Child abduction across borders is heartbreaking for families. It gets much more complicated when Israel is involved. At Segal, Simchauve & Co., we understand that Israel’s legal system is unique. Its obligations under the Hague Convention and local custody laws lead to very complex family law disputes.
International child abduction cases in Israel are very different from regular custody disputes. They involve dealing with multiple legal systems at the same time. Parents should learn about Israeli family law, international treaties, and the defenses in the 1980 Hague Convention on International Child Abduction.
In this guide, we will look at what makes Israel child abduction cases complex. We’ll also share important information for families dealing with this issue.
What Is Israel Child Abduction?
Wrongful removal or retention of a child occurs when a parent takes a child under 16 across international borders without the other parent’s consent or breaks a court order. In the context of Israel, this includes:
Wrongful removal happens when a parent takes a child from their usual home, usually their country, to Israel without proper permission.
Wrongful retention happens when a parent allows a temporary visit or vacation but fails to return the child as agreed. Instead, they keep the child in Israel.
The distinction is important from a legal standpoint. Israel has added the Hague Convention to its laws. This is done through the Hague Convention Law (Return of Abducted Children), 5751-1991. Since December 1, 1991, Israel has been a signatory state. This means it must follow the treaty’s rules for handling international child abduction cases.
The global return rate for abducted children under the Hague Convention has decreased to 39% as of 2021, down from 50% in previous years. This decline shows how complex these cases are around the world, especially those involving Israel.
Why Are Israel Child Abduction Cases So Complex?
Multiple Overlapping Legal Jurisdictions
When a child is wrongfully brought to Israel, the case involves at least three legal systems:
- The laws regarding the child’s habitual residence (typically the country from which they were taken)
- Israeli family law and court processes
- The Hague Convention’s international framework
When a child is taken from the U.S. to Israel, several systems are involved. The U.S. courts, Israeli courts, and international law create jurisdictional challenges. Our team at Segal, Simchauve & Co. works closely with law firms in the U.S., Europe, and beyond. We help them manage this complexity.
Courts must first assess whether the Hague Convention applies before addressing custody issues. According to Article 16 of the Convention, no custody decision can be made until the court concludes that the child should not be returned. This procedural step can significantly increase both the time and costs associated with these cases.
Habitual Residence Is Difficult to Define
One of the most challenging legal questions in child abduction cases is: Where was the child’s habitual residence prior to removal?
This determination goes beyond the child’s place of birth or where they hold a passport. The U.S. Supreme Court’s ruling in Monasky v. Taglieri explained that to assess habitual residence, you should look at all the circumstances, which include:
- Duration of residence in a location
- Stability of the child’s living situation
- Both parents’ intentions regarding permanence
- School enrollment and social relationships
- Central focus of the child’s daily activities
In international Israeli cases, establishing habitual residence can be challenging. When parents move to Israel or a family has lived abroad, figuring out a child’s main home requires strong proof. This includes custody orders, school records, job history, and expert opinions on family situations.
Legal uncertainty can cause major delays in cases. Timelines may stretch for months or even years. This situation can raise legal costs and keep the child away from the non-custodial parent longer.
The Stop Exit Order Complicates Everything
Israel has a distinctive legal mechanism known as the Stop Exit Order. Under Israeli law, one parent can ask a family court to stop the other parent from taking their child out of the country, even for a brief visit.
While this tool is designed to prevent child abduction, it can lead to unintended consequences:
- A Stop Exit Order can be issued within hours, sometimes without the other parent’s awareness.
- It is automatically enforced at all airports and border crossings.
- Even in the absence of an abduction, one parent can effectively restrict the other from leaving Israel indefinitely.
This creates a paradox: Parents who want to protect their kids from abduction might unknowingly trap their families in Israel. We’ve helped clients in this situation. They couldn’t visit relatives abroad or return home because of a Stop Exit Order filed by the other parent.
The Stop Exit Order means that kids with dual nationality, who have both Israeli and foreign passports, can sometimes leave Israel with their foreign passport. This is allowed even if a Stop Exit Order is active for their Israeli passport. This legal gray area introduces additional complexity to custody disputes.
Dual Nationality and Passport Issues
Many families involved in Israeli child abduction cases have dual-nationality children. A child may possess both an Israeli passport and a passport from the U.S., U.K., or a European country.
This creates strategic complications:
- A Stop Exit Order issued for an Israeli passport may not restrict travel on a foreign passport.
- Different countries have varying regulations regarding parental consent for passport issuance.
- In “emergency” situations, Israel permits one parent to apply for a passport, occasionally without informing the other parent.
When children hold multiple passports, enforcing custody orders becomes significantly more challenging. A parent may issue a Stop Exit Order to prevent abduction. But they might discover that the child has already left Israel with a foreign passport they didn’t know about.
Cultural and Religious Considerations
Israel’s legal system includes religious and cultural factors not found in many Western nations.
- In Israel, Muslim, Christian, and Druze minorities have distinct family court systems.
- Religious courts utilize varying custody standards according to Islamic, Christian, or Druze law.
- Occasionally, these religious legal frameworks may conflict with the secular family court system.
International cases involving Israeli citizens of various religions or nationalities introduce added complexity. Figuring out which court has jurisdiction and whether to use Israeli secular law or religious law can take months.
Defenses Are Narrowly Interpreted but Frequently Raised
Under the Hague Convention, the abducting parent has limited defenses. These include:
Article 13(b) – Grave Risk of Harm: The child could face physical or emotional harm if sent back to their usual home.
Article 13(1)(b) is the most commonly cited defense in child abduction cases. In 2021, 46% of refused return applications were based on this defense. However, courts apply a strict interpretation.
A parent asserting a grave risk must present clear and convincing evidence. Merely claiming that the home country is unsafe or that there is conflict in the region is insufficient. Courts need specific, individualized evidence demonstrating potential harm to that particular child.
Child’s Objections (Article 13): A child’s objections to returning may be taken into account if they are of sufficient age and maturity.
Consent or Acquiescence (Article 13(a)): This applies if the left-behind parent consented to or later accepted the child’s stay in Israel.
Settlement: If the child has been in Israel for over 12 months and has adapted to their new environment.
In Israeli courts, these defenses are interpreted quite narrowly. For example, in the Biran case (2021), the Israeli Supreme Court upheld a strict reading of the Convention exceptions. A child survived the Mottarone cable car disaster. Afterward, an aunt in Italy cared for them briefly. Then, the grandfather brought the child to Israel.
The Court ordered the child to return to Italy right away. It was decided that none of the exceptions applied, even with the complicated guardianship and the child’s difficult past.
Procedural Delays and Extended Timelines
Israeli courts prioritize Hague Convention cases. They schedule urgent preliminary hearings within 15 days. However, the global average time to reach a final decision in Hague cases has increased to 207 days, compared to 164 days in 2015.
In Israeli cases, delays occur due to:
- Demonstrating habitual residence with international evidence
- Collaboration between Israeli courts and foreign legal systems
- Appeals processes (42% of 2021 cases included appeals)
- Requirements for language translation
- Testimony from expert witnesses on foreign law
For families separated by borders, these delays can result in months or even years of separation, higher legal costs, and emotional distress for children involved in the dispute.
The Biran Case: A Real-World Example of Complexity
In 2021, the Israeli Supreme Court addressed the case of Eitan Biran, a child who survived the tragic Mottarone cable car disaster in Italy. Following the accident, Eitan was placed under the care of his aunt as his legal guardian. However, months later, his paternal grandfather took him to Israel without the aunt’s consent.
The case illustrates multiple complexities:
- Determining habitual residence: Was Eitan’s main home in Italy, where he lived with his guardian, or in Israel, where his father’s family lives?
- Guardianship vs. Parental Rights: The Italian term “tutore legale” means legal guardian. It is not the same as parental guardianship. Is this distinction relevant under the Convention?
- Emotional circumstances: Can the child’s trauma and family situation come before the strict return principle?
The Israeli Supreme Court has supported the District Court’s choice to send Eitan back to Italy. This decision highlights the “zero tolerance for child abductions” rule in the Convention. The Court recognized the emotional issues but decided that Italy was Eitan’s home. None of the exceptions applied.
This case shows that, even in caring situations, Israeli courts stress the need for quick returns as per the Convention.
What You Should Do If Your Child Has Been Abducted to Israel
Act Immediately:
- Reach out to your country’s Central Authority for Hague Convention cases promptly.
- Engage an Israeli family law attorney who has experience with Hague Convention matters.
- Submit your application within the essential 3-month timeframe.
Document Everything:
- Gather custody orders, school records, and proof of your current residence.
- Collect evidence of your involvement as a parent and your relationship with your child.
- Document any communications from or regarding the abducting parent.
Prepare for Extended Process:
- Allocate budget for legal fees in various jurisdictions.
- Keep in mind that the average case typically takes 6 to 7 months to resolve.
- Prepare for potential appeals and prolonged court processes.
Consider Settlement Options:
- Explore negotiated returns with legal counsel.
- Discuss protective measures that may address the concerns of the abducting parent.
- Consider mediation as an alternative to litigation.
Work with Specialists:
- Hire attorneys with expertise in Israeli law and Hague Convention cases.
- Consult child psychology experts if serious risk claims are presented.
- Collaborate with international firms as necessary for complex jurisdictional matters.
Key Takeaway
Child abduction cases in Israel are complex due to the need to navigate various legal systems. This involves tackling tough factual issues like habitual residence. It also means using specific tools from Israel, like Stop Exit Orders. Plus, left-behind parents face a harder global legal framework.
These situations are not without hope. Quick action, good legal help, and teamwork across areas can help families reunite with abducted children. Recognizing the complexities is key. Act quickly when you hear about an abduction.
If you’re dealing with this situation, you don’t have to go through it alone. Let Segal, Simchauve & Co. guide you through this complex legal landscape.
Frequently Asked Questions
Q: How long does an Israeli child abduction case typically take?
Global averages indicate that it takes 207 days from filing to final resolution, although cases in Israel may take longer. Voluntary returns typically average 129 days, while court-ordered returns average 196 days. Appeals can extend the process by several additional months.
Q: Can I get my child back from Israel even if the other parent won’t cooperate?
Yes. If you show wrongful removal or retention under the Hague Convention, Israeli courts usually order the child’s return. However, the abducting parent can argue for an exception. This might include a grave risk of harm or the child’s objections to going back.
Q: What is a habitual residence, and why does it matter in Israeli cases?
Habitual residence refers to the location where the child lived prior to the abduction, encompassing their daily life, school, and social connections. This concept is crucial in determining which country’s courts have jurisdiction. Establishing habitual residence necessitates comprehensive documentation of the family’s circumstances.
Q: What are the main defenses in an Israeli child abduction case?
The main defenses include:
- A serious risk of harm to the child if they are returned.
- The child’s objections, if they are mature enough.
- Consent or agreement from the left-behind parent.
- The child’s ties to Israel after 12 months.
Q: Should I file a Stop Exit Order to prevent my child from being taken to Israel?
Stop Exit Orders can help prevent abduction, but they come with controversy. They can be issued without notice and may restrict families in Israel. It’s advisable to consult with a family law attorney before filing one, as they can have significant implications.
