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    Be’er Sheba Family Court Denied Petition of Divorced Mother to Emigrate from Israel with Her Son

    Following a divorce, the former husband and wife try to get their lives back on the right and “healthy” track, pick up the broken pieces and erase the past. They put a lot of effort in this process: move to a new apartment, move to another town, quit an annoying job, reconnect with old friends, and find a new love – i.e. open a new page. But when breaking up a family involves minor children, things get complicated. The children get stuck between their parents who have become strangers, and their existence often presents a great challenge to the independence of the divorced parents.

    There is life after divorce, and it’s full of surprises. The divorced can meet new people and begin to build new relationships. But what happens if the new partner is a foreign citizen, and taking the relationship to the next level requires moving abroad, and with children?

    In such circumstances, the law requires the divorced person who wishes to emigrate from Israel with children to obtain a proper authorization from a family court. This step is necessary due to the far-reaching consequences of such event for the minor children and the other parent who stays in Israel.

    The decision making process in these emigration petitions is not easy for the judges. On the one hand, it’s hard to ignore the needs of the petitioner. Some of them were not born in Israel, and had moved here as a result of the marriage that ultimately failed. After the divorce, they lose all ties to Israel. Other than their Israeli-born children, they don’t have a genuine connection to Israel, and their yearn to return home is understandable. Other cases involve Israeli-born persons who meet foreign-born partners and wish to build a new family. They, too, have hopes, aspirations and rights to rebuild their lives abroad. There are other reasons leading to filing an emigration petition, such as a promising job opportunity abroad.

    On the other hand, there are a slew of problems and challenges for children who face leaving their natural environment in Israel, for their relationship with the parent staying in Israel, for the rights of that parent whose former spouse wishes to take the children away. Despite the obvious challenges, the courts must decide these emigration petitions. For the court, the guiding principle in such cases is the child’s best interest that prevails over any other consideration. But what exactly is it?

    Child’s Best Interest

    The law does not set particularly strict criteria for interpretation of this term. Its meaning is redefined every time based on specific circumstances of each case. In other words, the court does not have a structured formula to assess the child’s best interest, and each judge makes this assessment at his or her own discretion.

    One may wonder if such freedom of interpretation in assessing the child’s best interest is justified. After all, the courts have no trouble setting strict rules and criteria, when they wish to. For example, when defining visitation arrangements, the courts have held for years that the child’s best interest is to maintain a genuine and continuous relationship with both divorced parents.

    The main principles that guide the judges in deciding emigration petitions are as follows:

    • Quality of relationship between the minor children and each of the divorced parents;
    • Child’s ability to overcome the effects of leaving the known environment and to adapt to the new country, language, culture etc.
    • Possibility for keeping in touch with the parent staying in Israel (arranging frequent trips to Israel, allowing the staying parent to visit children abroad, and ensuring continuous communication through technology etc.)
    • Child’s opinion (depending on age) regarding the decision of the parent to leave Israel and move to another country.

     Examples of Emigration Authorizations

    In many cases, the courts accepted emigration petitions and allowed the petitioners to leave Israel along with their children. In one particular case, the court allowed a German citizen to return to her country with her son following her divorce from an Israeli-born husband and child’s father. The court has decided that the petitioner had lost all ties to Israel and that she should be granted the right to return home. In its decision, the court has stated that if the petition were denied, the petitioner would have literally become a prisoner in our country.

    In another case, a US citizen asked to return home with her two sons following her divorce from their Israeli father. The court accepted her petition but allowed leaving the country on certain conditions: the children must attend a Jewish school, be allowed to continuously communicate with their father by phone and frequently visit Israel at their mother’s expense, and more. The mother was ordered to leave a security deposit as a collateral for her obligations.

    First Signs of Trend Change

    However, not every petition results in the court allowing emigration of minor children and their separation from the other parent. Recently, a Be’er Sheba family court judge denied an emigration petition by stating that the child’s best interest would be to stay with his father in Israel even at the cost of separation from his mother who wished to emigrate.

    The petitioner, an Israeli citizen who remarried to a foreign citizen, wanted to permanently move with her son to her new husband’s country. But her petition was denied. The judge Geula Levin based her decision on the opinion of the clinical and educational psychologist who was impressed with the divorced parents’ abilities and involvement in raising their son and concluded that the child would be less distressed and traumatized if he stayed with his father in Israel.

    Interestingly enough, in many cases the courts had demonstrated a deep awareness that children were likely to experience an emotional distressafter abandoning the known environment, and yet, they chose to let them emigrate with their mothers even at the cost of separation from their fathers. Maybe the explanation of this decision by Geula Levin lies in the fact that the father was deeply involved in his son’s life and at no point was ready to give up on it.

    The future will tell if this court ruling will start a new trend in emigration cases by assigning a bigger weight to father’s rights to participate in their children’s lives. It seems that recently, a positive changeis happening in court rulings pertaining to father’s rights in visitation arrangements.

    By attorneys Itzhak Eitan (Fernaldes) and Arthur Blaer