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 Shabbat Parashat Vaetchanan| 5764P’ninat MishpatA Divorced Parent Removing a Child from Israel - Based on Piskei Din Rabbani’im p. 173-178
Case: A mother agreed, during a divorce settlement that the father would have custody of their small child (presently, two and a half years old), and he agreed to limited visitation rights for her. After a year, the father decided to travel abroad for six months to his parents to recuperate from the emotional strain of divorce. The mother petitioned the court to prevent the father from removing the child from Israel, stating that it would detract from her visitation rights and that she had reason to believe that the father would never return with the child. She demanded that if the father wanted to travel, the child should be given over to her custody during that period.
Majority opinion: The mother may indeed demand that the child not be removed permanently from Eretz Israel. While the rule about one member of the family forcing another to move to Eretz Israel and not to leave is found in regard to spouses (Ketubot 110b), Rashi seems to expand it to the household in general. A mother can not actually force her husband to give over a child in his custody to move to Israel, as the forcing to move to Israel goes only as far as being grounds to divorce when the spouse refuses. However, it seems that her claim would at least prevent him from changing the status quo by making the child leave.
That being said, here the father claims that he is taking the child out of Eretz Israel only temporarily, and the aforementioned sources refer to the question of permanent living arrangements. While it is a halachic problem to leave Eretz Israel even temporarily, it is permitted according to most authorities for a variety of mitzvot and clear needs. The father’s desire to visit his parents and recuperate emotionally is legitimate, and, thus, the issue of leaving Eretz Israel should not be an impediment to the visit. We do not see grounds to doubt the father’s stated intention to return within a matter of months, but as the mother claims otherwise, we will require the father to make appropriate financial guarantees.
We must also deal with visitation rights. The main concern in these matters is that of the child’s welfare. While it is important that the child maintain the relationship with his mother, that relationship need not be severed by a temporary separation. To the contrary, based on mutual agreement, the father is the primary caregiver for the child. The prospect of the young child being uprooted from his father’s custody for a matter of months after having become accustomed to his care, becoming accustomed to different surroundings, and being subsequently returned to the father is more traumatic. Visitation rights are important and must be followed, but they should not prevent the normal course of life, which may include one parent not seeing the child for a matter of months. Again, as the child’s emotional state will be more affected by leaving the parent with whom he is now more comfortable, he should accompany his father on a visit which is deemed to be a necessary one.
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