Under the Hague Child Convention does a force majeure clause in a marital settlement agreement hold any weight? The question is a frequent international custody issue which arises after parents enter into an agreement allowing their children to travel internationally. In one recent case, two Israeli parents agreed to their children visiting the United States for 60-days with some exceptions.
Parents at War
The parties in the Hague case are the parents of two children who were both born and raised in Israel. The family members are all Israeli citizens too, but the Mother was also a U.S. citizen. The parties divorced in 2019 in Israel. After the divorce, the Israeli family court awarded the Father with visitation rights, and ordered him to pay child support.
The Mother argued the Father never exercised his rights of custody. However, the Mother would also travel internationally alone, and leave the children with their Father and his new wife. The Father was found to have exercised his visitation rights with the children.
In January 2023, the Mother filed an action in Israel to collect back child-support from the Father. The parents reached an agreement in the Israeli family court in which they stopped collection proceedings, and in return, the Father agreed to let the Mother travel abroad with their two children under certain conditions.
The Mother was allowed to travel internationally with the Children for 60 days. She could extend the 60-day period either by agreement with the Father, and/or limitations unrelated to the Mother’s own actions, such as strikes, COVID-related restrictions, etc.
Then Israel was brutally attacked on October 7, 2023. A month later, the Mother flew with the Children, and her two twins from another relationship, to Florida. The Father agreed to the trip, but then objected after the Mother told him that she planned to keep the Children in Florida until at least January 23, 2024 – 76 days after leaving Israel – and possibly longer if the war persisted.
By April 2024, the Mother had still not returned the Children. Then she dropped the bomb on the Father: she had “discovered that we have peace of mind and a calm life here” and told him that the children didn’t want to return to Israel.
The Father was trapped. He was not allowed to travel to the U.S., and was restricted from holding a passport, due to his owing child-support. The Father then filed a petition for return of the children to Israel under the Hague Convention in a Florida federal court.
At the time of trial from January to February 2025, the parties disagreed as to whether the conditions in Israel, and in particular, whether the cities where each of them lived were safe to return to and an exception to return under their agreement.
Florida Hague Convention
I often speak and write about the Hague Abduction Convention and international child custody issues. In fact, I successfully represented the Father in this Israeli case. What do you do if your children are wrongfully abducted or retained internationally?
The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.
The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.
The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children under 16 years of age. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before the wrongful child abduction.
The Hague Convention exists to protect children from international abductions by requiring the prompt return to their habitual residence. But there are defenses too. In the Israeli case, one defense asserted involved an agreement containing a force majeure clause. Essentially, the court was not bound to order the return of the children if the Mother demonstrated by a preponderance of the evidence that the Father gave prior consent to the retention or subsequently acquiesced in their retention.
The argument was central to the case because the Mother relied on language in the agreed child support order that allowed her to travel abroad with the children for up to 60 days unless there was some limitation unrelated to the Mother’s own actions, “e.g., strikes, COVID-related restrictions, etc.”
Force Majeure?
At trial, the Mother argued that, even if the Father 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 in Florida beyond 60 days.
The district court disagreed. “The term ‘limitation’ in the Agreement does not encompass the Mother’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.”
The district court found that a qualifying limitation under the Agreement is one that impedes or prevents the Mother from returning the Children, not one that merely makes return undesirable according to the Mother.
The case is analyzed at MKFL International Family Law here.