Case Update (7 March 2025): Bassat v. Dana; parties’ force majeure clause did not permit Parent to retain children in USA from Israel because of the war
The parties are parents to two children, born in Israel. Both parents and children are Israeli citizens. Respondent Mother is also a U.S. citizen. The parties divorced in 2019, and the Israeli family court awarded Petitioner Father visitation and ordered him to pay child support. In 2020, Petitioner began serving a 20-month prison sentence. After his release, he exercise “his visitation rights on some occasions.” Respondent left the children with Petitioner and their stepmother “several times” while she visited her mother in Florida. In January 2023, Respondent initiated collection proceedings against Petitioner for back child-support. They reached an agreement to stay collection proceedings, and, in return, “Petitioner consented to allow her [Respondent] to travel abroad with the Children under certain conditions.” “Specifically, Petitioner gave Respondent permission to take the Children abroad for 60 days, for any reason.” “Respondent could extend the 60-day period ‘according to the coordination between the parties and/or limitations unrelated to Respondent, e.g., strikes, COVID-related restrictions, etc.”
Israel was attacked on October 7, 2023, and Respondent flew with the Children (and her two younger twins) to Miami on November 9, 2023. Initially, Petitioner was in support of the trip, but in late December, he objected “when Respondent told him that she planned to keep the Children in Hollywood until at least January 23, 2024 - 76 days after leaving Israel - and possibly longer if the war persisted.” In April 2024, she had still not returned the Children. She informed the Petitioner, “there is a war and I don’t go back to war” and that she had “discovered that we have peace of mind and a calm life here” and that the children didn’t want to return to Israel. Petitioner cannot presently travel the USA and is restricted from holding a passport due to his child-support arrears. At the time of trial in January to February 2025, the parties disagreed as to whether the conditions in Israel, and in particular, the cities where each of them lived, was safe.
Respondent Mother argued that, even if the Petitioner had a right of custody under Israeli law, “the conditions in Israel following the October 7, 2023 attack qualify as a ‘limitation unrelated to Respondent’ under the language of the Agreement, which would permit her to keep the Children here [in the USA] beyond 60 days.” The district court disagreed. “The term ‘limitation’ in the Agreement does not encompass Respondent’s personal judgment or view that returning the Children to Israel is unsafe.” In looking at the parties’ agreement, the district court concluded that, based on its customary and normal meaning, “[t]he agreement itself illustrates this definition [of limitation], citing examples such as ‘strikes’ and ‘COVID-19-related restrictions’ - situations that physically restrict Respondent’s ability to return the Children.” “Thus, a qualifying limitation under the Agreement is one that impedes or prevents Respondent from returning the Children, not one that merely makes return undesirable according to Respondent.”
The court found that the Respondent Mother was able to meet her burden to prove that the younger, 8-year-old child had a particularized and mature objection, but the court exercised its discretion to return both children.
