The following principles apply if the child has come to Israel from abroad for arranged access to his parent living in Israel, but decides to stay in Israel and does not return to the home of his parent who lives abroad.
THE PARENT IN ISRAEL –
The parent in Israel should apply for custody in Israel and for relocation abroad, in the court of the child’s habitual residence.
THE CUSTODIAL PARENT ABROAD –
Convention country - if the country where the child was living is a party to the Hague Convention, the custodial parent abroad should apply under the Hague Convention on the grounds of a wrongful retention, which is one of the two forms of abduction.
The Hague Convention procedures would then be followed, through the Central Authorities, and the Israeli Family Court would be asked to decide on the other parent’s application for a return of the child from Israel.
Non- Convention Country -
If the child was living in a country not a party to the Hague Convention, then the custodial parent could make an application in his own country for the return of the child. It is likely that he/she would get such an order, but the problem is that it is unenforceable outside of the jurisdiction of that country. It is certainly not automatically enforceable in Israel, although the Israeli court will give such an order due respect, but will not consider itself to be bound by it. However, such an order would be very useful if the parent decides to take legal proceedings in Israel.
The custodial parent would be better advised to start legal proceedings in Israel for the return of the child, and arrange independent legal representation from an experienced specialist in this field who has a common language of communication with him. The retaining parent would have to defend the application. The Israeli court will decide the issue according to the principle of the best interests of the child.
In the case of older children, the child’s own wishes will be taken into account by most courts. This is really part of the consideration of the child’s best interests and welfare, because the courts recognize that the older the child, the more important are his own wishes and feelings in any decision about his life, where he should live, who he should see etc.