The rights of parents migrate abroad following a divorce

When divorce proceedings are completed, it may occur that one of the parties, typically the custodial parent, (the current terminology refers to equal parental responsibility) would like to immigrate abroad for the purpose of establishing a new relationship, finding a new job, or beginning a new chapter in life. When there are also children in the situation complex, a question may arise regarding the right of one of the parties to immigrate abroad.

A successful outcome, of course, is the outcome of an agreement between the parties. However, if there is no agreement between the parents regarding the immigration of one of the parties abroad, a complex legal situation will arise. The following will be reviewed for you:

Picture of By Igal Mor, Adv. & Notary
By Igal Mor, Adv. & Notary

Accuracy in Legal Advice. Excellence in legal support.

Firstly, in accordance with section 15 of the Legal Training and Guardianship Law, 5772 – 1962, Parental responsibility includes determining the residence of a minor.

However, if the minor’s parents cannot reach an agreement regarding his place of residence, the court will make a decision based on section 25 of the law: “in the best interests of the child.” Therefore, the question arises, how is it determined what is in the minor’s best interest?

The case law discusses this issue, and a number of criteria and parameters have been established for it, according to which the decision will be made, with the protection of the child’s welfare serving as the guiding principle.

In the reality that arises after a separation of the parents, the court will have to establish a custody arrangement which will ensure that the children have a stable environment in the custody of the parent who is more suitable for them, while also maintaining contact between the children and the other parent. Having an expert opinion is necessary both because they have the ability to examine the questions arising in each case with a professional eye and because they are neutral in comparison to the opposing parents. The best interests of a child are not theoretical concepts. In this case, the court is required to make findings of fact. Courts cannot establish these findings – as a general rule – unless evidence is presented, and evidence in this regard consists primarily of statements and opinions of experts.”

In Pelonit v. Almuni, Judge Dorner’s ruling, paragraph 11 is cited.

It was determined in the case discussed in the Supreme Court before Judges Mazza, Dorner and Hashin that when it comes to talking about child custody, the best interests of the children are the binding rule of law for the truth of the matter that guides the court. According to the law, children’s best interests are determined by experts’ opinions In this case, the mother (who had custody of the child) decided to move to London with her son about five months after the divorce. As a consequence, the father objected and appealed to the family court, which ruled in favor of the mother based on the opinion of a psychology expert that the move to London would promote the child’s best interests to the greatest extent possible. The father appealed the family court’s decision to the district court, which accepted his appeal. A request for a higher appeal authority was made by the mother, and the case was discussed in this court and the law was established.

Several other significant laws regarding divorce and immigration abroad were determined in this case. First, the immigration request of the parent who has custody of the child is examined in light of the established standard, which is the best interests of the child alone. Expert opinions are the most important proofs compared to the opposing parents’ arguments. The second conclusion was that the question of the necessity of immigration is not a significant factor in deciding the matter.

Claim for immigration:

When deciding on the immigration application of the parent who has custody of the shared child, the court will consider a number of key parameters in relation to each case and make a decision based on those factors:

  1. A child’s opinion and wishes.
  2. Relationship between the child and each of his parents – how might moving abroad affect their relationship?
  3. Should the immigration application be approved, what is the objective and subjective ability of the absent parent to maintain a relationship with the child.
  4. There should be a willingness on the part of the custodial parent and the applicant for immigration to help and ensure the child’s relationship with the other parent and the child’s ability to fit into the intended environment for immigration.
  5. As a key consideration, the court evaluates how likely it is that the child will adapt and be absorbed successfully in the country to which the parent wishes to immigrate, and how much the move will contribute to the child’s development there.

In another divorce and immigration abroad decision, on page 27/06, so-and-so v. so-and-so, it was determined that in addition to the set of considerations that the court considers, the right of the parent with custody to establish a new family unit and start a new existence is also taken into consideration. While maintaining a balance between the other parent’s right to maintain full and continuous contact with the child. The court held in this case that first, the minor must be examined to determine whether he is capable of moving or migrating abroad, and only then should the nature of the relationship with the other parent be considered. Once again, the focus is on the welfare of the minor.

There is also a matter discussed in Ams 9963-06-11 Pelonit v. Almoni, where weight is given to the fact that the satisfaction of the parent whose child is in his custody with his lifestyle and place of residence affects the minor’s well-being as well, as a factor that can be used to assist in the approval of the immigration application of the parent whose child is in his custody.

In conclusion

The immigration of a divorced parent abroad is a complex legal matter. In cases when you are interested in immigrating abroad with a common child or know that the divorced person is planning to immigrate with your child, you must proceed with caution, receiving professional and experienced legal advice and guidance from an experienced family lawyer.

Mor & Co. has extensive experience in the area of family law. Our practice focuses on complex family and divorce cases and we represent and litigate in courts on a daily basis.

With our attorneys’ experience and knowledge, we provide legal guidance in complex divorce and relocation proceedings, as well as cases in which a parent migrates abroad and a minor wishes to change his or her location and residency.

Our firm has experience in divorce cases where one of the parties attempts to immigrate abroad, sometimes with joint children, sometimes without them. This also has implications for the continuation of the relationship with the remaining children in Israel.

Our commitment is to do our best and make our experience and knowledge of the field available to you while maintaining and being careful in all matters relating to the legal process.

For legal advice (without obligation) regarding the immigration of a parent abroad following a divorce, please contact us by phone at 02-595-3322 or by WhatsApp at 050-441-1343

“The member states will do their best to make sure both parents share responsibility for the child’s upbringing and development.”. It is the parents, or their legal guardians, who are responsible for the upbringing and development of their children. The child’s best interests should be at the forefront of their minds.

"There are no bad children, For some kids, it's bad"

Janusz Korczak

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