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Fam. Ct. Tel Aviv 5062/97 Almonit v. Ploni
Dist Ct. Tel Aviv 28/97 Plonit v. Ploni
63/97 Plonit v. Almoni
Dist. Ct. Tel Aviv 1047/99; Misc. 35997/99 Plonit v. Almoni
This series of cases, all of which involve the same parties, illustrates the extremes to which some people are willing to go to try to abduct their children despite the fact that they have repeatedly been ordered to return them to their home country.
On a practical level the cases demonstrate the importance of requesting that any judgment ordering the return of a child be executed immediately or, if a stay of execution is granted, that inflexible terms intended to insure that the judgment will be carried out, and not frustrated by means of a second kidnapping, for instance, be imposed.
On a legal level the decisions illustrate the possibility that an abducting party who claims that there have been relevant post judgment developments can petition a trial court to prevent the return of a child to his place of habitual residence even after that party has been ordered to do so at the appellate level. This obviously can lead to very lengthy delays if a stay of execution is granted while the new petition, or an appeal on the new petition, is pending. The stay was not granted at that stage in this case, but could be in another.
The mother of the children had come to Israel from Italy wth the children for “vacation” only to announce she would not return. The father filed a Hague petition. The trial court found that the mother had illegally retained the children, that the defenses the mother had raised under the Hague Convention were baseless, and that the children would be returned to Italy. The mother appealed and a stay of execution was issued. The appeals court confirmed the trial court’s decision to return the children.
However, subsequent to the rendering of judgment, and prior to its execution, the mother absconded once again with the children, running from place to place and hiding with them, for the most part within Israel but for part of the time in South America as well, for a period of approximately two years. With the aid of the Israeli police the mother was finally located, at which point she submitted a petition of her own to the family court that she be allowed to retain the children in Israel, asserting that circumstances had changed since the original order was given and that this change would justify vacating the order and keeping the children with her in Israel. The mother attempted to rely on an agreement she had extracted from the father as a condition of his seeing the children. The trial court denied the mother’s petition, and the mother appealed and requested that the appellate court stay execution of the judgment while the appeal was pending. The mother’s request for a stay of execution was at this point denied, 2.5 years after the children were abducted.
Israel Supreme Court, C.A. 6327/94 Plonit v. Ploni
This Supreme Court decision was given in a fairly typical and uncomplicated situation in which the often-linked defenses of “grave risk” and the will of the child were raised under section 13 (b) of the Hague Convention. The decision was given on appeal from a District Court order which had required the mother to return 2 children to New York.
The events preceding the decision appealed from were the 2nd time mother had kidnapped the children, and the 2nd time the father had filed a petition in Israel for their return.
According to the parties' New York divorce agreement any trip outside of the country or relocation required the agreement of both parties. Subsequent to an earlier abduction by the mother, and successful Hague petition by the father, the father filed for sole custody and was awarded it by the New York court.
During a subsequent visit by the children to Israel to see their mother, the mother announced that the older child had expressed a desire to stay in Israel and said he “would die” if he returned to NY. The mother filed a custody claim in the name of the children and got a stay of exit order preventing the children from leaving. The mother also claimed the father was a drug user and abusive. The father filed a new Hague petition.
The court appointed a psychiatrist, who’s identity the parents had agreed on, who in turn determined that only one of the children was reluctant to return, and that the reason for the reluctance was that he was in Israel on vacation and was being shown a good time, while when in New York he was forced to do school work and deal with some of the more tiresome aspects of day to day living. The psychiatrist also found the drug use and abuse claims to be unpersuasive. The court adopted these findings and ordered that the children be returned to New York. The mother appealed and obtained a stay on the execution of the return order. The Supreme Court affirmed the return order after noting the psychiatrist’s newly issued opinion according to which continued proceedings were having a detrimental effect on the older child.
Family Court, Tel Aviv, 89790/00 Minors M', R', B', G' et. al., v. A'R'
This case deals with the question of whether an American judgment establishing visitation meant to be carried out in Israel, can be enforced in Israel, and whether the Hague Convention is applicable to an enforcement action initiated in Israel in these circumstances.
In 2000, after the parties were divorced in the United States, an American court allowed the mother to leave the United States and relocate to Israel with children. At the same time the father was granted visitation and joint custody. Shortly after arriving the mother frustrated the father's scheduled visitation and the father submitted a petition in Israel under the Hague Convention. The mother claimed that the Hague Convention is an inappropriate mechanism for the enforcement of custody and visitation rights.
The court ruled that since the breach of the father's visitation rights took place shortly after the mother's arrival in Israel with the children, the Hague Convention applies in accordance with Article 4 of the Convention. However, the court goes on to find, the Convention does not provide for the enforcement, or recognition, of foreign visitation orders, and the sum and substance of the Convention's application in these circumstances is that the petitioner will benefit from procedural leniencies (less formal evidentiary requirements, for instance) and expedited scheduling, but that is all. Moreover, since a foreign custody or visitation decree will never be considered final, but the court will always evaluate a given situation in light of the circumstances as they exist at the time of rendering judgment, the court will review the circumstances anew, in light of the best interests of the child, and because of this even the expedited scheduling established in the Hague Convention will not be adhered to strictly.
In short, a visitation schedule established abroad, and meant to be enforced in Israel, will be of limited value when it comes to enforceability, and while it will be given a certain amount of weight by the Israeli courts, a relitigation of the issue is likely to be necessary if enforcement becomes a problem there. It is advisable to have any foreign decree establishing visitation meant to be carried out in Israel ratified as an Israeli decision before the travel takes place. --------------------------------------------------------------------