The pandemic has made cross-continent custody battles even more difficult
When parents separate and divorce, it is extremely unsettling, stressful and destabilizing for their children. Fortunately there are many professionals with the experience and wisdom to guide families through this trying time.
And when the conflict involves parental kidnapping between countries, there is an international legal system that steps in and does everything possible to protect the child’s emotional and physical safety.
The Hague Convention began as a conference in the city of The Hague, in The Netherlands in 1893. After World War II it was formally established as an international organization with the goal of developing the legal tools to respond to common global needs.
The Hague Convention for Child Abduction was established in 1980. This is the treaty that handles cases for children under 16 who have either been removed unlawfully by a parent or family member from their primary country of residence, or prevented from returning to their home country.
The goal of the participating countries is to protect the safety of the child. And in the case where parents have divorced, the treaty is also there to preserve the custody arrangements whether they were agreed to through mediation or decided by a court. Currently 87 counties belong to this treaty. The United States joined in 2016 and Israel in 1991.
American Jews have a very close connection to Israel. We study there after high school and bring our kids for Bar and Bat Mitzvah trips and visits with family. Or we pack up our spouses and children for a sabbatical year to work, learn and connect to our heritage. Israelis come to the U.S. to do postgraduate studies or gain work experience in their fields. And many wind up staying in the U.S.
So many of us feel as if we have two home countries, particularly because of the ease of travel between Israel and the U.S. That is, until 2020. Hopping on a plane has become a constant challenge and is often impossible. But for families embroiled in transcontinental divorce and international child abductions by a parent, both the travel restrictions and fear of getting ill have made cross-continent custody battles even more difficult.
Article 13(1)(b) of The Hague Convention includes a category called “Grave Risk of Harm.” It helps identify the threat to a child’s physical or emotional safety and is used to determine when the child is in danger. It’s the responsibility of the attorneys to bring to light all the risks to the child and present them to the courts.
The danger of COVID-19 infection, airport closures and forced quarantine are some of the new factors we have to consider. Will a child be able to return to school? Has the custodial parent suffered a job loss? Is there a greater risk of exposure in the country they were taken from or the one to which they were taken? Where does the child have health coverage? Which of the two countries is better at managing the pandemic and getting vaccines out into the general population?
When COVID-19 first emerged in February 2020, I and my fellow attorneys handling these cases realized that the pandemic needed to be added to the safety risks being presented in Hague cases. And this was even before we understood the impact it would have on the world.
Family Case 52595-02-20 The Father vs. the Mother
These parents were married Israel nationals living in the U.S. when the mother took one of their children to Israel and didn’t return. The father filed an “application of return” in a Tel Aviv Family court in February 2020. The mother argued that COVID-19 was a danger to her child and reason enough for them to stay in Israel.
But the court ruled that COVID-19 did not amount to a grave risk of harm to the child. The judge concluded that the medical care for the child may be better in the USA because the family had medical coverage there.
Family Appeal 10701-04-20 R. v B.R.
This couple was involved in a start-up company and came to live in San Francisco in 2018 with work visas. Their child was born here and had American citizenship. When their daughter was 1 year old they bought a round trip ticket and went back to Israel to deal with work visa matters. The mother did not want to return to the U.S. and filed for dispute resolution including a request to prevent the father and the child from leaving Israel. The father counter-sued to bring the child back to the U.S. and won. But the mother appealed using the “grave risk” argument that COVID-19 presented to her child as one of her reasons for not going back to the United States.
The judge pointed out that the virus exists in both countries. And grave risk would mean not having access to treatment if the child should fall ill. Furthermore, the child had appropriate health insurance in the U.S. The ruling was that the coronavirus epidemic was not sufficient reason to prevent the child’s return to the U.S..
Things have really changed since last year though, when the threat of COVID-19 was not yet known. It has since developed into a full-blown pandemic with almost 570,000 deaths in the United States, close to 50,000 in California, and over 5,000 deaths in Israel, to date. Our lives have been completely disrupted: family members getting sick, people dying alone, everything closed, lost jobs, financial struggles, kids out of school entirely or in remote learning, and the list goes on.
We’ve had extremely restricted travel with the airport closure in Israel and severe prohibitions on entry into the U.S. Israel leads the world in the vaccine roll out while we here in the U.S., unfortunately lag way behind. But we still don’t know its effectiveness and may not for quite a while. So even being vaccinated may not be a 100 percent guarantee of safety.
The emotional trauma for a child abducted by a parent or loved one already weighs heavily on attorneys and judges. Add the threat the pandemic presents, and both representation by attorneys and decisions by judges become even more difficult. Now, it seems that sometimes the best place for the child’s mental health may be actually putting them in harm’s way physically.
If you travel back and forth between the United States and Israel or any other country, be aware that international custody laws may differ significantly from what you’re used to and that COVID-19 could figure prominently in any legal decisions that are made on a child’s behalf.
If you have already relocated or are planning to, here are some important steps you can take to prevent your family from becoming embroiled in an international abduction (Hague) case right in the middle of the pandemic.
• Whenever you move to a different country, you and your spouse should enter into a formal agreement detailing the terms under which you and the children will return to your home country.
• If possible, get this agreement affirmed as a judgment before you leave your home country and then again in your new country.
• DO NOT leave if it is not very clear as to what your (the parents) agreement is with regards to the child’s residence.
• Make sure you understand that once you are in the new country for over a year, it could be considered the child’s place of residence and therefore void your agreement.
Understand that children 16 and over are not protected by or covered under the Hague convention.
It’s not comfortable to talk about international divorce and child custody. But unfortunately, we all know someone who has had to face these kinds of challenges. And now that we are living with this pandemic as well, I believe the best way to make a difficult situation more manageable is to be as informed and prepared as possible.
JAY HAIT Is an American-born family law attorney living in Israel. He is committed to helping his clients navigate the archaic and confusing Israeli legal system first hand, with compassion and support. Jay handles Hague Abduction cases, international divorces and wills and estates. You can get more information and download numerous complimentary e-books by visiting www.jayhaitlaw.com. Contact him directly firstname.lastname@example.org U.S. 201-696-3947