STATE OF ISRAEL DISTRICT COURT OF TEL AVIV Before the Hon. Judge Porat Cohen v. Cohen [Summary of Decision WMHFN-1] [Note: The Ministry of Justice advises that an appeal has been filed in this matter. Letter of 17 Sep 1992] 25 May 1992 The parents originated from South Africa, and lived in lsrael from 1987 until 1991, when the family moved to New Jersey, U.S.A. The child, aged two, was taken by the mother to lsrael from the U.S. in April of 1992 against the wishes of the father, who applied for an order under the Hague Convention to the District Court of Tel Aviv. The Court granted the Order as requested by dismissing the arguments of the defendant-mother which were as follows: First, the Defendant argued that lsrael and not the U.S. was the place of habitual residence of the child and therefore no abduction could have occurred in the sense of the Convention, she stressed the temporary nature of her employment in New Jersey and the fact that she did not have immigrant status in the U.S. The Court dismissed these arguments, emphasizing that the U.S. was the place of habitual residence of the child which was the criterion for purposes of the Convention irrespective of the status or employment prospects of the parents. WMHFN-2 The Court cited inter alia on this point the Perez-Vera report on the Hague Abduction Convention. WMHFN-3 The conclusion of the Court on this point was therefore that the habitual residence of the child at the time of the abduction was New Jersey. The second question which arose was whether the removal of the child by the mother constituted a breach of the father's rights of custody. The defendant-mother argued that a subsequent decision of the Haifa District Court granting her custody had deprived the father of his right to custody. The Court dismissed this argument citing the New Jersey statute which grants joint custody to both parents, thus prescribing statutory custody which is sufficient under Article 3 of the Convention. Moreover, the above-mentioned decision of the Haifa Court was subsequent to the abduction and therefore irrelevant, as was a decision of the New Jersey Court granting custody to the father. The Court also cited Chapter 3 of Prof. Amos Shapira's Hague Academy Lectures on Private International Law Aspects of Child Custody, (1989). WMHFN-4 The Court also dismissed the arguments of the mother based upon Article 13(b) of the Convention, stressing once again the superlative nature of the grave risk of harm to the child which alone provides a protection from the obligation to return the child. WMHFN-5 The Court also expressed the view that it was competent to annul the decision of the Haifa District Court regarding custody since the provisions of the Convention take precedence over all contrary legal provisions (under the lsraeli implementing statute.) However, in deference to the Haifa Court, the Tel Aviv District Court advised the Plaintiff's advocate to make a specific application to the Haifa Court to annul its judgment on the basis of the Tel Aviv Court's Hague ruling. WMHFN-6 William M. Hilton Footnotes --------------------------- 1. This summary was graciously supplied by Dr. Chaim I. Goldwater, Director of Legal Advice in Private International Law, Ministry of Justice, State of Israel 2. Where there has been no long term presence of the child in a particular forum, "long term" not being defined at this point, one may wish to focus on the mutual (and expressed) intent of the parents when the move to the particular forum in question. See, for example, Re Bates United Kingdom High Court of Justice - Family, 23 Feb 1989. Available on this BBS as BATES.UK. 3. Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Qua torzieme session, vol. Ill, 1980, p. 426. Available on this BBS as PEREZ.RPT. See also: Legal Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 51 Fed. Reg. 10,503 (1986). Available on this BBS as ANLHAGUE.ASC. 4. The above analysis is correct and is identical with nearly all cases that have discussed this point. By way of clarification it should be noted that the issue of "Habitual Residence" is separate from that of "Rights of Custody". One must first determine where the "Habitual Residence" is then refer to the internal law of that forum to determine if there is a "Right of Custody" under their law. See Article 3 of The Convention. 5. This is also consistent with the decisions of other countires on this point. It is to be noted that a "13(b)" defense is nearly always considered or tried in these case. None or nearly none have been allowed. 6. See Article 17 of The Convention: "The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention."