Pet Peeve: And Here’s Why (Really)

Yesterday I wrote about one of my pet peeves, if not my all time pet peeve of the local court system, injunctions against leaving the country, particularly as used by the Family Courts against children. Although I related in the post to what I consider to be the legal and constitutional problems with the profligate use of these court orders, I did not really delve into the substantive problems as they relate to families of divorce (Just to make things easier, I’m using the term “families of divorce” loosely here. The same problems may pertain to couples who never married but have children together.)

When courts routinely grant these injunctions, or when people agree to include them in a divorce agreement, they are prolonging and often exacerbating the conflict, because at every juncture when a parent wishes to travel, it provides an opportunity to drag the other party to court. Anyone in this business knows that there are people who thrive on prolonged conflict, whether because it allows them to have a relationship – however acrimonious – with the other side, or whether because it allows them to exercise control over the other side, or both. Essentially then, what the courts do by continuing this process is to ensure that people who probably should never have been living together, continue to meet in the courtroom.

There are some people who just for whom the only opportunity to proclaim how unreliable and unworthy the ex-spouse is, is in the courtroom and they are willing to put out time, money and effort to have that thrill.

I even once had a case where the ex-husband went so far as to block the children from leaving the country claiming that if the children went abroad with the grandparents, they would eat non-kosher food.

The clincher?

The father wasn’t observant, and the mother was. The judge? Still made the mother give a financial guarantee not only that the children would return, but that the kids would only eat kosher food while abroad. Not quite sure how you enforce that one.

Particularly problematic is when there have been issues of abuse in the marriage, in which abuse is a symptom of an irrepressible need to control. In this way, the spouse who “got away” from the controlling partner, still comes under his heel any time she wishes to take the children out of the country. Thus, rather than facilitate the healing of the trauma of abuse, the courts actually become unwitting partners in prolonging the abusive relationship.

Occasionally I hear from women who many years ago were in the women’s shelter in which I worked. The children become teenagers, and as part of sports or music clubs, are supposed to go abroad with the clubs. Suddenly, they need to cancel the injunctions issued against the children in the distant past, and there are even instances where the father hasn’t seen the children in all those years, and still objects to allowing the children to travel freely.

As I pointed out in my post yesterday, most Family Court judges take it as a given that when one parent objects to the trip, the other parent should provide a financial guarantee that the child will return to Israel.

This effectively discriminates against people who are without funds or property. In the District Court case I discussed at length yesterday, the appellate court judge ruled that the mother had to provide a $100,000 bank guarantee (which itself costs money and is not available to everyone) or to pledge that amount in cash or from a readily available savings account. Most of us can’t do that.

What many people end up doing is pledging their apartment as a surety, or if they don’t own property, asking friends or family members to do so on their behalf. Those of us involved in the court system take this a standard practice, but I suspect that someone from the outside hears that such draconian steps are necessary simply to take a vacation – or a school trip – abroad – it sounds inconceivable.

My final point about the overuse of these restraints actually has to do with the parent who objects to the child travelling. I would make the argument that the practice actually harms that parent, since my sense is that for many of these parents, by raising a hue and cry about the child being taken abroad, they feel they are being good parents. They might not see the child, they might not pay child support, but in a perverse way, they get to feel that by dragging the other parent to court, they are protecting the child. They’re making sure the evil parent doesn’t abduct them to some black hole on the other side of the world, or doesn’t expose them to bad influences, whatever the story is that they tell themselves.

As long as the court system allows them to  fulfill their “parenting” functions by creating a storm in a courtroom, they are not going to focus on the tasks they need to do in order to be better parents. This is just my hypothesis, but I think it’s worth considering.

A final word: there may in fact be cases where there is a real flight risk, and then injunctions should be used.

However, for those families who fall within the normal range, when a parent simply wants to take a child abroad for a limited period of time, there are sufficient controls in the system that injunctions simply do not need to be standard fare. For example, the Israeli Ministry of Interior will not issue a passport to a child whose parents are divorced without the signature of both parents. Failing both signatures, the parent needs to get a court order to have the passport issued.

In addition, it should be noted that one of the stated goals of the <a href=”http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24“>Hague Convention on the Civil Aspects of International Child Abduction was specifically to allow children of divorce greater freedom of movement. The rationale behind this was that the Hague Convention would itself be a deterrent to removing children illegally from their regular place of residence, and in fact, it has proven itself to be remarkably successful as such.

So, judges – and lawyers – think out of the box. And do a cost-benefit analysis of what is being accomplished the next time you issue, or petition for, an injunction against a child leaving the country.

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