Lori-Kate Nessim is a United States citizen who moved to Israel and got married. She obtained dual citizenship in Israel. She and her husband David had two children (who also have dual US/Israeli citizenship), after which time there was a necessary separation (about which I will not go into detail), though there was still hope that the relationship would be restored and so they did not yet pursue divorce.
David gave her permission, in writing, to take her children to the United States for an extended period of time, as this is where her family and her entire support network are located. Over time, he talked of making the arrangement permanent, planning to complete a divorce and ship her her belongings. He verbally agreed that she could keep the children in the United States indefinitely.
After she has lived here for fifteen months (her oldest son is five and her youngest is about 17 months) her husband filed a suit using the Hague Convention to force her to bring the children back to Israel. She contends that he lied to the judge about what he told her, and she has witnesses (albeit, friendly ones) who agree. The court battle basically became a “he said / she said” and Lori-Kate was unable to prove with preponderance of the evidence that he was lying on the stand. In November, Judge William T. Lawrence, of the Southern District of Indiana, ruled that Lori-Kate needed to take the children back to Israel, as they have jurisdiction under the Hague Convention rules on child abduction. The deadline for her travel is January 31st, 2006.
So now we have a situation where two children who are United States citizens and a mother who is a United States citizen, are being forced to leave this country for Israel without regard to the safety or welfare of the children (as this consideration is outside of the scope of the judge’s jurisdiction).
In representing the left-behind parent in a Hague proceeding, it is necessary to keep the court focused on the narrow issues that the Convention requires an applicant to establish and the narrow defenses that a respondent can assert. Whenever the hearing strays into any areas that might be considered as constituting an analysis of the child’s best interests, the applicant should vehemently object.
She is going to pursue further custody action and eventually relocation action to attempt to be permitted by the Israeli courts to bring her United States citizen children home to the United States, but the problem now is money. She does not have a job in Israel, she does not have money (either for living or for legal defense), and her family has nearly exhausted their borrowing power in the defense of her case so far. If you have any interest in this case, either as a blogger or member of the press who would like to know more details, or as an individual who would like to donate, your support would be most welcome by this family who is hurting. The defense in Israel is estimated to cost close to $30,000 and take nearly a year to complete.
As an aside: this is oddly reminiscent of the Elian Gonzalez case, except in this case the children’s mother is alive and a U.S. citizen. Even though Cuba is not a signatory to the Hague Convention, had it been, it would have required that Elian be sent back to Cuba for the custody dispute resolution. The question in this case comes down basically to habitual residence, and the judge deemed that the five year old boy, who has lived in the United States for 15 months, and the 17 month old boy, who has lived here nearly all of his short life, had their habitual residence in Israel and therefore the custody battle should take place there.
The Hague Convention is a civil legal mechanism available to parents seeking the return of, or access to, their child. As a civil law mechanism, the parents, not the governments, are parties to the legal action.
The countries that are party to the Convention have agreed that a child who is habitually resident in one party country, and who has been removed to or retained in another party country in violation of the left-behind parent’’s custodial rights, shall be promptly returned to the country of habitual residence. The Convention can also help parents exercise visitation rights abroad.
There is a treaty obligation to return an abducted child below the age of 16 if application is made within one year from the date of the wrongful removal or retention, unless one of the exceptions to return apply. If the application for return is made after one year, the court may use its discretion to decide that the child has become resettled in his or her new country and refuse return of the child.
In the grand scheme of things, she would like to change the way the system works to afford greater protection under the Hague Convention to children who are United States citizens, but primarily right now it’s about the money to be able to fight for her children. A fund has been set up to assist Lori-Kate in her quest to bring her children back to the United States, and if you would like to donate via PayPal, the email address is: preloka[at]yahoo[dot]com.
UPDATE: The case number is 1:05-cv-01155-WTL-LJM and was handled by William T. Lawrence, United States Magistrate Judge in the Southern District of Indiana.