Click here to read Philip Marcus’s recent article on “Parental Alienation, Contact Refusal and Maladaptive Gatekeeping: A Multidisciplinary Approach to Prevention of Contact Failure”, published as a chapter in “Family Law and Family Realities”, 16th ISFL World Conference Book, C. Rogerson, M. Antokolskaia, J. Miles, P. Parkinson, M. Vonk (eds.) (2019, The Hague, Eleven International Publishing) pp.349-366
It may be interesting to note that the Israeli courts have developed the following criteria for assessing testamentary capacity and whether there has been undue influence on a person when making their will:
- Dependency and independence
- Dependency and support
- Relationship of the testator with others and level of contact with them
- Circumstances of making the will.
- Attorney-General vs. Rina Marom (1993)
In each case, the court will want to know about the testator’s general level of ability to do the ordinary things of life (ADL) and in what areas the testator needed the help of the caregiver; about the level of support that the caregiver gave; and about the involvement of others in giving such support. It is important to consider whether the caregiver restricted or altogether prohibited contact between the testator and other people who were usually in contact with him/her, or insisted on being present when there was such contact; and how much, if at all, the caregiver was involved in arranging for the writing of the will and its contents.
It will also be necessary, of course, to assess the testator’s general level of competence to make a will. One of the important criteria is the level of complication of the will’s provisions – a person may be competent to make a simple will where his family situation is simple – benefiting the spouse and children only – but not where there are ex-spouses and multiple children who are not at peace with one another. He may be deemed competent where the estate consists of few items of property (a home, a bank account and life insurance), but not where there are many types of property in several locations.
It is worthwhile to investigate if, and under what circumstances, the testator gave power of attorney or signing privileges to the caregiver, and also any transactions to which the caregiver was party, in the period since the testator’s capacity started to decline, as the undue influence doctrine has been extended to inter vivos transactions.
Together with Dr. Eliezer Perl, a psychiatrist who specializes in treating the elderly, I wrote an article entitled “A Medical – Legal – Halachic Guide to Establishing Testamentary and Gift Giving Capacity”, which was published in Hebrew in Assia – The Journal of Medicine Ethics and Halacha in 2014. Click here to download the PDF version (so far, sadly, not translated into English.)
A number of pundits have proposed what sound like similar reasons for the divide between Israel and what is now, unfortunately, a majority of American Jews. They point to the extent to which American Jewry now identifies more with their Americanism than with their Judaism, manifested both by intermarriage and by a lack of understanding of what Israel means as a Jewish state.
I want to suggest that the reason is deeper: The loss of Jewish identity is due to an attenuation of Jewish self-esteem.
America has been very good for the Jews. The generations who arrived in the late 19th and early 20th centuries found a land of great opportunities, and their offspring benefited from access to higher education and the booming economy, such that there are few areas of life in which American Jews have failed to excel.
But the State of Israel represents the specialness of the Jewish people, which started with the patriarchs and the matriarchs, and continued through the enslavement in Egypt and the Exodus, the giving of the Torah at Sinai, and the conquest of the land of Israel. Despite millennia of exile from the land and of anti-Semitism, Jewish specialness persists to this day. None of the efforts of nation after nation have succeeded in erasing the underlying identity of the Jews, which is based on the self-esteem of each Jew and the communal self-esteem of the Jewish people.
At the end of the Gaza Campaign, named “Protective Edge” by the Israel government, in August 2014, a friend who is a Law Professor in Canada wrote to me and shared an article by Sam Harris that he described as “a nuanced, important but limited defence of Israel.”
This was my response:
Thank you for thinking of us. Thank G-d, we are all well. All of my children do their reserve duty with the Northern Command, so they were not called up for the last round with Hamas; however if things heat up with ISIS, Al-Qaeda and company in the north of Israel, they might have to fight.
Each one of the rocket attacks triggered an alarm siren in the area liable to be hit, even though, as you know, an infinitesimal number of them got through Iron Dome into residential areas. But each of us in those areas experienced the shock of hearing a siren and having to find a place to shelter, even when the only alternative was to stop the car, on the highway, get out of the car and lie down beside it. The rockets, and the mortar attacks, for which there is basically no warning because of the short flight time, were all directed at causing terror, and most of them were generally pointed in the direction of civilians; hardly any were aimed at military targets.
My cousins in their Kibbutz two miles from the border were in constant fear that a platoon of terrorists would emerge from a hole in the middle of their dining hall and commit mass murder.
The excellent article emphasizes this aspect of the imbalanced conflict, but the most telling point is the contrast of ambitions.
Judaism, unlike Islam and Christianity, has no ambitions, territorial or philosophical, relating to non-Jews. We do not have any ambition to evangelize or convert anyone else. Jews traditionally actively dissuade converts. The salvation of non-Jews is no business of ours; each can go about it his own way. The Jewish mainstream is not missionary.
Judaism believes that Jews are entitled to the Land of Israel, and no more. The territory at the moment under control of the Israeli government control corresponds pretty accurately to the traditional boundaries.
Israel does not want any more than this; not now, not ever.
The tiny scale on which things happen here makes it practically impossible to convey the distances and times scales. The total area of the country is about that of Vancouver Island. Ben Gurion Airport is about 5 miles from the pre-1967 border, and only 20 miles or so from the Jordan River, which has been the natural geographical border since Biblical times.
But, if separatists from Thornhill were shooting rockets and mortars indiscriminately at Toronto’s suburbs and Central Business District, how would the residents of Ontario feel? How would they react? Would any reasonably sized attempt to silence the guns be seen as disproportionate?
Hamas sees itself as part of the Islamic movement, which believes, so it seems, not only that non-Muslims are damned or doomed in some way, but that they must all, without exception, be converted to Islam or killed if they refuse. Islam also believes that large tracts of the world’s surface including the entire Middle East and need to be liberated to Islam, at the edge of a sword.
The colossal amounts of money and aid poured by foreign governments and agencies, into Gaza, and contraband smuggled in, were used to for munitions and to build attack and communication tunnels for terrorists. None, it seems, was used to protect civilians in the inevitable event of defensive actions by Israel.
Israel has no demands on the territory now held by Hamas, or indeed any of the Muslim or Arab world. We can and do demand that they stop trying to annihilate the Jewish people. But faced with an enemy which declares publicly that the Jews must be annihilated, what is Israel supposed to do when attacked?
While I disagree with many of the basic premises of Sam Harris’s article, he has put his finger on the central issues. If only the UN and its agencies, the BDS movement, NGOs and governments would read the article with an open mind, as you did.
Thank you so much for sharing it with me.
31 August 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.