Q. My husband and I divorced years ago.  He lives in Israel and I moved here with our two boys once they started middle school.  They are now in tenth grade.  Per our agreement, the children spend summers and the December break in Israel.  Given the situation, I have been trying to convince my ex to come here in December.  I offered to pay for his flight and an Airbnb for he and the boys to spend the time wherever they want in the US.  He said no.

I am watching the news.  I will not send them if this war continues.  He said if I don’t send them, I am violating the law and kidnapping our children and he will get them sent back to Israel permanently.  Is that true?  I just want to keep my children safe.

A. The scenario you described does not align with the Hague kidnapping convention.  If your children have been living in Massachusetts for more than six months, Massachusetts will assert jurisdiction over them for purposes of determining custody and parenting time if you were to file an action in the Massachusetts court.

If he counters with a claim that you are kidnapping the children, the courts will look at the children’s habitual residence. The center of their lives has been in Massachusetts since they started middle school.

Also, if they are now 16, the convention does not apply to them.  If they are not yet 16, they would still have a say in whether they should be “returned” to Israel.  Your ex would have to show they should be returned to a place where they have not lived for the last five years.  His likelihood of success on that claim is about zero.

You should be proactive if you are worried.  If you have not already done so, register your divorce agreement in the Massachusetts court then file to modify the foreign judgment.  The changed circumstances would be that there is a war going on in Israel and it is not safe for your children to travel there for holiday at this time.  Ask the court to modify your parenting plan to provide for your ex to travel here to spend time with the children until the current situation subsides. Unless the situation changes drastically in the next few weeks, I do not see a judge ordering them to spend winter break in Israel.

Email questions to whickey@brickjones.com