ISRAEL – LEIBOVITZ – 1993 (Return denied on appeal) (Acquiescence) LEIBOVITZ v LEIBOVITZ. While the father was on a visit to Israel, the mother took the child to Israel without the father’s knowledge. When the father learned of the arrival he proceeded to protect his rights in the Israeli courts. The father applied for the return of the child to California, USA. The District Court granted the father’s request. The mother appealed. The appeals court held that the father actions constituted “acquiescence” to the removal by not applying the Hague Convention for ten months. (See Mr. Hilton’s footnotes)
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Leibovitz v. Leibovitz (Isreal 1993)Supreme Court of Israel
Sitting as the Court of Civil Appeals
(Civ. App. 473/93, 47 (3) P.D. 63) (June 21, 1993)
1 International Abduction (Isreal 1993)
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Leibovitz
v.
Leibovitz
The Supreme Court sitting as the Court of Civil Appeals
(Civ. App. 473/93, 47 (3) P.D. 63) (June 21, 1993)
Opinion by D. J, Elon,
(Summary contributed by Edwin Freedman, Esq., Tel Aviv,
Israel)
001 Reversal of the decision of the Tel Aviv-Jaffa
District Court (J. Diamant) which had granted the request of
the Respondent-father for the return of his minor son from
Israel to Califomia pursuant to the Hague Convention.
FACTS
002 The father and the mother were Israeli citizens who
married in Israel and had subsequently changed their
residence to Los Angeles, California. Their son was born in
California in 1988. The father’s parents and most of the
members of both the father’s and the mother’s families
remained in Israel. For business reason’s and in order to
visit his family, the father would spend extended periods of
time in Israel where he stayed in a villa in Herzliya
registered in his name,
003 In 1991, during one of the father’s stays in Israel.
the mother without the father’s knowledge or consent, took
the child to Israel and immediately initiated proceedings in
the Israeli courts for custody and maintenance. The father,
upon learning of the arrival, took measures to defend
himself in these proceedings and initiated his own
proceedings in the Rabbinical court for “shalom bayit” and
to declare his spouse a”rebellious wife”. He also maintained
regular visits with his son.
004 In the context of the maintenance proceedings, the
father also obtained an injunction against the departure of
the child from Israel. On the other hand, while he fought
for custody, he did not for 10 months initiate any
proceedings pursuant to the Hague Convention for the return
of the child to the United States. The father maintained
subsequently that he had received poor legal advice and had
been simply unaware that such a procedure to achieve the
rapid return of the child to California existed. After ten
months had elapsed – and after he had seen an article about
the Hague procedures and had changed his legal counsel – the
father did initiate a Hague proceeding.
005 The District Court granted the father’s request and
the mother appealed. I
ISSUE
006 Although a variety of issues and contentions were
raised before the court by the parties, the Supreme Court
considered that only one essential issue lay before it: Did
the father’s actions and inactions in the ten-month period
between the child’s arrival in Israel and the initiation by
the father of the Hague action constitute, within the
totality of circumstances, an “acquiescence” in the removal
of the child to Israel under Section 13(a) of the Hague
Convention, thereby releasing the court from its automatic
obligation to return the child (as required by Section 12 of
the Convention) and allowing it to consider factors such as
the child’s best interests in determining whether he should
be returned.
HOLDING
007 Reversing the District Court, the Supreme Court held
that the father’s actions and inactions, including his
failure for 10 months to take any measures to procure the
swift return of his child to California constituted, within
the totality of the circumstances, “acquiescence” to the
child’s removal under Section 13(a). The court was therefore
able to broadly consider the child’s best interests in
ruling on the Hague application. It concluded that it would
be best for the child to remain in Israel, denying the
father’s application and granting the mother’s appeal.
SUMMARY OF THE COURT’S ANALYSIS
008 1. The essential purpose of the Hague Convention is to
permit a rapid and immediate transfer of the abducted child
back to his country of residence so as to preserve the
status quo that existed prior to the abduction. It is a form
of legal “first aid”, an emergency means of “putting out a
fire”.
009 2, “Acquiescence” under 13(a) refers to conduct by the
parent demonstrating that he does not regard the immediate
return of the child to the country of residence as a matter
of urgency, that he has accepted the change in the status
quo created by the child’s removal, and that he is content
to resolve the issues raised by the abduction through
alternative means.
010 3. Relying upon the reasoning in the English cases of
In re A (Minors) and In re A (A Minor) the Court held that
acquiescence may be passive and/or active, express and/or
implied. Where passive, it will consist of silence and
inactivity in circumstances in which the aggrieved party
might reasonably have been expected to act. The time period
that must elapse before inactivity will be considered
acquiescence will depend on all the circumstances of the
particular case.
011 4. The parent must, of course, be aware of the
unlawful removal of the child before he can be said to
acquiesce to that removal, and he must be aware, at least in
general terms, of his rights against the other parent. On
the other hand, it is not necessary that he be aware of the
specific legal procedures involved or even of the existence
of the Hague Convention. Indeed, if the parent knows of his
child’s unlawful abduction, the court will usually infer
that he is aware of his legal right to the child’s return
or, at the least, that he is aware that he should seek legal
advice as to how to enforce his right to the child’s return.
012 5. The Court rejected the Respondent’s contention that
the one-year period provided for in section 12 of the
Convention should be construed to mean that irrevocable
acquiescence cannot ever occur in shorter period. On the
contrary, the language of section 13, whose provisions apply
“notwithstanding what is stated in the previous section”
make clear that the question of acquiescence is not
dependent on the passage of the one-year period in section
12. The Court further seems to indicate that once
acquiescence occurs, the parent cannot seek, after the
passage of time, to nullify that acquiescence for the period
for emergency “first aid” measures will have passed.
013 6. While the subjective view of the parent is a factor
in the question of acquiescence, the court can only
ascertain that subjective frame of mind by considering his
conduct in the circumstances of the case.
014 7. In this context, “the existence of acquiescence
will be determined by whether or not, in the light of the
totality of all of the circumstances, the parent acted like
someone whose purpose was to immediately “put out the fire”,
and if he did not so act, the inference is that he
acquiesced to the act [of removal].”
015 9. In the instant case, the father had become aware of
his child’s removal – and that such removal was unlawful –
within two weeks after its occurance. He, indeed.
immediately engaged in extensive litigation to seek to
achieve custody of the child, as well as with respect to
issues of maintenance, “shalom bayit”, etc. Nevertheless, he
took no action whatsoever for ten months to seek to effect
the child’s return to California. His actions and inaction
both testify to the fact that he had acquiesced to the
child’s continued presence in Israel,
016 9. The Court did not accept the Respondent’s
explanation that his failure to previously proceed under the
Hague Convention was due to the bad legal advice he had
received and to his ignorance of the existence of the
Convention and its procedures. (He claimed that it was only
after seeing an article on the Convention, and after
consulting other lawyers, that he knew that he could seek
his son’s immediate return from Israel.) The Court found
that, at an early date, he had retained a lawyer expert in
the area of personal status law and presumed that if the
father’s goal had been to achieve the immediate “first aid”
return of his son, he would have pushed his lawyer to act
accordingly. The court found it incredible that the lawyer
would have been unaware of the existence of the Hague
proceedings and, in any case, noted “mistaken ignorance of
the law will not avail” the Respondent. Even aside from the
Hague procedures, the court noted, the father might have
attempted a habeas coripus proceeding or a request for the
return of the child under the Legal Capacity and
Guardianship Law. Neither, it noted, did the father take any
action in the United States to get a court order for his
son’s return.
017 10, The father’s conduct and the litigation avenues he
pursued manifested opposition to many of the actions and
positions of his wife but they also manifested an
acquiescence to their basic fact of the child’s removal to
Israel and a willingness to litigate the disputes related to
Israel in an Israeli forum and not to seek an immediate
transfer of the child to the United States.
018 11. The New Jersey court decision in Becker v. Becker
(New Jersey 1989), Docket No. FD-14-14-90, cited by the
Respondent was found by the court to be not on point. In
Becker it was held that the litigation by the parent of the
issue of custody in the courts of the country to which the
child had been removed did not constitute acquiescence in
the child’s removal. In Becker, however, this alternative
litigation was conducted parallel to Hague proceedings
initiated by the parent. In Leibovitz, the father had for 10
months conducted only these local proceedings, with no
attempt to litigate or move for the child’s prompt return to
the U. S.
019 12, The court inferred that the motives for the
father’s acquiescence related to his regular stays in
Israel, his presence there at the time of the removal, his
family’s presence there and his greater comfort with the
relevant legal procedures being conducted in Hebrew in the
Israeli courts.
020 13. The lower court, it concluded, had erred in
placing too great an emphasis upon the explanation of the
Respondent that he had been ignorant of the Hague
procedures, and in giving insufficient consideration to the
totality of circumstances involved.
021 14. The Court’s determination that the father had
acquiesced in the matter of the child’s removal allowed it
to consider a broader range of considerations in ruling on
the issue of his return to California. On the basis of its
consideration of factors related to the child’s best
interests, it ruled that these factors favoured his
remaining in Israel and granted the mother’s appeal
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COMMENT by William M. Hilton, CFLS
28 Apr 1998
The Court is correct in its statement that acquiesence can
take place within the one year period set out in Art. 12,
but I would argue that this should only apply to a case of
express acquiesence, rather than implied.
One could argue that the burden to show acquiesence would be
on the respondent during the one year period and that after
the one year period the burden may shift to the petitioner
to show that there was not.
The case is also interesting in that it does not preclude
other actiions [See The Non-Exclusivity of The Convention on
the Civil Aspects of International Child Abduction;
Published in American Journal of Family Law, Vol. 9, No. 2,
Summer 1995; 9 Am.J.Fam.L. 69 (1995), available on Hilton
House Web Site] outside of The Convention being held at the
same time, only that if the “parallel” action is for custody
(as opposed to objecting to the fourm), then such activity
may be consider in determining if there is passive
acquiesence.
There is also a possible conflict between two very important
issues: On the one hand the decision seems to say that one
should concentrate on the return of the child to his or her
Habitual Residence (H/R) by any means available, e.g., The
Convention, Habeas Corpus, etc. On the other hand, as any
expierence family law attorney will advise, the longer a
child is in the care of a parent and the other parent has no
contact with that child, then the ultimate issue of custody
of that child may well be decided in favor of the parent who
has had this “exclusive care” during the interregnum.
It also goes without saying that the parent who is denied
access to the child because of this policy may suffer, not
to speak of the child’s concerns for the absent parent.
Since the general purpose of The Convention is to cause the
return of a child to his or her H/R, it should be the policy
of any court to make rulings that will accomplish this
international goal when given a choice between return or not
return. In other words, the assumption should be that the
child is to return and that only upon a full showing of
proof should this be contra indicated.