## Facts

- Jonathan M. Freier (father) and Judith D. Freier (mother) are married and are dual United States–Israeli citizens.
- The couple lived together in Israel; Judith’s two children from a prior marriage also lived with them there.
- Their daughter, Avital, was born on June 10, 1992, in K’far Sava, Israel, and lived in Israel from birth, attending day care and preparing to enter kindergarten there.
- Judith periodically took the children to Michigan during summers to visit her parents; Avital’s prior time in Michigan totaled roughly eight weeks across earlier visits.
- In 1996, Judith traveled with Avital to Michigan for what Jonathan understood to be a vacation trip consistent with the family’s prior summer visits.
- After arriving in Michigan, Judith informed Jonathan that she and Avital would not return to Israel.
- Jonathan obtained an Israeli court injunction barring Judith from leaving Israel until September 1997 or until the parties’ divorce and custody matter concluded.
- Jonathan filed a petition in the United States District Court for the Eastern District of Michigan under ICARA and the Hague Convention seeking Avital’s return to Israel.
- Because Avital was very young, Judith maintained that an order returning Avital to Israel would effectively require Judith to return as well, and she argued that the Israeli injunction could keep her from visiting her other children, raising due-process concerns.
- Testimony indicated that Israeli civil and rabbinical law recognized due-process rights to challenge the injunction and that the Israeli court could discharge the injunction if Judith posted a bond.

## Issues

1. Whether Avital’s habitual residence was Israel and, if so, whether Judith’s failure to return Avital after the Michigan trip constituted wrongful retention under the Hague Convention and ICARA.
2. Whether the court should refuse to order Avital’s return under Article 20 of the Hague Convention on the theory that return would violate fundamental United States principles of human rights and fundamental freedoms, based on claimed due-process problems arising from the Israeli travel-restriction injunction.

## Decision

- The court granted Jonathan’s petition and ordered that Avital be returned to Israel.
- The court found Israel to be Avital’s habitual residence and concluded Judith wrongfully retained Avital in Michigan when she decided not to return after the vacation.
- The court rejected Judith’s Article 20 defense because she did not show, by clear and convincing evidence, that return would violate fundamental U.S. principles of human rights and fundamental freedoms.
- The court relied on evidence that Israeli courts provide procedures to challenge, modify, or discharge the injunction (including through posting bond), which defeated the asserted due-process objection.
- The court treated the case as a return proceeding, not a custody determination, leaving custody and visitation merits to the courts in Israel.

## Legal Principles

- Under ICARA and the Hague Convention, when a child has been wrongfully removed or retained from the child’s habitual residence in breach of custody rights, the court generally must order the child’s return, subject to limited defenses.
- “Habitual residence” turns on the child’s settled life and center of day-to-day activities, not on one parent’s unilateral decision to keep the child in a new country after a temporary trip.
- Article 20 permits refusal of return only if return would be barred by the requested state’s fundamental principles relating to human rights and fundamental freedoms, including basic due process; the defense is applied narrowly.
- ICARA places the burden on the respondent to prove an Article 20 defense by clear and convincing evidence.
- A due-process-based Article 20 claim is weakened where the foreign legal system provides meaningful avenues to contest, review, or lift the challenged order.
- A Hague return order does not decide custody; it determines the proper forum for custody litigation by returning the child to the habitual-residence country.

## Conclusion

The court ordered Avital’s return to Israel because Israel was her habitual residence and Judith’s post-trip decision to keep Avital in Michigan was a wrongful retention; Judith’s Article 20 argument failed because the evidence showed Israel provided due-process methods to challenge or lift the travel-restriction injunction, so return did not offend fundamental U.S. principles.


Freier v. Freier, 969 F. Supp. 436 (1996)