Pet Peeve

I recently ran across a decision from the District Court of the Central District (Justice Varda Plaut) sitting as a court of appeal on a decision from the Kfar Saba Family Court (Justice Miri Krauss). You can find a copy of the decision here.

The decision touched on a number of issues near and dear to my heart, and in particular, my pet peeve of the Israeli legal system, צווי עיכוב יציאה מן הארץ – injunctions against leaving the country, and they are without a doubt my particular pet peeve as they pertain to children of divorce.

Basically, Israeli law allows for an injunction to be issued against a person involved in civil legal proceedings if there are grounds to presume that he will leave the country permanently or for an extended period of time and thereby make difficult or impossible the execution of any court judgment. So for example, if I sue someone for money, and he has no property to seize, I could theoretically ask for such an injunction, the idea being that if he is in the country, I’ll be able to find a way to collect money from him.

The legislation of the Basic Law: Human Dignity and Freedom
in 1992 has had an impact on the use of injunctions of all kinds. At least that’s the theory.

In 1994 the Supreme Court ruled that the courts could only issue such an injunction against leaving the country if there was a “sincere and serious suspicion” that the person might actually stay out of the country permanently or for an extended period of time and thus sabotage the execution of a court judgment.

Israeli judges and legal scholars are fond of talking about the “constitutional revolution” that has taken place in Israel over the past two decades since the legislation of Basic Laws. I’m afraid this constitutional revolution hasn’t made its way to the courts as far as injunctions against children of divorced parents is concerned.

Routinely, Family Courts issue injunctions against minor children to prevent them from being taken abroad by a parent when the other parent objects to the trip. Many parties make this a non-negotiable condition of a divorce agreement. Should a parent wish to travel abroad and the other parent objects, the parent who wishes to travel will need to go to court, and generally put up substantial financial sureties to guarantee the return of the child to Israel.

This past summer I was representing a woman whose ex-husband lives abroad. In the midst of our lengthy negotiations around child support and visitation, my client had to go abroad with her children to a family celebration. With my encouragement, she informed the father – who hadn’t seen his children in some time – that she would be coming to his part of the world for a couple of weeks, in the hope that the father would spend time with his children.

Rather than take advantage of this opportunity to strengthen his relationship with his children, the father –whether by his own initiative or on the advice of an over-eager and short-sighted lawyer – took out an injunction against  the children only days before they were to fly. The judge granted the petition without so much as asking for our response, despite the fact that he was well aware the father did not live in Israel, and despite the fact I had made known to the court at our very first hearing that the father maintained minimal contact with the children.

I wanted to the appeal the decision, but my client, understandably, did not wish to spend the time, energy and money on an appeal. What’s more, she wanted to make sure she would get on the plane for the family celebration.

So guess what happened? We duly supplied the guarantees the other side requested, which entailed a lot of running around for my client and her family, and the children got on the plane.

But guess what didn’t happen? The children did not see their father while abroad. Despite the fact that he spent the energy and money taking out an injunction to ensure that they would return to Israel, ostensibly in order that he could maintain contact with them, once they were actually fairly close to him, he refused to make arrangements to see them.

And guess what will never happen? My client will never, or at least not in the foreseeable future, let the children’s father know when they’ll be visiting again, since she doesn’t want to have to go through the uncertainly, expense and unpleasantness of having to deal with these mindless injunctions. And that’s where the overzealous lawyer, who couldn’t think beyond some playbook she accepted blindly, bears responsibility for complicating these children’s lives even further.

What should have happened?

It’s time that Family Court judges start taking the “constitutional revolution” seriously, and take seriously the standard set in 1994 of a “sincere and serious suspicion” that the individual –whether child or adult – is likely not to return to Israel. In the case of my client, she worked in Israel, lived down the street from her parents and other family members, and there was not the slightest bit of evidence brought before the court that she might be preparing to leave the country.

Why the judicial caution, if we can call it that? Unfortunately, in 2001 a judge cancelled an injunction against a young girl, Lilach Rotem, in a way that was reckless, when there was plenty of evidence that if the mother took the child out of the country, the father would lose contact, which in fact did happen. I think that that particular story – in which the judge was subsequently sued for negligence by the father – has made other judges nervous until today. Second, there is a kind of attitude of – what does it hurt, you’re coming back anyway, so just give the guarantees and let’s move on.

Back to our decision from the Central District Court.

The bare facts of the case are: In 1992 an Israeli couple moved to Australia and their children were born there. In 2004 the mother came to Israel to live with the kids, the parents made a divorce agreement here, and since that time the father has not seen the children. In addition to not seeing the children, the father makes irregular child support payments – only nine in the past six years.

In their divorce agreement the parents agreed that the children would not leave Israel without the agreement of both parents, and in order to guarantee this commitment, there would be injunctions against the kids leaving the country. As I said, this is an altogether too common arrangement.

In December 2009 the mother petitioned the Family Court in Kfar Saba to have the injunctions against the children cancelled. The father objected, and the court held a hearing which he did not attend, disregarding the rules of the Family Court.

During the hearing, the mother offered guarantees to ensure the return of the children to Israel; her mother’s home, or a guarantee of $100,000. Despite the fact that the father does not see the children, maintaining contact only through emails and the occasional phone call, the Family Court accepted the father’s argument that if the children go abroad for a trip with the mother, the mother might actually uproot them from Israel, use the pretext of the trip abroad to move them to another country altogether, and that he would then lose touch with them.

It’s important to point out that from what I read in the decision of the appellate court, as with my client this past summer, there was no evidence that the mother wished to go abroad with the children for anything other than a vacation. The only “fact” used to bolster the opposition to them leaving the country was that they had duel citizenship.

In a country of immigrants such as Israel, almost every other person on the street has duel citizenship.

Incredibly, the Family Court ruled that the mother would have to offer far higher guarantees and went so far as to say that if the mother made an offer of a guarantee which was over a million shekels (!), she would refer the offer to the father for his response.

Before the District Court the mother argued that the lower court’s decision was disproportionate, unreasonable and illogical under the circumstances, and basically rewards the parent who ignores his parental obligations. The mother further argued that she has a justifiable fear of sending the children to Australia, lest the father go into hiding with them, and that she should not be dealt with harshly because of this. I would add that even if her fear were not justified, it is still not a reason to prevent the children from leaving the country for a vacation. If I haven’t said it enough, the courts have to look for facts that support the “sincere and serious suspicion” that the children won’t return.

There were, the mother argued, no grounds to support the father’s claims that the children would not return to Israel.

This particular decision referred extensively to another District Court decision from May 2010, in which the judge overturned a Family Court ruling in a similar case, making the point that if a parent is not living here, and not fulfilling his parental obligations, he should not be allowed to limit the children’s constitutional right to freedom of movement simply in order to protect his right to see the children in Israel, a right he does not exercise. Moreover, refusing to allow the children to travel violates the best interests of children; not only do they not have a father to care for them in Israel, but the father they do have deprives them of the pleasure of travel abroad with their mother.

Based on this reasoning, and I would assume, just plain common sense, the District Court decision I’ve linked to accepted the mother’s claim that guarantees of over a million shekels as ordered by the Family Court were disproportionate and unreasonable.

My criticism of the District Court decision has to do with the issue of the mother posting any guarantee. The judge’s position is that since the mother already made the offer in the Family Court, she need not rule on the substantive issue of whether or not there needs to be a guarantee, and can simply accept the guarantee the mother offered. The problem is that in her discussion of the issue, the judge takes it as a given that a parent who wishes to take a child abroad against the will of the other parent must give a guarantee to ensure, first, that the information about the details of the trip is correct, and second, that the child will be returned. This is, in fact, the prevailing judicial policy.

And I ask – why? Where is this in the law?

A guarantee should be required only when there actually are grounds for an injunction, that same “sincere and serious suspicion”. In that case, rather than denying the child freedom of movement and keeping the child in Israel, the guarantee would allow the child to travel, and the guarantee would ensure the return of the child. If there’s no evidence of such a suspicion, why on earth can’t the child travel without guarantees?

This judicial policy effectively rewards a parent who is objecting to the trip without sufficient grounds, and imposes an unnecessary burden on the travelling parent to secure the guarantees.

In a subsequent post I’ll discuss the emotional and other costs of the current policy, and the ramifications for the dynamic of healing and rebuilding.

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