Moving Abroad

If the other parent consents, it is legal, but if he/she does not consent, then only if a court has granted an order permitting their relocation.

Mutual children can be moved abroad in one of  two ways : lawfully, by ‘relocation’ or unlawfully, by ‘abduction’. Relocation and abduction are two sides of the same coin.

A parent  who  relocates abroad with a minor after obtaining  a final court ruling granting permission to do so ,despite objections from the other parent, will be acting legally, after the court in the ‘home country’  has considered the child’s best interests.  In contrast, a parent who acts unilaterally and removes or retains a child abroad could, depending on the circumstances, be “abducting”, and risks facing  civil proceedings for the minor’s return, and even criminal proceedings.

Who is entitled to decide where a child may live will vary, according to the  laws of the particular country concerned,  but there are general principles that apply in most developed legal systems. The key principle is that decisions about where a child lives, can or should be made jointly by parents, where possible, especially when they would involve an international move, but in the absence of agreement, the court has the authority to decide. It is generally accepted – including in Israeli law - that one parent cannot unilaterally impose his/her preferences where this involves moving abroad, and where the parents  have shared guardianship or parental responsibility.  

Legal systems in different countries, however, vary about how much say an unmarried or a non-custodial divorced parent has regarding changing a child's residence.

By filing an application for relocation and winning the case so that a court judgment is given permitting the custodial parent to relocate abroad with the children.

Fight the plea by filing defence pleadings, arguing that the relocation is unjustified and contrary to the children’s welfare.

Yes. If both countries involved are parties to The Hague Convention on Civil Aspects of International Child Abduction 1980, and it is in force between them, then the legal action to be taken will be according to the Convention.  If one or both of the countries is not a party to the Convention, then proceedings will have to be taken under the law of the country where the child is now located. In Israel this would be an application for an order for Habeas Corpus and to use other wide-ranging powers and the discretion the court has to return the children, taking into consideration any relevant findings or orders from the foreign court.

When the other parent consents or, where this is not the case, if there is a court judgment permitting relocation of the minor (and custody, too, if not already held).

When the other parent objects to the minor leaving the country or objects to the minor remaining abroad beyond what was agreed upon. 

In legal language both are forms of child abduction.

1. Where one parent secretly travels abroad with the children without  the other parent’s knowledge and consent , or despite their known opposition ;
2. Where one parent goes on holiday to visit family in his native country with the children, but then remains abroad longer than agreed, against the other parent’s wishes.
3. Where parents agree to live abroad with the children for a specific period/purpose (study or employment overseas etc) , retaining their home base, and one of them refuses to return ‘home’ as planned, at the end of the agreed time. The longer the absence from home, however, the more complex the case becomes.

Situations involving moves overseas as a family are complicated and whether there is abduction or not when a dispute arises between parents – and one wants to move back and one wants to remain - will depend very much on the particular circumstances/evidence and differences in interpretation of the relevant legal tests.

Under Israeli law  both biological parents have parental responsibility as  “natural guardians” of their minor children without any distinction between married or unmarried parents .They are required to act in agreement when making decisions and exercising their  guardianship-rights and if  they cannot agree, then the court has jurisdiction to decide the matter. The child’s best interests are the sole and overriding, consideration for the court.

These principles apply to any question of taking the child out of the country, whether this is for a short period, i.e. temporarily, such as for a holiday, or whether it is intended to be permanent, i.e. a change of the child’s place of residence. The power of a parent to give or refuse agreement to his child being taken out of the country is a specific result of the power “to determine his place of residence”, within guardianship.