Child Immigration and Child Abduction

What happens when a minor is taken by one of the parents abroad and is not returned home? Usually, the child of divorced or separated parents divides his/her time between the houses of both parents, according to an arrangement set either in agreement of both parents or by a judicial decision. If one of the parents breaches the arrangement, by taking the child when he/she is not supposed to, or by not returning the child on time when he/she is supposed to, there are legal ways of dealing with the situation, according to the law of the state where the child and the parents live.

But what if such a breach takes place across the border? What happens when one of the parents takes the child abroad without consent of the other parent, or when one parent takes the child abroad with consent, but fails to return the child in breach of the agreement between the parents?

Such a case is called “child abduction”. The immediate thought that comes to mind when we say “child abduction”, is a case when a stranger kidnaps a child by force and smuggles the child to another country. However, legally speaking, a wrongful removal of a child from his/her state of residence, is the exact definition of “child abduction” according to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (or in sort – the Hague Convention).

The Hague Convention is a multilateral treaty between different states, intended to regulate the handling of such wrongful removal from one jurisdiction to another. All contracting states apply the provisions of the Hague Convention as part of their internal law, such that in a case of a wrongful removal of a child from his country of residence to a different country by one of the parents, the other parent has a clear path to take legal actions for a prompt return of the child back home.

As of today, there are 101 contracting states to the Hague Convention, Israel included. This means that in a case when a child is wrongfully removed from his country of residence by one of the parents and is taken to Israel, the other parent can file a claim in an Israeli Family Court according to the convention, for the prompt return of the child back home (in short – a return claim).

A return claim is an expedited legal proceeding. The claim should be filed as quickly as possible, and is considered an urgent matter, heard and decided by the Family Court in a short matter of time.

So what do we need to know in order to get started?

1. What constitutes a “wrongful removal” and therefore a “child abduction” – legally speaking?

According to the Hague Convention, a wrongful removal is a breach of rights of custody under the law of the state in which the child was habitually resident immediately before the removal. In other words, when a parent removes the child from his/her state of residence, or refrains from returning the child to his/her state of residence, in violation of a legal right of custody granted to the other parent, it is a wrongful removal and therefore a child abduction.

For example: An American woman got married to an Israeli man. The couple had a child. When the child was 5 years old, the family immigrated to the United States. Two years later, the couple separated. A family court in New York granted the mother a right of custody over the child, and visitation rights to the father. The father requested permission to take the child on vacation to Israel, for a limited time of two weeks. The mother agreed. The father therefore took the child to Israel, but failed to return on the agreed on time, and notified the mother that he decided to keep the child in Israel indefinitely.

Since the mother has the right of custody according to the law of the State of New York in the United States, and the father’s actions clearly violate that right, his failure to return the child back home on time constitutes a wrongful removal, according to the Hague Convention (of which both Israel and the US are members). The mother is therefore entitled to take legal action against the father in the Family Court in Israel and enforce her rights according to the Hague Convention.

2. What is the rule according to the Hague Convention in case of child abduction?

The principal rule of the Hague Convention is that once it’s been established that a wrongful removal took place, the child should be immediately returned to his/her state of residence. The burden of proving a wrongful removal is on the plaintiff, meaning the parent requesting the return of the child. Therefore, a copy of the judicial decision granting custody rights to the plaintiff parent should be filed along with the claim.

The plaintiff may also ask the Court for temporary injunctions, such as to prevent the removal of the child from Israel to a third country, to cease the child’s passport, to order the Israeli police to locate the child’s whereabouts in Israel, etc.

3. When might the Court refuse to order the return of the child?

As we mentioned, the rule is that a wrongful removal grants the plaintiff with the remedy of ordering the immediate return of the child. However, there are a few exceptions. For instance, the Court may reject the claim for the return of the child, if it was proven the plaintiff didn’t exercise his/her custodial rights, or agreed to the removal whether beforehand or after the fact. Another exception, is when it is proven that there is a grave risk to which the child might be exposed, in case of a return.

It is important to emphasize, that the consistent case law in the matter stated time and time again, that not only is the burden of proof for the exception lies on the defendant, but also that these exceptions should be narrowly construed and pertain to rare and extraordinary circumstances.

4. What to do when a child has been abducted to Israel

It goes without saying, that taking a child unlawfully to another country, without the consent of the custodial parent, is an act with potential grave outcomes regarding the child’s well-being. It is a serious matter of paramount importance and should therefore be dealt with as such.

This means, that swift and skillful action is required by obtaining the optimal legal representation by a skilled and experienced Israeli Family Law specialist. The Israeli lawyer should be not only knowledgeable and experienced in general Israeli Family Law, but also specifically in child abduction proceedings. Also, the Israeli lawyer should be able to communicate fluently and effectively with the parent abroad, who is unfamiliar with the intricacies of the Israeli legal system and is naturally in a stressful situation.

Our firm has vast knowledge and experience in successfully representing overseas clients in all aspects of Israeli Family Law, including the unique cases of child abduction. Our general motto – “on your side – with determination and sensitivity” – has never proved to be so applicable and adequate, as in the critical and sensitive cases of international child abduction.

If you are in a situation where your child was wrongfully removed from your country of residence, and was therefore abducted, please do not hesitate – call us immediately for consultation and in order to take the necessary swift legal action, so that your child can come back home as soon as possible.

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    Divorce Proceedings

    Child Immigration and Child Abduction

    Mediation and Arbitration

    Inheritance Disputes

    Prenuptial Agreements

    Family-Related Business Disputes