A Modern Day Mortara Affair

Six years earlier, a servant girl in the Mortara household, fearing that Edgardo was on the verge of death, had sprinkled water on him. When the local papal inquisitor subsequently learned of this, he declared Edgardo baptized and had him seized. He would never return to his parents, and he died a Catholic priest.

While the church no longer has the political authority to seize children, a secularized version of the Mortara Affair is currently taking place in Italy.

A. Background

For the next four years, Tali had custody of the two girls born in the course of her marriage to Duhlberg. Not once in that period did Moshe Duhlberg challenge Tali's fitness to raise the children.

In 1996, however, Tali became religious and married a religious Jew. Prior to her remarriage, her former husband told her that if she remarried it would be the worst mistake that she ever made, and she would rue her decision forever.

Duhlberg did not take long to seek the revenge he had promised. Soon after the Tali's second marriage, Duhlberg sought to have her removed as a guardian of her two daughters on the grounds that her religious beliefs and practices rendered her no longer capable of caring for her daughters. Removal of guardianship would have meant the severance of all legal relationship between the Tali and her daughters.

The court in Venice, where Tali was then living, ordered "a psychological examination to assess the damage done to the minors as a result of the religious choices of the mother." That examination focused almost exclusively on traditional Jewish religious practices, with the psychologist frequently expressing astonishment at such things as Tali's insistence on wearing stockings even in the heat of the summer.

Tali was asked, inter alia, "Why do you dress your daughters like that? They are so beautiful, why must they wear long dresses? Why don't you watch T.V. ? Why can't they eat pizza? Why are you so closed?"

In late 1996, Tali received permission from the Venice court to bring her daughters with her to Israel for their grandfather's birthday. While in Israel, she made a fateful decision not to return to Italy. She had detected an extreme prejudice against traditional Jewish practice from the psychologist, and feared that Duhlberg would not only win custody of her daughters but also succeed in having her removed as their guardian.

Tali's fears were based on her personal knowledge of two other cases in Italy, in which the Italian courts had deprived Orthodox Jewish parents of custody. One of those cases involved the same juvenile court in Genoa that would eventually decide the fate of Tali's daughters. In that case, the parents were separated for a long time preceding divorce, and the son was for many years in the custody of the mother. The mother became a baalat teshuva, and the Genoa court granted custody to the father and limited the mother to two visits annually.

The other case in which Tali was intimately involved was that of her second husband. He had been previously married to a convert to Judaism, who later decided that she no longer wanted to lead a religious Jewish life. Even though in that case, it was the mother who had changed the religious status quo from the time of the marriage, a court in Bologna granted the mother custody. The father, a Lubavitch emissary in Venice, was only allowed to see his son in the house of the mother in Bologna, which she shared with her non-Jewish mother. In addition, he was allowed to take his son for some holidays, but only on the condition that Tali and her daughters not be present in their house in Venice during such visits, which imposed great hardship on all concerned.

Another factor influencing Tali's decision to remain in Israel was her awareness of Duhlberg's growing interest in Catholicism. (He had long consulted a wide variety of spiritualists and was prone to fantasies of G-d speaking to him.) She was afraid that he might baptize the two girls (both still minors from the point of view of Canon Law), and that the Catholic Church would recognize those forced conversions (as it did in the Mortara case).

For the next two years, Tali was in hiding with her two daughters. As a consequence, she had to receive a divorce from her husband in Italy, who was unable to leave Italy because of his own custody dispute. Eventually she married again in Israel -- this time to the head of a prominent rabbinical court in Bnei Brak.

From the time that she decided to remain in Israel, Tali was in frequent written contact with Duhlberg in the hopes that she could enter into some kind of agreement with him. She indicated her willingness to have her daughters spend every summer with Duhlberg.

In an effort to secure such an agreement, Rabbi Yisrael David Grossman travelled to Genoa in late 1998 to meet with Duhlberg. Duhlberg agreed to sign such an agreement on the condition that he be allowed to see the girls and that they explicitly tell him that they wished to remain with their mother. Such a meeting was arranged in Netanya, and the girls told Duhlberg that they wanted to remain in Israel with their mother.

Duhlberg, however, had arranged in advance with the Israeli police to capture the sisters at that meeting. After they were seized, the girls were told that they should not resist going with their father since their mother would be imprisoned for a long time and they would have no one else besides their father.

With the girls' capture, there began a series of legal proceedings in Israeli courts to determine whether the provisions of the Hague Convention, which requires the return of children to the jurisdiction from which they were illegally taken, applied to this case. The Tel Aviv District Court viewed the sole question before it as Would the two girls suffer irreparable damage if they were returned to Italy for the completion of custody proceedings there?

The psychologist appointed by the District Court to make that determination, despite finding that the girls and their mother enjoy an extremely close connection, was unwilling to say with absolute certainty that their being returned to Italy would cause them irreversible psychological damage. She specifically mentioned in her report that it was crucial to preserve the connection between mother and daughters while custody proceedings in Genoa, Italy were pending.

In the course of the proceedings in the Tel Aviv District Court and subsequently in the Israeli Supreme Court, Duhlberg consistently represented himself as a traditional Jew, who prays every day, and who would have no trouble raising two observant daughters. He also told the Israeli courts that if he were granted custody in Italy, he would agree to very liberal rights of visitation for Tali, and that if the girls proved incapable of adjusting to life in Italy, he would not object to their returning to Israel. But for those representations, it is quite likely that the Israeli courts would not have ordered the girls returned to Italy.

Every one of those representations was a lie. In the twelve years that he lived in Genoa, Duhlberg had never once set foot in the local synagogue in Genoa or registered as a member of the community. Indeed, long before the Israeli court hearings commenced, he had already been baptized by a local priest in Genoa and frequently attended Church to participate in Catholic sacraments. All this was admitted by the priest on tape, and confirmed by eyewitnesses in conversations with Rabbi Guisseppe Momiliano, the rabbi of Genoa.

B. The Italian Court Proceedings

Contrary to the explicit recommendation of the court-appointed psychologist in Israel that the girls should not be cut off from their mother, Tali was not permitted to see them for three months prior to the Genoa court entering its final judgment. During that entire period they were in the exclusive custody of their father. Moreover, the Public Prosecutor in Genoa intervened in the proceedings and urged the court to remove Tali's guardianship of her daughters.

The court proceedings in Genoa lacked all the normal indicia of a judicial hearing. The court refused to hear any witnesses. Only Tali and Duhlberg were allowed to speak, and no cross-examination was permitted by the other side. Yet while the court refused to hear any testimony, it accepted all manner of submissions, including newspaper stories, as evidence.

Even after the court entered its judgment, and the case was pending on appeal there were serious irregularities in the court's conduct. Shortly before the appeal was to be heard, the Genoa juvenile court decided to conduct new interviews with the two girls. Tali and her legal representatives were not even informed that this was taking place. The interviews took nearly two hours, and yet the court protocol fills less than two pages. The proceedings were either not taped or the tape was not made available to Tali. There is good reason to believe that the protocol itself contains crucial distortions.

Most shocking of all, the court refused to appoint any objective experts to evaluate the psychological state of Tali or Duhlberg, or the two sisters, or the interrelationship of the girls with their respective parents. Such a failure cannot be reconciled with the court's duty to ascertain the best interests of the children. Tali and her attorneys repeatedly pressed the Genoa court to order a neutral psychological evaluation of her and Duhlberg and of their relationship with the two girls. She is absolutely convinced that Duhlberg cannot withstand scrutiny by any serious psychologist. And indeed he has consistently opposed any such evaluation.

The report of the court-appointed psychologist in the earlier proceedings in Venice described Duhlberg as "not completely balanced," "narcissistic," prone to "uncontrolled fits of violence," and in the habit of "turning to magic."

While the same psychologist also found Tali to be unstable, that evaluation was only formed after her failure to return to Italy with her daughters and appears to have been largely based on that failure "It is easy to imagine that the mother is unstable . . ." The Italian expert explicitly wrote that her evaluation of Tali was too incomplete to serve as the basis for a final determination and lacked crucial testing. She also recommended that contacts between Tali and her daughters be as "extensive and intensive as possible."

Two Israeli experts, by contrast, gave favorable evaluations of Tali. An American-trained clinical psychologist interviewed both Tali and her daughters over a period of three days and administered a battery of psychological tests. He found that "beyond all shadow of a doubt, the girls have an excellent relationship with their mother. . . They identify with her and her situation and express no opposition to her course of action. . . . It is clear that they identify with the religious way of life, . . . and there is nothing unusual or extreme about their behavior. ‘'

"From my interviews," he concluded, " it is clear that we are speaking about a woman who is raising her children with extreme devotion and who has invested a great deal in their education and in their connection with her."

Dr. Richard Kramer, another American clinical psychologist, administered a wide battery of clinical tests to Mrs. Rosenberg. He described her as "extraordinarily bright, . . . open-minded, creative, energetic, and charming . . . . After reviewing the results of two of the most commonly used psychological tests, a leading world expert told Dr. Kramer, "My general impression is of a psychologically very healthy person, well-balanced, fairly well adjusted in her feminine role, with a definite vocation for rearing children."

Despite the total lack of psychological testing of the girls available to it, the Genoa court did not hesitate to make numerous assumptions about the negative effects of Tali's actions and lifestyle on her daughters. The court went so far as to declare Tali "totally unfit" as a parent, without a single shred of psychological evidence before it concerning her nurturing abilities or the effect of her parenting on her daughters.

Here is how the oldest daughter describes her mother in a letter written shortly after their forced separation "From my first consciousness of myself, I remember our long conversations on every occasion, whether I faced some difficulty and needed advice, or whether I was happy and wanted to share my joy with someone. You have always been for me a `listening ear,' always available, always sharing in my joys and sorrows. You always had time, even immediately after your wedding. I don't know how you always managed to listen to everyone with a big smile on your face, so that no one would ever suspect that you had your own problems. Every Shabbos, right after the meal, you and my sister sat down and talked for a long time."

For many years, Tali has been a nursery school teacher. She so stood out in her ability to care for children that the sisters of her husbands' late wife picked her out as a perfect match for a widower left with a large family.

The only psychological "evidence" before the court pointing to Tali's unsuitability was an evaluation submitted by Dalia Tedesky, a psychologist hired by Duhlberg, who never met Tali. (Tedesky is, incidentally, Jewish. She appeared in a miniskirt at one hearing, and described herself as a normal Jew, as opposed to Tali, whom she characterized as a fanatic.) Among the "findings" she submitted to the court about the abnormalities of Orthodox Jews were the following: (1) Orthodox Judaism views "exploitation of and cruelty to minors as legitimate . . . and perverted behavior as normal"; (2) the minors are prohibited from eating "ice cream, pizza, and Coca Cola;" (3) Like a drug addict, "it is impossible for [the mother] to serve as an independent, loving source of affection"; (4) "Her clear purpose is make to them despairing, anorexic and ailing" (something which Dr. Tedesky claims has its psycho-analytic counterparts in certain sections of the Jewish Bible."); (5) "We are dealing here with the same personality problems discerned in those who commit crimes against humanity in the former Yugoslavia; (6) "A similar pathological perception of reality was found among those who [killed their children at Jonestown.]"

The mere fact that Duhlberg did not hesitate to submit such slanders to the court suggests that he had a very good feel for the climate in Italy with respect to traditional Jewish observance. And indeed the court not only followed Dr. Tedesky's analysis of Orthodox Judaism, it incorporated her recommendations virtually verbatim into its final order.

The court also refused to learn anything about traditional Jewish practices so that it could determine whether amything about Tali's lifestyle was not normative for Orthodox Jews. Former Israel Finance Minister Yaacov Neeman travelled to Italy in order to testify about Orthodox practice and belief. The court refused to hear his testimony. It also refused to allow Rabbi Momiliano of Genoa to testify.

Dr. Tedesky's voice echoes throughout the court's opinion. For instance, Lubavitch is described as "a totalitarian sect, whose detailed and inflexible laws govern every aspect of life – beginning with dress, diet, and [permitted] reading matter." The court apparently accepted Tedeski's contention that Jewish dietary laws lead to anorexia, and in its final decree instructed the father to provide the girls "with a nutritionally suitable diet." (The claim that Orthodox Jews do not eat ice cream or pizza or drink Coca Cola would certainly have brought a smile to the lips of any Orthodox teenager.)

The court even accepted Tedesky's claim that Tali does not really love her daughters but is preoccupied with dragging them back to "Israel, the seat of the cult" to which she belongs. Following in the path set out for it by Tedesky, the court wrote, "the mother's cries for the return of her children, reflect not her love for her daughters but rather her `need' to fulfill the inflexible laws. . . ." The court also accepted Duhlberg's description of himself as a "pure Jew, who observes the commandments." How a Jew who publicly eats pork and has been baptized can be described as "one who observes the commandments" the court does not explain.

At the same time it determined that Tali does not really love her daughters – indeed that Orthodox Jews cannot love their children – the court determined that Duhlberg has a "special affection" for the sisters. The claim of Duhlberg's special affection for the sisters is unsupportable. He has used his control over the girls to completely break down their psychological resistance (ironically, the same thing the court accuses Tali of doing, without a shred of evidence).

The court's decision can only be explained by an a priori assumption that an Orthodox Jewish upbringing is inherently bad for children. The court's questioning points to the same conclusion. Throughout, traditional Jewish practice was on trial: Why do you dress your daughters like that? Why is it forbidden to eat that? Why can't they read popular Italian cartoon books? Can your daughters be examined by a male doctor?

The Genoa court viewed the choice before it as whether the girls should be raised as normal Italian girls or as normal Orthodox Jewish girls, and decided in favor of the former. According to the court decree the girls are to be taught to " respect the Italian school law," to be exposed to Italian culture – books of all types, movies, plays, and concerts, and to be introduced to a normal life from the point of view of nutrition, exercise, and social relations.

To further the goal of turning the girls into average Italians, the court adopted almost word for word Tedesky's recommendation that Duhlberg be "allowed to educate the girls as he wishes, with the decision of what is best for them, including when and how to implement their ties with their mother, left completely in his hands."

While advocating a model of education that views the maximization of models before the child as optimal, the court effectively ensured that one model would not be available to the girls that of traditional Judaism. In its decree, the court explicitly expresses its concern that Tali will "influence" her daughters. The court reserved some of its most stringent criticism of Tali for her encouragement to her daughters after they were returned to Italy to remain strong in their religious faith and to continue to observe, to the extent possible, the standards of Jewish law.

The court interpreted Tali's letters, as well as those by the girls' schoolmates in Bnei Brak, and their step-brothers and sisters as encouragement to rebel against Duhlberg. Yet they were nothing of the kind. None of the letters quoted so extensively by the court even mentioned Duhlberg at all, or in any way disparaged him. Indeed in one letter, the older daughter responds to her mother's urging her to respect her father, "How can you ask me to respect him if he is really crazy."

The final decree specifically enjoins Tali or anyone else from giving the girls messages that are bothersome or might cause the girls to rebel against Duhlberg. And the court has made it clear that any encouragement to the girls to remain firm in their Jewish practice will be deemed "bothersome" and constitutes incitement against Duhlberg's authority. The girls are afraid to even develop contacts with anyone in the Jewish community lest the court interpret those conversations as incitement to rebel against Duhlberg and cut off their slight remaining contact with their mother.

The usually mild-mannered Chief Rabbi of Rome, Rabbi Eliyahu Toaff, was provoked by the court's "bizarre" decision to complain of a "strong suspicion of an intolerant attitude and approach to Jews in general and not just Orthodox Jews." The court, in his view, "stigmatized the life-style of Orthodox Jews around the world and particular in Israel."

C. The Girls' Situation

The girls were told that their mother offered to "sell" all her rights to them for $10,000, a claim which left the younger sister feeling confused and abandoned. The presents Tali sends her daughters are returned without being opened and without the girls even being told about them.

Duhlberg repeatedly threatens the older sister that he will have her committed to an insane asylum. After one court hearing, he returned home and taunted her, "You have no more hope." For many months the two sisters were largely separated from one another, and the older is confined to the house for days on end, while Duhlberg takes the younger with him to his pharmacy.

The girl's letters soon after arriving in Italy (before the court gave Duhlberg the power to prevent all letters) tell a grim story. The younger girl wrote to her mother May 19, 1999, "I am longing for you so much. Father screams all day and night. I can't stand him." A month later "I don't want to live here. He screams all day, it's impossible to stand him. He's absolutely crazy, and he says that we will never go back to Bnei Brak. . . . I'm longing for you so much, and I'm hoping to come home soon."

At the end of April, the older sister wrote, "Duhlberg is absolutely crazy! He screams all the time, and I can't take it any more! They threaten me that if I don't love him, they will take me to an insane asylum . . . . If you don't take me out of here soon, I will lose all reason to live. . . . I'm not even sure now whether it is better to live."

(After reviewing the older sister's letters, Antoinette Simi, a prominent Italian psychologist, concluded that despite her "excellent intellectual capacity in analyzing and relating to the situation effectively. . . . the danger to her mental balance and even her life is real and imminent.")

Duhlberg is under no restrictions as to what he can say to the girls about their religious beliefs. The older sister describes in one letter finding her younger sister crying, and Duhlberg shouting at her, "All your friends and acquaitances are sinners and wicked before the Lord." In another letter she describes her father taking away her prayer book by force and throwing it on the bed. Though Duhlberg is instructed by the court not to disparage Tali's image in the eyes of her daughters, he constantly denigrates her and her religious beliefs and practices. "I don't want to hear bad things about my mother, I don't want to leave the house in the company of policemen. I don't want to be forbidden to speak to people, especially people I love and admire," the older girl writes.

The court's final decree can only be described as draconian, and reflects a clear intent on the part of the court to sever the relationship of the girls with their mother and their past life in Israel. The girls are not permitted to speak to anyone in Israel, except their grandparents, without the specific authorization of their father. Finally, the court agreed to the Public Prosecutor's request to commence proceedings to deprive Tali of any recognition as her daughters' mother by removing her guardianship.

The decree granted Tali only the most minimal visitation rights and under conditions hand-crafted to make it impossible to maintain any normal relationship with her daughters. She is permitted to see them only three days a month and to speak to each of them twice a week for ten minutes. All the personal meetings are to be in a place designated by Duhlberg and in the presence of those designated by him. (The first meeting between Tali and her daughters took place in a room of six square meters, and with four other representatives of Duhlberg present. The second meeting was in Dr. Tedesky's office.)

Duhlberg is permitted to tape all the phone conversations between Tali and her daughters. All those conversations must be in Italian. Even the girls' maternal grandparents, who are secular Israelis, were initially told not to speak to them in Hebrew.

D. Civil Rights, or lack thereof

Both the Hague Convention and the U.N. Convention on the Rights of the Child stress the importance for children of maintaining close contacts with both parents regardless of the custody determinations. Yet the Genoa court's decision renders maintaining that relationship between Tali and her daughters well-nigh impossible by severely limiting their time together and confining them to highly unnatural settings. The court's order to begin proceedings to remove Tali's guardianship is a further manifestation of its desire to cut her off from her children.

The court gave Duhlberg absolute control over his daughter's communications. They are forbidden to communicate with anyone without his permission, in direct contravention of the U.N. Convention's guarantee of the child's rights of association and to privacy of communications. The court's blanket prohibition of speaking Hebrew without their father's permission is irreconciable with the Convention's guarantee of respect for the child's cultural identity – in this case the sisters' Israeli identity.

The U.N. Convention guarantees the child the right to be heard in all proceedings affecting the child and to have those views given due weight according to their age and maturity. The Genoa court, however, chose to treat the girls' clearly expressed desire to be with their mother as "inauthentic" and gave it no weight, in accord with Tedesky's assertion, without ever having examined the girls, that "they are as if hypnotized." She told the court that it was its duty to "to rescue the girls from the Gehinnom into which they have sunk."

The older girl, age 14, told the court, "My life was happy in Israel. . . . I hope that the judges . . . will take into account my own desires. It is incorrect that my mother forced me to make decisions as to which way I choose to live. In Israel, I was much freer than I am here." She told the court that the happiest five months of her life were those spent living in Bnei Brak.

The younger girl, 10, told the court, "I wish to live with my mother and to be with my father one month [per year.]" She also responded to a question as to the people who love her "my mother and my sister."

Finally, the U.N. Convention protects the child's right to religious freedom and requires courts to respect the religious traditions of minorities, such as Jews in Italy. Yet the Genoa court effectively gave Duhlberg the power to uproot the sisters' religious beliefs. He has barred the local rabbi from coming to the house to make kiddush for the girls. Upon occasion, he has withheld the kosher food sent to them, causing them to go hungry. Another time, he tricked them into violating a religious commandment, which left them broken for days. The girls have even been forced to listen to readings from the New Testament.

He ridicules the girls' religious beliefs. Once he taunted the older sister that her prayers obviously have no effect, as evidenced by the fact that he prevailed in the court proceedings. In another letter, she describes Duhlberg yelling as she prayed, "All your bowings and curtsyings are not going to help you." She continues, "When I was in the middle of praying, he grabbed my nose and mouth in an aggressive fashon and pinched my nose. This really hurt me."

Throughout the proceedings, the Genoa court manifested its contempt for traditional Judaism. Tali's Israeli attorney Shmuel Moran has written, "I'm not religious. In both my life and beliefs, I am completely secular. Yet as a man and as a lawyer, I cannot make my peace with what I have witnessed. . . . The total impermeability of the court, its arrogant and anti-Semitic approach, the racist asides and expressions of disgust for the mother and her way of life, all suggest preconceived notions that the girls would be better off if separated as far as possible from their mother and her way of life."

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