In a rare, precedent-setting decision, the Tel Aviv Family Court has ruled that a Jewish child need not be returned to his Chinese-American father, despite his apparent “kidnapping” by his mother.
Judge Varda Plaut ruled that the case is governed by the exceptions to the rule set down by the International Court of Justice regarding the kidnapping of a child from one country to another. The general ruling is that the child must be returned "immediately," even if might not be in his/her best interest to do so. The Tel Aviv court found that in the current case, in which the "immediacy" clause can no longer be implemented, the father made few efforts to seek out his son, and showed little interest in him even when he was found.
The case involves L, an Israeli who moved to the U.S. as a young girl, and a Chinese-American man, D. The two were never married, but had a son born to them in October 2001. The relationship between the two continued along a rocky path, in which the mother endured physical, sexual, and emotional abuse for which she participated in 27 sessions at a local sex-abuse help center. Finally, in July 2005, the two separated for good, agreeing that the mother would keep the child, with visitation rights for the father.
Some six months later, L. arrived in Israel with the boy, without D.'s knowledge. In July 2006, the father filed for the boy’s return under the Hague charter - but L., whereabouts unknown, did not respond, and the court ruled in the father’s favor.
Though L. did not change her name or otherwise hide, the boy's father did not hire a private investigator to find her, and remained unaware of his son’s whereabouts.
In early 2009, the mother was stopped for a routine traffic inspection, and her name came up on the police computer as wanted for kidnapping. She was held for two days in jail, and her son was taken from her and placed with a Chabad foster family that he knew. With help from her lawyer, attorney Nechama Tzivin, L. was freed from prison and her child returned to her, and her request to overturn the original ruling and re-try the case was accepted.
The final ruling has now been handed down: Though L. technically did kidnap her child, for which a warrant for her arrest was issued and is extant in the United States, her son is now so acclimated to his surroundings in Israel and to his mother, and his father is so removed from the case, that it would be cruel to send him back to the U.S.
Judge Plaut ruled that the issue is not whether the father initiated proceedings within the Hague-set limit of a year of the kidnapping, which he did, but whether he tried actively to seek out his boy’s return. She noted these facts: He waited for nearly two and a half years before his son’s mother was caught “by accident;” in the ensuing months, he did not make efforts to visit his son; when he had the chance to make weekly phone calls to his son, he did so only 7 out of 24 times.
“All these together,” Judge Plaut ruled, “lead to no conclusion other than that the father has already made peace” with the fact that his son will live in Israel with his mother.
In addition, the judge noted that the boy refused to even look at his father during a session with the court-appointed psychologist; that he spent nearly the entire hour clinging in fear to his mother, relaxing only when asked about his friends and school in Israel; and that the father had previously voluntarily given up another one of his children for adoption.
The boy will therefore remain in Israel with her mother - they currently live in a kibbutz, and he attends a public-religious day school - and D. was ordered to pay L. 25,000 shekels plus VAT in legal costs.
Family Court rulings may be appealed in a District Court within 15 days, and an appeal was in fact filed a day after the ruling was issued.