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Hague Convention Hits Home for Indiana Mom
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.
http://myopiczeal.blogsome.com/2006/01/10/hague-convention-hits-home-for-indiana-mom/trackback/
Thanks so much, Eric, for doing this for LK (she sent me the link to your blog, and I’m a college friend of hers). I know it means a LOT to her. Such a sad situation. Thanks again, and many blessings! : ) Sarah
Comment by Sarah Moseley — January 10, 2006 @ 12:07 pm
Thanks so much for the info. Lori Kate and my daughter grew up together in IN. I can not believe this is happening in the USA. There are so many people living here that are not citizens, but we protect them, give them medical care, education, and a place to live and work, but we can not do the same for our own citizens. We believe Lori Kate and her boys should not have to return to Israel. She should not have to fight with courts there. It should be settled here. We have decided to support Lori Kate financially and would encourage others to do the same. The Lord will bless you whether you support her financially or in prayer. May God Bless you and be with Lori Kate and her boys during this critical time in their life. Lonny & Cindy
Comment by Cindy Smith — January 10, 2006 @ 4:31 pm
I am privileged to have Lori Kate for my sister and I appreciate your concise and well-spoken words of information concerning this complex and painful situation. Thank you as well for taking time to let others know what they can do to help. I am sad to know that she will leave with my nephews at the end of this month, but am comforted by the thought that so many will be praying and reaching out. My sister has endured much yet she is so strong! We will miss her and the kids very much and trust God to protect them while they are away. Thanks again, Leah
Comment by Leah Lowenhar — January 10, 2006 @ 5:22 pm
Thank you Eric, for making this information available on your site. I do support all you have said, and I hope, and pray for the best.
I would so much like to see more help for fellow American citizens under these (Hague Convention) International Laws. Unfortunatly….. This has to be one of the children of a American Politician or equivalent. To really be taken seriously… (In my personal Opinion of course) Thank you again Eric. And may the Lord make his face shine on you, and look upon you with favor Lori Kate.
Comment by Rob Greenwood — January 11, 2006 @ 9:25 am
While on the face of it, this does sound like it is not a good situation for the mother, and I have no desire to be contentious, but I am the left-behind parent in a case of international child abduction and there are a couple of things I’d like to point out:
Logically, because the Hague convention allows for one year to file an application after the date of alleged wrongful removal or retention, the children must have spent at least 3 months in the US before the application was made. Under some situations, this can be enough to establish a new habitual residence. Why was that not so in this case?
The Hague convention is not “without regard to the safety or welfare of the children”. Article 13c of the convention allows for a denial of the return if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Presumably the judge did not think there was such grave risk to the children.
Finally, please note that the Hague convention is an international treaty. The point of the convention is to try to prevent the wrongful/illegal removal of children from one state to another in order to gain the upper hand in a custody proceedings or to maliciously separate children from a parent. In this age of easy international travel, this is an ever increasing problem. Without all the facts to hand, it can often be very difficult to ascertain if this is or is not the case, and it can become a he said/she said issue like this one, so objective criteria becomes absolutely necessary. The trick is to make the criteria as just as possible, some laws are unjust, but no law is just in all applications.
In the case of the Hague convention, the nationalities of the litigants and the origin and destination countries are not relevant. If they were, then the majority of international child abductions would be gotten away with because of the simple fact that they almost always involve abductions to the country of nationality of the abducting parent. If that were to be allowed, then you’re basing the well being of the children on the unilateral preferences of the abducting parent rather than mutual agreement of both parents or, if that is impossible, the opinion of a hopefully impartial judge.
I would counsel against condemnation of this judge for his lack of patriotic comradeship with the mother. Rather, it is the children’s relationship with both parents that is important and this should not be dictated by “forum shopping” divorces.
From what is written here, it does sound like Mr. Nessim has been playing dirty, on the other hand, we don’t know his side of the story and he was able to convince a judge. Either way, it looks like there is a probable tragedy in the making here with the children losing one parent or another. I would hope that whichever is victorious will be mature enough to make sure that the children do not forfeit their relationship with the other parent insofar as that is possible. I urge you not to base your reasoning on the prejudice that either parent may be more important to the children, ultimately, than the other.
Comment by JD — April 6, 2006 @ 9:55 pm
I still think you are incredible,
and Beautiful,
Hope you’re well,
Lori, Allon & Amit WILL be home soon,
Our prayers are with you, and yours,
Still miss you,
stay the course.
It’s up to God, not us!
Comment by D.C. — July 3, 2007 @ 3:51 am
Hi there,
What ever happened to this family? I am close to someone that has gone through the same nightmare. I am very interested to know if Lori Kate and her children had any success returning home from Israel. I think the Hague Convention needs more attention. Women must, at least, be more informed that in a case such as this, the treaty is more important than the individuals and our government is of limited help-citizen or not. I would really like to start a network to discuss and publicize this issue. Anyone interested?
Comment by Michelle — May 14, 2008 @ 7:49 pm
I’m going through it now, 10 Sept 08. The father is NZ Citizen so are our children of 3 & 1 and myself. He is ordering us back to Australia now that our 33month old (3 Years now) made very explicit sexual allegations against him. So the children came back by family some 5 months ago. our son continues to make explicit detail (like pornographic) allegations. The father and I both have no family in Australia, so I’m not sure who is giong to pick me up if we are returned or where I am suppose to live, We will be prisoners to another country and the father didn’t even want to stay in Australia, its spite he is doing this….I too have spent $30K already….if my son hadn’t made sexual allegations and the father agreed to get him help (which he never I believe to cover up the truth) then I had better things for my money and my life. Its a living hell, like I said I have the sexual allegations on top. Because my son is not old enough to make a formal statement to the Police there is nothing I can do. This Hague is designed for spiteful men who probably, like in my son’s case, didn’t even want children, had minimal interest in the kids (other than sexual according to my son) and I imagine the women (even in Domestic Violence Situations) are still being controlled. Its CRAP!! Its Painful and its wrong.
I’m sure there are a handful of men whom are genuine, but on a whole its the mothers that do the raising, have their bodies carved up and insides wrecked, and suddenly the other persons crying wolf. My family are gutted so am I. We have no friends, or family and that’s for both the parents. And grave concern, as I have been told there is no reason why the law in the other country can’t protect my son. What about the psyhological well being and the isolation of having to go through the trauma of sexual abuse. Why as a mum should I wait until my son becomes an age of going of the rails because of this abuse? Will the legal system give him a free pass from jail? No! And why does another country (Australi) have the right to make decisions for my children when the father took my son’s rights away and don’t even recognise them as Australian Citizens? nor can I get Social Payments in the country so I’m not sure how I’m suppose to get employment, get daycare and a house without any friends or familiy support. Its criminal and unjust. I;’m sure if this happened to the Judges daughter they’d use their powers and ‘contacts’ to ensure their grandchildren or child was safe.
Comment by Lisa — September 2, 2008 @ 8:44 pm
Dear All,
I am facing a very similar situation myself in Texas. I am an american mother of a 3 year old child. I have proof of abuse to myself and proof from a French doctor who observed my child and the negative affects the abuse to me was causing him. We were return back in April 2008. I followd the law and returned with my son. While in France, we were destitute and abandonned by my still husband. He left on an international vacation and even decided to miss him son’s 3rd birthday. I suffer from diabetes and was not able to seek medical treatment for lack of money and I was denied social assistance for lack of French citizenship or refugee status. We were on the streets, no money, no food, I was literally dying from lack of medical care…only the American church in Paris helped with some food coupons and small cash..but of course that was not enough. My husband abused me again during the 4 months and I called the French police, but they did not help me!! They told me it was a family matter and that they could not do anything. I called a a family friend and begged for help…she sent us 2 plane tickets and we left France. We have filed in court under TEMPORARY emergency relief and jurisdiction based on facts, witnesses, evidence..live testimony…everything…yet, the same judge who sent us back the first time is now sending us back again. She has been presented with all the facts of what happened during the alomst 4 months we were in France. Still her position is that France is a wonderful place where people are helped and it is the best place who can afford me help!!! Can you believe that? While I was there I tried everything, with church members we tried to get my papers and my son’s papers and nothing. My husband being the French had to take care of all of this for us. there was nothing I could do. I did not qualify for social support and even the Red Cross did not help me because I was not a refugee.
I called a family friend and begged for help. She sent us 2 plane tickets and we came back home. We are doing well and my son is strong and healthy. He is thriving, no more nightmares! However, the same TX judge that sent us back in the first place..she is trying to send us back again!!
Our constitutional rights have been compromised by politicos and judges who have lobbyists “donating” money to their campaigns. That is the entire truth and so while we are left to scratch our heads and dry our eyes and pray for our sons and daughters to one day be returned to us…they keep on sacrificing our children, our lives and our futures for the sake of them staying in power. The Hague is a nasty machine of human rights abuse and its sole purpose is to keep the status quo and negate justice to everyday folk like ourselves.
I don’t know about you, but I am sick and tired of this bs, we all have to stand up to this abuse of our basic human rights.
Don’t give up, we can’t, our children’s lives depend on it.
Cynthia
Comment by cynthia — November 1, 2008 @ 10:52 am