Daily Record and the Kansas City Daily News-Press , Aug 5, 2008 by Kelly Wiese 

A federal appeals court has ruled that a federal judge must consider a divorced father's suit under an international standard seeking to have his children sent to Israel. 

The man and woman were married in Israel but moved around and settled in Missouri in 2001. The couple divorced in 2005, and the divorce decree filed in a Missouri court held that if one parent relocated to Israel, the other would follow suit with their three children.

But the mother and children, now ages 12, 6, and 4, have not moved there, and the father, Sagi Barzilay, argues she violated their agreement. 

He filed a claim in federal court in October 2007 under the Hague Convention on the Civil Aspects of International Child Abduction law. A few months earlier, the ex-wife, Tamar Barzilay, had asked a state court to modify their divorce decree and restrict his visitation rights. 

U.S. District Judge E. Richard Webber decided to abstain from ruling, so it would not interfere with a state court ruling on the merits of the Hague Convention claim. 

However, a panel of the 8th Circuit Court of Appeals said Monday, neither parent brought a Hague Convention claim in state court, so the issue was not properly raised or litigated there. Also, the court said, generally a court must exercise its given jurisdiction, and this case did not fall under one of the few exceptions to that principle. Hague Convention claims may be filed in either state or federal court. 

"The parties did not litigate the merits of such issues, and any statement by the state court touching on an issue under the Hague Convention inquiry is not controlling," the court said in an opinion written by Judge Diana E. Murphy. 

The appeals court sent the case back for the judge to consider the Hague Convention claim. The court also said that such claims are separate from child custody disputes, and that Hague Convention claims should be resolved before custody matters get decided. 

Allan F. Stewart, an attorney for Sagi Barzilay, said the appeals court got it right. He also said he has appealed the state judge's ruling, hoping she will back off a custody decision granting the father visitation rights in the United States only and instead wait until the federal suit is resolved. 

Attorneys for Tamar Barzilay were out of the office Monday afternoon and did not return calls seeking comment by press time. 

Sagi Barzilay moved back to Israel later in 2005, after the divorce. In June 2006, the mother brought the children to Israel to visit. While they were there, her ex-husband went to family court in Israel seeking to keep the children from returning to the United States, arguing she violated their divorce decree. 

That action eventually resulted in a consent agreement that the entire family would move to Israel by August 2009. In the federal court case, the woman says she signed it only to get herself and the children back home and never intended to follow through.

Under Hague Convention claims, the appeals court said, the key issue is determining if a child was wrongly removed from the country of "habitual residence" or wrongly kept in a country that is not that residence. 

As the former husband received a custody determination from an Israeli court and the former wife got one from a Missouri court, the appeals court found that the federal district court is the best place to determine whether Israel or Missouri is the habitual residence of the children and if they were wrongfully removed. The appeals court said it was reaching no conclusions about that issue.

Original Article:
http://findarticles.com/p/articles/mi_qn4181/is_20080805/ai_n27978489