ISRAEL – ISSAK – 1986 (Return ordered) ISSAK v ISSAK. The mother takes children to Israel. The father requests the return of the children under the Hague Convention. The children are ordered returned to New York, USA. Court costs of $16,098 were awarded to the father.
================================================================
STATE OF ISRAEL – LAWCOURTS WMH FN1
DISTRICT COURT – TEL AVIV
March 3, 1993
Number: Personal Status 5382/92
Before: Hon. Justice Chaim Porat
P.S.5382/92
In re: Hague Convention (Return of Abducted Children) Law,
5751-1991
In re: The minor (m.) Daniel Issak, born November 11, 1981.
The minor (f.) Shira Issak, born August 2, 1986
The Applicant: Avraham Issak
versus
The Respondent: Penina (Athami) Issak
Pleaded by: Edwin Freedman, Esq. – for the Applicant
Ze’ev Velner, Esq. – for the Respondent
JUDGMENT
The proceeding
1. The proceeding is an application by a father dated November
4, 1992, pursuant to the Hague Convention (Return of Abducted
Children) Law, 5751 – 1991 (hereafter: “Hague Convention
Law”) to restore to his keeping, in New York, U.S.A., his two
minor children, whose particulars are set forth in the
recitals to this judgment and who, so the applicant alleges,
were abducted from New York on October 4, 1992 by the
Respondent, being his divorced wife and the mother of the
children, and removed by her to Israel.
2. The Respondent raised a series of defence pleas, able to be
advanced under the terms of The Convention on the the Civil
Aspects of the International Child Abduction, signed on
October 25, 1980 (hereafter: “The Convention” or “The Hague
Convention”) the salient parts whereof are set forth in the
Schedule to the Hague Convention Law, and these be as
follows:
A. “The minor’s habitual residence” in the meaning of
Sections 3(a) and 4 of The Convention, in respect of the
two children, is not New York, but Israel, or also Israel
and accordingly, no abduction was committed in the
transfer of the children to Israel.
B. The Applicant has no “rights of custody” pursuant to
Section 5(a) and Section 3 of The Convention.
C. The Applicant agreed, or was reconciled post factum, to
the children’s being transferred to Israel and to their
not being returned to the United States in the meaning of
Section 13(a) of The Convention.
D. There exists a grave risk that the return of the children
would expose the children to physical or mental harm in
the meaning of Section 13(b) of The Convention.
E. The children are opposed to being returned to New York
and their opposition should be taken into consideration
in the meaning of Section 13(b), second paragraph, of The
Convention.
3. The Respondent’s attorney gave a very lengthy summing-up
(which is one of the reasons for the delay in rendering
judgment), but he and his client took various events vastly
out of context, referring us to a plethora of sources, the
majority of which are irrelevant; and I shall accordingly
narrow the scope of these sources and relate primarily to my
judgment in the affair of Foxman v. Foxman, Personal Status
File 2598/92, dated October 28, 1992, which was upheld at the
appeal stage in Civil Appeal 5271/91 dated November 19, 1992
– a verdict with which the attorneys of both Parties are
familiar, and which reviews a ruling in respect of the
principal pleadings in this case.
I would moreover comment at the outset that a not
inconsiderable portion of the defence pleadings as against
the Applicant are not pertinent to the present proceedings
but rather to the review of the issue of the custody of the
two children, which is due to take place before the competent
court (and on our matter in the United States in view of the
outcome of the present hearing) since in a hearing in
accordance with the Hague convention Law, the questions at
issue are only those of the abduction and the return of the
abducted children and not the question of which parent is to
be preferred as custodian (as ruled in the Foxman v. Foxman
case and previous to that in the Tourna v. Meshulam case in
S.A. 1648/92 dated April 29, 1992). WMH FN2
4. I shall moreover hasten to remark at the outset on the scant
reliability of the Respondent’s testimony and her affidavits,
and that a not inconsiderable part of her arguments are
untrue while another part consists of the detailing of facts
raised by taking completely out of context various events
that arose and inflating them to misleading and untrue
proportions whilst evading certain pointed issues.
I shall elaborate on this below.
5. The method of the deliberation will be a detailing of the
facts that are to serve as a background for the deliberation
in defences I – III and thereafter I shall pass to defences
IV and V separately.
General factual background
6. The Applicant was born in Tiberias on August 20, 1953, and
the Respondent was born in Petah Tiqva on November 23, 1957.
The couple were married to one another in Petah-Tiqva on
October 24, 1980, and both are Israeli citizens. The spouses’
families are likewise in Israel, including parents.
In June 1981, the Applicant and the Respondent moved to the
United States and settled in New York where their two
children were born – Daniel on November 11, 1981 and Shira on
August 2, 1986.
Over the years, the Respondent acquired American citizenship
and is also the holder of a U.S. passport.
The two children are American nationals from birth, and both
hold only U.S. passports, and have not been issued Israeli
passports even though their parents are also Israeli
citizens.
The Applicant qualified as an architect in the United States
and opened an architectural firm in New York.
The Respondent worked in the real estate business in the
United States.
The marriage did not succeed and on March 9, 1989, the
Applicant and the Respondent underwent a religious divorce at
the “Beit Din D’America” rabbinical court in New York.
7. On June 28, 1989, the Applicant and the Respondent signed an
agreement the negotiations for the conclusion of which
commenced prior to the divorce, but which was executed only
after the divorce. This agreement contains various conditions
of the divorce including maintenance arrangements, custody
and visitation arrangements. It is important to note for our
purpose the provisions of section 7 relating to custody and
visitation arrangements, section 23 relating to the
prohibition against removal of the minors from the area of
Queens, New York, to beyond a distance of 100 miles and also
the provisions of Sections 16, 17, 18, 19 and 20 which
consider the unique force of those sections of the agreement
that are not modifiable except by written consent and which
prevail over every other provision and are to be included in
any future judgment sought by either party. Section 7
provides for joint custody of the children by both parents,
residence being with the mother, but joint control,
supervision and concern to be exercised by both parents
[Section 7 (A)]. It was agreed that uninterrupted contact
would be maintained between the parents and the children
[Section 7 (3)], with visits to the father twice weekly in
the evenings and every Sunday from 09:00 a.m. to Monday 09:00
a.m.
Agreement was also reached as to the sharing of vacations,
holidays, birthdays and other events needing to be
prearranged, and right of daily telephone conversations with
the children was reserved to the father [all of which in
Section 7(1)].
As will be detailed below, close and continuous contact was
in fact maintained between the father and the children and
the father fully utilized his rights in connection with the
children and his participation in their upbringing.
Under Section 23 of the Agreement, the Respondent is
prohibited from removing the children to beyond a distance of
100 miles from their abode at that time, in the district of
Queens, New York, without the applicant’s written consent.
The wording of this section was agreed, as set forth therein,
in order to ensure the father’s frequent visits with the
children.
8. Throughout their lives, the children attended American
educational institutions, actively maintained contact with
their father, stayed with him frequently, went on excursions
and spent time with him, often visited his office and close
ties were thus maintained between the children and the
father. In the father’s apartment there was a special room
for the children with beds, toys and other suitable
equipment. On account of the children, a fairly continuous
and close connection was maintained also between the parents,
in spite of the divorce. The meetings between the father and
the children were far more frequent than provided by the
agreement, and certainly so in the last months prior to the
children’s abduction, in which connection testimony was given
as to the arrangements during school and the division of
roles and times, since the Respondent worked long hours and
could not make time for the children.
9. As a consequence of the divorce, the parents came to live
separately, even though both continued to live in New York
city at no very great distance from one another.
In recent years, the Respondent had expressed the wish to
return to Israel. The Applicant did not reject the idea but
stated that the time (for such return) had not yet arrived
and he did not consent to the children’s being uprooted (and
returned) to Israel without him. Never was a return date
agreed upon (and I definitely so determine contrary to the
Respondent’s claims). At a certain stage, the Respondent
sought to return to Israel in 1992, but the Applicant refused
as he had refused in the past, and likewise refused to set
any particular date in the future for such return.
There were differences of opinion between the parents as to
which school, public or private, the boy should attend in
1992 – 93; and this led to the child’s registration for
school (rather than the Respondent’s plans to return with the
children to Israel, as alleged by her) being delayed. In
September 1992 the child was registered for the Jewish
Solomon Schechter school and the Applicant actually gave post
dated checks for the payment of his tuition for the school
year.
The Respondent construes this to mean a consent to the
postponement of the return to Israel to the end of 1993, but
consent was never given even for that time. The Respondent
was apparently reconciled to remaining in the United States
at least until the summer of 1993, but these thoughts were
hers only. The Applicant did not express consent to a removal
to Israel even in 1993. In practice, the child managed to
attend school only 13 days until being abducted to Israel by
his mother.
10. To the Respondent’s complaints that it was difficult for her
to raise the children and that the cost of child minders was
very high, a solution was found: the applicant’s sister, Mrs.
Yehudith Perel, a teacher by profession, who was on a
sabbatical, agreed to come to New York for a year to help the
Respondent with the children, while taking the opportunity to
further her own studies and advanced training. And so it was,
and in mid-July 1992, the sister arrived in New York with her
two daughters and took up residence with the Applicant.
The two children in question likewise moved into the
Applicant’s apartment with the Applicant and his sister for
over two months during the summer vacation.
According to the Respondent, the sister came to the United
States to help her arrange for the return to Israel. But this
is idle talk, there was no such notion, nor would there have
been any point or sense in such a notion, a return to Israel
not necessitating anything like a whole year of
pre-arrangement as witness the fact that once she had
resolved on the abduction and on flying to Israel with the
children, the Respondent did it all in one week, with no help
from the sister.
The sister came to the United States to stay for one year,
and to help her sister-in-law – namely the Respondent – with
the children’s upbringing, as she did, and also to study.
Once the Respondent and the children left the United States,
and due to their leaving, the sister too returned to Israel,
since otherwise she would have remained in the United States.
This sister has sworn by affidavit and has testified verbally
and her testimony was most credible.
11. Toward the end of September, beginning of October 1992, the
Applicant planned a 10-day trip to Mexico (September 29, 1992
– October 9, 1992), for his sister and her daughters and for
his own children, the Respondent also being included. Tickets
were purchased and all preparations were made, but at the
last minute, some differences of opinion arose between the
sister and the Respondent, giving rise to a verbal quarrel
between the Applicant and the Respondent; and the Respondent
announced she would not join in the trip and neither would
the children. The children wanted to take part in the trip,
although the little girl also wanted the Respondent to
participate and the latter, as stated, canceled the plan.
All the Applicant’s efforts to change the Respondent’s mind
and secure her consent for the children’s inclusion came to
nought.
On the eve of the trip, the Applicant sought at least to take
leave of the little girl. On enquiring, he found that the
Respondent and the children were at the home of a friend of
the Respondent’s, a Ms. Hannah Klatzkin. Arriving at her
home, he asked to be given the little girl for a short while
but the Respondent refused. The Applicant took the child in
his arms and, leaving with her, sought to put her in his car
which was parked in the street.
The Respondent chased after him, put her foot inside the car
to prevent the door from being closed, the Parties pushed one
another and the Respondent fell.
This event was blown up by the Respondent to exaggerated
proportions in order to describe the Applicant’s
maliciousness, cruelty and violence. But in fact, the
Respondent was an important factor in inflaming the passions
and in the very occurrence of the event, since there was no
cause to chase after the Applicant, who was not about to do
the child any harm and who was certainly not to be suspected
of intending to abduct the child and so forth. The Respondent
called the police but, as stated, had neither cause nor
justification for doing so.
Ultimately, the Applicant, his sister and her daughters made
the trip to Mexico without either the Respondent or the
children. The Applicant tried to call the children from
Mexico, but could get no answer, until he was told that the
Respondent had left for Israel with the children. Cutting
short the excursion, he returned to New York, found that his
apartment had been burgled and various documents stolen. The
Applicant went into shock, fainted and had to be admitted to
the hospital for oxygen treatment. He went to the police in
the matter of the burglary and the abduction. He also applied
to the competent authority in the United States pursuant to
the U.S. law corresponding to the Hague Convention Law,
seeking aid for the return of the children to the United
States. WMH FN3
The Respondent accordingly took advantage of the Applicant’s
absence from New York, planned the abduction within one week
and put it into execution, the Applicant knowing nothing
about it and being on vacation in Mexico as aforesaid.
According to the Respondent, all her friends knew of her plan
to return to Israel and took leave of her. If this were the
case, then these plans were concealed from the Applicant. For
my own part, I am not prepared to confirm that such
farewell parties in fact took place. Nor is the holding of
such parties consistent with the child’s being registered for
school in September 1992 for a whole year. The Respondent
alone formed the intention of returning to Israel such that
the leave-taking, if any, took place shortly before the trip.
But (the trip) was to have taken place without the children,
with the intention of returning to New York on conclusion of
the visit to Israel. Moreover, the sale of furniture by the
Respondent was for the purpose of moving from one apartment
in New York to another furnished apartment.
12. On recovering, the Applicant applied to Supreme Court in
Queens, New York, and on November 6, 1992, the Court awarded
him provisional custody of the two children, and asked the
Court in Israel to assist in the immediate return of the
children to the United States. WMH FN4 The Court also
ordered the Respondent to come forward and report for a
hearing with the children on November 16, 1992 and to show
cause why the Court should not take a series of decisions
including: award of custody to the Applicant; award of an
order compelling the Respondent to return the children to New
York from Israel; a request that the Israeli courts provide
all possible assistance for the immediate return of the
children to New York and additional reliefs under American
law.
The American court also determined that New York is the
children’s ordinary residence in the meaning of Sections 3
and 14-15 of the Hague Convention and that abduction had
apparently been committed in accordance with The Convention.
Juridical conclusions in re Defences I – III
13. The children’s ordinary place of residence was New York and
nowhere else.
Adv. Velner alleged in his summing-up that a person may have
more than one residence. Possibly this may be so in
exceptional cases, for example in the case of a person having
no family, who has business all over the world, who travels
from one country to another and maintains residences in
various places, dividing his time and his life between them.
The case before us in no way resembles the aforesaid
possibility. Israel cannot possibly be regarded as an
“habitual residence” of the children in view of the facts
outlined above.
“Habitual residence” is to be construed in practical terms as
the place of physical presence over a certain period of time,
it is a purely factual term, not carrying the legal
connotation of “domicile”. (See article by: Lynn Acker Starr
“Recent Developments, U.S. Implementation of the Hague
Convention on The Civil Aspects of International Child
Abduction” 24 Stanford Journal of International Law (1987)
289, footnote 4, citing the commentatory report of Prof.
Perez-Vera on Page 445 Para. 66). WMH FN5
The family had located itself in New York since June, 1981
without interruption. Visits to Israel, or the expression of
a desire to return, or even discussion on the possibility of
returning in the future without setting any date of return,
merely confirm the finding that the permanent residence was
New York, and I shall not reiterate all the facts outlined in
the previous section. As far as the children are concerned,
there can be no discussion, even on a verbal level, in terms
of “returning to Israel” since they were born in the United
States and had never lived in Israel.
The decision of the American Supreme Court in Queens New York
on November 6, 1992, constitutes confirmation in accordance
with Section 15 of the Hague Convention of New York as being
the children’s habitual residence in the meaning of Sections
3 and 4 of the Hague Convention Law, as expressly stated in
that decision (and see Sections 14 and 15 of the Hague
Convention and the application thereof in the judgment of the
Supreme Court in the Foxman v. Foxman affair, Paragraph 3(E)
of the Judgment).
14. The father’s possessing custodial rights is also unambiguous
in view of the foregoing facts and the sources of reference
detailed in the Foxman and Tourna affairs.
Custody was joint, control, supervision and concern were
joint, the mother was prohibited from removing the children
to beyond 100 miles from Queens without the father’s consent
– which suffices to establish unambiguously that the father
had custodial rights that were harmed by the abduction.
Appropriate opinions on the legal situation in New York have
confirmed that the agreement between the parents is valid
under American law and not in contravention thereof, and
moreover, without the agreement, custody of the children is
held jointly by both parents. Such an agreement is held valid
and binding even in accordance with the commentatory report
on the Hague Convention by Prof. Perez-Vera, Para. 70.
On this head too the decision of the Supreme Court in Queens
New York dated November 6, 1992, constitutes proof of the
Applicant’s possessing custodial rights. The American Court
expressly relates to the Applicant’s possessing custodial
rights both in accordance with the Agreement dated June 28,
1989 and in under Common Law in the State of New York. The
Israeli court is competent and entitled to relate to this
decision in respect of the legal situation in New York in all
matters pertaining to issues under The Hague Convention
Section 14 of The Hague Convention and the application
thereof in the judgment of the Supreme Court in the case of
Foxman, Paragraph 3(E)]. The terms of Section 3 of The Hague
Convention are thus fulfilled in entirity.
15. Consent to or being reconciled with the abduction – this
allegation is unfounded.
The Respondent’s allegations in this matter are untrue. The
Applicant never consented, either before or after the
abduction, to the children’s removal from New York. Moreover,
on learning of it, he cut short his vacation, returned to New
York and suffered shock and had to be hospitalized. He took
every possible measure for the children’s return to New York
as outlined above, and did so with all speed.
As stated, the Respondent may have decided to return to
Israel at one time or another and may have shared her secret
with some of her friends, but no consent was given by the
Applicant for the children’s removal from New York. The
Respondent knew this, knew that the Applicant was opposed to
the childrens’ being taken away and distanced from him and
knew that he himself was still not prepared to return to
Israel. The children were removed from New York by the
mother’s taking advantage of the Applicant’s absence from the
city as being on an excursion to Mexico.
The defence pursuant to Section 13(a) of the Hague Convention
thus cannot prevail.
16. To sum up we may state that in this instance, an abduction in
the full sense of the word was committed by the Respondent,
both according to the Hague Convention Law and according to
the legal position even without that law.
The Respondent’s attorney views this case as a difficult
case, without parallel in case law. I wonder at this claim:
the case is perfectly simple and banal and raises no doubts.
17. I shall now pass to the two additional defences, detailing
the facts and drawing the conclusions warranted, while the
case law in this matter is concentrated in the Foxman affair.
The risk inherent in returning the children to New York – Defence
(IV)
18. The Respondent has argued, sworn and testified to the risk to
the children involved in returning them to their father in
New York, inasmuch as he is violent, a heavy drinker, a
drug-user and incapable of raising the children.
I have already established that the Respondent’s testimony
is not reliable and her various witnesses have not succeeded
in improving that impression, or modifying any of my findings
in this judgment. Some of them in fact did nothing to verify
her allegations, or else their testimony is not necessarily
at odds with my conclusions in this judgment.
I absolutely prefer the testimony of the Applicant, his
sister and the witness Janet Friedman, who present a
completely different version – in the best case able to be
made for the Respondent, one might gain the impression that
in one instance the Applicant kicked the boy and in another
struck the girl after she had thumped the boy. Both instances
occurred several years ago.
These were isolated and extraordinary instances, being by way
of the exceptions that prove the (different) rule. The
evidence is that the Applicant was devoted to the children,
spent a great deal of time with them, they loved him and his
proximity, were not afraid of him and spent plenty of time at
his home and with him, even visiting his office. Violence,
insafar as it occurred, took place on the spousal level
between the couple and here the Respondent is no more
innocent than the Applicant. Quarrels (primarily verbal)
there certainly were between the couple (they did after all
divorce, inter alia evidently as a result of the quarrels
becoming more frequent).
The Respondent has presented a document where an order was
issued resembling a protection order in Israel, pursuant to
the Prevention of Violence in the Family Law, 5751-1991, but
such an order, according to Attorney Freedman (who engaged in
the practise of law in New york) is very easily obtained, and
in fact, an identical order was issued in 1989, this time
against the Respondent (!) and in both orders, the only
decision was to order both spouses not to attack, not to
harrass or to endanger and so forth. No order was given in
accordance with other available options such as to refrain
from excessive drinking, from entering the apartment and so
forth. The wife herself is a dominant, vigorous, lively
person who does not balk at violence.
The matter of the drinking has also been taken out of all
proportion. The Applicant did not deny that from time to time
he would take a glass in company, in accordance with local
custom. It was proved that in his home there was no bar of
alcoholic beverages such that the accusation of his being
addicted to drink is untrue.
The situation as regards gambling is similar – the Applicant
does not bet and does not engage in gambling except in
isolated instances in which, together with his wife and
friends of the couple and even with the wife’s father, he
visited the town of Atlantic City, where gambling is legal, a
sort of profitable amusement. These were isolated visits in
family-social circumstances that have been inflated by the
Respondent out of all proportion.
As in the matter of the drinking and the gamabling, so also
with the drug usage. The Applicant did not deny that on odd
occasions he smoked marihuana but this is not customary with
him and these were isolated instances in the distant past.
WMH FN6
I determine unhesitatingly that the Applicant is not
dangerous to his children and there is no fear or even any
shadow of a fear as to putting the children at risk if they
are under his care. With the father, the children will be at
no greater risk than in being with the mother. Nor did the
welfare workers regard the father as a violent father and so
forth, constituting a danger to his children (although their
conclusion that the children should best be left in Israel is
erroneous, as ignoring the situation dictated by the Hague
Convention Law, and their thinking is on the level of
determining custody in a custody dispute between the parents,
which is a different procedure).
19. It was alleged that the Applicant will simply be unable to
take care of the children if they are transferred to his
keeping, since he is preoccupied with his work and burdened
with debts.
But this question belongs to the province of the issue of who
merits to be assigned custody in the frame of the hearings in
the United States, on the issue of which parent will be the
children’s custodian, and the relevant sources have been
specified inter alia in the Foxman affair.
A parent’s being a worker who lives by his own toil does not
disqualify him from being a custodian. In fact the Respondent
also works and resorts to the assistance of her family in
Israel in taking care of the children, just as in New York
she worked and employed childminders. The Applicant too will
undoubtedly find a solution for the children’s supervision
when they are not occupied at educational institutions, as
does every single parent family. WMH FN7
The Applicant has not been proven irresponsible, on the
contrary, one was impressed with his sincere concern and love
for the children, and there is no reason to assume and
certainly no grounds for establishing that the children will
be in danger if returned to him.
20. The burden of the proof required to show grounds for the
defence pursuant to Section 13(b) of the Hague Convention
(Risk to Children) is heavy, as based in sources and
confirmed in the appeal in the Foxman affair. WMH FN8 In
the present case, no doubt has arisen as to possible risk,
even to a far slighter extent than the burden of proof
required by the Law. The damage to the children is due to the
mother’s having abducted them, and their return to the father
will obviously do nothing to reduce the damage caused to them
by the mother, and adds to the trauma. The children will now
have to be separated from the mother after having become
attached to her following the abduction. But that is harm
which is present in every abduction and is not such as to
warrant a refusal to return abducted children (these aspects
tgo were discussed and established in the judgment in the
Foxman affair). WMH FN9
The children’s objections to be returned to the United States –
Defence (V)
21. In almost every case of abduction a kind of alliance and self
identification come about between the abductee and the
abductor and these matters were explained and accepted in the
Foxman affair.
Thus it is hardly surprising that the boy has said that he
wishes to remain with his mother (the girl is too young for
her opinion to carry any weight whatsoever). WMH FN10
As against the children’s opposition in the Foxman affair,
opposition in this instance is virtually nonexistent.
The welfare worker has reported in her report and testified
in her evidence as to the children’s behaviour with their
father. It was clearly evident that they had been incited by
the mother. The father declared (and I believe him) that
their reluctant attitude is surprising, it has existed only
in recent weeks, following the abduction, and did not exist
in previous years or until recently.
Sure enough, once the ice was broken, the mother distanced
from the children and her influence neutralized, the children
behaved differently, and had no objection to spending time
with the father and did in fact spend several hours with him
outside the Welfare Office. WMH FN11
This case in no way resembles the Lukach affair to which Adv.
Welner referred (and which was also heard by me). In the
Lukach affair, the child would not remain in the room with
the mother for even one moment, he threatened to jump out of
the window, he threw objects at his mother, cursed and
reviled her and fled from the room and altogether from the
environs so that he could not be found, he refused even to
talk with the mother.
There is not the slightest similarity between this case and
the Lukach case, and if compared to the Foxman affair, this
case is far “lighter”.
The girls’ opposition in the Foxman affair was much stronger
and even so did not prevail and the girls did in fact return
with their father to Canada.
In the case before us, the objection is neither genuine nor
authentic it is the result of the Respondent’s temporary
incitement and influence, and does not merit belng treated as
though it warranted not returning the children to the father.
This defence too is accordingly rejected.
DECREE
22. Following the hearing in this case, my decision is as
follows:
A. I order the Respondent to return the two children to New
York to the father’s residence within 10 days.
B. If the Respondent fails so to proceed, the father may, on
his own or through his sister, Yehudit Perel, take the
children into his keeping and return them tg New York as
also ordered by the Court in Queens, New York, and the
Respondent must give the Applicant or his assign the
children’s passports within those same ten days.
C. The welfare workers, Hannah Cohen and Ada Dagan of
Nathanya, must assist in transferring the children to the
Applicant as soon as possible and not later than within
ten days. As soon as the Applicant arrives in Israel, the
children must be delivered to him and the Respondent
shall be obliged forthwith to surrender the children’s
passports to him even if 10 days have not yet elapsed.
D. The Respondent will pay the Applicant’s court costs
including the expenses of his various air flights to
Israel, since the filing of the action subject of the
hearing, and also the children’s air-fare back to New
York, including the air-fare of the accompanying adult,
if other than the Applicant, and all in accordance with
confirmations issued by the travel agency or the airline
including fees and levies and also the expenses of the
Applicant’s stay in Israel in the course of the hearings,
in the amount of NIS 2,500 WMH FN12 . The Respondent
will also pay the Applicant’s lawyer’s fees in the amount
of NIS 30,000 WMH FN13 plus Value Added Tax, all
together with maximum interest and index linkage
differences to date of actual payment.
E. The stay of exit order against the children will be
rescinded at the Applicant’s request whenever he shall so
request.
F. Copies of this judgment will be sent to the central
authority in Israel (at the office of the Legal Adviser
to the Government, Ministry of Justice, Jerusalem) to the
Chief Welfare Officer, Ms. Yael H’armel at the Ministry
of Labour and Welfare, at 10 Yad Harutzim Street,
Jerusalem, and also to the welfare workers in Nathanya,
in order to assist in the children’s return to New York
in accordance with this judgment.
Given and advised this 3rd day of March, 1993, in the presence of
Attorney Freedman, Applicant’s attorney, Attorney Velner,
Respondent’s attorney.
____________________
Justice Chaim Porat
Typist: Miri Nurlian
Stamped and signed: District Court, Tel-Aviv – Jaffa
Examined by Sima Ezra
And found true to the original
________________________
Examiner’s slgnature
COMMENT ADDED BY WILLIAM M. HILTON ON ATTORNEY’S FEES AND COSTS
This order requires that certain fees and costs be paid to the
Applicant by the Respondent. Upon enquiry to Ediwn Freedman,
Advocat for the Applicant, the following was received on 30 Mar
1993:
This is to confirm that I was the attorney who represented the
Applicant in the above matter.
The following explanation of the decision is made in response to
your query. The court’s award of expenses was made in Israeli
currency, New Israeli Shekels (NIS). The rate of exchange at the
time of the judgment was $1. = 2.79 NIS.
The costs awarded were calculated as follows.
1. Applicant’s airfare for appearance at hearing in Israel plus
return airfare for the two children and an accompanying adult
(Applicant’s sister). As later documented, the above costs
totalled 7,313.53 NIS.
2. The Applicant was also awarded 2,500. NIS to defray his
expenses for the three weeks which he spent in Israel.
3. Legal fees were awarded in the amount of 30,000. NIS plus 17%
V.A.T.
The total sum awarded was 44,913.53 NIS, the dollar equivalent of
$16,098. The expenses awarded are in keeping with previous
judgments of Judge Porat in Hague Treaty cases.
——————–
1. This decision was furnished by Edwin Freedman, Givatayim,
Israel and New York, New York, USA.
2. A summary of this case is available on Hilton House BBS as
TOURNAI.ISR.
3. 42 U.S.C. 11601 et seq., the International Child Abduction
Remedies Act (ICARA). The full text of ICARA is available on
Hilton House BBS as 42USC.ASC.
4. For a sample pleading on this type of request, see
ASSISTH.HAG on Hilton House BBS.
5. See also the cases annotating 9 Uniform Laws Annotated
Section 2(5) and Section 3(a)(1). The Prez-Vera report is
available on Hilton House BBS as PEREZ.RPT.
6. Assuming that the Applicant did drink, gamble, use marijuana,
etc, there is still a requirement that there be causal
connection between the activities of a parent and harm to a
child. The mere acts on the part of the adult are not
sufficient. See, e.g., In re Marriage of Wellman (Cal.App. 1
Dist. 1980) 104 Cal.App.3d 992.
7. This issue was discussed at length in the decision of the
California Supreme court in Burchard v Garay (Cal. 1986) 42
Cal.3d 531 [724 P.2d 486; 229 Cal. Rptr. 800], stating the
following: “The court also referred to the fact that Ana
worked and had to place the child in day care, while
William’s new wife could care for the child in their home.
But in an era when over 50 percent of mothers and almost 80
percent of divorced mothers work, the courts must not presume
that a working mother is a less satisfactory parent or less
fully committed to the care of her child. A custody
determination must be based upon a true assessment of the
emotional bonds between parent and child, upon an inquiry
into “the heart of the parent-child relationship . . . the
ethical, emotional, and intellectual guidance the parent
gives to the child throughout his formative years, and often
beyond.” (In re Marriage of Carney, supra, 24 Cal.3d 725,
739.) It must reflect also a factual determination of how
best to provide continuity of attention, nurturing, and care.
It cannot be based on an assumption, unsupported by
scientific evidence, that a working mother cannot provide
such care–an assumption particularly unfair when, as here,
the mother has in fact been the primary caregiver.”
8. See 42 U.S.C. 11603(e)(2)(A) where this must be proven by
clear and convincing evidence.
9. This analysis follows the general intent of The Convention,
which is to discourage child abduction. By causing the
return of the children to their Habitual Residence, even
where there is a potential for “trauma” to the children, the
court discourages child abudction by not rewarding the
abducting parent. In other reported cases the court of the
Responding country has failed to return the children for this
very reason: The separation from the abducting parent would
cause trauma to the children. This, of course, is contra to
the expressed intent of The Convention.
10. The boy was 11 years, 3 months; the girl was 6 years, 7
months.
11. In the Los Angeles, California case of Lockley, the older two
of four children initially expressed a desire to remain in
California with the abducting mother and the mother’s sister.
After the children had been with the Applicant father for
about a week to ten days, these requests dissapeared except
for a voiced desire of one of the other children to stay in
California, presumably because of friends with electronic
games. This case is available on Hilton House BBS as
LOCKLEY.CA
12. This is U.S. $920.00 as of 27 Mar 1993.
13. This is U.S. $11,040.00 as of 27 Mar 1993.