ISRAEL – COHEN – 1992 (Return ordered) COHEN v COHEN. The mother removed the child to Israel. The father applied for the return under the Hague Convention. The court ruled that there was a wrongful removal and that the habitual residence was the US. The child was ordered returned.
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STATE OF ISRAEL
DISTRICT COURT OF TEL AVIV
Before the Hon. Judge Porat
Cohen v. Cohen
[Summary of Decision WMHFN-1]
[Note: The Ministry of Justice advises that an appeal has been
filed in this matter. Letter of 17 Sep 1992]
25 May 1992
The parents originated from South Africa, and lived in lsrael from
1987 until 1991, when the family moved to New Jersey, U.S.A. The
child, aged two, was taken by the mother to lsrael from the U.S.
in April of 1992 against the wishes of the father, who applied for
an order under the Hague Convention to the District Court of Tel
Aviv. The Court granted the Order as requested by dismissing the
arguments of the defendant-mother which were as follows:
First, the Defendant argued that lsrael and not the U.S. was the
place of habitual residence of the child and therefore no
abduction could have occurred in the sense of the Convention, she
stressed the temporary nature of her employment in New Jersey and
the fact that she did not have immigrant status in the U.S. The
Court dismissed these arguments, emphasizing that the U.S. was the
place of habitual residence of the child which was the criterion
for purposes of the Convention irrespective of the status or
employment prospects of the parents. WMHFN-2 The Court cited
inter alia on this point the Perez-Vera report on the Hague
Abduction Convention. WMHFN-3 The conclusion of the Court on this
point was therefore that the habitual residence of the child at
the time of the abduction was New Jersey.
The second question which arose was whether the removal of the
child by the mother constituted a breach of the father’s rights of
custody. The defendant-mother argued that a subsequent decision of
the Haifa District Court granting her custody had deprived the
father of his right to custody. The Court dismissed this argument
citing the New Jersey statute which grants joint custody to both
parents, thus prescribing statutory custody which is sufficient
under Article 3 of the Convention. Moreover, the above-mentioned
decision of the Haifa Court was subsequent to the abduction and
therefore irrelevant, as was a decision of the New Jersey Court
granting custody to the father. The Court also cited Chapter 3 of
Prof. Amos Shapira’s Hague Academy Lectures on Private
International Law Aspects of Child Custody, (1989). WMHFN-4
The Court also dismissed the arguments of the mother based upon
Article 13(b) of the Convention, stressing once again the
superlative nature of the grave risk of harm to the child which
alone provides a protection from the obligation to return the
child. WMHFN-5
The Court also expressed the view that it was competent to annul
the decision of the Haifa District Court regarding custody since
the provisions of the Convention take precedence over all contrary
legal provisions (under the lsraeli implementing statute.)
However, in deference to the Haifa Court, the Tel Aviv District
Court advised the Plaintiff’s advocate to make a specific
application to the Haifa Court to annul its judgment on the basis
of the Tel Aviv Court’s Hague ruling. WMHFN-6
William M. Hilton Footnotes
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1. This summary was graciously supplied by Dr. Chaim I.
Goldwater, Director of Legal Advice in Private International
Law, Ministry of Justice, State of Israel
2. Where there has been no long term presence of the child in a
particular forum, “long term” not being defined at this
point, one may wish to focus on the mutual (and expressed)
intent of the parents when the move to the particular forum
in question. See, for example, Re Bates United Kingdom High
Court of Justice – Family, 23 Feb 1989. Available on this BBS
as BATES.UK.
3. Explanatory Report by E. Perez-Vera, Hague Conference on
Private International Law, Actes et documents de la Qua
torzieme session, vol. Ill, 1980, p. 426. Available on this
BBS as PEREZ.RPT. See also: Legal Analysis of the Hague
Convention on the Civil Aspects of International Child
Abduction, 51 Fed. Reg. 10,503 (1986). Available on this BBS
as ANLHAGUE.ASC.
4. The above analysis is correct and is identical with nearly
all cases that have discussed this point. By way of
clarification it should be noted that the issue of “Habitual
Residence” is separate from that of “Rights of Custody”. One
must first determine where the “Habitual Residence” is then
refer to the internal law of that forum to determine if there
is a “Right of Custody” under their law. See Article 3 of
The Convention.
5. This is also consistent with the decisions of other countires
on this point. It is to be noted that a “13(b)” defense is
nearly always considered or tried in these case. None or
nearly none have been allowed.
6. See Article 17 of The Convention: “The sole fact that a
decision relating to custody has been given in or is entitled
to recognition in the requested State shall not be a ground
for refusing to return a child under this Convention, but the
judicial or administrative authorities of the requested State
may take account of the reasons for that decision in applying
this Convention.”