Tribunal de Apelaciones
Estados Unidos de América
17 April 2020
Residencia habitual - art. 3 | Grave riesgo - art. 13(1)(b) | Cuestiones procesales | Compromisos
Apelación desestimada, restitución ordenada; compromisos asumidos
The child, a girl, was one year of age at the date of the alleged wrongful retention. The child was born in the United States and obtained American citizenship upon birth – that was her sole citizenship. The parents, Israeli citizens were married and had joint custody rights.
The respondent father had established a startup company and at the request of the investors in the company, on 1 July 2018 the Parties moved to reside in San Francisco, California. For this purpose, the Parties obtained work visas in the United States. After the birth of the child, the mother began working in the United States.
On 21 November 2019, the Parties arrived in Israel with the child in order to deal with matters concerning their work visas in the United States. The Parties purchased round trip tickets. As their interview at the United States Embassy with respect to the work visas was set for December 2019, they scheduled return tickets for 3 January 2020.
The parties had to postpone the interview at the United States Embassy to 18 February, 2020 as the father was required to present additional documents.
On 29 January 2020, the Mother commenced proceedings in the Rabbinical Court of Israel for dispute resolution. She further filed a request to prevent the father and the child from leaving Israel.
On 13 February 2020, the Mother sent a letter to the US Embassy in which she notified that she would not be attending the interview that had been scheduled for her, that she does not intend to return to the United States and that she will continue residing in Israel. She had noted in the letter that she commenced proceedings in the Rabbinical Court, and that that court had issued an order preventing the exit of the child from Israel for a year as well as an order preventing the exit of the Father from Israel for 30 days.
On 18 February 2020, the Father attended the interview at the US Embassy, and the next day he was granted an extension to his work visa for the United States.
On 20 February 2020, the Father filed a claim for the return of the child to the United States pursuant to the Hague Convention Law (Return of Abducted Children), 5751-1991.
On 20 April 2020, the Family Court of Tel-Aviv-Jaffa ruled that the habitual residence of the child is in the United States and found, inter alia, that there is no grave risk to be expected upon the Minor's return to the United States.
The Mother filed an appeal against this decision.
The Court dismissed the appeal and ordered the return of the child: the habitual residence of the child was in the United States, the retention was wrongful and none of the exceptions had been proved to the standard required under the Convention.
The Court of Appeals concurred with the first instance Court findings that the child's habitual residence was in the United States based on the analysis of the parental intention and facts that positively proved that the child resided in the United States. The Court found that the Parties arrived in Israel with the purpose of extending a work visa and at that stage, the Parties did not have a plan to return to Israel and certainly, there had not been any date for return.
The court noted the following important facts: the child had been attending a kindergarten in the United States, the Parties continued paying the rent of a house in the United States together with the leasing of their car, the child only had health insurance in the United States and the fact that the original arrangement of the Father with his company of being in the United States for three years had not yet elapsed. These facts demonstrated that the Parties' intention had been to continue living in the United States.
The Mother claimed that the grave risk exception pursuant to Article 13(1)(b) of the Convention was met in two separate regards: Firstly, the harm that may be caused to the child due to separation from the Mother, and, secondly, the health risk posed to the child due to the COVID-19 virus.
Firstly, concerning the claim of harm to the child as a result of the separation from the mother (the mother stated that she would not return to the United States), the Court of Appeals concurred with the first instance Court findings, which held as stipulated in the HCCH Guide to Good Practice: A situation where "the taking parent unequivocally asserts that they will not go back to the State of habitual residence…the parent should not – through the wrongful removal or retention of the child – be allowed to create a situation that is potentially harmful to the child, and then rely on it to establish the existence of a grave risk to the child". Therefore, the taking parent is not allowed to claim inflicting of grave risk caused merely by his unwillingness to return.
Secondly, concerning the claim of harm due to COVID-19, the Court also relied its assumption regarding this matter on the HCC Guide to Good Practice where it is clearly stated that "In cases involving assertions associated with the child's health, the grave risk analysis usually should focus on the availability of treatment in the State of habitual residence of the child", defining grave risk as a situation where the child cannot access to a certain treatment that it is required.
Hence, The Appeals Court agreed with the first instance Court conclusion that the corona epidemic is not sufficient reason to assert that the return of the child to the United States could represent a grave risk, taking into account that the virus exists in both countries and the child has an appropriate health insurance in her State of habitual residence in contrast to her situation in Israel.
The Mother claimed that the Father and the expert on his behalf failed to prove that under Californian law he has custody rights as defined in the Convention. The Court ruled that there is no need to prove the foreign law specifically by an expert opinion, while deliberating upon proceedings pursuant to the Convention. Then, as prescribed in Article 14 of the Convention "special proceedings for proving that law" are not required. Therefore, the Court concurred with the first instance Court judgement that under California law, both parents have custody rights over the child.
The Appeals Court agreed with the undertakings stipulated by the lower Court, which imposed the Father to provide no less than 72 hours prior to the date of the child's return to the United States, a signed rental agreement and receipts that rental fees had been paid for six months. All of the aforementioned in case the Mother will be interested in returning to California.