CAN CHILDREN BE MOVED ABROAD?

 Yes. Children can be moved abroad, lawfully by a ‘relocation’ order, even if the other parent objects. Without an order this is unlawful and called ‘abduction’. The difference between child abduction and relocation is that child abduction is an unlawful form of moving abroad with children; relocation is the lawful form.

WHAT RIGHTS ARE INVOLVED WHEN CHILDREN ARE MOVED ABROAD?

Children’s rights - to establish and develop a relationship with each parent and vice versa.

Parental rights - Where parents do not live together with the children in a family unit, parental rights are usually divided into two categories – custodial rights and access/visitation/ contact rights. The parent with whom children live is called a ‘custodial parent’ and the other parent is called the ‘non-custodial parent’. Sometimes parents have ‘joint custody’, with the children living part of the time with each parent in his/her respective home.  

WHOSE DECISION IS IT ABOUT WHERE A CHILD LIVES?

Although who is entitled to decide where a child may live will vary according to the actual laws of the country in which the family lives, there are general principles that apply to most developed legal systems. The main principle is that decisions about where a child lives can or should be made jointly by parents, where possible, but in the absence of agreement, the appropriate court has the power to decide. It is generally accepted that one parent cannot unilaterally force his/her preferences about where the child should live , where this involves moving abroad.

Legal systems in different countries , however, vary about how much say an unmarried or a non-custodial divorced parent has regarding a child's residence.

WHICH PARENT DECIDES WHERE A CHILD LIVES UNDER ISRAELI LAW?

The Legal Capacity and Guardianship Law 1962, provides that both parents are equal “natural guardians” of their children, and “guardianship” includes the right to the custody of the child (unless, obviously, there is a court order to the contrary), and the right to “to determine his place of residence …”.
 

Both parents are required to act in agreement when exercising the rights within their “guardianship”, other than in cases where no delay is reasonable. There is a presumption that the other parent has agreed unless he can prove the contrary. Of course, in order to agree or even to be presumed to agree, the other parent must be aware of the decision taken by the first parent.
 

If the parents cannot agree, then the court has jurisdiction to decide the matter. The child’s best interests are the sole and overriding, consideration for the court. This is sometimes called the ‘least detrimental alternative’.

These principles apply to any question of taking the child out of the country, whether this is for a short period, i.e. temporarily, such as for a holiday, or whether it is intended to be permanent, i.e. a change of the child’s place of residence. The power of a parent to give or refuse agreement to his child being taken out of the country is a specific result of the power “to determine his place of residence”.

WHEN IS IT LAWFUL FOR ONE PARENT TO MOVE ABROAD WITH CHILDREN?

When the other parent consents or, where this is not the case, if there is a court judgment awarding the parent custody and permission to relocate abroad with the minor.

WHEN IS IT UNLAWFUL FOR ONE PARENT TO MOVE ABROAD WITH CHILDREN?

When the other parent objects to the minor leaving the country or to he/she remaining abroad even if there was originally consent. In legal language both are forms of child abduction.

WHAT SITUATIONS ARE CLASSIC EXAMPLES OF CHILD ABDUCTION?

1. Where one parent secretly travels abroad with the children against the other parent’s knowledge and consent;
2. Where one parent goes on holiday to his/her native country with the children with the other parent’s blessing, but then remains abroad against the other parent’s will;
   
   or 
3. Where both parents agree to live abroad with the children for a specific period/purpose (study or employment overseas etc) and then one of them refuses to return ‘home’ at the end of the agreed time. 
   
   

HOW CAN ONE PARENT MOVE ABROAD LEGALLY IF THE OTHER OBJECTS ?

By filing an application for relocation and winning the case so that a court judgment is given permitting the custodial parent to relocate abroad with the children.

HOW CAN A NON-CUSTODIAL PARENT OPPOSE A RELOCATION PLEA ?

Fight the plea by filing defence pleadings, arguing that the relocation is unjustified and against the children’s welfare.

DOES IT MATTER WHICH COUNTRIES ARE INVOLVED?

Yes. If both countries involved are parties to the Hague Convention on Civil Aspects of International Child Abduction 1980, then the legal action to be taken will be according to the Convention. See Topic 2 below.

If one or both of the countries is not a party to the Convention, then child proceedings will have to be taken under the law of the country where the child is now located. In Israel this would be an application for an order for habeas corpus or for custody of the child. See also [2.2].