Thursday, March 13, 2003
Middle East Situation No Reason to Deny Israeli Custody—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Los Angeles Superior Court judge did not abuse his discretion in awarding custody of a 5-year-old boy to his mother and allowing her to return with him to her native Israel, the Court of Appeal for this district ruled yesterday.
Div. Eight largely upheld an order by Judge John Sandoz awarding custody of Yuval Abargil to his mother, Michal Abargil, and allowing her to reside with the child in Israel.
The panel, which previously stayed Sandoz’s order, said the mother and child may leave the country once she posts bond in a “substantial” amount determined by the trial judge and registers the custody decree, along with a stipulation recognizing the continuing jurisdiction of the California courts, in Israel.
Yuval’s parents, both Israeli citizens, came to the United States several years apart and married in 1994. Both were tourists who had overstayed their visas.
They separated in March 2000, and Michal Abargil, with her husband’s consent, took the child with her to Israel a short time later, remaining there to take care of her dying mother. While they were there, Aharon Abargil filed for divorce and asked for custody.
Michal Abargil attempted to return after her mother’s death, but because she had left the country without trying to regularize her status, she was denied a reentry visa and barred from the United States for 10 years. She was, however, able to obtain temporary approval to return for the limited purpose of litigating custody.
After a five-day trial on custody, Sandoz ruled that it was in the child’s interest to remain in the mother’s custody because she had been his caretaker all his life, and because she was more likely to facilitate visitation between the child and her ex-husband than he would be to facilitate visitation with her.
Sandoz issued his order on March 18 of last year. Three weeks later, the former husband’s counsel moved to reopen the proceedings on the ground that violence in Israel had escalated, to the point where travel advisories had been issued by the U.S. government and the University of California, among other institutions, had recalled all of its students studying there.
The judge denied the motion, saying the issue of security in Israel had been thoroughly litigated at trial. The judge reiterated his conclusion that the balance of factors, including the relative safety of the area where the mother intended to live—the suburbs north of Tel Aviv— supported the mother’s request.
Rubin, writing yesterday for the Court of Appeal, said there was substantial evidence to support the trial judge’s conclusions as to the security question and the other issues raised by the father, including the effect of the move on the father-son relationship.
The justice acknowledged that the vagaries of immigration law put the parties in a difficult position. The mother, having left without trying to change her status, cannot cone back to the United States; the father, having applied for permanent resident status, cannot easily leave for an extended period of time.
But those problems “cut both ways because they exist whichever direction one goes,” Rubin said.
“Solomon of the Old Testament had it easy,” the jurist commented. “By threatening to cut a baby in half, he flushed out a child’s true parent. Here, in contrast, we have two loving parents, each of whom wants Yuval, but it may sadly be only one of them who will see him with any certainty.”
As for the dangers of life in Israel, Rubin noted that the travel advisories cited by the ex-husband did not refer to the area where Yuval and his mother would be living, but to Jerusalem, Gaza, and the West Bank.
The justice elaborated:
“We would be naÔve to believe—and the trial court did not conclude—there is no danger in living in Israel, only that the benefits to Yuval of growing up there under his mother’s care outweighed the risks. We need not be drawn into the thicket of international diplomacy urged on us by Aharon’s characterization of Israel as a war zone, because one must bear in mind that few, if any places, in the world are safe from all danger, be it political, ethnic, religious, natural, or random. The proper inquiry is whether Yuval’s new life in Ramat Gan or Givatayim will be rich enough, loving enough, fulfilling enough, and secure enough for it to be his best choice in a world often of no perfect choices. The trial court found it was, and as substantial evidence supported its ruling, we see no basis for reversing it.”
The case was argued on appeal by Leslie Ellen Shear for the father and Honey Kessler Amado for the mother.
The case is In re Marriage of Abargil, B157977.
Copyright 2003, Metropolitan News Company