Emigrating from Israel with Children after Divorce

You may have a better chance to leave the country with your children

On October 26th the Supreme Court of Israel delivered a very important and I would dare to say revolutionary unanimous decision by the Honorable Judges Mr. Grunis, Mr. Jubran and Mr. Meltzer.

If you feel you can’t live with your children in Israel any longer, there is no assurance you can leave, but at least there is a light at the end of the tunnel. There is still hope for those extreme cases where life abroad is better or safer for your children.

The case was written in Hebrew but conducted in Hebrew and English by a translator.

Here is the summary:

The father Mr. Doe (the petitioner), was born in Peru and the mother Mrs. Smith (the respondent) was born in New Zealand. The petitioner asked the Supreme Court to reverse an early decision from the Appellate Court (a decision that had reversed an earlier decision from the Family Court denying the migration) allowing her and their two children to relocate with her to New Zealand.

Background on the petitioner and defendant:

The couple met in New Zealand in 2001 and married as Christians. Mr. Doe was previously married, and had children and grandchildren in N.Z.

In 2004 Mr. Doe converted to Judaism and came to live in Israel for a year, leaving his wife behind for this year. Mrs. Smith converted to Judaism in 2005 and in 2006 the couple re-married in New Zealand according to the Jewish Law. Finally in 2007 they made Aliyah with their four-year-old son, born in N.Z.

From the very beginning Mrs. Smith did not successfully adapt to Israel. They both had serious financial problems and had no permanent place to live. Mrs. Smith was seven months pregnant with her second child. As she claimed in court, she was financially totally dependent on the petitioner (Mr. Doe).

The situation between the two deteriorated and in March 2007 the defendant was sent with her two children to a shelter for battered women in Haifa. Since then Mrs. Smith has not re-integrated and she suffers from depression. The couple is under a social worker’s care and supervision until today. They live separately but the petitioner comes to visit the children often.

The first instance:

The couple has been managing court proceedings since November 2007.

The Family Law Court had two professional opinions from two psychiatric experts (both professionals were native English speakers; therefore there was no problem of communication between them and the parents). The first, a very well-known and respected psychologist, wrote in his opinion to the court about the tremendous difficulties the defendant was having in her adaptation to life in Israel - mainly because she did not want to live here!

In spite of this, the psychologist concluded in his opinion that he does not recommend allowing the migration to N.Z for two reasons: He feared Mrs. Smith would not be able to cope with all the difficulties she will certainly find back in N.Z and she didn’t believe in the importance of the relationship between the children and their father.

The second psychiatric opinion recommended allowing the migration to N.Z but also added an opinion about Mr. Doe, who was noted as suffering severe personality disorders.

For these reasons, it was decided to give custody to the mother but her request to migrate was denied. She appealed this decision and again requested permission to migrate.

The appeal:

On 20 May 2010 the appeal was heard and the appellate court decided to let Mrs. Smith leave Israel for N.Z., deciding that this “was the best for the children.” Additional factors influenced the court`s decision: Mrs. Smith came to Israel only a few years before, she does not speak any Hebrew, does not work and has no family or friends in Israel, therefore to remain in Israel would make her a “kind of prisoner” here, causing more damage to her and the children.

The court decided to let Mrs. Smith go but also set terms and arrangements for the visiting rights of the father in N.Z., as well as a mandatory visit to Israel with the children for a 10-day period every year.

The Supreme Court:

The Family Court in Jerusalem refused to let Mrs. Smith relocate but the appeal court reversed this decision. In this special case the Supreme Court decided to hear the appeal (a third time) even though two previous bodies had already discussed the case.

As stated in its decision, the court has an impossible task of predicting what will really happen to the children in the future in N.Z. This case was particularly hard to decide because of the personality of both the petitioner and the defendant and by the fact that the children were in a position where any decision would be bad for them.

Again, based on “what is best for the children,” the Supreme Court had now to determine if the defendant’s desire to emigrate from Israel was in line with the best interests of the children. Based on this guiding principle, weight should be given to the custodial parent’s rights to manage her life as she wishes; weight must also be given to the rights of the non-custodial parent to maintain regular contact with his children.

The judges added that there are a few more questions to be answered before making a decision based on the guiding principle: the future quality of the relationship between the non-custodial parent and the children; the non-custodial parent’s ability to keep in touch with the children when a migration is granted; the willingness of the non-custodial parent to assist the custodial parent in maintaining a relationship with the children; and finally the children`s ability to integrate in a new environment, in this case N.Z.

Along with these considerations, the Court made its decision based on a few more facts: The first regards the father’s inability or inaptitude to raise the children alone (conclusion shared by the professionals). In spite of his inaptitude, there was no doubt that Mr. Doe was a loving father and the relationship between him and the children was excellent.

Another question concerned the viability of the children to lead a Jewish life in N.Z. This was found as doable and possible.

In the final decision the court emphasized that it is not possible to disconnect the welfare or best interest of the children from the mother`s affairs. The better the situation for the mother, the better for the children.

The final decision:

The defendant (Mrs. Smith) and the children were to leave the country by November 25th 2010 to start the new school year in December in N.Z. The petitioner was denied his new request for custody and the visiting rights remain unchanged.

A word of wisdom:

As the Supreme Court expressed, the parents should have achieved a mutual agreement, therefore preventing harm to the children. But do not forget we are speaking of flesh and blood and not about any philosophical or theoretical issues.

Like in the Judgment of Solomon, a decision must be made and please remember - there is no perfect decision. A practical decision is what must be decided.

Not like in the past, the courts are more aware of the sad reality that foreigners or new immigrants find themselves totally alienated in Israeli society, preventing them from fulfilling their basic needs and impairing their ability to function and succeed in the very hard task of assimilating in Israeli society.

No matter what the case, it may be impossible to balance between the rights and needs among parents and children, and wisdom lies in finding a balance where all parties can not only survive but also live in respect and happiness.

This is not an easy task but with compromise and the will of the parties it is possible to find a “lesser evil solution”.
 

Sincerely,
 

Tzvi Szajnbrum, Attorney at Law