ISRAEL – BITON – 1997 (Return ordered) BITON v BITON. The mother takes the child to Israel. The father applies for return to California, USA. The court ordered the return of the child.
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Biton and Biton (Fam.Ct. 1997)Family Court for Tel Aviv & Central Dist. No. 89340-kaf/97
17 International Abduction [ISRAEL 1997]
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Family Court for the Tel Aviv and Central Districts
Case Number 99340-kaf/97
25 Dec 1997
Before: the Honorable Judge Y. Shtufman.
In re Hague Convention Law (Return of Abducted Children),
5751-1991
The Plaintiff: Yaakov Biton, Israeli Passport No. 438069
Represented by: Attorney Edwin Freedman
40 Enso Sereni St, Givatayim
Versus
The Defendant: Orly Biton
Represented by Attorney Roni Schwartz
20 Hess St., Tel Aviv
JUDGMENT
001 Before me is the plaintiff’s claim that his minor
daughter, Lital, be returned to Los Angeles, her habitual
place of residence, pursuant to the Hague Convention Law
(Return of Abducted Children), 5751-1991.
002 1. These are the main facts pertinent to the
petition.
003 The plaintiff and defendant were born in Israel and
are Israeli citizens. They were married to each other, in
IsraeL according to Jewish religious law, on November 11,
1986.
004 Lital, the minor, was born to the plaintiff and the
defendant on February 22, 1987. Let it be noted that the
defendant and the daughter, LitaL hold French citizenship in
addition to their Israeli citizenship.
005 At the end of 1989, the plaintiff went to
Californian. The defendant and the daughter, Lital, joined
him there three months later.
006 The daughter, Lital, lived with her parents in the
U.S. for eight years. She went to the local schools in her
place of residence and completed third grade there, as
specified in taf/3, taf/4 and taf/5.
007 2. According to the plaintiff, the defendant and
Lital went to Israel for a visit, in July 97, returning to
the U.S. on July 27, 1997.
008 The plaintiff claims that while they were in Israel
he sold some of their household goods to pay for the trip,
He also claims that he left the essential items for daily
living in their joint household.
009 According to the plaintiff, after the defendant
returned to California, they continued living together in
their joint household for a number of days. However, when
the parties realized that their relationship had
deteriorated badly, the defendant temporarily moved in with
her sister, who also lives in California.
010 The parties agreed on temporary joint custody of
their daughter, Lital.
011 3. The plaintiff claims that he understood at the end
of August that the defendant intended to return to Israel,
and he asked a local lawyer to take steps to prevent Lital’s
removal from California.
012 On August 29, 1997, an order was issued in the Los
Angeles District Court instructing the defendant’s and
Lital’s passports to be deposited with Ms. Sukir, the
plaintiff’s attorney. The plaintiff also claims that an
injunction was issued forbidding Lital’s removal outside
California’s borders (Appendix A of the Statement of Claim).
013 In addition, the plaintiff claims that the defendant
deposited both of the minor’s passports, the French and the
Israeli, with Attorney Sukir, but did not deposit her own
passport on which the minor is also listed.
014 According to the plaintiff, another injunction was
issued together with the order to deposit the passports.
This injunction, Appendix B of the Statement of Claim,
determined that the minor would be temporarily placed in the
plaintiffs and defendant’s joint custody.
015 4. The plaintiff claims that the parties held
negotiations in order to settle their differences, but that
these negotiations were unsuccessful.
016 The parties reached an agreement on September 9,
1997, confirmed by a Judgment (Appendix C of the Statement
of Claim), by which the plaintiff agreed to pay the
defendant S1,040 per month in child support. It was
determined that the first payment would be made on October
1, 1997.
017 The plaintiff claims that when his daughter did not
telephone him at the beginning of October, as she had
habitually done when staying with the defendant, he made
efforts to discover what had happened to his daughter. It
then became evident that the defendant had left the U.S.
together with the daughter, Lital, and that they were in
Israel.
018 The plaintiff claims that when he learned that his
daughter bad been removed to Israel, he had his Attorney
appeal to the Los Angeles court on October 14, 1997, an Ex
Parte decision was rendered, by which custody of the minor,
Lital, was awarded to her father, the plaintiff (Appendix D
of the Statement of Claim).
019 5. The defendant does not dispute any of the facts
described by the plaintiff.
020 The defendant claims that the return of the minor to
Israel was accomplished with the plaintiff’s consent. The
defendant also claims that neither the plaintiff, the
defendant, nor the minor have the legal right to reside in
the U.S.
021 The plaintiff categorically denies the defendants
claim that he consented to the minor being returned to
Israel. He also argues that the matter of the plaintiff’s
and minor’s right to reside in the U.S. is not relevant in
deciding a claim pursuant to the Hague Convention Law.
022 The questions upon which the parties do not agree are
as follows:
023 a. The question of agreement – that is, did the
plaintiff agree that, the minor, Lital, could go to Israel.
024 b. Whether the question of the plaintiff’s,
defendant’s, and minor’s right to reside in the U.S. is
relevant for reaching a decision pursuant to the Hague
Convention Law.
025 6. The Agreement Defence – Art. 13(a) of the
Convention.
026 The parties agree that the Los Angeles Court’s
decision on September 29, 1997, (Appendix C of the Statement
of Claim), determined that the minor, Lital, would be under
her mother’s and father’s, i.e., the plaintiff and
defendant, joint custody.
027 The parties also agree that the minor, Lital,
traveling to Israel, constitutes an infringement of the
plaintiff’s custodial rights.
028 The defendant’s defense is, as stated, that the
plaintiff consented that the minor could travel to Israel.
029 7. Let it be noted that the plaintiff has submitted
an affidavit in support of his claim, but that he did not
appear for examination on the affidavit and did not produce
any witnesses in his support. The defendant submitted an
affidavit, was cross-examined, and an additional witness
testified on her behalf.
030 In this matter, regulation 295 T (d) of the Personal
Status Ordinance determines the following:
“(d) If a declarer, including a litigant who has submitted
an affidavit, does not appear for examination, the court
will not delay the hearing, but will judge the matter on its
merits, and the court is entitled to take the matter into
consideration in rendering its judgment.”
031 Therefore, despite the fact that the plaintiff did
not appear to be examined on his affidavit, the hearing was
not be delayed. Together with this, the significance of the
plaintiff’s non-appearance must be taken into account,
inasmuch as it is relevant to the matter at hand.
032 The burden of proof that the father actually
consented to let the minor travel to Israel, rests with the
defendant. She must convince us that the father really did
give his permission for the minor’s trip to Israel.
033 The defendant claims that the condition of Article
13(a) of the Hague Convention Law exists in this instance,
and, therefore the Court is not entitled to order the
minor’s return to the U.S.
034 Article 13(a) of the Hague Convention Law reads as
follows:
“(a) the person, institution or other body having the care
of the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or
retention;”
035 Case law interprets the above exception in its narrow
sense; in the words of Judge Goldberg in Civil Appeal
1372/95 Stegemann v. Stegemann, Piskei Din 49 (2)-431, P.
438:
“The abducting parent, who would like to benefit from his
action, must prove that the exception exists. Meaning, that
doubt as to the exception’s existence works in favor of
returning the abducted child, and not for leaving him with
his abductor.”
036 In Civil Appeal 7206/93 Gabai vs, Gabai
(unpublished), the Honorable President Barak analyzed the
basis of the aforementioned claim of consent, as ‘follows:
“Article 13 (a) of the Hague Convention Law differentiates
between consent and acquiescence. The difference between
these two is on the level of time. Consent is given in
advance, acquiescence comes after the fact. Consent and
acquiescence may be by either act or omission. They may be
accomplished in any manner (in writing, verbally or
behaviorally). Consent and acquiescence are only effective
if they are performed out of awareness of the relevant data.
The objects of consent or acquiescence are custodial or
visitation rights. Parents “consent” or “acquiesce” to their
their child’s removal or non-return when it can be concluded
from their behavior (in its broadest sense) that they waive
immediate or urgent realization of the custodial or
visitation rights which have been legally granted, in the
country of their habitual residence, close to or before the
child’s removal or non-return.”
037 According to the honorable Judge Porat, Vice
President of the Court, as well, who held in Personal Status
Case 5201/93 Gesundheidt vs. Gesundheidt (unpublished):
“Consent, according to Article 13(a), as noted in the
Leibowitz affair, must be clear, evident, and without any
qualifications. It may be granted in writing and may be
interpreted from behavior. However, the matter must be
absolutely clear.”
038 The defendant must prove, therefore, that the
plaintiff’s explicit consent was given for the minor’s trip
to Israel.
039 8. In her affidavit, nun/1 the defendant describes
the events that preceded her arrival in Israel together with
the minor:
12. My Israeli passport which had already expired in 1994,
was at my parents house in Israel. Lital’s’ French and
Israeli passports were with my sister, so I gave Yaakov my,
French passport on which Lital was also listed. Later, I
deposited Lital’s French and Israeli passports, which had
been with my sister, with Yaakov’s attorney.
13, On September 29, 1997, a hearing was held in the Los
Angeles court and the Judge ordered Yaakov to pay $1,040 per
month in child support. The judge also ordered Yaakov to
give me back the Mercedes automobile.
14. Yaakov did not make any child support payments
whatsoever and notified me that if I wanted to stay alive I
had better forego the child support payments and the
Mercedes and also give him $70,000 in cash. Only then would
he consent to let me return to Israel with Lital.
15. I used all of my credit cards to withdraw S20,000 from
the bank and transferred the entire sum to Yaakov, promising
him that I would raise another $50,000 from my family in
Israel.
16. After Yaakov received the $20,000, he returned my French
passport on which Lital was also listed, and notified me
that he had no objections to my traveling to Israel.
17. I promised Yaakov that I would send him another $50,000
and on October 9, 1997, left for Israel with Lital, This,
with Yaakov’s full knowledge and consent.”
040 I cannot accept the defendant’s claim, and I am of
the opinion that the defendant did not at all prove that the
plaintiff consented to the minor’s going to Israel.
041 In my opinion, the circumstances and the evidence
clearly show that the “consent” claimed by the defendant is
no more than the defendant trying to explain her trip to
Israel with the minor, “after the fact.”
042 Under cross-examination, the defendant’s attention
was called to Appendix B of her Statement of Response.
Appendix B was written by the defendant’s attorney and sent
to the director of the visa section at the U.S. Embassy.
Among the rest, this document also states the reasons for
the defendants leaving the the U.S. with the minor.
043 It is stated, in a letter in Appendix B, among the
rest, that the plaintiff did not pay child support to the
defendant, and also that he did not give her the automobile
as he bad been obliged to do. Because of this, the defendant
had no other choice but to leave California and return to
Israel with her daughter, Lital. The letter does not
indicate, or even so much as hint, that the defendant went
to Israel with the plaintiff’s consent.
044 9. Not only this – but while the defendant was being
cross examined, document taf/2 from October, 12, 1997, was
submitted. This is a Statement of Claim that the defendant
filed in the Rabbinical Court in which the defendant asks
for child support payments and that a no exit order be
issued for the minor, LitaL.
045 The defendant’s claim, taf/2, states the following:
I, Orly Biton, left America on October 9, 1997, because my
husband, Kobi Biton removed all of our belongings from the
house, and closed them up in a container, left me without a
home, and did not support me. All because he has a girl
friend named Debby, and after all this he took me to court
and sued me for huge amounts of money so that I would not
take the girl, and he took my and the girl’s passport and
abused me and looked for me all over America, and finally,
even made threats against my life.
I could not bear such a burden because I am pregnant and
because I was afraid to stay in America under fear of his
threats.
So, I left America by using my French passport.
He asked for a reconciliation and I was happy, so I agreed,
but his condition was that I give him $20,000, and I used my
Visa Card to get the money and gave it to him, and he
promised that he would pay the debts, but he took the money
and ran away with his girl friend and left me without
anything, and I am also five months pregnant” (As written in
the original – Y.S.).
046 10. In her petition to the Rabbinical Court, filed
two days after the defendant arrived in Israel with the
minor, the defendant relates that the plaintiff took away
all their joint property and their passports, and to her
regret she had to run away from America. The defendant
claims that she feared the plaintiff’s threats, could no
longer bear her distress and, therefore, used her French
passport to leave America and go to Israel.
047 In her Statement of Claim to the Rabbinical Court
taf/2, the defendant does not state or even hint that the
plaintiff consented to her traveling to Israel, made the
trip conditional on any payment whatsoever, and returned her
passport.
048 In other words – in the claim the defendant filed
with the Rabbinical Court, submitted immediately upon her
arrival to Israel, in which she related the circumstances of
her arrival in Israel for the first time, there is no
support for the defendant’s claims of defense as raised in
the case before me. More so – Statement of Claim, taf/2,
constitutes an out of court acknowledgment by a litigant,
and this acknowledgment is tantamount to admissible evidence
of its content’s truth. (In this matter, see my precedent
“On Evidence,” part two, pp. 657, 662-663).
049 11. I cannot accept the testimony of defense witness
2, the defendant’s sister, who, among the rest, states the
following in her affidavit nun/2:
“2. On October 12, 1997, her sister’s husband, Mr. Yaakov
Biton (hereinafter: Yaakov) called her parent’s home.
3. I answered the phone and Yaakov asked to speak with my
sister, Orly.
4. I knew from my sister, Orly, that Yaakov was demanding
that she give him $50,000 immediately.
5. Since Orly, who is pregnant, was lying down because she
did not feel well, I spoke to Yaakov and informed him that
Orly had no way of obtaining $50,000 and that she would not
give him such an amount of money.
6. Yaakov was furious and said that he had consented to Orly
returning to Israel with Lital only because he believed her
when she promised to send him $50,000.
7. Yaakov threatened to do away with Orly if she did not
immediately send him S50,000. He also said that he would see
to it that Lital was returned to the U.S., and he would make
the lives of all my family miserable.
(Emphasis mine – Y.S.).
050 In her cross-examination on December 4, 1997, defense
witness No. 2 states on P. 4 of the record:
“I thought I would try and I told her that once again that
that any salary I would make from work I would pay NIS 1,000
or 2,000 every month. Mornings I do housework and afternoons
I work for the Ashdod Municipality.”
051 These statements, which the witness made under
cross-examination, do not, of course, correspond to the
statements she made in her affidavit.
052 12. It would appear, therefore, that the defendant
did not provide the burden of proof necessary to prove that
the plaintiff actually consented to the minor’s trip to
Israel.
053 The defendant claims that the plaintiff indeed
objected to the minor’s trip to Israel, but later changed
his mind and consented to the trip.
054 As explained and clarified in defense counsel’s
summary in section 9, P. 2 of the summaries;
“9. The claimants claim (should be – the defendants – Y.S.),
which was not refuted by the plaintiff, is that just like
Pharaoh in Egypt who strongly objected to Israel leaving
Egypt, then consented, and then changed his mind once again
after the children of Israel had left Egypt, so it was with
the plaintiff.”
055 Although the counsel for the defense made truly
learned use of the ancient sources, still, the relevant
evidence in this case, as brought by the defendant, is not
such as to prove that the plaintiff actually changed his
mind and consented to the minor’s trip,
056 The defendant herself, specified the circumstances of
her trip to Israel in taf/2: her use of her French passport,
her flight from the plaintiff for fear of his threats;
without mentioning or even hinting that the plaintiff had
consented to the minor’s going to Israel.
057 13. It is clear from the collection of evidence in
this matter that I cannot accept the defendant’s version on
the question of the plaintiff having granted his consent.
In my opinion, the plaintiff did not consent to the child’s
going to Israel.
058 It should be noted that the plaintiff’s conduct does
not at all correspond with granting consent.
059 The plaintiff initiated proceedings for the minor’s
return immediately upon learning that she had left the U.S.
060 This type of conduct does not correspond to the
defendant’s version.
061 The plaintiff’s conduct, together with the
defendant’s admission in taf/2, and the fact that the
plaintiffs consent is never mentioned at all in the
documents until the claim was filed, lead to the unavoidable
conclusion that the defendant’s version in the matter of the
plaintiff’s consent cannot be accepted. In my opinion, this
consent was never given.
062 Thus, it appears that the defendant removed the minor
from the U.S. without the plaintiff’s consent, and by so
doing harmed the plaintiff’s custody rights.
063 14. The defendant additionally claims that the
plaintiff and the minor not entitled to reside in the U.S.
In documents nun/3 and nun/4, the defendant also claims that
the plaintiff forged his permit to reside in the U.S.
064 Since this is so, the defendant feels that under the
circumstances the plaintiff has committed the crime of
interfering with justice and she has even filed a claim.
with the police.
065 The defendant claims that since the plaintiff and the
minor do not have permits to legally reside in the U.S., the
minor should not be ordered to be returned to a place where
it is illegal for her to reside.
066 According to the defendant, in keeping with the
international obligation to honor the laws of other
countries, the court should not be a party to breaking
another country’s law.
067 In the matter of the proceedings in the California
court and the orders which. were issued, counsel for the
defense explains in his summation. P. 3 of the summaries,
section D (5):
“Just as thieves know when their partners cheat them and
don’t split the loot, that despite the wrong and ‘injustice’
done them they cannot turn to the courts for redress…”
068 Thus, according to the defendant, the orders issued
in the U. S. court were given because the court was misled
by the parties, and are, therefore, invalid.
069 15. Despite his colorful examples, I cannot accept
Defense Counsel’s, arguments in the matter of the
plaintiff’s and minor’s legal status in the U.S. and its
influence on the proceeding for the minor’s return to the
U.S.
070 As stated, the defendant claims that it is
unthinkable that a court in a country in which a couple may
legally reside and litigate, will force that couple to
litigate in a country which they cannot enter legally.
071 The defendant claims, therefore, that this should
prevent the court from ordering the minor’s return to the
U.S.
072 I cannot accept this argument.
073 It is not unintentional that the Hague Convention Law
does not recognize this argument as a legitimate defense
argument.
074 A court judging a claim related to the abduction of a
minor pursuant to the Hague Convention Law, must only
consider the question of whether the minor was actually
abducted from his place of residence, and if one of the
defenses determined in The Convention applies.
075 This court is not authorized to search for and
adjudicate questions which may arise from its decision in
the abduction case.
076 If it should really be necessary to render an opinion
on the matter of the parties’ legal status, this will only
take place in that court which adjudicates the claims that
are submitted, if indeed any are submitted, after the claim
of abduction has been clarified.
077 The question of whether the plaintiff and the minor
are legally entitled to reside in the U.S. is on the level
of relations between the plaintiff and the U.S. authorities.
This question is one which may only be decided between the
plaintiff and the U.S. authorities, without this court’s
intervention.
078 It should be noted that the question of the legal
status of the minor’s parents in the U.S. has no bearing on
the question of the minor’s place of residence.
079 There is no dispute over the fact that the minors
place of residence, before she came to Israel, was in the U.
S. The question of the parties’ legal status in the U.S. is
not relevant in a proceeding dealing with the abduction of
the minor.
080 Accordingly, in my opinion, this court is not
entitled, and is not required, to consider the question of
the parties’ legal status in the U.S.
081 In the words of Judge Timor in Personal Status case
4/95, Kastiel vs. Kastiel (unpublished):
“Habitual place of residence” refers to the child’s
residence and not that of the parents. Consequently, it is
not significant if the parents have already become
acclimatized to the place or if they have permanent work.
From this it ran be inferred that there is also no
significance to the parent’s legal status in that place.”
082 On this matter, see also the words of Vice President
Porat in Personal Status Case 5097/92 Star vs. Star
(unpublished) and in Personal Status Case 2298/92 Cohen vs.
Cohen (unpublished).
083 Accordingly, and in view of the aforementioned, I
cannot accept the defendants claims touching upon the
question of the parties’ legal status in the U.S.
084 16. Another question which should be related to
within the framework of these proceedings is the matter of
the minor’s opinion and hearing her position on the subject.
085 17. The provisions of Regulation 259tet (hey)
determines the following:
“If the child is of an age and maturity it is advisable to
consider his viewpoint, the court will not render a decision
until the child has been heard, unless the court deems this
to be unnecessary for special reasons which will be
recorded.”
086 In our matter, the minor, Lital, will be eleven this
coming February.
087 I spoke privately with Lital, in my chambers, on
December 25, 1997.
088 Lital is a shy, attractive girl with a pleasant
appearance. She spoke about the good relationship she has
with both her parents.
089 Lital described joint activities with her mother as
well as with her father. Lital enjoyed living in the U.S,
and says that she has many friends both in the U.S. and in
Israel.
090 To the question of where she preferred to live, Lital
answered that she preferred to live in Israel since life in
Israel seemed more secure to her in comparison to life in
Los Angeles where she was restricted in terms of activities
outside of the home.
091 Lital showed do reservations regarding her father.
In fact, the opposite was true. From what she said it was
clear that she is connected to both her parents, wants to be
with them, has confidence in their love for her and her love
for them.
092 Despite that, as stated, Lital said she preferred to
live in Israel. I do not think that her opinion in this
matter must be accepted.
093 There is no doubt that Lital is with her mother and
her mother’s family at present and is influenced by them but
at the same time, she loves her father, is connected to him
and needs this connection. Case law is that although the
child’s wishes should be respected, they am not sufficient
to decide a proceeding pursuant to the Hague Convention.
094 (On this matter, see Civil Appeal 6327/94 Issac vs.
Issac (unpublished).
095 18. Conclusion — It is my opinion, that in the
circumstances of this matter, the plaintiff’s claim should
be accepted and the defendants defense rejected.
096 a) I therefore order that the minor, Lital be
returned to her place of residence in California, U.S.A., no
later than 7 days from the day on which the plaintiffs
counsel notifies the defendant’s counsel that the plaintiff
has arranged a permit for the minor to enter and reside in
the U.S. legally.
097 b) A copy of the judgment will be sent to the Chief
Welfare Officer, Ms. Yeal Harmel, at the Ministry of Labor
and Social Welfare, 10 Haharutzim St., Jerusalem, in order
for a welfare officer to be designated to assist in
implementing this judgment.
098 c) A copy of the judgment will be sent to the Central
Authority, 10 Haharutzim St., Jerusalem.
099 d) The defendant shall pay the plaintiff’s court
expenses and Attorneys fees, in the amount of NIS 25,000,
which will bear legal interest and linkage from today until
the date of payment.
100 e) The defendant shall also pay for the minor’s plane
ticket to the U.S., and if the welfare officer should decide
that the minor must be accompanied, the plaintiff shall also
pay for the escort’s plane ticket.
101 Let it be noted that a relatively low amount of costs
have been determined in consequence of the fact that the
proceedings were very short, and because the plaintiff did
not appear or produce any witnesses on his behalf.
Given today: December 28, 1997
Judge Yehudit Shtufman
Decision furnished by Edwin Freedman, 40 Enso Sereni St,
Givatayim. Israel.