Familie Familienrecht family law germany austria youth office – Österreich Deutschland Schweiz Unterhalt gemeinsames Sorgerecht Jugendamt Obsorge KESB Trennung Väter Umgangsrecht Eltern Kinder Entfremdung Doppelresidenz alleinerziehende Italia Papa Scheidung Mutter Jugendwohlfahrt Parental Allienation PAS Besuchsrecht Kindesentführung Pädophile Missbrauch Gleichstellung Frauenpolitik Gender Justiz Familienministerin Sophie Karmasin
Fast jede dritte Ehe wird in Deutschland geschieden. Oft genug folgt nach den gemeinsamen Ehejahren der Rosenkrieg. Gestritten wird um Haus, Kinder, den Unterhalt und Besuchszeiten. Was ist das Beste für das Kind?
Jedes Jahr erleben viele Kinder die Scheidung ihrer Eltern. 200 000 Kinder, bei denen sich die Frage stellt: Zu wem kommt denn das Kind nach der Trennung? Ein gordischer Knoten für viele Familien. Irgendwie muss es ja gelöst werden.
Residenzmodell oder #Wechselmodell? Was ist besser? Kann es funktionieren, dass ein Kind glücklich aufwächst, obwohl es pendeln muss zwischen zwei Betten, sich abwechselnd auf zwei Erziehungsstile, zwei verschiedene Familien einstellen muss? Passt jedes Modell für jede Familie? Und wie wird alles organisiert?
In den meisten Fällen bleiben minderjährige Kinder bei der Mutter. Aber ist das für die Kinder immer der richtige Weg? Rund 1,5 Millionen Alleinerziehende leben in Deutschland.
Tags: Scheidung – Trennung – Erziehung – NEWS Politik CDU FDP Koalitionsvertrag – Europarat – Council of Europe Resolution 2079 – Familie – Familienrecht family law germany – Gleichberechtigung Gleichstellung – EGMR Urteil Gerichtshof Rechtsprechung Art.8 – NRW Koalition
This judgment is final but it may be subject to editorial revision.
In the case of Leitner v. Austria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Erik Møse, President, Yonko Grozev, Gabriele Kucsko-Stadlmayer, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 55740/10) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Hermann Leitner (“the applicant”), on 21 September 2010.
2. The applicant was represented by Mr F. Rifaat, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.
3. The applicant alleged, in particular, under Article 8 read in conjunction with Article 14 of the Convention that he was discriminated against, compared to the mother, regarding the granting of custody for their children.
4. On 17 April 2014 the complaint under Article 8 read in conjunction with Article 14 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1961 and lives in Blumau.
6. The applicant and his former partner, S.O., have two children, born out of wedlock in 2002 and 2004 respectively. S.O. always had sole custody of the children as the parents never agreed to have joint custody. The applicant and S.O. never cohabited on a permanent basis. The children lived with their mother during the week. At weekends, the whole family usually stayed at the applicant’s house.
7. In April 2008 S.O. and the applicant separated and the children remained with their mother.
8. On 27 June 2008 the applicant lodged an application with the Vienna Inner City District Court (Bezirksgericht Innere Stadt; hereinafter, “the District Court”) to transfer sole custody to him, or to grant him joint custody together with S.O. Furthermore he applied for an interim measure concerning his visiting rights, as he had not seen his children since 20 April 2008.
9. On 8 October 2008 the parents agreed that the applicant would be able to see his children every second Monday from 2.30 pm or 3 pm until 6 pm and every second Saturday from 10 am until 6 pm.
10. On the same day the applicant applied for an extension of his visiting rights to the whole weekend.
11. After five visits from the applicant in October and November 2008, S.O. unilaterally stopped further visits, claiming that these had a negative influence on the children. Between November 2008 and Easter 2009, on his own initiative, the applicant secretly went to see his children at their school and kindergarten a few times.
12. The Vienna Juvenile Court Assistance Office (Jugendgerichtshilfe) submitted its statement on 10 March 2009 and recommended maintaining sole custody for the mother and visiting rights for the applicant according to the agreement the parents had concluded on 8 October 2008.
13. On 6 April 2009 the District Court decided to grant the applicant visiting rights on every second Saturday from 8 am until 7 pm. It dismissed the applicant’s application for sole custody.
14. In its reasoning the court held that the children were well cared for by their mother. According to Article 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) as in force at the relevant time, a transfer of custody was only possible if the children’s best interest was at risk. In the present case the court found no such risk and the applicant actually had not claimed such a risk. The court further held that the visiting rights were decided in accordance with the parents’ mutual agreement.
15. The applicant appealed on 14 April 2009 and argued in essence that he was discriminated against, compared to the mother. Also, he complained that the court had not decided on the question of whether the parents could be awarded joint custody.
16. According to the applicant’s submissions, his visiting rights were resumed on 24 April 2009 in the amount determined by the District Court (see paragraph 13 above).
17. On 28 July 2009 the Vienna Regional Court (Landesgericht) dismissed the applicant’s appeal as unfounded. It confirmed the reasoning of the District Court and held that there was no indication of a risk to the children’s best interest if the mother maintained sole custody. It further held that there was no provision in law ordering a preference for granting one of the parents sole custody. The court also found that the parents had not mutually agreed on joint custody, therefore no further issues arose in this connection.
18. The applicant lodged an extraordinary appeal with the Supreme Court (Oberster Gerichtshof) on 10 November 2009, again claiming that he was discriminated against compared to the mother and that the decision of the lower instances violated his rights under Article 8 of the Convention.
19. On 1 September 2010 the Supreme Court rejected the applicant’s extraordinary appeal for lack of an important issue of law.
20. After the amendment of the Civil Code (see paragraph 22 below), the applicant on 5 February 2013 again applied for joint custody, or sole custody in the alternative. Shortly after, S.O. moved with the children to the south of Austria, about 400 kilometers from Vienna. The applicant’s requests for sole or shared custody were finally dismissed by the Supreme Court on 7 May 2014.
RELEVANT DOMESTIC LAW AND PRACTICE
21. The relevant provisions of the Civil Code in the version in force at the material time have been summarized in the case of Sporer v. Austria (no. 35637/03, §§ 37-38, 3 February 2011).
22. On 28 June 2012 the Constitutional Court (case no. G114/11) repealed the sentence “The mother shall have sole custody of an illegitimate child” of Article 166 Civil Code as unconstitutional. As a consequence, on 1 February 2013 an amendment of the relevant provisions of the Austrian Civil Code came into force. According to the amended Article 177 of the Civil Code, the mother still has sole custody of her child born out of wedlock. However, parents can be granted joint custody of a child born out of wedlock if it is in the best interest of the child and one parent has applied for transfer of custody or participation in custody. It is no longer necessary for the mother to agree on joint custody.
ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
23. The applicant complained under Article 8 alone and read in conjunction with Article 14 of the Convention that he was discriminated against compared to the mother regarding the grant of custody of their children and that there had been a violation of his right to respect for his private and family life.
Article 8, in so far as relevant, provides:
“1. Everyone has the right to respect for his private and family life …
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The parties’ submissions
24. The applicant submitted that, as a father, he did not have the opportunity under Austrian law, as in force at the relevant time, to participate in the decision-making concerning his children’s education or upbringing. He complained that mothers were favoured by the law when it came to custody of illegitimate children.
25. The applicant pointed out that as a consequence of this discrimination against him as a father, he did not see his children between Easter 2008 and 8 October 2008, and again between 13 November 2008 and 25 April 2009, as S.O. prevented him from seeing them during these periods.
26. The Government submitted that they did not dispute that the relationship between the applicant and his children fell within the scope of Article 8 of the Convention, even though he has never lived with them in a common household. The Government therefore considered Article 14 of the Convention to be applicable.
27. The Government argued that when it came to the applicant’s request for sole custody, the applicable legal provisions as in force at the relevant time did not differentiate in a discriminatory manner between parents because of their gender. It was as difficult for mothers without custody rights to obtain sole custody as it was for fathers. Irrespective of the gender of the parent applying for a transfer of custody, custody could only be withdrawn from the other parent.
28. The Government conceded, however, that the legal situation in force until 31 January 2013 constituted a disadvantage for the applicant with regard to his application for joint custody. Since the mother refused to agree on joint custody, the domestic courts could not examine whether joint custody might have been in the best interest of the children. After the amended Article 177 of the Civil Code entered into force, the applicant could apply for joint custody even without the mother’s consent.
The Court’s assessment
29. In view of the alleged discrimination against the applicant in his capacity as the father of a child born out of wedlock, the Court considers it appropriate to examine the case first under Article 14 taken in conjunction with Article 8 of the Convention (see Zaunegger v. Germany, no. 22028/04, § 34, 3 December 2009, and Sporer, cited above, 66).
30. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see, among other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 58, ECHR 2008).
31. The Court must therefore determine whether the facts of the case fall within the ambit of Article 8 of the Convention.
32. In the instant case, the applicant and his children never permanently cohabited, but regularly spent the weekends together. The Court considers that in such circumstances the applicant’s relationship with his children constituted “family life”, a fact which is furthermore not in dispute between the parties. The Court therefore finds that the facts of the instant case fall within the ambit of Article 8 of the Convention and that accordingly, Article 14 is applicable.
33. Lastly, the Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) General principles
34. The relevant general principles relating to Article 14 of the Convention have been summarized in Zaunegger (cited above, §§ 49-51) and Sporer (cited above, §§ 67-75).
(b) Application to the present case
35. The applicant, as the father of two children born out of wedlock, complained of different treatment in comparison with the mother in that, firstly, she had been granted sole custody by virtue of the law and, secondly, that he had had no opportunity to obtain joint custody without the mother’s consent.
36. Regarding the first part of the complaint, the Court observes that it has already found in the comparable cases of Zaunegger (cited above, §§ 54‑55) and Sporer (cited above, § 85), that in view of the different life situations into which children whose parents are not married are born, and in the absence of an agreement on joint custody, it was justified to attribute parental authority over the child initially to the mother in order to ensure that there was a person at birth who would act for the child in a legally binding way. The Court sees no reason to come to a different conclusion in the present case.
37. When it comes to the applicant’s complaint regarding the refusal of joint custody, the Court reiterates that in the two above-quoted cases Zaunegger and Sporer, which both raised very similar issues to the instant case, it has found violations of Article 14 taken in conjunction with Article 8 of the Convention. In Sporer, the Court found that there was a difference in treatment under Austrian law as regards the attribution of custody to the father of a child born out of wedlock, in comparison with the mother (Sporer, cited above, § 83).
38. The Court observed that Austrian law provided for a full judicial review of the attribution of parental authority and resolution of conflicts between separated parents in cases in which the father once held parental authority, either because the parents were married or, if they were unmarried, had concluded an agreement to exercise joint custody. In such cases the parents retained joint custody unless the court, upon request, awarded sole custody to one parent in accordance with the child’s best interests. In contrast, parental authority over a child born out of wedlock was attributed to the mother, unless both parents consented to make a request for joint custody. In the absence of the mother’s consent, Austrian law at the relevant time did not provide for a judicial examination as to whether the attribution of joint custody would serve the best interest of the child, nor did it allow for an examination, in the event that joint custody was against the child’s interests, of whether the child’s interests were better served by awarding sole custody to the mother or to the father. Thus, a father’s only possibility to obtain custody of the child would be a request for sole custody, but custody could only be awarded to him if the mother endangered the child’s well-being (Sporer, cited above, §§ 77-78). The Court concluded in that case that there were no sufficient reasons to justify a different treatment for fathers of children born out of wedlock who had never obtained joint custody, and found a violation of Article 14 taken in conjunction with Article 8 of the Convention (Sporer, cited above, §§ 88‑89).
39. The Court observes that the applicant in the instant case was in a comparable situation to the applicant in Sporer, and that the very same legal framework was applicable to his requests for custody of his children. The applicant’s children were born out of wedlock, so he had no possibility to obtain shared custody at all, as this was not foreseen by the law, and he also had no possibility to obtain sole custody, as the national courts considered that the mother of his children did not endanger their well-being.
40. The Court therefore cannot but conclude that in the instant case there has been a violation of Article 14 taken in conjunction with Article 8 of the Convention.
41. Having regard to this conclusion, the Court does not consider it necessary to determine whether there has also been a breach of Article 8 of the Convention taken alone (Sporer, cited above, § 91).
OTHER ALLEGED VIOLATIONS OF THE CONVENTION
42. In his observations of 15 October 2014, the applicant submitted new complaints under Articles 6 and 13 of the Convention, which he had not initially raised in his application to the Court. The Court observes that these complaints have been submitted outside the six-month time-limit laid down in Article 35 § 1 of the Convention and must therefore be declared inadmissible.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
43. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
44. The applicant claimed 17,500 euros (EUR) in respect of non‑pecuniary damage. In support of his claim, the applicant submitted a psychologist’s report.
45. The Government contested this claim and pointed out that the finding of a violation would constitute sufficient just satisfaction for any non-pecuniary damage suffered (see Zaunegger, cited above, § 69, and Sporer, cited above, § 96).
46. The Court observes that in contrast to the cases of Zaunegger and Sporer quoted by the Government, the applicant was separated from his children between Easter 2008 and 25 April 2009 (compare Elsholz v. Germany [GC], no. 25735/94, § 70-71, ECHR 2000‑VIII), with the exception of a few visits in October and November 2008. In the Court’s view, it cannot be ruled out that this separation would not have occurred, or would have occurred to a lesser extent, if the applicant had had the possibility under the applicable law to request shared custody.
47. The Court thus concludes that the applicant suffered some non‑pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Making an assessment on an equitable basis, the Court awards the applicant EUR 5,000, plus any tax that may be chargeable on that amount.
Costs and expenses
48. The applicant also claimed EUR 2,000 for the costs and expenses incurred before the Court.
49. The Government submitted that the applicant has not specified the costs of his legal representation and therefore contested this claim.
50. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, in particular the fact that the applicant has failed to submit proof of the costs allegedly incurred, the Court rejects the claim for costs and expenses in the proceedings before it.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaints under Article 8 taken alone and in conjunction with Article 14 of the Convention admissible, and the remainder of the application inadmissible;
Holds that there has been a violation of Article 14 taken in conjunction with Article 8 of the Convention;
Holds that there is no need to examine the complaint under Article 8 of the Convention taken alone;
Holds that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, and that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Wieder einmal ein Beispiel grausamen Kinderklaus auf deutschem Boden, im Bund. Seit über 13 Jahren kämpft ein Vater darum Kontakt zu seiner Tochter zu erhalten. Man glaubt es nicht wie unverfroren die „Ämter“ und „Behörden“, sowie die JUSTIZ, hier speziell im „Handschellen-/Folterland“ Baden-Württemberg mit Menschen umgehen, wie sie die natürlichen Familienbande zu zerstören versuchen.
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Zwei Geschichten, zwei Dramen. Undurchsichtig arbeitende freie Träger und deutsche Jugendämter entfernen immer öfter Kinder aus ihrem Zuhause, manchmal aus fadenscheinigen Gründen. Allein zwischen 2014 und 2015 ist die Zahl der Inobhutnahmen um rund 30 Prozent auf 77.645 angestiegen. RT Deutsch-Reporterin Maria Janssen stellt betroffene Familien vor.
Viele Jugendämter in Deutschland sind personell unterbesetzt und beklagen Überforderung. Das ist mit ein Grund dafür, dass die Behörden oft Aufträge an freie Träger weiterreichen.
Und hier beginnt oft ein folgenschwerer Interessenkonflikt. Denn die freien Träger sind oft gemeinnützige Vereine oder private Firmen, die für die Betreuung von Kindern aus vermeintlich oder tatsächlich schlechtem Hause vom Jugendamt hoch entlohnt werden.
Doch was bedeutet der Kindesentzug für die betroffenen Familien? RT Deutsch-Reporterin Maria Janssen besuchte Eltern, denen das Jugendamt die Kinder entzogen hat. Die Betroffenen berichteten, dass die freien Träger in ihren Gutachten oft mit Lügen und falschen Tatsachenbehauptungen arbeiten.
Aufgrund dieser mit Fake News oder willkürlichen, oft ideologisch unterfütterten, Hypothesen angereicherten Gefälligkeitsgutachten schreibt das Jugendamt dann Aufenthalte vorgeschrieben oder erteilt Betreuungsaufträge. Regelmäßig an den Träger, der das jeweilige Gutachten organisiert hat.
Reiner Schmitt (Name geändert) hat sich selbst an das Jugendamt gewandt in der Hoffnung, seine Tochter aus einer kindeswohlgefährdenden Umgebung bei ihrer Mutter retten zu können. Doch der freie Träger kam zum Ergebnis, das Kind soll unter Betreuung eines freien Trägers bei der Mutter bleiben. Folglich ging es dem Teenager immer schlechter.
So beschrieb die jahrelange Klassenlehrerin das Mädchen als schwer verwahrlost und auch die Noten rutschten in den Keller. Der Direktor des Psychiatrie-Klinikums in Karlsruhe stellte unter anderem „depressive Verstimmungen“ und „suizidale Gedanken“ bei dem Teenager fest. Kontakt zu seiner Tochter hat der Vater seit mehreren Jahren nicht mehr.
Nach der Trennung von ihrem gewalttätigen Mann zog Andrea Kuwalewsky die vier gemeinsamen Kinder alleine groß. Ihren Ex-Mann hat die damalige Polizeiinspektorin wegen schwerer Körperverletzungen angezeigt. Es dauerte nicht lange, bis dieser das Jugendamt einschaltete mit der Behauptung, Andrea Kuwalewsky sei psychisch krank.
Das Jugendamt in Bad Dürkheim beauftragte einen freien Träger mit der Erstellung eines Gutachtens über die Mutter. Dessen nicht approbierte Gutachterin sprach lediglich eineinhalb Stunden mit Andrea Kuwalewsky und diagnostizierte eine Borderline-Störung. Daraufhin entzog das Jugendamt der Mutter das Sorgerecht über ihre vier Kinder. Nach zehn Monaten in einem katholischen Heim kehrten die Kinder zur Mutter zurück, die ihre geistige Gesundheit mittlerweile erfolgreich belegen konnte.
Anmerkung der Redaktion: Die Aussage von Rainer Schmitt bei Minute 07:28 „Ich konnte das Gegenteil beweisen. Sie haben gelogen.“ bezieht sich auf den freien Träger „Kleiner Muck“ und nicht auf das Jugendamt Bonn.
If bitter divorces ever become an Olympic event, Omer Tsimhoni and his ex-wife,
Maya Eibschitz-Tsimhoni, might compete for the gold medal.
Their case in Oakland County became internationally infamous when the judge locked up the couple’s three children for refusing to have lunch with their father. But it’s also unique for its scale, cost and collateral damage.
21 lawyers, including 16 for Eibschitz-Tsimhoni alone
Three Oakland County judges and several trips to the Michigan Court of Appeals
Related cases filed in U.S. District Court in Detroit and also in courts in Israel
$400,000 plus in legal fees.
„It’s the most toxic case I’ve heard of since I’ve been practicing,“ said Birmingham lawyer Henry Baskin, who’s handled hundreds of divorces in almost 60 years of practice. „It’s war between these people. There’s hate, there’s vindictiveness. Everybody gets burned.“
Baskin, like many lawyers in metro Detroit, has watched the case closely. He’s never been hired by either side, but considering the number of lawyers who have been, he quipped „I think 20% of the bar is involved in the case.“
Oakland County Circuit Judge Lisa Gorcyca was nearing the end of her first year in office in December 2009, when she was assigned randomly case No. 766749-DM.
The DM code denotes a divorce case involving minor children. Gorcyca, an assistant prosecutor before being elected judge, was no stranger to hostile court proceedings. But it’s doubtful she could have anticipated that this particular divorce case would alter her career so dramatically.
„This case is every judge’s worst nightmare,“ Gorcyca’s lawyer, Thomas Cranmer, later told the Michigan Judicial Tenure Commission, in defending her actions.
Omer Tsimhoni is an Israeli citizen and a former pilot for the Israeli Defense Forces. He earned a doctorate in industrial engineering from the University of Michigan and now works as a General Motors researcher.
He’s lived most of his life in Israel, but currently resides in the U.S.
Maya Eibschitz-Tsimhoni is a pediatric ophthalmologist by training, who formerly taught at the U-M Medical School. A court filing indicated she’s let her medical credentials lapse but is working to restore them.
Court records show they married in 1995 in Israel, where they both grew up, then moved to the U.S. when she accepted a job in Ann Arbor. They had three children between 2001 and 2005, who were born in the U.S. but have dual citizenship.
In November 2008, Omer Tsimhoni returned to Israel to take a job with General Motors and hopes of bringing his family back with him eventually. The family moved to Israel but several months later, Eibschitz-Tsimhoni returned to Michigan with the children.
In December 2009, Eibschitz-Tsimhoni filed for divorce in Oakland, claiming the marriage had broken down and her husband was trying to take the children back to Israel.
Tsimhoni responded by filing court cases in Israel claiming his wife had kidnapped the children and also in U.S. District Court in Detroit, claiming she’d violated the Hague Convention, a multi-country treaty which seeks to protect children from abduction across international boundaries.
While the divorce case proceeded, Eibschitz-Tsimhoni was awarded temporary custody of the children and the acrimony soon escalated. He had once called police claiming his wife slapped his face as he tried to leave the house after an argument.
She later sought a personal protection order, claiming he assaulted her in front of her children. When the children visited their father, he was required to surrender his passport to Eibschitz-Tsimhoni, who held it until the children returned to her.
As the tensions grew, exchanging children became so hostile that police were needed to mediate the transfer. By September 2010, Gorcyca ordered psychiatric evaluations for the children, and the parents.
Two months later, Tsimhoni made his first claim of parental alienation, arguing his wife was deliberately turning the children against him. Eibschitz-Tsimhoni denied it, claiming the children were afraid of their father, whom she said had been abusive toward them and that she couldn’t force them to love someone.
The issue would continue for years.
In August, 2011, the judgment of divorce was entered, granting joint custody but with the children living with their mother most of the time. Tsimhoni was ordered to pay $1,750 a month in child support.
The acrimony continued with Omer Tsimhoni continuing to claim that his children had been poisoned against him, barely speaking to him when they were together.
Eventually the children began protesting spending time with their father at all, and Gorcyca sought to enforce their father’s rights to see them. She’d order the children to spend time with their father, but they refused. At one point, they linked arms in the hallway to try to prevent them from being taken into court.
By early 2015, Gorcyca began warning the children that if they continued to defy her orders, they could be held in contempt and sent to Children’s Village, the county’s youth shelter/juvenile detention center.
She also continued to pressure Eibschitz-Tsimhoni to facilitate parenting time for their father. Gorcyca grew so frustrated with the mother that that on April 2, 2015, she order Eibschitz-Tsimhoni to report to the court at 9 a.m. and be detained in the courthouse lockup until 4:30 p.m.
At a hearing on June 23, 2015, Gorcyca threatened to jail Eibschitz-Tsimhoni if the children didn’t improve their behavior toward their father.
She ordered the children to meet with their father the following day in her court. One of the children met with her father at 9 a.m. in the jury room beside Gorcyca’s courtroom, but word soon reached Gorcyca that the child was not interacting with Tsimhoni.
Gorcyca spoke to the child briefly, then wrote a script for Eibschitz-Tsimhoni to read to all the children, explaining that their father loved them. When three children returned to the jury room about 11:30 a.m., they still refused to communicate with their father.
Gorcyca began contempt hearings against the children. The oldest child apologized to Gorcyca but refused to apologize to his father, saying his father was violent and had hit his mother.
Gorcyca told the boy his behavior was the worst she’d seen in 46,000 cases.
„You, young man are the worst one,“ she said. „So you bought yourself living in Children’s Village going to the bathroom in public and maybe summer school.“
Sheriff deputies then handcuffed the boy, who was 14 at the time.
She compared the boy’s actions to those of cult leader Charles Manson and made a circular motion with her finger near her ear as she said it.
„Dad, if you ever think that he has changed, and therapy has helped him and he’s no longer like Charlie Manson’s cult, then you let us know,“ Gorcyca said.
She eventually held all three children in civil contempt and ordered them held at Children’s Village for the summer and scheduled a review of their detention for September.
„No one from Mom’s side is allowed to visit any child at Children’s Village,“ Gorcyca wrote in an order.
The Michigan Supreme Court last week ruled that Gorcyca committed judicial misconduct when she „directed disparaging and demeaning remarks“ at the children. It rejected a 30-day suspension recommended by the Michigan Judicial Tenure Commission and ruled that a public censure was enough.
News of the detention soon exploded in media coverage in the U.S., Europe and Israel. The case became a flash point in the parental rights argument.
Fathers‘ Rights groups ralliedto the side of Omer Tsimhoni, agreeing that he was the victim of parental alienation. Other groups rallied to the side of the mother, claiming the children can’t be ordered to love someone.
Facebook pages quickly sprung up promoting one side or the other. Two GoFundMe pages were set up to raise money for legal fees for Eibschitz-Tsimhoni, who would later acknowledge paying a public relations firm $10,000 to represent her side of the issue through social media and other means.
She also claimed to have spent more than $400,000 in legal fees, though at least one of her attorneys asked to quit the case over unpaid bills.
The children spent 17 days at Children’s Village before Gorcyca agreed to release them to attend a Jewish summer camp.
In July, 2015, Omer Tsimhoni asked the court to grant him sole custody of the children and in August, they were placed in a 5-day reunification program, aimed at addressing parental alienation. After that, Gorcyca gave their father temporary custody and ordered their mother to have no contact with them for 90 days.
Eibschitz-Tsimhoni wouldn’t see her children again in person for almost nine months, reuniting with them in April 2016.
In September 2015, Eibschitz-Tsimhoni accused Gorcyca of being biased and asked Gorcyca to recuse herself. Gorcyca refused.
Eibschitz-Tsimhoni appealed to Oakland County Chief Judge Nanci Grant, who declined to hear the request, citing a possible appearance of impropriety. The case was turned over to St. Clair County Judge Daniel Kelly, who ruled that Gorcyca should remain on the case.
The Michigan Judicial Tenure Commission filed a misconduct complaint against Gorcyca over her actions in the case. Gorcyca insisted she’d done nothing wrong, but asked Grant to reassign the case. She did, giving it to longtime Judge Joan Young.
Gorcyca was now off the case, but found herself battling the misconduct charges.
Judge Lisa Gorcyca guilty of misconduct in child custody case
Cranmer, Gorcyca’s attorney, later asked the Michigan Supreme Court to dismiss the charges, saying Gorcyca’s actions were a one-time occurrence, borne of years of frustration with the case.
„Everything that she did in this case … with the exception of the hearing on the 24th … indicates her good faith and due diligence,“ Cranmer said.
Lynn Helland, executive director of the Tenure Commission, disagreed.
„It is a referendum on whether Michigan permits its angry judges to insult, berate and ridicule children and demonstrate a loss of impartiality and with the barest of nods to due process, find a child in contempt of an order that didn’t exist,“ Helland said.
Oakland County has spent $111,000 in legal fees defending Gorcyca against the charges.
Commission head fired
Gorcyca wasn’t the only person to have her career affected by the Tsimhoni case.
In September 2016, Paul J. Fischer, the executive director of the Tenure Commission who filed the complaint against Gorcyca, was fired. He later claimed in a lawsuit that he was the victim of religious discrimination because he is an Orthodox Jew.
Fischer said that shortly after the news reports of the children being sent to Children’s Village, he received a letter from Roey Gilad, the consul general of Israel for the Midwest, expressing concern about Gorcyca and her handling of the children, who have dual citizenship.
Gilad wanted to speak to the children and asked Fischer to ask Tsimhoni’s lawyers to arrange it. Fisher eventually passed on the request, and when he ran into one of the lawyers at a social event, handed him Gilad’s business card.
He was eventually fired by a commissioner, who is not named in the lawsuit. That commissioner had previously told Fischer, „You’re Jewish, you speak Hebrew, you’ve been to Israel,“ the suit claims.
Fischer’s lawsuit is pending in U.S. District Court.
When Joan Young took over the case from Gorcyca, she quickly put both sides on notice that they needed to behave better.
„I like to think of this as an honorable profession … we should treat each other civilly,” Young said. She noted her disappointment at the hostile tone found in some of the pleadings, telling both sides she wouldn’t tolerate disparaging comments.
But both sides continued to fight the case. In January 2016, Eibschitz-Tsimhoni asked for custody of the children to be returned to her.
„The children lost their mother from their lives on June 24, 2016,“ Eibschitz-Tsimhoni’s lawyers wrote.
In early April, she was allowed to see them, but three days after their first reunion with their mother, their father asked again for sole custody of them.
In May, Young order the couple to take part in mediation and in June, Eibschitz-Tsimhoni was once again became primary custodial parent, having the children about 68% of the time.
Young retired in December 2016 after almost 30 years on the bench. The case was reassigned to Judge Victoria Valentine.
Eibschitz-Tsimhoni later asked for child support to help pay their expenses, saying in pleadings that she lives on an allowance from her parents in Israel of about $9,000 per month. Her ex-husband makes more than $200,000 and should pay more. she said.
Lawyers for both parents eventually withdrew from the case, but that didn’t end it. New pleadings continued to be filed as recently as earlier this month. The judgment of divorce was entered in 2011, but they continue to litigate other matters, most recently the sale of an Ann Arbor home.
Both parents now represent themselves.
Contact John Wisely: 313-222-6825 or email@example.com. On Twitter @jwisely
Heute fand in Linz (Oberösterreich) in Kooperation der Vereine der Väterplattform, „Väter ohne Rechte“ und „Vaterverbot“ eine Unterschriftensammelaktion statt. Es ging um unsere Bürgerinitiative/Petition, dass PAS ins Strafrecht gehöre.
Tatsächlich konnten wir deutlich über 200 Unterschriften sammeln. Die Linzer Öffentlichkeit war erstaunlich zugänglich für das Thema – außergewöhnlich viele Frauen unterschrieben.
Bei solchen Aktionen bleibt es nie aus, dass wir die Schicksale anderer Betroffener hören. Überaus erstaunlich war, dass sich zwei Mütter einfanden, die von sich aus sagten, dass sie bewusst entfremdet haben und es ihnen schon lange sehr leid tue, bezüglich des Schadens, den sie den Kindern angetan haben. UNGLAUBLICH!!!!!! Von so viel Einsicht und Reue waren wir überwältigt!!!!! Beide Mütter unterschrieben (y)
Ganz schräg war, dass sogar eine kinderlose Frau als ehemalige Mitarbeiterin des Frauenhauses Linz auf uns unaufgefordert zukam, uns erzählte, dass sie entsetzt war, was sie dort erlebte. Soweit nicht verwunderlich – Gewaltschutz ist auch VoR äußerst wichtig. Dabei meinte sie es anders – jetzt waren wir vollkommen platt!!!!
Sie erzählte uns von den Einzelgesprächen mit den Frauen, wie sie zugaben häufig ihre Männer zu schlagen, Tipps wollten, wie sie den Vater am Besten abservieren können, was die erfolgreichste Strategie sei, was unter Umständen „erschwerend“ für die Väter wäre (Sie erzählte sie hatte den Eindruck, dass auch Bereitschaft zur Erfindung da war), und das war wohl das Schrägste, wie die anderen Teammitglieder und Angestellten des Frauenhauses hier zumindest kooperativ berieten! Sie war knapp 3 Jahre dort beschäftigt.
Ganz besonderen Dank wollen wir der Benetton-Zweigstelle genau gegenüber unseres Standes widmen. Eine Dame kam auf uns zu, erkundigte sich, nahm Infomaterial mit und verschwand wieder – sie wolle es sich überlegen. Knapp 2 Stunden später kam die Dame mit einem VOLL AUSGEFÜLLTEN Unterschriftenbogen wieder. Alle 11 Mitarbeiter des Modelabels (mehrheitlich weiblich) unterschrieben und überreichten uns das Formular – FANTASTISCH!!!!!!!
Selbstverständlich wurde auch reichlich genetworkt und es wurden Pläne für weitere Infostände in Salzburg und Wien geschmiedet.
Morgen findet die nächste Unterschriftensammlung in Kärnten von dem Verein „Väter für Recht“ unter der Obmannschaft von Clemens Costisella statt. Herzlichen DANK EUCH allen, die sich engagieren und auch unterschreiben.
Ganz besonderen Dank möchten wir einem Linzer Vater und VoR-Mitglied aussprechen, der den Infostand wie ein alter Hase aber mit unendlichem Charme nicht nur vorangetrieben sondern auch geprägt hat. Ferhat VIELEN LIEBEN DANK! Du bist ein Naturtalent und ganz einfach fantastisch!!!! 1000 Dank!
Danke auch an Anni Lemberger, die extra aus Salzburg angereist ist und einen überaus interessanten Netzwerkpartner mitnahm – wir sind schon sehr neugierig.
Der liebe Werner Geißeder hat es auch wieder einmal geschafft, sich nach verdienter Auszeit zu engagieren. DANKE!
Christian Schmölz war nicht nur der Fahrer aus Wien, sondern managte gleichzeitig die häufig frequentierte Hotline, filmte und warb um Unterschriften – ganz, ganz großartig.
Die kleinen Eskapaden mit der Polizei rechtfertigen keineswegs jegliche Art von Paranoia. Wir bekamen aus einem anderen Grund eine geringfügige, gerechtfertigte Strafe.
https://www.facebook.com/groups/vaeterohnerechte/permalink/1486464511418852/ Tags: Gesetze Österreich – Gleichberechtigung – Politik – Justizopfer – Kinderrechte – Menschenrechtsverletzung Österreich – PAS Eltern-Kind-Entfremdung Kindes-Entfremdung PA parental alienation – Eltern Entfremdung PAS – Selbstmord – Suizide – Freitod – Citizens‘ Initiative / Petition – Parential Alienation in the criminal Law – fathers right in austria