Philip’s Blog

Combating Violence against Women and Children

In October 2017, Philip Marcus lectured on “Israel Law and Court Practice in Cases of Violence against Women and Children”, as part of an international course on Combating Violence against Women and Children.

This three-week course is given every year by Mashav – Israel’s Agency for International Development Cooperation,  a division of Israel’s Ministry of Foreign Affairs, at the Golda Meir Mashav Carmel International Training Centre in Haifa; Philip Marcus is a regular lecturer in these courses.

The participants are mainly government officials, personnel from non-governmental organizations, judges and mental health professionals. Attending this course were participants from five continents: Argentina, Botswana, Cameroon, Colombia, Costa Rica, Dominican Republic, Georgia, India, Kenya, Marshall Islands, Myanmar,Nepal, Nigeria, Paraguay, Philippines, Serbia, Sierra Leone, South Africa, Uganda and Vietnam.

The participants selected Philip Marcus’s lecture as “best lecture” for the course.

For more information about Mashav, see their website: www.mctc.org.il

Parental Responsibilities: Reformulating the Paradigm for Parent–Child Relationships

This two-part article, published in the Journal of Child Custody, September 2017, calls for the removal of terms such as rights and custody, including joint and shared custody, and visitation from the legal discourse in relation to children and their parents, and replacing them with a doctrine based on the responsibilities of parents to their children. This will lead to the avoidance of much litigation. The article also points out that parental responsibilities can attach to persons other than biological parents, and details the scope of parental responsibilities.

Part 1: What is wrong with the ways in which we deal with the children of separated parents and how to put them right.

This first article demonstrates how the current discourse, based on the competing rights of the parents, leads inevitably to competitiveness and litigation, which are highly damaging to the child. The proposed paradigm of parental responsibilities requires establishing the needs of the specific child when there are parental disharmony and separation, while emphasizing the joint responsibilities of both parents to ensure that those needs are adequately met. It also addresses the question: who has parental responsibilities, when a child is born as a result of Assisted Reproductive Technology, and also the quasi-parental role of the court.

Link: https://doi.org/10.1080/15379418.2017.1369920 or download the PDF file.

Part 2: Who has responsibilities to children and what are these responsibilities?

The second article describes the scope of parental responsibilities; who, alongside or instead of the biological parents, may have parental responsibilities vis-à-vis the child; the roles of grandparents and members of the extended family, and partners of parents, are described. The principal categories of parenting tasks are described in detail. I also show how the concept of parental responsibilities is essential for properly dealing with children in need of protection, and how the paradigm applies to courts that deal with proceedings involving children.

 

 

Undue Influence and Testamentary Capacity in Israeli Law

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.)

Poor Journalism: Wife’s Divorce Petition Dismissed before Abuse Incident

The following headline appeared on the Times of Israel website, attributed to JTA:

“Jerusalem rabbinical court says spousal abuse not grounds for divorce”

The article stated that the wife had applied to the Attorney General, because the Bet Din had rejected her claim for divorce, despite the fact that the husband had admitted assaulting her and had been imprisoned for 75 days.  There were quotes from lobbying organizations, alleging that the wife is an aguna, that the Bet Din paid lip service to the fight against family violence, and that the decision was reminiscent of the attitudes in surrounding countries towards wife beating and blaming the victim.

As often happens, the press report and the comments by the lobbyists reveal that none of them fully understood the material.

I have read the judgment of the Jerusalem Area Bet Din. The decision about which the complaint is made states as follows:

The Jerusalem Bet Din denied the wife’s petition for divorce on 4 July 2016 for lack of grounds, after two years of proceedings. On appeal to the Rabbinical High Court, the wife brought evidence that the husband had been found guilty, on his own admission, on 13 November 2016, of assaulting the wife on 19 August 2016 – six weeks after dismissal of the first petition. The appeal court saw fit to refer the matter back to the Jerusalem Bet Din.

The Jerusalem Bet Din decided that it was not possible to change the judgment dismissing the original petition on the basis of an event that occurred after the judgment was given. I am sure that almost all competent judges would agree that it is not possible to amend a claim after judgment has been given. Of course, the wife may file a new claim on the basis of the new evidence, or appeal the Jerusalem Bet Din decision, but the press report does not indicate if she has done so.

The comments of the Jerusalem Bet Din are also justified. The wife did not, it seems, allege violence in her original petition; there was evidence before the court which heard the criminal proceedings that the husband was suffering from psychological problems brought about by two years of divorce proceedings; the husband apologized for his “mistake”; and the Bet Din emphasized the seriousness with which it regards any violence.

However, it is not unusual for a court, in any jurisdiction, hearing divorce proceedings, to send the parties for counseling if there has been a single incident of violence and expression of regret, which may have been situational and not systematic and repeated violence, so the assumption that the Bet Din would have immediately granted the wife’s petition if she had brought proof of violence before the end of the proceedings is not necessarily correct.

I am not aware of any legal basis for the involvement of the Attorney-General in divorce proceedings. But the statement in the Times of Israel article, that the original petition was dismissed merely because of the husband’s objection, is unfounded.

The use of the term “Aguna” is also inaccurate. An Aguna is a woman, and an Agun is a man, whose spouse has disappeared, or refuses to give or receive a Get, a bill of divorce, despite a decision of the Bet Din that he or she must do so. In such a case, the court can impose severe sanctions. In a case reported last week, the Bet Din suspended a lawyer’s practicing certificate because he refused to give his wife a Get despite the order of the Bet Din. In the case under consideration, there was no such decision.

I have no interest in the case, nor do I know any of the parties. But the record should be set straight.

 

California Bill Allowing Child Witnesses – Some Thoughts

CA bill to require courts to allow  10 year old children to testify on custody

I have looked at SB 170, Section 3042 and Rule 5.250; on the face of it, the child is protected, but I understand that in California the reality is somewhat different.

There are serious concerns about the involvement of children in the court process. But in my judicial experience (over 17 years I saw hundreds of children in my chambers but NEVER in open court, and never subjected them to cross examination) I can say that in the vast majority of cases the child and the court were helped by the experience.

In Israel, family cases are heard only by a specialist court and by specialist judges, who are selected on the basis of their experience in Family Law, and commitment to sit in Family Court for several years.

Against this background the voice of the child is heard in Israeli courts in a sensitive fashion. It is exceptionally rare for a child interview to be used for fact-finding; apart from getting to know the child, and obtaining his views by open questioning and discussion, an important part of the meeting with the judge is showing the child that a real human being is handling the case, and telling the child that while his views are important, the judge, and not the child, has to decide the case. Many children are relieved to know this, and are more inclined to open up.

In particular, Family Court judges know, from in-service training and exposure to other material  and discussions with the social services support unit staff, about the various influences on the child, and how to balance the child’s views against the other material in the case.

Judges are alert to the possibility that a child has been drilled or brainwashed as to what to say. It is usually clear that a child has been prepped; and the fact that one of the parents has prepped the child usually counts against that parent in the final analysis, and may lead to specific orders as to how that parent should behave).

For anyone who wants it, I have prepared a translation of the part of the Civil Procedure Rules dealing with the meetings between the child and the court social services support unit and the judge. Contact me via this website.

February 2017

UN Security Council Resolution 2334 & Understanding Orientalism

In response to the December 23 anti-Israel UN Security Council Resolution 2334 and the Obama Administration’s decision not to use the US veto to defeat the resolution, Philip Marcus writes:

The abstention was indeed shameful and spiteful. But it is not only Obama who has been adopting an attitude against Israel and all it stands for.

From its very foundation, the UN, and many other transnational organizations (such as the EU and ICC) were based on the hubris of the Western powers, that their way of human rights and liberal democracy was the only way. Their way aimed for world peace, but assumed that all the nations of the world would agree, despite the fact that, for many religions and cultures, autocratic rule and world domination by any means, including war and terrorism, are deeply embedded, and world peace is the goal which can be achieved.

This mistaken idea has enabled the other nations cynically to exploit the Western powers, using slogans such as imperialism and colonialism to cow them into feelings of guilt, and give  excuses for, and thereby render them impotent against, terrorism and bloodshed.

This requires a fuller treatment – if I ever have time I will write an essay – but I recommend this article in the Middle East Quarterly: “Celebrating Orientalism” by Richard Landes. It describes well how Edward Said played into this hubris and cowardice, and carried with him the vast majority of academics and policy makers. He had, of course, a willing audience in the Arabists of the State Department, the British Foreign Office, and the Quai d’Orsay. Kerry and Obama swallowed it whole.

But the disgusting resolution has passed and, like everything, it is in G-d’s hands. At this time we celebrate the survival of authentic Judaism, and through it the Jewish people, despite the efforts of nations and empires innumerable. It’s sometimes tough – very tough – but no matter how hard they try, we are still here. Am Yisrael Chai – the People of Israel Live!