Include minor children in graduated procedure: documents, custody, objections by other biological parent.
When an Israeli citizen marries a foreign spouse who has minor children from a previous relationship, one of the first questions that arises is whether and how it is possible to include the children in the framework of the proceeding for regulating the status of the foreign spouse – what is called the "graduated procedure." This is a particularly sensitive and complex issue, combining immigration law with family law, and sometimes also with cooperation (or lack thereof) from the other biological parent. Our office guides families through such proceedings, and in this article we outline the central principles, without replacing individual examination of the specific circumstances of each case.
The graduated procedure, regulated by Procedure 5.2.0008 of the Population and Immigration Authority titled "Treatment of Granting Status to a Foreign Spouse Married to an Israeli Citizen," is a staged pathway for regulating the status of a foreign spouse married to an Israeli citizen; unmarried partners (common-law partners) are governed by a parallel and separate procedure — Procedure 5.2.0009. The proceeding unfolds over several years, during which the Population and Immigration Authority periodically examines the authenticity of the marital relationship and the existence of the conditions of the procedure, until achievement of permanent status. The duration of the procedure and the exact number of stages vary depending on circumstances (married couples as opposed to common-law partners, for example), and it is recommended to check the current time frame applicable to the specific case against the binding text of the procedure.
Procedure 5.2.0008 explicitly addresses the possibility of including in the application also minor children of the foreign spouse from a previous relationship. The precise arrangement of the status of the children depends on several factors, including the age of the minors, their place of residence in reality, and the identity of the parent in whose custody they are.
In common practice, there is a material distinction between younger minors and more mature minors (around age 14–15 and above), with the requirement increasing to prove that the minor is indeed in the custody of the foreign parent applying and resides with him or her in reality; and sometimes also that he or she resided with the parent for a certain period prior to submission of the application. The details of the exact threshold (the age at which the distinction applies, and the required period of joint residence) are set out in the text of the procedure itself, and because this is a technical and detailed document, it is recommended to check the exact threshold applicable to each case with an attorney and against the binding and current text.
An application to include a minor child in the graduated procedure generally requires presentation of documentation establishing both the family relationship and the factual state of custody:
• A birth certificate of the minor, attesting to the identity of both biological parents. • Documents attesting to the place of residence and factual custody of the minor (for example, school enrollment certificates, medical records, residence certificates). • In relevant cases – a court judgment or legal arrangement from the country of origin regarding custody of the minor. • Identity documents translated and verified as required (usually apostille and notarial translation).
This is one of the most complex issues in the field. When a minor has another biological parent living separately (for example, in the country of origin), and that parent objects to transfer of the child to Israel or does not give consent, careful examination is required of several layers:
• The foreign law applicable to custody of the minor in the country of origin, and determination of the question of which parent lawfully holds custody. • The private international law aspect – and in this, in appropriate cases, questions relating to the Hague Convention on International Child Abduction, to the extent it is relevant to the circumstances. • Examination by the Population and Immigration Authority of the custody documents presented to it, as a condition for inclusion of the minor in the application.
Where there is a dispute between the parents regarding the place of residence of the minor, it is strongly recommended to proceed in cooperation with an attorney who specializes in both immigration law and family law, since an error at this stage may significantly delay the proceeding and even derail it.
• Filing an application for a minor child without complete documentation of custody status, which may delay the entire proceeding. • Failure to check in advance the position of the other biological parent, which may lead to surprises at a later stage. • An incorrect assumption that the age of the minor is not relevant – when in reality it significantly affects the burden of proof required. • Failure to translate and verify (with apostille) documents from the country of origin appropriately.
Inclusion of minor children in the graduated procedure is a practical and existing possibility, but it requires careful preparation of custody and family relationship documentation, and special attention to cases in which another biological parent is involved who is not a party to the proceeding. Our office guides families in building the correct legal file from the outset, with the goal of preventing delays and complications along the way.
As a rule yes, subject to the conditions of Procedure 5.2.0008 and examination of the particular circumstances of each case, including the age of the minor, where he or she actually resides, and the identity of the parent in whose custody he or she is.
Yes. The older the minor, the greater the requirement to prove that he or she is indeed in the custody of the foreign parent applying and resides with him or her in reality, including a period of prior joint residence. The exact threshold appears in the text of the procedure and it is recommended to check it for the specific case.
This is a complex issue that combines foreign law, private international family law, and sometimes also aspects relating to international child abduction. It is recommended to examine the circumstances with an attorney before filing the application.
A birth certificate, custody documents (if they exist), residence and enrollment certificates, and identity documents translated and verified with apostille, in accordance with the procedure's requirements.
In most cases it is possible to request addition of a minor child even after the proceeding has begun, but this is subject to individual examination by the authority and compliance with regular documentation requirements.