What happens when divorced parents disagree on how best to keep their children safe in times of war?
Amid the chaotic backdrop of the bustling Ben Gurion Airport, a young mother stands, clutching her three frightened children, their eyes reflecting the uncertainty of the last few weeks here in Israel. As she hands their passports over to the uniformed clerk, a sigh of relief escapes her lips. For a fleeting moment, it feels like they are on the cusp of a calmer time spent with family back in the US. But then, in an unexpected twist of fate, the clerk waves over a supervisor, and the young mother’s safety plan for her children dissolves.
Confusion etched across her face, she leads her bewildered children down a long, eerily quiet hallway, comforting them with soft-spoken words, her voice trembling with the weight of yet more uncertainty. As they settle into a sterile office, an official leans across the desk and, in hushed tones, delivers the devastating news. “Ma’am, while you are free to take this flight,” she begins, “I’m afraid your children must stay here in Israel. The court has issued a ‘no exit order’ a ‘Tzav Ikuv’ on them. It seems that their father, your ex-husband, does not want you to take them out of Israel.” The young mother’s eyes fill with tears. They are HER kids and she’s afraid for them. She doesn’t understand why, in the midst of an actual war, she isn’t allowed to take her kids to their grandparents in the US.
What is a No Exit Order Or a Tzav Ikuv?
A Tzav Ikuv or no exit order ( צו עיכוב יציאה מן הארץ ) on minors is an order issued by the Israeli Family court or Rabbinical court preventing someone from leaving Israel. In situations when one parent tries to take their kids out of Israel against the will of or without clear and legal consent from the other parent, a tzav ikuv will stop them at their point of exit. (You can check here to see whether or not a tzav ikuv has been issued against you or your children.)
While I will refrain from commenting on whether the best way to keep our children safe during this war is to temporarily take them out of the country, I’ll strongly make the following point: it is essential for divorced parents to understand that they are both legal guardians of their children.
Custody vs Guardianship
There is a common misconception that custody and guardianship are the same thing, the terms often being used interchangeably. But while custody is negotiable, guardianship is not. There are rare cases where a parent’s guardianship would be removed and parent does not have any legal standing to weigh in.
Custody refers to the arrangements the parents make for caring for their children after divorce. If a parent has full custody, the kids will live full time with that parent while the other parent will have visitation rights determined by the divorce agreement. In the case of shared custody the children would spend half the time living with their mother and half the time with their father. These arrangements are decided upon by the parents in mediation or determined by the courts if the parents can’t agree.
Guardianship, however, is non negotiable. Regardless of who has custody both parents have the legal responsibility of guardianship. That means they share equally in and must agree upon significant decisions for their kids: where they live, their education, health care, and travel. Even a parent who is only granted visitation under the supervision of the Social Services (revacha), continues to remain their legal guardian and must agree to any significant decision being made on the children’s behalf.
Parents divorce each other, not their children. They remain legally responsible for feeding, clothing and housing their kids, and morally responsible for nurturing, loving and guiding them.
International Law & The Hague Convention
It’s a harsh reality that some parents take a child out of their country of residence, against the will of the other parent. This is considered an abduction by the international legal system, and the parent is considered a kidnapper.
The Hague Convention was established in 1893 in the Netherlands, as an international organization tasked with developing the legal tools to respond to common global needs. The child abduction treaty was created in 1980 with the goal of the participating countries to protect the safety of the child. In 1991, Israel joined the 87 other countries belonging to the Hague Convention.
The Hague Convention addresses the methods for handling situations when children under 18 have been removed from their primary country of residence unlawfully, by a parent or family member. (A legal suit can be brought against anyone who removes a child under 16 years of age.) A child prevented from returning to their home country is also considered to have been kidnapped. If the parents are divorced, the treaty recognizes and upholds the custody arrangements made between the parents whether they were court ordered or agreed upon through mediation and, ratified by the Family court or the Rabbinic court.
In the case where the other parent agrees to let the children be taken out of the country, at the very least, they must write a letter giving their permission. It should include as many details as possible: the length of time, the destination, the conditions for the child’s return etc. The letter must be signed and notarized and accompany the children. But I don’t advise going this route. Even with this notarized letter of permission there are far too many details that could be inadvertently overlooked causing heartache and future legal battles under The Hague Convention.
The Courts Are There to Help
Divorced parents often disagree about what is best for their kids. But when faced with our current emotional and complex situation here in Israel, these disagreements can take on a whole different weight. It’s essential that parents don’t take matters into their own hands but turn instead to the legal system for guidance and resolution.
Unless your divorce agreement explicitly grants the Rabbinic court jurisdiction to settle disputes, the Family court will likely be the one determining whether the children can leave the country with one of the parents. Just to note, the fact that Israel is at war, is not a legal reason to leave the country.
Appearing in Family court requires expert legal representation, as its complexities can be overwhelming. An attorney is essential for navigating the legal intricacies and advocating for what you believe are your children’s best interests.
On the other hand, if you find yourself in the Rabbinic court and you have a solid understanding of Hebrew, you could, in theory, represent yourself. But I strongly recommend you don’t. You’re better off retaining a “toen” or “toenet,” a professionally trained advocate who represents their clients exclusively in the Rabbinic courts. With their experience and expertise in halacha they are well equipped to advocate on behalf of your children.
Please note: If you are concerned that your ex-spouse is going to leave the country with your children, you should immediately file for a Tzav Ikuv in the court that has jurisdiction.
Both courts require collateral from the parent taking the children out of Israel, to guarantee they will be returned according to the court issued agreement. Depending on the court this could be a monetary amount (150,000nis) or property. The collateral is returned when the children return. (The Rabbinic courts are known to request less collateral than the Family courts.) Both courts carefully consider all the details of each family’s situation and make the legally binding decision that is in the best interest of the child.
The Kids Come First
In a world filled with uncertainties, where unexpected challenges arise, it is often our moral compass that guides us through tumultuous times. For divorced parents, the responsibility of raising their children doesn’t diminish with the end of their marriage. It remains a shared commitment, one that transcends the bounds of divorce papers and legalities, even in the face of the most trying circumstances, like war.
It is crucial to emphasize that children are not possessions, but treasures. They belong to both parents, and each has a vital role to play in their upbringing. Regardless of the situations life throws our way, it is our moral and legal duty to make decisions about our children’s future jointly with the other parent.
In times of crisis, the decisions we make can have far-reaching consequences. Our children’s well-being should always come first, and the path parents choose should reflect their shared commitment to the children’s future. Especially in these challenging times, parents must stand together, uphold their moral responsibilities, and respect each other’s rights and responsibilities.
For more information contact Shoshona Goldstein-Nissenbaum at www.toenet.com