Since the start of the Al-Aqsa Intifada in September 2000, Israel has become a much more dangerous place. More than 350 people have been killed within Israel proper since the surge of suicide bombings started. That figure includes the victims of Sunday’s attack in downtown Tel Aviv, when at least 23 died. Hundreds of Israelis and Palestinians have also died in the West Bank and the Gaza Strip. But does the unrelenting violence mean that Israel is too dangerous a place to raise children?
It’s not a merely theoretical question. In at least one American court case involving divorced parents — one in Israel, the other in the United States — who are fighting over custody of their children, a federal judge has determined that Israel is at war, and therefore not a safe place for children. The ruling was issued in a case being adjudicated under the Hague Convention on the Civil Aspects of International Child Abduction, a 1980 treaty accepted by more than 70 countries as the legitimate basis for resolving incidents in which a parent engaged in a custody battle with an estranged or former spouse abducts a child to another country.
But that decision, and some little-noticed rulings in other countries, have sparked hot debate, and some real anxiety, among international-custody lawyers and their clients. They worry that the determination that Israel is “at war” could be used, in future cases involving charges of international abduction, to justify preventing children from returning not only to Israel but to other countries as well.
“Everyone wants children to be safe,” says Richard Crouch, an Arlington, Va., lawyer specializing in child-custody cases. “But the more we fool around with the convention here and refuse to return kids for our own reasons, the more difficult it will be to get cooperation from other countries when we want kids returned.”
The case that led to the judge’s ruling that Israel is a war zone — the first such determination by a U.S. court — involves Robert Silverman and his former wife, Julie Schuster. The pair met in 1988 at a hotel restaurant in Jerusalem, where he was working as a cook and she as an assistant manager. She was born in the U.S., he in South Africa. In 1989, they left together for the United States and married. They lived in Poughkeepsie, N.Y., where he attended the Culinary Institute of America, and later spent time in San Francisco and Los Angeles before settling down in Plymouth, Minn. Samual, their first son, was born in 1992; his brother, Jacob, arrived three years later. In 1999, Robert and Julie sold their house and moved back to Israel — and that’s where their accounts of the marriage appear to diverge.
Robert says they both intended the move to be permanent. Julie says she held grave misgivings about her marriage and agreed to emigrate as a last-ditch effort to keep the family together — but realized immediately it was a terrible mistake. The following summer, she took the two boys back to the United States for a vacation. Only then did she inform Robert, who remained in Israel, that she had no intention of returning. The U.S., she said, would be the boys’ permanent home.
Robert, who lives in Ra’anana, a small city north of Tel Aviv, says he was devastated by Julie’s announcement. He says he simply wants his two sons back with him. “No matter what she’s said to them or done,” he says, “she can’t break the bond we have.”
But Julie says that she has no intention of letting them leave the United States again. “I’m very tired; I’m very weary,” she says. “It was never my intent to take the children away from Robert. My intent was simply to get a divorce, to not be married to him any longer.”
The two-year custody battle has been bitter, with charges and countercharges of domestic violence, emotional cruelty and infidelity. While she was still in Israel, he obtained a temporary court order forbidding her to leave the country. When he came to Massachusetts a few months ago to see the boys, she had him jailed for non-payment of child support. She says he repeatedly threatened her verbally and physically. He says she has tried to poison his relationship with the children.
The two have pursued their conflicting claims through a chain of American and Israeli courts. Finally, last May, a federal district court judge in Minnesota issued the pivotal decision — one that could affect many more families than the Silvermans. Ignoring official Israeli determinations that Robert Silverman enjoyed legitimate custody rights in Israel, Judge John Tunheim agreed with Julie’s argument that the United States was the boys’ primary residence, and he ruled that the children should stay with her.
But he included, almost as an afterthought, an explosive finding. Even if he believed that Israel was the boys’ home, Tunheim wrote, he wouldn’t send them back because the country is now, for all intents and purposes, a “zone of war”– and returning the children would expose them to serious danger.
That ruling, along with a court decision last May in Australia that also deemed Israel too dangerous for children, and similar rulings reportedly issued in Spain and Romania, could have profound implications for how countries handle future incidents of international child abduction, say legal experts. Those cases were all adjudicated under the Hague Convention.
It’s hard to imagine a worse parental nightmare than the abduction of a child to another country. It has been played out in the public eye recently in high-profile and heartbreaking cases involving American women who have charged their Saudi Arabian ex-husbands with fleeing back to their homeland, kids in tow, and forbidding the mothers all contact. But unlike the United States and Israel, Saudi Arabia is not a signatory to the Hague Convention and is not bound by its provisions. Neither is Cuba, which nonetheless loudly demanded the return of Elián Gonzalez to his father — a demand that the U.S., after long months of wavering, felt forced to recognize as legitimate.
In those cases, the conflicts have revolved around the authoritarian nature of the regime, either the one in which the children were currently living, as in the Saudi Arabian cases, or the one demanding repatriation, as in the Gonzalez situation. Unlike those disputes, Hague Convention cases have generally attracted little public attention. However, in making terrorist attacks against Israel an argument against returning children there, the recent court decisions could be used to justify not returning children to other countries as well, say some lawyers.
Around the world, more than 1,000 child abduction cases are filed under the Hague Convention every year. According to research conducted by the Centre for International Family Law Studies at Cardiff University in Wales, in 1999, for example, close to 1,300 Hague applications involving more than 2,000 children were registered by the designated central authorities in signatories to the convention. Of those, 466 cases involved the United States — as either the left-behind country or the one to which the child was believed to have been abducted — and 57 involved Israel.
Crouch and other experts wonder how Americans would react if foreign judges began refusing to return abducted children to New York or Washington, D.C., citing the Sept. 11 attacks and the terror alerts that have followed. They venture that, under similar reasoning, children would not have been sent back to England during the period when the Irish Republican Army was most active there, or to Northern Ireland at any point in the recent past. In the modern world, they ask, is any country — and especially the U.S., which has identified itself as a prime terrorist target — a safe haven for children?
The Minnesota ruling, and those in the other countries, were made possible by an exception in the procedure outlined by the Hague Convention for dealing with international custody disputes. That exception bars the return of a child to the custody of a parent if the move would expose the child to “a grave risk [of] physical or psychological harm or otherwise place the child in an intolerable situation.” Frequently interpreted to apply to harm related to the child’s personal or family circumstances, the “grave risk” can also relate to the political situation in what is generally referred to in Hague cases as “the left-behind country.”
But Crouch and other experts in international law say that the exceptions were always intended to be narrowly interpreted and invoked in only the most extreme circumstances — when a country is in such chaos that the court system has stopped functioning, for example — so as not to undermine the future viability of the convention. This is particularly important, they say, because there is no final international court of appeal. Since each case is ultimately decided by judges in the country in which the child is currently located, the treaty relies for its continued effectiveness solely on the good will of the domestic courts of each signatory nation.
Susan McKay, the Minnesota lawyer handling Robert Silverman’s case, says she knows of no statistics that specifically compare, for example, the rates of childhood death in the United States and Israel from gun deaths, traffic accidents, murder and other unnatural causes. But she argues that judges in other countries could, citing the Hague Convention rulings against Israel, point to random killings in the United States, not just the threat of terrorist attacks, as a reason not to return abducted kids. “What’s the distinction between acts of terror for political motivations versus just violent propensities or craziness, like what’s gone on with the sniper shootings in D.C. or Columbine?” she says.
Prior to the adoption of the treaty in 1980, parents in what is generally referred to in Hague Convention cases as “the left-behind country” had little leverage in seeking the return of their children. Over the past 22 years, however, hundreds of cases involving parents from all parts of the world have been resolved by courts in the countries that have agreed to abide by the procedures outlined in the convention.
“Before the convention existed, the return rate of children was basically zero,” says William Hilton, a San Jose lawyer who, like Crouch, is an expert in domestic and international child-custody issues. “The legal basis for jurisdiction was the presence of the child in a country. So prior to the convention, if a child was taken anywhere in the world, the left-behind parent’s only choice was to go to that country and litigate the issue of custody under their terms and their rules.
“Even with the convention, there are still problems,” Hilton adds, “but at least we have a way to get the kids back if they go somewhere else for Christmas break or summer vacation, or when someone just up and snatches them.”
Under the Hague Convention, each signatory nation must designate a “central authority” that handles international child-abduction cases. A so-called left-behind parent files a complaint with his or her own country’s central authority, which forwards the complaint to the central authority in the nation where the child is located. The courts in the latter country must then determine which state is the child’s “habitual residence.”
Under the terms of the convention, the country determined to be the habitual residence is where the question of custody is supposed to be adjudicated. If the courts decide that the habitual residence is the left-behind country, the convention requires the return of the child.
However, Article 13 of the convention allows for several exceptions to that rule. One is when the court in the country where the child is currently located determines that the parent seeking the child’s return did not enjoy legal rights of custody at the time of the removal. Another is the “grave risk” exception cited in the Minnesota and other recent rulings.
In the case of Israel, no judge in any Hague Convention country had ever ruled until the current intifada that the situation there was so dire that it justified not returning a child. In the United States, a key ruling took place in a 1996 case involving a dispute between Jonathan and Judith Freier over their 4-year-old daughter, Avital. Unlike the court in the Silverman case, the federal district court in Michigan determined that Israel was Avital’s habitual residence. When Judith, who was already living in Michigan, invoked an Article 13 exception, the court turned down the request.
The Michigan district court, citing an earlier appeals court ruling that the “grave risk” standard could be applied if the left-behind country was determined to be a “zone of war, famine or disease,” acknowledged that Israel was experiencing “some unrest.” But the court still determined that Judith Freier had failed to convincingly prove her case for an Article 13 exception.
“Respondent testified hearing about random violence such as car and bus bombings,” wrote the court. “With respect to Respondent’s anxiety and fear about the ongoing tension in the country, it must be noted that she has lived there for a number of years, raised children there for some fourteen years and that her parents spend extended periods of time there as well.”
McKay, Robert Silverman’s lawyer, cited the Freier ruling in arguing that Sam and Jacob should also be returned. But Judge Tunheim, finding that the deterioration of the situation in Israel had rendered the Michigan court decision moot, wrote that “the violence has permeated areas that were previously unaffected by the conflict [and] has placed civilians, including children, at much greater risk.”
To bolster his finding, the judge noted that just days before the hearing, a Palestinian gunman had killed two people, including a teenager, in a city a few miles away from Robert Silverman’s home in Ra’anana. He then went on to cite a host of newspaper articles detailing subsequent attacks.
It would be impossible to argue that the situation in Israel has improved since Tunheim issued his ruling. While the total number of civilian deaths within Israel caused by terror attacks in the last two years may not appear high in absolute terms, Israel has only 6 million people: Statistically, 350 deaths in Israel would be the equivalent of more than 16,000 terrorism-related deaths in the U.S., with its population of 280 million. Nor can statistics measure the trauma of repeated bloody attacks — on buses, at discos, restaurants, markets and streets — on the Israeli psyche. It’s easy to sympathize with judges placed in the wrenching position of deciding whether to send children back to such a troubled region of the world, one that figures so prominently, and horrifically, in the headlines.
But while the judge’s reasoning may read convincingly on paper, it outraged Robert Silverman, who says that it could encourage other parents involved in marital disputes to spirit their children away from Israel in the hopes that courts in other countries won’t order them returned.
For her part, Julie, who now goes by the last name of Schuster, declined to discuss the “zone of war” issue, accurately noting that Tunheim’s primary finding was that the United States, not Israel, is her sons’ habitual residence. “The ‘grave risk’ question is a secondary issue,” she says. “It’s not the reason they weren’t returned to Israel.”
Robert appealed the court’s ruling to the U.S. Court of Appeals for the 8th Circuit. Last month, in a 2-1 decision, a three-judge panel of the appeals court upheld the finding of the district court that the U.S. was the habitual residence of the Silverman boys. The majority declined to address the zone-of-war issue. In a strong dissent, the third judge argued that the lower court erred in its rulings on both the residence and zone-of-war questions.
McKay, Robert’s attorney, said she was very disappointed by the ruling. She has petitioned the appeals court for an en banc review, meaning that the case would be heard by the entire Court of Appeals rather than just a panel. If the full court accepts the case, it will have to assess the parents’ conflicting accounts of the family’s move abroad and decide whether the children’s short stay there qualifies, under the terms of the convention, as a transfer of their habitual residence from the United States to Israel.
But how it rules on the zone-of-war question, while not necessarily the factor that determines where the Silverman boys will ultimately live, will perhaps be watched even more closely by lawyers like Hilton and Crouch. The court is likely to review recent decisions in two other Hague Convention countries — Great Britain and France — which reached the opposite conclusion and ordered abducted children to be sent back to Israel. It will also likely review decisions by the foreign courts that have ruled, like Tunheim, against Israel.
In one of those cases, an Australian appeals court this year overturned a lower court ruling that would have required Janine Claire Genish-Grant to return her two preteen children to Israel, where their father, Moshe Genish, lives. The panel agreed with a lower court that Israel was the children’s habitual residence but rejected that court’s order that the children should be returned, ruling instead that such a move would expose the children to danger.
In so ruling, the court relied primarily on a warning issued by the Australian government advising citizens to avoid travel to Israel. The judges noted, in particular, that the advisory stated that “all population centers in Israel are at very high risk of terrorist attack” and that “targets in the past have typically been areas where large numbers of people gather.”
The ruling pointed out that the father worked at the kind of environment — a hotel and restaurant complex — named in the travel advisory as a potential target. Moreover, wrote the judges, should the children be sent back to Israel, they would have to pass through an international airport and travel within Israel by bus — modes of transportation that could place them at risk of attack.
This ruling was issued last May — months, that is, before the deadly Bali disco bombing that killed dozens of Australian citizens, who believed themselves to be far out of range of terrorist attacks.
For his part, Robert Silverman points out that, given the number of casualties in New York and Washington, D.C., on Sept. 11, future terror attacks in the United States could easily be deadlier than any perpetrated so far in Israel. To bolster his argument, he cites American officials’ own pronouncements of the country’s posture in the current tensions. “President Bush says that the United States is in a war on terror,” he says, his voice swelling with anger. “Does that mean children shouldn’t live there?”