Case of the Day: Ben-Haim v. Edri

The case of the day is Ben-Haim v. Edri (N.J. Super. Ct. App. Div. 2018). Sharon and Oshrat Ben-Haim, two Jewish Israelis, were married in Israel in 2008. Before and after the wedding, they lived in New Jersey. They had a daughter after the marriage, who was born in New Jersey. When the family traveled to Israel, the wife filed for divorce in the rabbinical court, which, under Israeli law, had jurisdiction because the spouses were Jews. The rabbinical court issued a writ of ne exeat, but it eventually allowed the husband to return to New Jersey. The daughter remained in Israel with the wife.

The husband brought an action in the Israeli civil family court (whose jurisdiction was parallel to the jurisdiction of the rabbinical court) seeking the return of the daughter to New Jersey under the International Child Abduction Convention. The family court ruled in the husband’s favor, and the wife appealed. The Israeli Supreme Court agreed that the wife had wrongfully detained the daughter, but it found that the husband had consented to the daughter remaining in Israel as part of the negotiations that led to the rabbinical court lifting the ne exeat, and so it refused to order return of the daughter to New Jersey.

While the case was pending in the Israeli Supreme Court, the husband brought an action in the New Jersey Superior Court seeking to compel the return of the daughter under the Convention. The court found that the daughter had been abducted in violation of the Convention and ordered her return, but the wife refused to obey the order. The New Jersey court grnated the husband a divorce, awarded him temporary custody of the daughter, and issued a warrant for the wife’s arrest. The wife was also charged with a crime in New Jersey. But while this was going on, the rabbinical court awarded custody to the wife. It did not grant a divorce, because under Jewish law the husband was required to consent to the divorce. But it did issue sanctions against the husband, treating him as a “get refuser” and subjecting him to strong social sanctions.

The husband then brought an action in the New Jersey courts against the rabbinical court and several of its judges and officials, alleging that they aided and abetted the abduction of the daughter, defamed him, and intentionally inflicted emotional distress. The defendants removed the action to the federal court under the FSIA. The District Court found that the rabbinical court was an agency of the State of Israel and was entitled to immunity from suit. It then remanded the case against the court’s officials to the state court.

The State Department filed a suggestion of immunity on the grounds that all of the defendants were acting within the scope of their duties as judges and officials of the rabbinical court. The court dismissed the action, and the husband appealed.

The court recognized that most precedents treat the government’s suggestions of immunity as binding, though it noted that the Fourth Circuit’s Yousuf decision held instead that a suggestion of immunity carries “substantial weight.” The court distinguished Yousuf on the grounds that it involved claims of torture and extrajudicial killings, which are violations of the jus cogens. The court found that there were no allegations of violating jus cogens here.

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