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 (the Procedure for 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), including same-sex partners, are governed by a parallel and separate procedure — Procedure 5.2.0009 (the Procedure for Treatment of Regulating the Status of Spouses of Israeli Citizens, Including Same-Sex Partners). Where the Israeli spouse holds a permanent-residency license rather than citizenship, Procedure 5.2.0011 applies (the Procedure for Treatment of Granting Status to a Spouse Married to a Permanent Resident). 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 the procedures are updated from time to time – so it is recommended to check the current time frame applicable to the specific case against the binding text of the procedure.
The procedures explicitly address the possibility of including in the application also minor children of the foreign spouse from a previous relationship. Procedure 5.2.0009 defines an "accompanying minor" as a minor child, under the age of 18, from a previous relationship of the foreign spouse (the "invited spouse"), whose status is sought to be regulated as accompanying the application. 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.
The central threshold in the procedures is age 15: for accompanying minors over the age of 15, in addition to the other documents, proof is also required that the minor has been in the custody of the invited parent – both legal and actual custody – for at least two years prior to filing the application, and absent the required proof the application is denied (so under Procedure 5.2.0009, and likewise under section ג.6.ד of Procedure 5.2.0011). An application in which the minor is 17.5 years old at the time of filing is referred for decision to the regional director. In addition, an accompanying minor who reaches majority during the graduated procedure is required to file a separate application for permanent status and to meet the conditions applicable to his or her inviting parent; in reviewing that application, among other things, the center of his or her life and ties to the parent he or she accompanied are examined (section ח.5 of Procedure 5.2.0009). 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 – original, verified and, if necessary, translated – attesting to the identity of both biological parents. • A foreign passport of the minor, valid for at least two years. • An original, verified public document attesting to the current address of the other parent at his or her place of residence, for the purpose of contacting him or her (except where the other parent resides in Israel and his or her address is updated with the authority). • 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 – where the inviting parent claims exclusive custody, an original and verified court judgment (translated if necessary), or a divorce agreement approved by a court, determining that exclusive custody was granted to him or her – together with proof of actual 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.
In terms of the procedure's mechanism, the authority does not rely merely on the inviting parent's declaration: he or she must present an original, verified public document attesting to the current address of the other parent, on the basis of which a written notice is sent to the other parent stating that an application has been filed for his or her child to accompany a procedure that may ultimately result in the child acquiring permanent status in Israel, and asking whether he or she objects to the child's emigration and whether he or she objects to the acquisition of status. At the stage of concluding the procedure, the minor's age is checked again, and it is verified that no notice of objection from the other parent is in the file. A distinction must therefore be drawn between the requirement of notice and non-objection and the requirement of active consent – a distinction the courts have had to address, as detailed below.
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. • Delaying the filing of the application – when the filing date, and the minor's age on that date, carry real weight. • Failure to translate and verify (with apostille) documents from the country of origin appropriately.
The Supreme Court has addressed the distinction between a requirement of active consent and a requirement of non-objection. In Supreme Court Admin. Appeal 9102/12 Kuzmina v. Ministry of Interior (2014), it was held that section 8(ב) of the Citizenship Law, 5712-1952, is satisfied where the other parent has not expressed objection, and that a procedure requiring his or her positive consent to permanent residence and naturalization sets a stricter condition than the enabling statute itself. It was further held there that the operative date for examining the application is the date the initial application was filed, and that the other parent's "window of opportunity" to object is limited to the period of the child's minority. The practical lesson: the filing date and the authority's approach to the other parent should be documented.
That said, the tribunals insist that the document presented actually address the child's emigration and the regulation of his or her status. In Appeal (Jerusalem) 1639-22 (29 Aug 2023), an application was considered that had been filed for the son of a permanent resident who had returned to Israel, where the document presented was a general, temporary document dealing with matters of education, religion, medicine and recreation. It was held that the authority's requirement to produce a focused consent from the father, or confirmation of exclusive custody, was reasonable, and that it was not enough that the minor had reached majority during the processing of the application.
Conversely, where the application was filed while the child was still a minor, that fact cannot be disregarded. In Appeal (Jerusalem) 3747-21 (12 May 2024), an appeal was allowed regarding a son for whom an application had been filed while he was a minor; once the Israeli citizen's paternity was confirmed, the tribunal held that he should not be removed and that the authority must regulate his status as the son of an Israeli citizen – with the starting point being that he was a minor at the time the application was filed.
The weight of the filing date has also been emphasized at the administrative-court level: in Adm. Appeal (Jerusalem) 39316-02-18 (12 Apr 2019), it was held that the type of status to be granted to a minor is derived from his or her age at the time the application was filed, and that the authority must take into account exceptional circumstances due to which an earlier application was not examined on the merits.
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 (or Procedure 5.2.0009 for unmarried partners, and Procedure 5.2.0011 where the Israeli spouse is a permanent resident) 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. For accompanying minors over the age of 15, proof is required that the minor is in the custody of the inviting parent – both legal and actual custody – for at least two years prior to filing the application, and an application in which the minor is 17.5 years old at the time of filing is referred for decision to the regional director. 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.
Section ח.5 of Procedure 5.2.0009 provides that an accompanying minor who reaches majority during the graduated procedure is required to file a separate application for permanent status and to meet the conditions applicable to his or her inviting parent, and that application examines, among other things, the center of his or her life and ties to the parent he or she accompanied. Case law has held that the operative date for examining the application is the date it was filed, so it is important to document the date the application was first filed.
An original and verified birth certificate, a foreign passport valid for at least two years, custody documents (if they exist), a document attesting to the other parent's address, 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.