Many Israelis living abroad keep the flame of yearning to return burning, while others are perfectly happy with their lives abroad. Visiting the old country can stir up those yearnings for some, and leave others as cool and detached as before. When two such persons are married to one another, a home visit can end up in tragedy.
An Israeli couple got married in 2009 and a year later moved abroad, where the husband works in teaching and the wife is a military attaché. In 2012 they had a baby girl, and at the end of last year the happy family came on a two-week vacation to Israel. On their last day in the home country, at Ben-Gurion airport, the wife informed her husband that she decided to stay, with their 3-year-old child. They had one of those horrible airport fights, at the end of which the husband boarded the plane and the mother and child stayed back, Psak Din reported this week.
The mother then turned to family court in Tel-Aviv requesting full custody, and the court granted her temporary custody. Later on she filed suit against her husband for dissolution of marriage and alimony. At the same time, the father submitted to family court in Hadera a claim for the return of his daughter to the place of her permanent residence, based on the Hague Convention on the Civil Aspects of International Child Abduction, the return of abducted children.
After several court hearings and attempts to find a common ground between the two feuding parents, Hadera Family Court Judge Tal Peperani rejected the father’s claim in a cumbersome manner: he agreed that an abduction had taken place, but cited Article 13 of the Convention, according to which if the parent was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention, then the court is not bound to order the return of the child.
Judge Peperani decided that the father had acquiesced to his daughter’s kidnapping based on emails and SMSs the parents exchanged during their compromise negotiations. In one such SMS, the father wrote: “I’m also learning to let go. I also want to sleep quietly knowing she is in good hands with you.”
Needless to say, the father was irate at the ruling and appealed to District Court in Haifa, arguing that he had not acquiesced to the kidnapping, but rather continued to act immediately and consistently to change the situation. He argued, among other things, that his communication with his wife was part of the negotiations process and should not have been made available to the court. He also claimed that the family court judge did not permit him to question his wife regarding the context of those SMS messages, or to present other, conflicting SMSs.
Presiding Judge Sari Jayyoussi rejected the father’s claim against the family court’s gaining access to his SMS messages, but agreed that in order to decide that father had, essentially, accepted the kidnapping of his daughter, the judge should have afforded the father the opportunity to be heard. Judge Jayyoussi then returned the case to family court, to give the father ample opportunity to reject the claim that he had acquiesced to losing custody of his daughter. He also instructed the family court judge to review the full body of interchanged messages between the parents before making his ruling.JNi.Media