STATE OF ISRAEL - LAWCOURTS WMH FN1 DISTRICT COURT - TEL AVIV March 3, 1993 Number: Personal Status 5382/92 Before: Hon. Justice Chaim Porat P.S.5382/92 In re: Hague Convention (Return of Abducted Children) Law, 5751-1991 In re: The minor (m.) Daniel Issak, born November 11, 1981. The minor (f.) Shira Issak, born August 2, 1986 The Applicant: Avraham Issak versus The Respondent: Penina (Athami) Issak Pleaded by: Edwin Freedman, Esq. - for the Applicant Ze'ev Velner, Esq. - for the Respondent JUDGMENT The proceeding 1. The proceeding is an application by a father dated November 4, 1992, pursuant to the Hague Convention (Return of Abducted Children) Law, 5751 - 1991 (hereafter: "Hague Convention Law") to restore to his keeping, in New York, U.S.A., his two minor children, whose particulars are set forth in the recitals to this judgment and who, so the applicant alleges, were abducted from New York on October 4, 1992 by the Respondent, being his divorced wife and the mother of the children, and removed by her to Israel. 2. The Respondent raised a series of defence pleas, able to be advanced under the terms of The Convention on the the Civil Aspects of the International Child Abduction, signed on October 25, 1980 (hereafter: "The Convention" or "The Hague Convention") the salient parts whereof are set forth in the Schedule to the Hague Convention Law, and these be as follows: A. "The minor's habitual residence" in the meaning of Sections 3(a) and 4 of The Convention, in respect of the two children, is not New York, but Israel, or also Israel and accordingly, no abduction was committed in the transfer of the children to Israel. B. The Applicant has no "rights of custody" pursuant to Section 5(a) and Section 3 of The Convention. C. The Applicant agreed, or was reconciled post factum, to the children's being transferred to Israel and to their not being returned to the United States in the meaning of Section 13(a) of The Convention. D. There exists a grave risk that the return of the children would expose the children to physical or mental harm in the meaning of Section 13(b) of The Convention. E. The children are opposed to being returned to New York and their opposition should be taken into consideration in the meaning of Section 13(b), second paragraph, of The Convention. 3. The Respondent's attorney gave a very lengthy summing-up (which is one of the reasons for the delay in rendering judgment), but he and his client took various events vastly out of context, referring us to a plethora of sources, the majority of which are irrelevant; and I shall accordingly narrow the scope of these sources and relate primarily to my judgment in the affair of Foxman v. Foxman, Personal Status File 2598/92, dated October 28, 1992, which was upheld at the appeal stage in Civil Appeal 5271/91 dated November 19, 1992 - a verdict with which the attorneys of both Parties are familiar, and which reviews a ruling in respect of the principal pleadings in this case. I would moreover comment at the outset that a not inconsiderable portion of the defence pleadings as against the Applicant are not pertinent to the present proceedings but rather to the review of the issue of the custody of the two children, which is due to take place before the competent court (and on our matter in the United States in view of the outcome of the present hearing) since in a hearing in accordance with the Hague convention Law, the questions at issue are only those of the abduction and the return of the abducted children and not the question of which parent is to be preferred as custodian (as ruled in the Foxman v. Foxman case and previous to that in the Tourna v. Meshulam case in S.A. 1648/92 dated April 29, 1992). WMH FN2 4. I shall moreover hasten to remark at the outset on the scant reliability of the Respondent's testimony and her affidavits, and that a not inconsiderable part of her arguments are untrue while another part consists of the detailing of facts raised by taking completely out of context various events that arose and inflating them to misleading and untrue proportions whilst evading certain pointed issues. I shall elaborate on this below. 5. The method of the deliberation will be a detailing of the facts that are to serve as a background for the deliberation in defences I - III and thereafter I shall pass to defences IV and V separately. General factual background 6. The Applicant was born in Tiberias on August 20, 1953, and the Respondent was born in Petah Tiqva on November 23, 1957. The couple were married to one another in Petah-Tiqva on October 24, 1980, and both are Israeli citizens. The spouses' families are likewise in Israel, including parents. In June 1981, the Applicant and the Respondent moved to the United States and settled in New York where their two children were born - Daniel on November 11, 1981 and Shira on August 2, 1986. Over the years, the Respondent acquired American citizenship and is also the holder of a U.S. passport. The two children are American nationals from birth, and both hold only U.S. passports, and have not been issued Israeli passports even though their parents are also Israeli citizens. The Applicant qualified as an architect in the United States and opened an architectural firm in New York. The Respondent worked in the real estate business in the United States. The marriage did not succeed and on March 9, 1989, the Applicant and the Respondent underwent a religious divorce at the "Beit Din D'America" rabbinical court in New York. 7. On June 28, 1989, the Applicant and the Respondent signed an agreement the negotiations for the conclusion of which commenced prior to the divorce, but which was executed only after the divorce. This agreement contains various conditions of the divorce including maintenance arrangements, custody and visitation arrangements. It is important to note for our purpose the provisions of section 7 relating to custody and visitation arrangements, section 23 relating to the prohibition against removal of the minors from the area of Queens, New York, to beyond a distance of 100 miles and also the provisions of Sections 16, 17, 18, 19 and 20 which consider the unique force of those sections of the agreement that are not modifiable except by written consent and which prevail over every other provision and are to be included in any future judgment sought by either party. Section 7 provides for joint custody of the children by both parents, residence being with the mother, but joint control, supervision and concern to be exercised by both parents [Section 7 (A)]. It was agreed that uninterrupted contact would be maintained between the parents and the children [Section 7 (3)], with visits to the father twice weekly in the evenings and every Sunday from 09:00 a.m. to Monday 09:00 a.m. Agreement was also reached as to the sharing of vacations, holidays, birthdays and other events needing to be prearranged, and right of daily telephone conversations with the children was reserved to the father [all of which in Section 7(1)]. As will be detailed below, close and continuous contact was in fact maintained between the father and the children and the father fully utilized his rights in connection with the children and his participation in their upbringing. Under Section 23 of the Agreement, the Respondent is prohibited from removing the children to beyond a distance of 100 miles from their abode at that time, in the district of Queens, New York, without the applicant's written consent. The wording of this section was agreed, as set forth therein, in order to ensure the father's frequent visits with the children. 8. Throughout their lives, the children attended American educational institutions, actively maintained contact with their father, stayed with him frequently, went on excursions and spent time with him, often visited his office and close ties were thus maintained between the children and the father. In the father's apartment there was a special room for the children with beds, toys and other suitable equipment. On account of the children, a fairly continuous and close connection was maintained also between the parents, in spite of the divorce. The meetings between the father and the children were far more frequent than provided by the agreement, and certainly so in the last months prior to the children's abduction, in which connection testimony was given as to the arrangements during school and the division of roles and times, since the Respondent worked long hours and could not make time for the children. 9. As a consequence of the divorce, the parents came to live separately, even though both continued to live in New York city at no very great distance from one another. In recent years, the Respondent had expressed the wish to return to Israel. The Applicant did not reject the idea but stated that the time (for such return) had not yet arrived and he did not consent to the children's being uprooted (and returned) to Israel without him. Never was a return date agreed upon (and I definitely so determine contrary to the Respondent's claims). At a certain stage, the Respondent sought to return to Israel in 1992, but the Applicant refused as he had refused in the past, and likewise refused to set any particular date in the future for such return. There were differences of opinion between the parents as to which school, public or private, the boy should attend in 1992 - 93; and this led to the child's registration for school (rather than the Respondent's plans to return with the children to Israel, as alleged by her) being delayed. In September 1992 the child was registered for the Jewish Solomon Schechter school and the Applicant actually gave post dated checks for the payment of his tuition for the school year. The Respondent construes this to mean a consent to the postponement of the return to Israel to the end of 1993, but consent was never given even for that time. The Respondent was apparently reconciled to remaining in the United States at least until the summer of 1993, but these thoughts were hers only. The Applicant did not express consent to a removal to Israel even in 1993. In practice, the child managed to attend school only 13 days until being abducted to Israel by his mother. 10. To the Respondent's complaints that it was difficult for her to raise the children and that the cost of child minders was very high, a solution was found: the applicant's sister, Mrs. Yehudith Perel, a teacher by profession, who was on a sabbatical, agreed to come to New York for a year to help the Respondent with the children, while taking the opportunity to further her own studies and advanced training. And so it was, and in mid-July 1992, the sister arrived in New York with her two daughters and took up residence with the Applicant. The two children in question likewise moved into the Applicant's apartment with the Applicant and his sister for over two months during the summer vacation. According to the Respondent, the sister came to the United States to help her arrange for the return to Israel. But this is idle talk, there was no such notion, nor would there have been any point or sense in such a notion, a return to Israel not necessitating anything like a whole year of pre-arrangement as witness the fact that once she had resolved on the abduction and on flying to Israel with the children, the Respondent did it all in one week, with no help from the sister. The sister came to the United States to stay for one year, and to help her sister-in-law - namely the Respondent - with the children's upbringing, as she did, and also to study. Once the Respondent and the children left the United States, and due to their leaving, the sister too returned to Israel, since otherwise she would have remained in the United States. This sister has sworn by affidavit and has testified verbally and her testimony was most credible. 11. Toward the end of September, beginning of October 1992, the Applicant planned a 10-day trip to Mexico (September 29, 1992 - October 9, 1992), for his sister and her daughters and for his own children, the Respondent also being included. Tickets were purchased and all preparations were made, but at the last minute, some differences of opinion arose between the sister and the Respondent, giving rise to a verbal quarrel between the Applicant and the Respondent; and the Respondent announced she would not join in the trip and neither would the children. The children wanted to take part in the trip, although the little girl also wanted the Respondent to participate and the latter, as stated, canceled the plan. All the Applicant's efforts to change the Respondent's mind and secure her consent for the children's inclusion came to nought. On the eve of the trip, the Applicant sought at least to take leave of the little girl. On enquiring, he found that the Respondent and the children were at the home of a friend of the Respondent's, a Ms. Hannah Klatzkin. Arriving at her home, he asked to be given the little girl for a short while but the Respondent refused. The Applicant took the child in his arms and, leaving with her, sought to put her in his car which was parked in the street. The Respondent chased after him, put her foot inside the car to prevent the door from being closed, the Parties pushed one another and the Respondent fell. This event was blown up by the Respondent to exaggerated proportions in order to describe the Applicant's maliciousness, cruelty and violence. But in fact, the Respondent was an important factor in inflaming the passions and in the very occurrence of the event, since there was no cause to chase after the Applicant, who was not about to do the child any harm and who was certainly not to be suspected of intending to abduct the child and so forth. The Respondent called the police but, as stated, had neither cause nor justification for doing so. Ultimately, the Applicant, his sister and her daughters made the trip to Mexico without either the Respondent or the children. The Applicant tried to call the children from Mexico, but could get no answer, until he was told that the Respondent had left for Israel with the children. Cutting short the excursion, he returned to New York, found that his apartment had been burgled and various documents stolen. The Applicant went into shock, fainted and had to be admitted to the hospital for oxygen treatment. He went to the police in the matter of the burglary and the abduction. He also applied to the competent authority in the United States pursuant to the U.S. law corresponding to the Hague Convention Law, seeking aid for the return of the children to the United States. WMH FN3 The Respondent accordingly took advantage of the Applicant's absence from New York, planned the abduction within one week and put it into execution, the Applicant knowing nothing about it and being on vacation in Mexico as aforesaid. According to the Respondent, all her friends knew of her plan to return to Israel and took leave of her. If this were the case, then these plans were concealed from the Applicant. For my own part, I am not prepared to confirm that such farewell parties in fact took place. Nor is the holding of such parties consistent with the child's being registered for school in September 1992 for a whole year. The Respondent alone formed the intention of returning to Israel such that the leave-taking, if any, took place shortly before the trip. But (the trip) was to have taken place without the children, with the intention of returning to New York on conclusion of the visit to Israel. Moreover, the sale of furniture by the Respondent was for the purpose of moving from one apartment in New York to another furnished apartment. 12. On recovering, the Applicant applied to Supreme Court in Queens, New York, and on November 6, 1992, the Court awarded him provisional custody of the two children, and asked the Court in Israel to assist in the immediate return of the children to the United States. WMH FN4 The Court also ordered the Respondent to come forward and report for a hearing with the children on November 16, 1992 and to show cause why the Court should not take a series of decisions including: award of custody to the Applicant; award of an order compelling the Respondent to return the children to New York from Israel; a request that the Israeli courts provide all possible assistance for the immediate return of the children to New York and additional reliefs under American law. The American court also determined that New York is the children's ordinary residence in the meaning of Sections 3 and 14-15 of the Hague Convention and that abduction had apparently been committed in accordance with The Convention. Juridical conclusions in re Defences I - III 13. The children's ordinary place of residence was New York and nowhere else. Adv. Velner alleged in his summing-up that a person may have more than one residence. Possibly this may be so in exceptional cases, for example in the case of a person having no family, who has business all over the world, who travels from one country to another and maintains residences in various places, dividing his time and his life between them. The case before us in no way resembles the aforesaid possibility. Israel cannot possibly be regarded as an "habitual residence" of the children in view of the facts outlined above. "Habitual residence" is to be construed in practical terms as the place of physical presence over a certain period of time, it is a purely factual term, not carrying the legal connotation of "domicile". (See article by: Lynn Acker Starr "Recent Developments, U.S. Implementation of the Hague Convention on The Civil Aspects of International Child Abduction" 24 Stanford Journal of International Law (1987) 289, footnote 4, citing the commentatory report of Prof. Perez-Vera on Page 445 Para. 66). WMH FN5 The family had located itself in New York since June, 1981 without interruption. Visits to Israel, or the expression of a desire to return, or even discussion on the possibility of returning in the future without setting any date of return, merely confirm the finding that the permanent residence was New York, and I shall not reiterate all the facts outlined in the previous section. As far as the children are concerned, there can be no discussion, even on a verbal level, in terms of "returning to Israel" since they were born in the United States and had never lived in Israel. The decision of the American Supreme Court in Queens New York on November 6, 1992, constitutes confirmation in accordance with Section 15 of the Hague Convention of New York as being the children's habitual residence in the meaning of Sections 3 and 4 of the Hague Convention Law, as expressly stated in that decision (and see Sections 14 and 15 of the Hague Convention and the application thereof in the judgment of the Supreme Court in the Foxman v. Foxman affair, Paragraph 3(E) of the Judgment). 14. The father's possessing custodial rights is also unambiguous in view of the foregoing facts and the sources of reference detailed in the Foxman and Tourna affairs. Custody was joint, control, supervision and concern were joint, the mother was prohibited from removing the children to beyond 100 miles from Queens without the father's consent - which suffices to establish unambiguously that the father had custodial rights that were harmed by the abduction. Appropriate opinions on the legal situation in New York have confirmed that the agreement between the parents is valid under American law and not in contravention thereof, and moreover, without the agreement, custody of the children is held jointly by both parents. Such an agreement is held valid and binding even in accordance with the commentatory report on the Hague Convention by Prof. Perez-Vera, Para. 70. On this head too the decision of the Supreme Court in Queens New York dated November 6, 1992, constitutes proof of the Applicant's possessing custodial rights. The American Court expressly relates to the Applicant's possessing custodial rights both in accordance with the Agreement dated June 28, 1989 and in under Common Law in the State of New York. The Israeli court is competent and entitled to relate to this decision in respect of the legal situation in New York in all matters pertaining to issues under The Hague Convention Section 14 of The Hague Convention and the application thereof in the judgment of the Supreme Court in the case of Foxman, Paragraph 3(E)]. The terms of Section 3 of The Hague Convention are thus fulfilled in entirity. 15. Consent to or being reconciled with the abduction - this allegation is unfounded. The Respondent's allegations in this matter are untrue. The Applicant never consented, either before or after the abduction, to the children's removal from New York. Moreover, on learning of it, he cut short his vacation, returned to New York and suffered shock and had to be hospitalized. He took every possible measure for the children's return to New York as outlined above, and did so with all speed. As stated, the Respondent may have decided to return to Israel at one time or another and may have shared her secret with some of her friends, but no consent was given by the Applicant for the children's removal from New York. The Respondent knew this, knew that the Applicant was opposed to the childrens' being taken away and distanced from him and knew that he himself was still not prepared to return to Israel. The children were removed from New York by the mother's taking advantage of the Applicant's absence from the city as being on an excursion to Mexico. The defence pursuant to Section 13(a) of the Hague Convention thus cannot prevail. 16. To sum up we may state that in this instance, an abduction in the full sense of the word was committed by the Respondent, both according to the Hague Convention Law and according to the legal position even without that law. The Respondent's attorney views this case as a difficult case, without parallel in case law. I wonder at this claim: the case is perfectly simple and banal and raises no doubts. 17. I shall now pass to the two additional defences, detailing the facts and drawing the conclusions warranted, while the case law in this matter is concentrated in the Foxman affair. The risk inherent in returning the children to New York - Defence (IV) 18. The Respondent has argued, sworn and testified to the risk to the children involved in returning them to their father in New York, inasmuch as he is violent, a heavy drinker, a drug-user and incapable of raising the children. I have already established that the Respondent's testimony is not reliable and her various witnesses have not succeeded in improving that impression, or modifying any of my findings in this judgment. Some of them in fact did nothing to verify her allegations, or else their testimony is not necessarily at odds with my conclusions in this judgment. I absolutely prefer the testimony of the Applicant, his sister and the witness Janet Friedman, who present a completely different version - in the best case able to be made for the Respondent, one might gain the impression that in one instance the Applicant kicked the boy and in another struck the girl after she had thumped the boy. Both instances occurred several years ago. These were isolated and extraordinary instances, being by way of the exceptions that prove the (different) rule. The evidence is that the Applicant was devoted to the children, spent a great deal of time with them, they loved him and his proximity, were not afraid of him and spent plenty of time at his home and with him, even visiting his office. Violence, insafar as it occurred, took place on the spousal level between the couple and here the Respondent is no more innocent than the Applicant. Quarrels (primarily verbal) there certainly were between the couple (they did after all divorce, inter alia evidently as a result of the quarrels becoming more frequent). The Respondent has presented a document where an order was issued resembling a protection order in Israel, pursuant to the Prevention of Violence in the Family Law, 5751-1991, but such an order, according to Attorney Freedman (who engaged in the practise of law in New york) is very easily obtained, and in fact, an identical order was issued in 1989, this time against the Respondent (!) and in both orders, the only decision was to order both spouses not to attack, not to harrass or to endanger and so forth. No order was given in accordance with other available options such as to refrain from excessive drinking, from entering the apartment and so forth. The wife herself is a dominant, vigorous, lively person who does not balk at violence. The matter of the drinking has also been taken out of all proportion. The Applicant did not deny that from time to time he would take a glass in company, in accordance with local custom. It was proved that in his home there was no bar of alcoholic beverages such that the accusation of his being addicted to drink is untrue. The situation as regards gambling is similar - the Applicant does not bet and does not engage in gambling except in isolated instances in which, together with his wife and friends of the couple and even with the wife's father, he visited the town of Atlantic City, where gambling is legal, a sort of profitable amusement. These were isolated visits in family-social circumstances that have been inflated by the Respondent out of all proportion. As in the matter of the drinking and the gamabling, so also with the drug usage. The Applicant did not deny that on odd occasions he smoked marihuana but this is not customary with him and these were isolated instances in the distant past. WMH FN6 I determine unhesitatingly that the Applicant is not dangerous to his children and there is no fear or even any shadow of a fear as to putting the children at risk if they are under his care. With the father, the children will be at no greater risk than in being with the mother. Nor did the welfare workers regard the father as a violent father and so forth, constituting a danger to his children (although their conclusion that the children should best be left in Israel is erroneous, as ignoring the situation dictated by the Hague Convention Law, and their thinking is on the level of determining custody in a custody dispute between the parents, which is a different procedure). 19. It was alleged that the Applicant will simply be unable to take care of the children if they are transferred to his keeping, since he is preoccupied with his work and burdened with debts. But this question belongs to the province of the issue of who merits to be assigned custody in the frame of the hearings in the United States, on the issue of which parent will be the children's custodian, and the relevant sources have been specified inter alia in the Foxman affair. A parent's being a worker who lives by his own toil does not disqualify him from being a custodian. In fact the Respondent also works and resorts to the assistance of her family in Israel in taking care of the children, just as in New York she worked and employed childminders. The Applicant too will undoubtedly find a solution for the children's supervision when they are not occupied at educational institutions, as does every single parent family. WMH FN7 The Applicant has not been proven irresponsible, on the contrary, one was impressed with his sincere concern and love for the children, and there is no reason to assume and certainly no grounds for establishing that the children will be in danger if returned to him. 20. The burden of the proof required to show grounds for the defence pursuant to Section 13(b) of the Hague Convention (Risk to Children) is heavy, as based in sources and confirmed in the appeal in the Foxman affair. WMH FN8 In the present case, no doubt has arisen as to possible risk, even to a far slighter extent than the burden of proof required by the Law. The damage to the children is due to the mother's having abducted them, and their return to the father will obviously do nothing to reduce the damage caused to them by the mother, and adds to the trauma. The children will now have to be separated from the mother after having become attached to her following the abduction. But that is harm which is present in every abduction and is not such as to warrant a refusal to return abducted children (these aspects tgo were discussed and established in the judgment in the Foxman affair). WMH FN9 The children's objections to be returned to the United States - Defence (V) 21. In almost every case of abduction a kind of alliance and self identification come about between the abductee and the abductor and these matters were explained and accepted in the Foxman affair. Thus it is hardly surprising that the boy has said that he wishes to remain with his mother (the girl is too young for her opinion to carry any weight whatsoever). WMH FN10 As against the children's opposition in the Foxman affair, opposition in this instance is virtually nonexistent. The welfare worker has reported in her report and testified in her evidence as to the children's behaviour with their father. It was clearly evident that they had been incited by the mother. The father declared (and I believe him) that their reluctant attitude is surprising, it has existed only in recent weeks, following the abduction, and did not exist in previous years or until recently. Sure enough, once the ice was broken, the mother distanced from the children and her influence neutralized, the children behaved differently, and had no objection to spending time with the father and did in fact spend several hours with him outside the Welfare Office. WMH FN11 This case in no way resembles the Lukach affair to which Adv. Welner referred (and which was also heard by me). In the Lukach affair, the child would not remain in the room with the mother for even one moment, he threatened to jump out of the window, he threw objects at his mother, cursed and reviled her and fled from the room and altogether from the environs so that he could not be found, he refused even to talk with the mother. There is not the slightest similarity between this case and the Lukach case, and if compared to the Foxman affair, this case is far "lighter". The girls' opposition in the Foxman affair was much stronger and even so did not prevail and the girls did in fact return with their father to Canada. In the case before us, the objection is neither genuine nor authentic it is the result of the Respondent's temporary incitement and influence, and does not merit belng treated as though it warranted not returning the children to the father. This defence too is accordingly rejected. DECREE 22. Following the hearing in this case, my decision is as follows: A. I order the Respondent to return the two children to New York to the father's residence within 10 days. B. If the Respondent fails so to proceed, the father may, on his own or through his sister, Yehudit Perel, take the children into his keeping and return them tg New York as also ordered by the Court in Queens, New York, and the Respondent must give the Applicant or his assign the children's passports within those same ten days. C. The welfare workers, Hannah Cohen and Ada Dagan of Nathanya, must assist in transferring the children to the Applicant as soon as possible and not later than within ten days. As soon as the Applicant arrives in Israel, the children must be delivered to him and the Respondent shall be obliged forthwith to surrender the children's passports to him even if 10 days have not yet elapsed. D. The Respondent will pay the Applicant's court costs including the expenses of his various air flights to Israel, since the filing of the action subject of the hearing, and also the children's air-fare back to New York, including the air-fare of the accompanying adult, if other than the Applicant, and all in accordance with confirmations issued by the travel agency or the airline including fees and levies and also the expenses of the Applicant's stay in Israel in the course of the hearings, in the amount of NIS 2,500 WMH FN12 . The Respondent will also pay the Applicant's lawyer's fees in the amount of NIS 30,000 WMH FN13 plus Value Added Tax, all together with maximum interest and index linkage differences to date of actual payment. E. The stay of exit order against the children will be rescinded at the Applicant's request whenever he shall so request. F. Copies of this judgment will be sent to the central authority in Israel (at the office of the Legal Adviser to the Government, Ministry of Justice, Jerusalem) to the Chief Welfare Officer, Ms. Yael H'armel at the Ministry of Labour and Welfare, at 10 Yad Harutzim Street, Jerusalem, and also to the welfare workers in Nathanya, in order to assist in the children's return to New York in accordance with this judgment. Given and advised this 3rd day of March, 1993, in the presence of Attorney Freedman, Applicant's attorney, Attorney Velner, Respondent's attorney. ____________________ Justice Chaim Porat Typist: Miri Nurlian Stamped and signed: District Court, Tel-Aviv - Jaffa Examined by Sima Ezra And found true to the original ________________________ Examiner's slgnature COMMENT ADDED BY WILLIAM M. HILTON ON ATTORNEY'S FEES AND COSTS This order requires that certain fees and costs be paid to the Applicant by the Respondent. Upon enquiry to Ediwn Freedman, Advocat for the Applicant, the following was received on 30 Mar 1993: This is to confirm that I was the attorney who represented the Applicant in the above matter. The following explanation of the decision is made in response to your query. The court's award of expenses was made in Israeli currency, New Israeli Shekels (NIS). The rate of exchange at the time of the judgment was $1. = 2.79 NIS. The costs awarded were calculated as follows. 1. Applicant's airfare for appearance at hearing in Israel plus return airfare for the two children and an accompanying adult (Applicant's sister). As later documented, the above costs totalled 7,313.53 NIS. 2. The Applicant was also awarded 2,500. NIS to defray his expenses for the three weeks which he spent in Israel. 3. Legal fees were awarded in the amount of 30,000. NIS plus 17% V.A.T. The total sum awarded was 44,913.53 NIS, the dollar equivalent of $16,098. The expenses awarded are in keeping with previous judgments of Judge Porat in Hague Treaty cases. -------------------- 1. This decision was furnished by Edwin Freedman, Givatayim, Israel and New York, New York, USA. 2. A summary of this case is available on Hilton House BBS as TOURNAI.ISR. 3. 42 U.S.C. 11601 et seq., the International Child Abduction Remedies Act (ICARA). The full text of ICARA is available on Hilton House BBS as 42USC.ASC. 4. For a sample pleading on this type of request, see ASSISTH.HAG on Hilton House BBS. 5. See also the cases annotating 9 Uniform Laws Annotated Section 2(5) and Section 3(a)(1). The Prez-Vera report is available on Hilton House BBS as PEREZ.RPT. 6. Assuming that the Applicant did drink, gamble, use marijuana, etc, there is still a requirement that there be causal connection between the activities of a parent and harm to a child. The mere acts on the part of the adult are not sufficient. See, e.g., In re Marriage of Wellman (Cal.App. 1 Dist. 1980) 104 Cal.App.3d 992. 7. This issue was discussed at length in the decision of the California Supreme court in Burchard v Garay (Cal. 1986) 42 Cal.3d 531 [724 P.2d 486; 229 Cal. Rptr. 800], stating the following: "The court also referred to the fact that Ana worked and had to place the child in day care, while William's new wife could care for the child in their home. But in an era when over 50 percent of mothers and almost 80 percent of divorced mothers work, the courts must not presume that a working mother is a less satisfactory parent or less fully committed to the care of her child. A custody determination must be based upon a true assessment of the emotional bonds between parent and child, upon an inquiry into "the heart of the parent-child relationship . . . the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond." (In re Marriage of Carney, supra, 24 Cal.3d 725, 739.) It must reflect also a factual determination of how best to provide continuity of attention, nurturing, and care. It cannot be based on an assumption, unsupported by scientific evidence, that a working mother cannot provide such care--an assumption particularly unfair when, as here, the mother has in fact been the primary caregiver." 8. See 42 U.S.C. 11603(e)(2)(A) where this must be proven by clear and convincing evidence. 9. This analysis follows the general intent of The Convention, which is to discourage child abduction. By causing the return of the children to their Habitual Residence, even where there is a potential for "trauma" to the children, the court discourages child abudction by not rewarding the abducting parent. In other reported cases the court of the Responding country has failed to return the children for this very reason: The separation from the abducting parent would cause trauma to the children. This, of course, is contra to the expressed intent of The Convention. 10. The boy was 11 years, 3 months; the girl was 6 years, 7 months. 11. In the Los Angeles, California case of Lockley, the older two of four children initially expressed a desire to remain in California with the abducting mother and the mother's sister. After the children had been with the Applicant father for about a week to ten days, these requests dissapeared except for a voiced desire of one of the other children to stay in California, presumably because of friends with electronic games. This case is available on Hilton House BBS as LOCKLEY.CA 12. This is U.S. $920.00 as of 27 Mar 1993. 13. This is U.S. $11,040.00 as of 27 Mar 1993.