When spouses divorce and the legal process is concluded – with a signed agreement and changed status from ‘married’ to ‘divorced’ – it would seem that the spouses’ connection has ended. But this is not the situation in many cases, mainly when children are involved in the divorce. Divorced couples with children will maintain their connection long after the divorce; one might say that their connection cannot be broken. One example of this reality consists of restrictions on emigrating to another county when the parent has children from a past spouse. In the following article we examine the legal aspects of immigration to another county involving children of divorced parents.
It’s a simple question: Can a divorced parent emigrate with his/her children to another country of his/her own accord? Does the parent require the consent of the other parent? The answer is also simple: No, unless there are certain stipulated conditions as we shall see.
The legal basis and the Hague Convention
In Israel there is no specific law that explicitly settles the question of emigration. The law that is referred to when dealing with questions of emigration is the Legal Capacity and Guardianship Law. Section 15 of the Law states that the issue of the child’s place of residence is to be decided by his parents-guardians. Section 25 states: “[When the parents are not in agreement concerning a decision relating to their children] the court is authorized [to rule] as it sees fit for the welfare of the minor. Children up to the age of 6 shall be with their mother if there are no special reasons for alternative parenthood.”
The Law implies that neither side can decide, on its own accord, on the child’s place of residence; that side must receive the consent of the other side. When the parents do not reach agreement and since both are the child’s guardian, even after the couple divorces, the child’s welfare is the guiding principle when deciding between the parents.
The Hague Convention is relevant in such cases. Like many other world countries, Israel is also a signatory to the Convention. The Hague Convention—also known as the Hague Child Abduction Convention—sets a number of basic guidelines:
- The question of child custody must be resolved in the child’s permanent place of residence.
- A child shall not be moved from one country to another without the consent of both parents.
- If the child is taken to another country unlawfully and against the will of one of the parents, a formal request for his return may be submitted—on condition that the country is a signatory to the Convention and thus obliged to return the child to the country from which he was taken.
The importance of the Convention lies in the fact that a parent who emigrates with a child to another country, against the will of the other parent, cannot evade the law; furthermore, the country to which the child was taken will oblige the parent to meet the law’s requirements.
In cases in which the divorced mother and father cannot reach agreement—for example the father refuses to agree to the mother emigrating with the child—the side that has been refused emigration can file a suit in Family Court. Such a suit requests that the court rule that he or she can take the child to another country despite the other side’s refusal. Filing the suit is not a simple matter and it is recommended consulting with a family attorney beforehand.
The first condition for filing an emigration suit is that the filer of the suit has received custody of the children, i.e., the custodial parent. The other parent responds to the suit and can present his/her arguments as to why the court should refuse the request. In the case of joint custody, a dispute over emigration can bring about the termination of agreement over joint custody—in such a case, the court needs to decide on the question of custody together with deciding on the question of emigration.
Guiding considerations in the court’s ruling
In deciding on whether to allow a parent to emigrate with his/her children to another country, despite the other parent’s opposition, the court will base itself on the following variables:
- Possibility of supplying the child with a stable, supportive and loving family unit.
- The strength of the connection between the child and each of his parents.
- Possibility for maintaining the connection with each of the parents—in the event the connection is significant and positive for the child.
- The child’s ability to be absorbed in the country of destination.
- Possible damage caused to the child as a result of being separated from each of the parents.
- The older that the child is, the greater weight the court ascribes to his wishes.
- The opinion of a court-appointed expert concerning each parent’s ability to be a qualified and successful parent.
- An opinion on submitted by each of the sides: such an opinion will be submitted to the court solely upon the court’s agreement and as per its request.
A family attorney’s assistance is essential at each stage—from the moment the question first comes up, when filing or arguing against the request, through to the final decision of the court.
Emigration without severing the child-parent connection
Even when the court approves the parent’s emigration with children to another country, in many cases it adds conditions for ensuring that the second parent is able to maintain contact: ranging from regular visits in Israel, setting visitation arrangements outside of Israel, scheduling regular telephone calls, and all other solutions made possible by modern technology. In at least one case a court required the emigrating parent to supply the necessary technological infrastructure for holding online video calls so that the parent left behind could stay in touch with their children in the distant country.
Furthermore, if the divorce process and all its technical and emotional difficulties wasn’t enough, emigration by one of the divorced spouses makes the entire matter more complicated. Just as the court is supposed to base its ruling on the child’s welfare, the parents, too, must focus primarily on his/her welfare and plan their strategy accordingly. It is important to consult with an attorney who understands this complex domain in order to avoid legal and other mistakes in an already complicated situation.