WHAT ARE PARENTAL RIGHTS RE RELOCATION OF A CHILD ABROAD?

As already explained, Israeli law in the Legal Capacity and Guardianship Law 1962, provides that both parents are equal “natural guardians” of their children, and according to section 15, this “guardianship” includes “the right to the custody (unless, obviously, there is a court order to the contrary), and the right “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.

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”.

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

WHAT REASONS MIGHT THERE BE FOR RELOCATION OF A CHILD? 

The principle of joint and equal guardianship of parents over their mutual children applies 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.

There are legitimate reasons why a parent might want to relocate his child. A divorced or separated parent might want to:

• return to the country of which he/she is a national
• move to a country with a new partner/husband or wife
• move to another country for employment purposes.

It is not considered to be a legitimate reason to relocate a child if the parent with custody wishes to interfere with the child’s relationship with the other parent, for example by blocking access arrangements.

WHY MIGHT A PARENT OBJECT TO RELOCATING A CHILD ABROAD? 

Spite is not a reason that can be raised in court. The overriding legitimate reason for objecting to relocation of a child from Israel is that it is against its best interests because of the resulting interference with the child’s relationship with his non-custodial parent (and wider family, such as grandparents etc), in particular by making access arrangements difficult and less frequent and more expensive than would be the case if the child stayed living in Israel. A parent who has a close on-going relationship with the child may argue that relocation will result in irreversible emotional damage to the child, and therefore is not in the child's best interests, or literally, as Israeli law puts it "in the child's good".

A parent against relocation may argue that the other parent's plans put forward for uprooting a well-integrated minor are not in the child’s best interests, from, educational, financial, religious /cultural/social/wider family viewpoint.

Relocation, like abduction cases, are complex, and opinions presented by expert, independent professionals, play an important role in the legal process, guiding the court. However, the court, itself, makes the ultimate decision and can override recommendations professionals make. 

HOW CAN ONE RELOCATE A CHILD OUTSIDE OF ISRAEL LEGALLY? 

By getting the other parent's advanced consent, and failing this, win legal permission in court.

If one parent wishes to remove a child permanently out of the country, he or she must get the permission of the other parent. This means that he or she must inform the other parent first of the intention to relocate. The other parent must agree, or he will be presumed to agree unless he actively disagrees.

A parent who wishes to relocate the child, without the other parent’s agreement, should make a specific application to the court for permission to relocate the child out of the country. The court may grant permission, either generally or for a specific purpose such as for a limited purpose or period of time. 
 

WHICH COURT HAS JURISDICTION TO HEAR RELOCATION CASES?

In Israel, most cases concerning children are heard in the Family Court for the area in which the child is living.

In exceptional cases a rabbinical court may have a continuing jurisdiction over the child including the question of relocation. 
 

WILL THE COURT USE PROFESSIONAL REPORTS WHEN DECIDING ?

Yes - these may be ones ordered by the court, or ones presented by the parties themselves. Experts, whose findings and recommendations can be cross-examined in court, whether they are court or privately appointed. The reports are vital tools to the courts, are very influential, but do not bind them.

The Family Court judge has the power in all cases to order a welfare report before making any decision on the future of a child. The court welfare officer and/or child psychologist will meet both parents and the child, report on the facts surrounding the proposed relocation, the parties’ motives, and the wishes and feelings of the child, particularly in the case of older children. They will also on the issue of access, and the effect on the child of losing regular contact with his other parent. The Family Court judges and welfare officers are very aware of the psychological importance for a child of maintaining contact with the parent with whom he is not living after a family breakdown. Israeli law considers that a child has a constitutional right to know both of his parents, and to have a meaningful relationship with them. 
 

WHAT PRINCIPLES WILL ISRAELI COURTS APPLY IN THESE CASES ?

In deciding whether to give permission for relocation from Israel, the court will decide according to the principle of the “best interests of the child”, what is for the child’s welfare.
The court will give effect to the principle of the child’s welfare, even if this outweighs the interests of the parent who will be staying in Israel.

An analysis of factors influencing Israeli courts dealing with relocation cases over the years show that the following are the most relevant issues influencing their decisions:

• reasons or motives for relocation
• reasonableness or justification for relocation
• parental capability of both parents
• degree of likely emotional damage to child resulting from separation
• age of child/ren – if the parent applying is the mother and the child is under 6, the chances of success are high; if they are 10+ their own views are relevant in Israel, and perhaps even at a younger age
• degree of stability of new family unit abroad
• connection with new partner of applying parent ( needs to be somewhere in between; bad connection is undesirable, while too good a connection threatens the biological left-behind parent)
• effect of refusal of relocation on new family unit
• willingness/ability of relocating parent to maintain contact with left-behind parent and to recognize their legitimate role and rights – and the importance of the child in having a relationship with them. The court will examine history. A good record will increase chances and a very negative attitude/record will destroy them
• proposed visitation and how realistic it is (given distance, financial situation of parties)
• child's rights – Israeli case-law now recognizes that a child has a basic right to know and develop a relationship with both parents, and that this is vital to his stability and emotional wellbeing and development
• child's views – taken into account from around 10 (sometimes earlier) depending on degree of maturity and understanding;
• environmental factors – of relocation on extended family (in Israel, school, social life, friends, language, other siblings etc (who may be in custody of another parent)
• very special person factors – eg where a child has learning difficulties or major medical problems- the effect of relocation on these
• ways of guaranteeing visitation rights - often financial guarantees are demanded as a pre-condition for permission to relocate because of difficulties of enforcement abroad because of problems of enforcing judgment abroad.
  
  Similar principles as explained above are used in courts in many other countries in order to decide relocation cases, in particular countries such as the USA and the UK. 
   

HOW DO ISRAELI COURTS CURRENTLY APPROACH RELOCATION?
 

While traditionally, relocation cases were regarded as difficult, especially where the children concerned were Jewish, as Israel was regarded as the 'promised land' and preferred place for Jews, following a precedent-setting case – (Anonymous v Anonymous 45785/00 Application for Leave for a Civil Appeal) - it has become easier to succeed. This case held that the overall picture should be examined, with the child's welfare at the centre: was relocation in the child's welfare, or not? Three options normally exist – a) to relocate with the applying parent, b) to remain in Israel in that parent's custody, and c), to remain in Israel, in the custody of the non-applying parent. The court should choose the option which is preferable from the point of view of the 'child's welfare'.

The precedent stressed that great importance is to be attached to the recommendations of the professionals who are neutral and best qualified to assess the child's welfare. Unless there is substantially weighty evidence to the contrary, their recommendations should be accepted by the court.

Furthermore, this precedent represents a major development in holding that where the child in question was under 6, the latest psychological research showed that it is generally in his/her best interests to remain with the mother, even if that involved his/her relocation abroad. The implication is that where the mother has been a child's primary carer since birth, and the minor is under 6, she has a good chance of succeeding in a custody and relocation case which she files against the father.

This landmark case was used to justify a decision by Tel Aviv Family Court (Family File 44262/04) in November 2004 to allow an English mother to relocate abroad with her 3 year old daughter, who had been returned to Israel under the Hague Convention, after being wrongfully retained in the UK, in the case of Re B 2003. The court held that it would be better for the child to be with the mother in the UK than with the father in Israel. It ruled out the possibility that the non-Jewish mother, who only had tourist status following her divorce from the child's Jewish, Israeli father, could remain in Israel, where she had no status and no legal ability to work, and away from her 3 other children from previous marriages. The court accepted reports showing that the mother was the preferred custodian, and permitted the minor's relocation to the UK.

CAN A COURT IMPOSE CONDITIONS ON RELOCATION ?

Yes. A crucial issue for a court when allowing one parent to relocate is how to interfere as little as possible with the child’s right of access to his other parent. The court can make a new access order setting out the new arrangements, such as phone, internet, video link, letters as well as face to face access in either or both countries, including which parent must bear the financial cost.

So, when the court gives permission for a removal (whether temporary or permanent), it may impose any effective conditions to ensure compliance with its orders, for example, for the enforcement of an access order. Conditions can include :

• requiring the deposit of a financial bond or guarantee (a sum of money)
• obtaining recognition of the contact order in the foreign court by a ‘mirror order’ or complies with an order relating to access or the child’s education. The deposit may be released once the condition has been complied with, and may be retained
• personal undertakings (a promise to the court enforceable as if it was an order) ,which a court may accept. For example , to allow the new access arrangements to the left-behind parent, but generally notarized agreements and ‘mirror orders’ are more effective and enforceable than undertakings .  

IS THERE A CONNECTION BETWEEN RELOCATION AND CUSTODY ?

Yes. A parent cannot gain a relocation order unless he/she has custody of the child first. Having said this, the question of relocation is separate from that of custody. A person can win a custody battle, but lose a relocation one, and still remain the custodial parent within Israel. Losing a relocation case does not mean that the non-custodial parent who prevents the child being removed then gains custody within Israel. 
 

WHAT IS THE PROCESS FOR RELOCATING A MINOR FROM ISRAEL?

See flow chart or alternatively the stages can be summarized as follows:

APPLICATION BY PARENT FOR RELOCATION OF CHILD FROM ISRAEL

- Parent wishes to apply to a court in the country of the child’s habitual residence for an order to relocate child:

1. after an abduction and a Hague Convention order in another country for the return of the child to his habitual residence; or
2. without any prior abduction have taken place
   - Applying parent must apply to the appropriate court of his habitual residence for an order giving permission to relocate the child/ and for custody if he does not already have one
   
   - Service of the application on the other parent
   
   - First court hearing- [if necessary, the court may make orders to prevent the unlawful removal of the child from the country]

- Final court hearing - Court MAY make the following orders:

1. (a) to the applying parent (i) custody, and (ii) permission to relocate; or additionally (iii) undertakings and/or guarantees e.g. requiring a bond or other security, or a ‘mirror order’
   (b) and to the other parent (i) access
2. (a) to the applying parent (i) custody, but (ii) refusal of permission to relocate; and (b) to the other parent (i) access
3. (a) to the other parent (i) custody; and (b) to the applying parent (i) access