Monday, October 5, 2009

In Israel ~ The child's welfare is what counts

By Guy Raveh

While the argument on the subject is marked by aggressive struggles and political considerations, empirical psychological research is increasingly confirming the importance of dividing parental responsibility between the two parents and the growing insight into the importance of maintaining the child's right to a beneficial connection with both of them. Hence, more and more countries are changing their laws to fit this approach.

About a year and a half ago, the interim results of the Schnitt Committee that looked into the legal aspects of parental responsibility in divorce were published. The committee recommended the Tender Years clause, which states that children until the age of six should live with their mother, be replaced by an arrangement in which parents have joint custody without defining one of them as the main custodian. These conclusions are in keeping with the social changes that have taken place in the past few years that support the assumption that the child's best interests are the most important principle, and are in accordance with the international Convention on the Rights of the Child.

Unfortunately, in the existing legal and social reality of Israel today, where the law is still old-fashioned and does not correspond with what is happening in the Western world, there is no choice but to push for custody to be divided between the two parents. And indeed, if in the past a ruling of this kind was relatively rare, it is now becoming more and more prevalent. Over the past year, two rulings were published in which it was decided there would be joint custody - against the mother's wishes.

In one case, the judge in the family affairs court in the Haifa area, Marina Levy, explained the decision to grant joint custody by saying its importance went far beyond the details of any specific case.

"I believe that joint custody is the best way," she said. "In a place where one can leave joint parental responsibility intact - a place of equality, caring and equal involvement despite the separation of the couple - it is worthwhile encouraging this ... In my opinion, there is no need to prove that it is in the best interest of the minors to be raised in a framework of joint custody. On the contrary, anyone who believes that it is not worthwhile to make possible ... joint custody, even though the pre-conditions exist for proper communication and physical contact between the parents, must prove this."

In the second case, the judge in the family affairs court in Jerusalem, Ben-Tzion Greenberger, explained: "One cannot ignore the fact that the constitutional atmosphere of modern Israeli law has recently created a new openness to the idea of joint custody because of the wish to maintain a substantive equality in the field of family affairs if this is for the benefit of the minors."

Custody, the judge stated, was not the only consideration and it was subordinate to the welfare of the child. In addition, he ruled, the request for joint custody, contrary to the request for paternal custody, did not necessarily contradict the presumption of the Tender Years doctrine.

The judge quoted the mother who had asked: "What mother would separate for such long hours from her children at such a tender age?"

He said that even though those words were in keeping with the statement by the researcher Dr. Daphna Hacker - according to which "the insult that accompanies a non-custodian mother lies in the structuring of the feminine gender identity," - it was not possible only for that reason to give sole custody to the mother.

The judge added: "In the case under consideration ... it is clear that the children are attached to both parents in equal fashion and could benefit from being with both of them equally."

It is my fervent hope that after the Knesset endorses the Schnitt Committee's recommendations in the form of a law, it will no longer be necessary to use the terms "custody" and "joint custody" in Israel. These definitions of parenting only cause unnecessary competition between the parents over the longed for title, and it is the children who are hurt by this ego contest.

The writer is a member of Equal Parenting and submitted a request to a family affairs court for joint custody of his son two years ago.

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