A Federal Court has ruled that a divorce provision requiring a parent to move with the parties children to Israel if the other parent moved there cannot be enforced through Hague Convention petition if the non-moving parent refuses to comply. In the case of Barzilay v. Barzilay (Barzilay II), Mother and Father, both Israeli citizens, were married in Israel in 1994. Their first child was born there in 1996. In 2001, they obtained work visas from their employer and moved with their child to Missouri. In Missouri, they subsequently had two more children, who have dual Israeli and U.S. citizenship.
When Mother and Father were divorced in January of 2005, their Missouri divorce judgment awarded them joint legal and joint physical custody of the Children, set up a parenting plan for them, and contained a provision that if either party moved back to Israel, whether voluntarily or involuntarily, the other party would “forthwith take such steps to move back to Israel,” so that the parents and kids would live in the same country. After Father moved back to Israel in September of 2005, he began pressuring Mother to comply with the divorce provision by returning with their Children to Israel. Although Mother declined to comply, she agreed to bring the Children to Israel for summer visit beginning sometime in June of 2006, and ending on July 9, 2006.
While Mother and the Children were in Israel, Father got an ex parte order from Family Law Trial Court in Kfar Saba, Israel, to prevent Mother from taking the Children out of Israel, based on Mothers failure to comply with the divorce provision. Father also filed a Hague Convention petition.
After retaining Israeli counsel and engaging in extensive negotiations, Mother signed an 11th-hour consent agreement that allowed her and the Children to fly home, but obligated her to move back to Israel by August 1, 2009, or have her failure to comply branded as kidnapping under the Hague Convention. That agreement also precluded Mother from taking any further action in Missouri Trial Court and required her to acknowledge that Israeli Family Law Trial Court as the sole authority regarding the Childrens custody, immigration, and repatriation.
In December of 2006, Father petitioned the Israel Family Law Trial Court for an order regarding contempt based on Mothers failure to allow Children to visit him in Israel as required by consent judgment. Mother contended that the consent judgment was invalid, but the Israel Family Law Trial Court found that she was in contempt and Mothers appeal was not successful. Meanwhile, Mother sought and obtained a modification of the Missouri divorce judgment that removed relocation provision and limited Fathers visitation rights.
In October of 2007, Father filed a petition in the U.S. District Court for Eastern District of Missouri under the International Child Abduction Remedies Act [I.C.A.R.A.; 42 U.S.C. 11601 et seq.; implements Hague Convention], seeking a determination that Israel was Childrens habitual residence and that Mother was wrongfully keeping them in Missouri, and an order for the Childrens return to Israel.
The District Court abstained because of the pending state court action, but the Eight Circuit Court of Appeals reversed the District Courts decision and remanded the case back to the District Court to decide the case on its merits [Barzilay I (2008) 536 F.3d 844]. On remand, District Court found that the Childrens habitual residence was Missouri and dismissed Fathers petition.
Claiming that the relocation provision and the consent judgment established Israel as Childrens habitual residence, Father appealed. But, the Eight Circuit Court of Appeals has now affirmed the District Courts rulings. Court of Appeals has ruled that (1) the consent judgment is without force in this case because Israel Family Law Trial Court did not adjudicate the Hague Convention claim in that proceeding; (2) the divorce relocation provision and the consent judgment are custody decrees and the Hague Convention does not deal with custody issues; (3) parents cannot stipulate to habitual residence of the child; and (4) District Court correctly determined that Missouri is Childrens habitual residence because the first Child has lived there most of her life and the other two Children have lived there all of their lives with settled purpose of remaining there. Therefore, the Court of Appeals has ruled that the District Court did not err in dismissing Fathers petition because Mother was not wrongfully keeping the Children in their habitual residence of Missouri.
