A New Jersey appeals court has ruled that a Bergen County man, whose wife obtained a divorce in their native Israel, cannot pursue a lawsuit against the Rabbinical Religious Courts Administration of Israel and its judges over granting custody of their child to his ex-wife.
A three-judge Appellate Division panel, in a published ruling released on Monday, said plaintiff Sharon Ben-Haim of Englewood cannot sue the Israeli court because the U.S. State Department conferred conduct-based immunity on foreign governmental institutions acting within their official capacities.
The State Department had issued a “suggestion of immunity” statement for Israel’s Rabbinical Courts, wrote Appellate Division Judge Robert Gilson, joined by Judges Susan Reisner and Jessica Mayer.
“We hold that New Jersey courts are bound by an SOI when, as here, the State Department’s determination of conduct-based immunity is premised on the officials acting within the scope of their duties for a foreign sovereign nation,” Gilson said.
According to the court, Ben-Haim and his now-ex-wife, Oshrat, are both Israeli citizens who were married in Israel in 2008, but who lived in Englewood. They have daughter, who was born in 2009.
The family visited Israel in March 2010, when Oshrat filed for divorce in a rabbinical court. In Israel, rabbinical courts have dual jurisdiction with secular family courts over issues involving child custody support and division of property, the decision noted.
The rabbinical court issued an order prohibiting Ben-Haim from leaving Israel until the divorce proceedings were concluded. That order eventually was lifted, and Ben-Haim eventually returned to New Jersey, according to the decision.
After protracted litigation, the Israeli Supreme Court held that while Ben-Haim should have custody of his daughter, the girl could remain with Oshrat because Ben-Haim voluntarily returned to New Jersey alone.
Afterward, the rabbinical court ruled that since Ben-Haim did not agree to a divorce under Jewish doctrine, known as a “get,” he was subject to sanctions. Under that rabbinical court ruling, Ben-Haim was considered a criminal, and other Jews were forbidden to deal with him, the Appellate Division said. That ruling was published on public websites, the decision noted.
In 2015, Ben-Haim sued the rabbinical court in Bergen County, alleging that the court and its judges aided in allowing Oshrat to kidnap his daughter, and defamed him with its ruling.
Both the Israeli government and the State Department moved to dismiss the lawsuit based on the Foreign Sovereign Immunities Act. A trial judge agreed and dismissed the lawsuit, relying on the State Department’s SOI designation.
On Ben-Haim’s appeal, Gilson said the issue was a case of first impression for New Jersey courts.
“The United States Constitution vests the power to regulate relationships with foreign nations to the executive and legislative branches of the federal government,” he said. “Historically, the executive branch of the federal government has defined the principles governing a foreign state’s immunity from lawsuits in the United States.
“The Law Division correctly accepted the SOI as binding,” Gilson said. “It has long been established that if the State Department determines that foreign officials are entitled to immunity, that decision is binding on the courts.”
Ben-Haim’s attorney, Marlboro solo Saul Roffe, declined to comment.
The Israeli rabbinical court retained Robert Reeves Anderson, of the Denver office of Arnold & Porter Kaye Scholer. He did not return a call seeking comment.