Before the convention existed, the return rate of children was basically zero

http://dir.salon.com/story/mwt/feature/2003/01/07/custody/index2.html

Prior to the adoption of the treaty in 1980, parents in what is generally referred to in Hague Convention cases as "the left-behind country" had little leverage in seeking the return of their children. Over the past 22 years, however, hundreds of cases involving parents from all parts of the world have been resolved by courts in the countries that have agreed to abide by the procedures outlined in the convention.

"Before the convention existed, the return rate of children was basically zero," says William Hilton, a San Jose lawyer who, like Crouch, is an expert in domestic and international child-custody issues. "The legal basis for jurisdiction was the presence of the child in a country. So prior to the convention, if a child was taken anywhere in the world, the left-behind parent's only choice was to go to that country and litigate the issue of custody under their terms and their rules.

"Even with the convention, there are still problems," Hilton adds, "but at least we have a way to get the kids back if they go somewhere else for Christmas break or summer vacation, or when someone just up and snatches them."

Under the Hague Convention, each signatory nation must designate a "central authority" that handles international child-abduction cases. A so-called left-behind parent files a complaint with his or her own country's central authority, which forwards the complaint to the central authority in the nation where the child is located. The courts in the latter country must then determine which state is the child's "habitual residence."

Under the terms of the convention, the country determined to be the habitual residence is where the question of custody is supposed to be adjudicated. If the courts decide that the habitual residence is the left-behind country, the convention requires the return of the child.

However, Article 13 of the convention allows for several exceptions to that rule. One is when the court in the country where the child is currently located determines that the parent seeking the child's return did not enjoy legal rights of custody at the time of the removal. Another is the "grave risk" exception cited in the Minnesota and other recent rulings.

In the case of Israel, no judge in any Hague Convention country had ever ruled until the current intifada that the situation there was so dire that it justified not returning a child. In the United States, a key ruling took place in a 1996 case involving a dispute between Jonathan and Judith Freier over their 4-year-old daughter, Avital. Unlike the court in the Silverman case, the federal district court in Michigan determined that Israel was Avital's habitual residence. When Judith, who was already living in Michigan, invoked an Article 13 exception, the court turned down the request.

The Michigan district court, citing an earlier appeals court ruling that the "grave risk" standard could be applied if the left-behind country was determined to be a "zone of war, famine or disease," acknowledged that Israel was experiencing "some unrest." But the court still determined that Judith Freier had failed to convincingly prove her case for an Article 13 exception.

"Respondent testified hearing about random violence such as car and bus bombings," wrote the court. "With respect to Respondent's anxiety and fear about the ongoing tension in the country, it must be noted that she has lived there for a number of years, raised children there for some fourteen years and that her parents spend extended periods of time there as well."

McKay, Robert Silverman's lawyer, cited the Freier ruling in arguing that Sam and Jacob should also be returned. But Judge Tunheim, finding that the deterioration of the situation in Israel had rendered the Michigan court decision moot, wrote that "the violence has permeated areas that were previously unaffected by the conflict [and] has placed civilians, including children, at much greater risk."

To bolster his finding, the judge noted that just days before the hearing, a Palestinian gunman had killed two people, including a teenager, in a city a few miles away from Robert Silverman's home in Ra'anana. He then went on to cite a host of newspaper articles detailing subsequent attacks.

It would be impossible to argue that the situation in Israel has improved since Tunheim issued his ruling. While the total number of civilian deaths within Israel caused by terror attacks in the last two years may not appear high in absolute terms, Israel has only 6 million people: Statistically, 350 deaths in Israel would be the equivalent of more than 16,000 terrorism-related deaths in the U.S., with its population of 280 million. Nor can statistics measure the trauma of repeated bloody attacks -- on buses, at discos, restaurants, markets and streets -- on the Israeli psyche. It's easy to sympathize with judges placed in the wrenching position of deciding whether to send children back to such a troubled region of the world, one that figures so prominently, and horrifically, in the headlines.

But while the judge's reasoning may read convincingly on paper, it outraged Robert Silverman, who says that it could encourage other parents involved in marital disputes to spirit their children away from Israel in the hopes that courts in other countries won't order them returned.

Next Page: The court relied primarily on a warning issued by the Australian government advising citizens to avoid travel to Israel