Op-Ed piece published in the Jerusalem Post on Monday March 3, 2014
The protest demonstration outside the home of Justice Minister Tzipi Livni is based on a serious misconception regarding the role of the law in making arrangements for children when parents separate.
As Israeli law stands at present, both biological parents are the natural guardians of their children from birth until they reach legal majority at age 18. Except in extraordinary cases of cruelty or neglect, guardianship, which includes all the responsibilities and duties of child-rearing, remains with the parents, and is exercised by them jointly.
Whether the parents are living together or apart, they are responsible to decide together where the child will be at every hour of every day, how the child will be educated, how to keep him healthy and how to treat him if he is unwell, and in general to provide for his needs.
Where the parents disagree on any issue, they should first try to settle their differences by themselves, and only if they cannot do so should they apply to the court system – to the Family Court or to the relevant religious court.
The courts will also try to bring the parents to an agreement, using the courts’ own social workers and other consultants. Only if this fails will the court have to determine, according to the child’s best interests, where the child will live (usually called custody) and how much time the child will spend with the other parent.
But the parents remain joint guardians, and the so-called non-custodial parent must still be involved in decision- making, and the custodial parent must include him or her in the child’s life.
Indeed, framing the issue between the parents as a competition as to which of them will have custody does a deep disservice to the children. The negotiations, if there are any, and the legal proceedings if negotiations fail, have everything to do with the needs or desires of the parents for recognition, respect and the title of custodial parent, to be won or lost in an adversarial contest, and little if anything to do with the individual needs of the child.
Parents contemplating separation should be considering the specific needs of the child and the ability and availability of each parent to supply each of the needs. A sensible agreed arrangement will not mention custody; it will set out the days and hours that the child will spend with Mom and the days and hours to be spent with Dad, and how the parents will decide on educational and medical issues, and how the child’s needs will be funded.
On this issue, a committee headed by Professor Pinchas Schiffman also reported recently, with detailed recommendations as to how to fix child support payments, but legislation on this issue has not yet progressed.
The fathers’ protests are directed, it seems, at proposals to amend the provision of the law which states that the court’s decision regarding children under age six shall live with the mother unless there are special reasons to order differently.
This provision, often called “the tender years presumption,” was intensively reviewed by the committee headed by Professor Dan Schnitt ,which was appointed by Justice Minister Livni when she served as justice minister in a previous government. Their recommendation, which was far from unanimous, was to abolish it. Some members of the women’s lobby favor the change, claiming that the presumption worked against mothers who wanted to develop a career, saying that it tied them to the home, and preferred a more egalitarian approach; others advocate for retention of the presumption, saying that it balances divorce laws which they see as being biased in favor of men.
The Knesset’s committees have held debates on a bill which largely adopts the final proposals of the Schnitt report, but the minister saw fit to propose her own amendment to the bill, retaining the presumption in principle, but reducing the age to two.
The protesting fathers seem to be unhappy not only with the decisions of the courts as to the amount of time they spend with their children, but also with the level of child support they are ordered to pay. It should be obvious that the justice minister is not the address for complaints about the decisions of the courts; any judgment can be appealed, with a further appeal possible by leave of the Supreme Court.
The law, as it now stands, recognizes the importance of fathers and mothers as being responsible equally for their children. The tender years presumption does not, as the protesters choose to present it, exclude fathers; it does not even use the word “custody”. It states a preference for residence with the mother for young children, but is silent as to the amount of time to be spent with the father. It is true that it is unusual for the court to change the arrangements when a child reaches the age of six, but a properly founded claim by a father will be heard and determined on the basis of the best interests of the child.
It is correct to say that where the parents, or one of them, frame the issue in terms of his or her rights, instead of their joint responsibilities to the individual child, the legal system sets them one against the other.
But it is almost impossible to see how this would change if the tender years presumption were to be abolished entirely, or amended as the minister has proposed.
Indeed, at present many fathers might refrain from asking for custody of their young children, because of the presumption, but if it were abolished, they would see themselves as forced to start litigation immediately a dispute breaks out.
Nothing in the existing legislation, or in the proposed reforms, suggests that children do not need fathers, or that fathers are less important than mothers in the development of children. The disgruntled fathers are spending their valuable time and resources attacking the wrong targets.
The author is a retired judge of the Jerusalem Family Court.