymous, Civil Appeal No. 2266/93, Supreme Court of Israel).

b. The right of the child to have his/her opinion heard directly by the court is a fundamental right unrelated to the weight that the court affords the child’s preferences, (Levy-Baron vs. Levy, Family File No. 17211/98, Jerusalem Fam. Ct., 1 Nov. 1999).

8. Impact of Basic Law Guaranteeing Freedom of Travel

a. Israel does not have a Constitution. A series of Basic Laws form the principles of democracy. These laws have a superior status in that they can only be cancelled by an absolute majority of the legislative body (Knesset). The Basic Law: Respect of the Person and His Freedom was passed in 1992. Section 6(a) of the Law guarantees that all individuals are free to leave Israel.

b. Courts have incorporated this right into the criteria for determining whether to permit the relocation of a child by the custodial parent. This is particularly true where the custodial parent has an opportunity for significant fulfillment abroad, either career or personal. This may include the desire to remarry with a non-Israeli resident.

9. Best Interest Test Becomes the Exclusive Criteria

a. The Supreme Court revised the criteria in relocation cases in January, 2001. In the matter of Anonymous v. Anonymous, Civil Appeal Leave File no. 4575/00, the court overturned the criteria established in Goldman. The court of first instance had granted the mother’s petition to relocate with the couple’s 4 year old child to England. On appeal, the District Court of Tel Aviv overturned the lower court decision. Judge Porat, who wrote the Goldman decision, presided over the panel.

b. The court applied the Goldman criteria and found that the mother’s primary motivation to relocate was job related. She had remarried to a Londoner and her husband found it difficult to obtain appropriate employment in Israel. The court held that the mother failed to show that she had sufficiently exhausted the possibilities of finding an appropriate job in Israel in order to justify the move. It therefore held that the move was not necessary and overturned the Family Court’s decision.

c. The Supreme Court held that the reasons for the mother’s request to relocate were not relevant to the final determination. The court is to make its decision based on the best possible circumstances for the child without considering the behavior of the parent seeking to relocate. The parent’s conduct should only be considered as it relates to his or her ability to meet the needs of the child. The court found that the mother was best able to meet those needs, even though she declared that she would relocate regardless of whether the court permitted her to take the child.

d. The court weighed the impact on the child of separation from the mother as opposed to separation from the father. It found that both parents were capable as child custodians. It held that as the mother was the primary caregiver, separation form her would be more traumatic to the child than separation from the father. Thus the court has granted the primary caretaker the ultimate decision making power in relocation cases. All she or he needs to do is declare that they will relocate regardless of the outcome of legal proceedings. The court has thereby denigrated its role in determining the child’s best interest.

e. The Supreme Court made two provisos to its judgment reinstating the Family Court decision.

1. The child would be enrolled in a Jewish school in London as per the father’s request.

2. The father could apply in two years time to reevaluate the custody arrangements.

III. Social Welfare Agencies Versus the Parents

10. To what extent will the court give preference to the opinion of the social services representatives and the court appointed mental health professional when they stand in opposition to the parent’s agreement to permit relocation?

a. In the recent case of Szjainbaum vs. Magen, the Jerusalem Family Court dealt with a unique confluence of circumstances, (Family File No. 21877/01. The divorced parents of six children reached an agreement between themselves regarding the children’s relocation. The agreement permitted the mother to relocate to Brazil, the country of origin of her new husband, with the four youngest children.

b. The agreement provided for visitation arrangements and psychological care for the children in Brazil to help in their adjustment. The agreement also contained a clause whereby the mother waived her claim for child support arrears against the father. The family had been the subject of a social worker’s evaluation during the divorce and the court decided to ask for the social welfare agency to present its opinion on the relocation. In addition, the court ordered a psychiatrist to evaluate the family and present his expert opinion. The social worker and the psychiatrist both opposed the relocation.

c. As the cross examination of the psychiatrist and social workers raised many questions regarding their credibility, the court then appointed a guardian ad litem for the children, who was an experienced family lawyer. The law guardian recommended that the court approve the parent’s agreement and enable the children to relocate with the mother. The court also interviewed the children in chambers. The court accepted the recommendations of the mental health professionals and rejected the parent’s agreement. It held that the parent’s actions were based on monetary considerations and not the best interest of the children.

d. The mother appealed to the District Court, with the father concurring. The District Court focused on the autonomy of the family and the rights of the parents alongside their obligation, to determine the children’s best interests. It found that the objections of the social workers were not based on factual evaluations. Likewise, the psychiatrist’s conclusions regarding the alleged unstable situation in which the children lived was contradicted by their school performance and their teacher’s evaluations. Furthermore, the Family Court had ignored the evaluation of the mother’s therapist, who found her to be a caring and competent parent, and rejected the recommendation of the law guardian.

e. The District Court held that only in very unusual and exceptional circumstances is the state justified in interfering with parental decisions. In the present matter, the court could not find such unusual circumstances. On the contrary, it held that the parents were capable of making determinations in the best interest of their children, even if they did not meet the narrow and rigid criteria used by the psychiatrist. The District Court overturned the judgment of the Family Court and, in a highly unusual decision, awarded the parents legal costs against the Ministry of Welfare for their unwarranted intervention.

IV. Extra Legal Criteria

11. Given the broad use of the term, the best interest of the child is subject to the personal outlook of the judge, making it difficult to establish precise legal definitions. Some judges are quite up front about the interplay of their own personal view of family and the best interest of the child. In the case of Levy-Baron, cited above, the Family Court judge reveals the personal side of the decision making process. The judge concludes by stating that he attempted to integrate the law and the legal precedents in reaching his decision. However, he writes that he would be remiss if he didn’t state that his conclusion was also based on his personal views of the world. His personal belief is that a custodial parent requires very significant reasons to relocate where the non-custodial parent and the child (here aged 8) are not in favor of it.

V. Good Faith of Opposing Parent

12. A case heard on appeal in the Jerusalem District Court (A.M. vs. R.M. Family Appeal No. 749/05, June 26, 2005) raised an issue which has not been previously considered. The father opposed the mother’s requested relocation with their children to Italy, her country of origin. The parents were engaged in a long legal struggle and the father refused to agree to a divorce. As Israel does not have no-fault divorce, the result is often years of court battles where the party interested in divorce is pressured into acceding to the demands of his or her spouse.

In this case, the father had refused to agree to the mother’s petition for divorce for a period of eight years. The Family Court granted the mother’s petition to relocate. The father appealed to the District Court. The mother moved that the appeal be stricken as the father, whose actions show a lack of good faith and unconscionable behavior, should not be permitted to seek a remedy by the appellate court.

The court considered the argument but rejected the motion. Its rejection was based not on legal principle but on the fact that the father had not been in contempt of any court orders. Consideration of the father’s underlying motivation for opposing revives the Goldman reasoning but from the opposite perspective. It is not the motives of the parent seeking to relocate which were examined, but rather those of the parent opposing the move. It remains to be seen whether this line of reasoning will be developed in future cases.