The admirable article by Robert E. Emery, How Divorced Parents Lost Their Rights (New York Times, 6 September 2014), presents a view of the situation in the US which should not be seen as applicable in its entirety in Israel. It contains some basic assumptions about family law and relationships which do not apply here, like the statement that “married parents cannot sue each other”, and that “the law assumes that divorced parents’ interests in their children…are not aligned”; but Emery’s support of the removal of terms like “custody” and “visitation”, and encouragement of parents to develop a parenting plan, are to be welcomed.
Indeed, as I have written elsewhere, the need to be “awarded” with custody leads to litigation (and when one parent asks for joint custody, the other will often oppose this); there are at present proposals under consideration in Israel which would require separating parents to present parenting plans before starting litigation about their children.
The starting point in Israeli law is that by virtue of being parents, whether married or not, the parents are jointly the guardians of their children, and as such are obliged to look after their children. So long as they do so and do not damage or endanger the children, others, including the state and the courts, are forbidden to interfere. (These obligations and the immunity from interference are sometimes called rights, but this is incorrect and gives rise to the impression that the court must never get involved).
Even when parents are living together, but disagree about the education of their children, or about health care or medical treatment, for example, they may file with the court an Application for Dispute Resolution. Family courts and religious courts in Israel have social work units, which are designed to help parents to resolve their disagreements, by offering mediation, or referring them to consultants and therapists, so as to avoid litigation as far as possible.
When parents separate, they are obliged to carry on looking after their children. As long as they do so adequately, in principle the court should not get involved. But even where parents agree, the agreement about where the children will live, contact between child and parent and wider family, decision making, etc. is usually part of a set of agreements about other issues, some of which (e.g. child support) directly affect the child, but many of which have no direct effect (divorce, spousal support, alimony, property division etc.). Concessions may be made in the interests of reaching a comprehensive agreement, and in some cases, the parents or one of them may be so worn down by the dispute, or by the other party, that they agree to terms which may be against the interests of the child.
For example, in one case the wife was so anxious to get a divorce from her allegedly abusive husband that she agreed that their child, an infant of a few months old, who was still only nursing, should stay with the father, who had hardly been involved in the upbringing of the baby, in another city, from Friday afternoon until Sunday morning. This was clearly against the interests of the child.
In another case, in order to reach agreement, the parents agreed that the mother should receive the father’s share of the joint apartment and in return, the mother would not receive child support from the father. When the matter came to the court for approval of the agreement, it transpired that the mother would have to pay mortgage repayments which almost equaled her salary, leaving her with no money with which to provide for herself, let alone the children.
The immunity of the parental decision-making process is breached by the change in the living arrangements – instead of one home, the child will move between two homes, and there will be two economic units instead of one – and the law recognizes that in the tense situation between the parents, the child’s interests may be ignored or forgotten.
So the law requires that agreements relating to children or affecting them be submitted to the court for approval, and without such approval, that is, the court’s certification that nothing in the agreement appears to be contrary to the interests of the child, the provisions of the agreement have no binding effect and may not be enforced. (The same applies to agreements between spouses relating to property, so as to rule out later allegations of fraud or that one has taken advantage of the other).
However the court, recognizing that the parents have waived their autonomy, has to keep its involvement, particularly in changing the terms on which the parents have agreed, to a minimum. And no court has an interest (or the time, with crowded dockets) to get involved unnecessarily.
Only where all efforts to bring the parents to an agreement have failed, will the court decide whether their children play soccer or have piano lessons.
Emery is correct that all concerned, including the courts, lawyers, counsellors, psychologists, teachers and the press and mass media, should be doing all they can to encourage joint parenting even after separation. Indeed, techniques such as mediation, collaborative law and the use of parenting coordinators are gaining traction in Israel. There is a need to make some changes in the law, but even without these changes, wise parents can minimize the stress on their children by making use of these and other methods.
However, when an agreement is presented to the court by the parents, the fact that a court may regard as unreasonable something the parties agreed to does not mean, as Emery suggests, that the court is wrong.
Philip Marcus is a retired Judge of the Jerusalem Family Court