Child custody (hereby: “custody”) is a very sensitive and broad subject, which includes a wide range of sub-topics connected with keeping and raising the child. The subject of custody arises when the parents are no longer living together (divorce, shared parenting, separation). The law dealing with matters of custody is the “Law of Legal Propriety and Guardianship, 1962” (hereby: “the law”). In this article we will discuss the topic of physical possession of the child, as well as topics related to it.
Different Types of Child Custody
The parents of a minor are the natural guardians (Section 14 of the law).
When we deal with custody, we must distinguish between different types of custody which are listed below:
- Physical Custody
This is physical possession of the minor, the place of residence where he lives. When one of the parents receives “full custody” the second parent will receive “visitation times” with the minor.
When speaking of “joint custody” it means that the minor stays with each of his parents for equal/almost equal periods of time, and there is no need for visitation times.
- Legal Custody
Even when there is a parent who received sole custody of the minor, this does not mean that he/she will be able to make all the important and final decisions on how to raise the minor—the parents will have to make such decisions together, according to Section 15 of the law.
The parents’ guardianship includes the duty and the right to care for the needs of the minor, including his education, his studies, his training for work and for a profession, as well as guarding his assets, their management and development; it also consists of the authority to keep the minor and determine his place of residence, and the authority to represent him.
In the various decisions that the parents make regarding the minor, they must act in his best interest:
In their guardianship of the minor the parents must act in the minor’s best interest in the same manner that devoted parents would navigate these types of circumstances (Section 17 of the law).
Who is Authorized to Decide on Issues of Child Custody?
The parents of the minor are allowed, at the time of separation, to make an agreement between themselves that will settle the matter of custody. In Section 24 of the law it states that the court will approve this after it is proven that this is in the child’s best interest:
If the minor’s parents live separately—whether their marriage was terminated, they left or split up while the marriage still exists or not—they are allowed to make an agreement between themselves about which one of them will be the guardian of the minor, full or part time, which one of them will keep the minor, and what will be the visitation rights of the parent who does not keep the minor; such an agreement needs court approval which will be given after it is proven that the agreement is in the best interest of the minor.
Section 25 of the law states that if the parents do not reach an agreement in regards to custody, the family court (hereby: “the court”) or an authorized religious court (hereby: “religious court”) will settle this issue:
If the parents did not reach an agreement, or they reached an agreement but the agreement is not carried out, the court is permitted to establish the matters spoken of in Section 24 in order to see to the best interest of the minor.
The Principle of Child Custody “Best Interest of the Child”
As can be seen in the various sections referenced above, the “best interest of the child” is the important principle by which custody will be established. However, what is the best interest of the child? How do we know what is truly his best interest?
In the decision of David vs. The Great Rabbinical Court, a number of principles were raised that will help us understand the concept of the “best interest of the child”:
- “The core of the child’s best interest, the essence of the child’s best interest, is the right of the child to have his bodily and mental health protected, that his mental, physical, and material needs are properly met.”
- “We are speaking of the child’s right—his own personal right—and not the right of his parents or the right of anyone else who is looking after his best interest.”
- “It is incumbent upon the court to determine the best interest of the specific child that is standing before the court.”
Because the best interest of the child is a very general and ambiguous concept, dependent upon values and perspectives, a decision was raised in the case of Anonymous vs. Anonymous, another approach when establishing custody, the approach of the “rights of the child”:
- “The concept of the ‘rights of the child’ teaches us that the child is given rights. The concept of the ‘rights of the child’ is within the scopes of providing a legal protective covering over the child. The expression is recognition of his rights and that the entirety of his rights are guaranteed and his best interest is protected. Therefore, according to this approach, understanding the rights of the child can serve as a proper measuring stick for resolving custody disputes, since it protects the child and his full best interest in a better manner than the principle of the child’s best interest.”
To know what the child’s best interest is, the family/religious court is permitted to hear and take into account the will of the minor himself. There are a number of principles on the matter detailed below:
- Minimum age to give a hearing to the child is 6.
- The older the child is, the more his will is taken into consideration.
- The hearing of the child will not be done in the presence of his parents or representatives.
- In the decision of the family/religious court, the words of the minor will not be specified.
Expert Opinion on the Issue of Child Custody
When the family/religious court decides on the matter of custody, it is usually with the help of different experts (psychologists and social workers). In the case of David v. The Great Rabbinical Court it was decided that only in rare and exceptional cases would the decision of the family/religious court contradict the opinion of the experts:
Only on rare occasions and exceptional circumstances will the court rule—on matters of the child’s mental and physical health—contrary to the experts’ opinion. Furthermore, it will explain why it saw fit to reject the experts’ recommendation. The law, of course, is different when contradictory opinions are placed before the judge.
Early Childhood Tenure in Child Custody
In Section 25 of the law establishes “early childhood tenure,” according to which the mother is given custody of the child until the age of 6, as long as there are no exceptional reasons to warrant otherwise:
Children up until the age of 6 will be with their mothers if there are no exceptional reasons to warrant otherwise.
Early childhood tenure is based on the fact that the connection between a child of tender age and his mother is much stronger than the connection with the father, and there needs to be strong evidence in order to contract this, and possession is valid even when the mother resides abroad (Anonymous v. Anonymous).
In light of the recommendation of the Schnitt Committee (the public committee to examine the legal aspects of the parents responsibility in divorce), to cancel the early childhood tenure and establish custody in accordance with the specific child’s best interest, we can see changes in the approach of the courts. Nevertheless, early childhood tenure still exists and is valid.
Judicial Authority in Child Custody
The issue of custody is generally under the authority of the family court. Even the religious court can acquire authority to judge on matters of custody (as long as no such proceeding has been opened in family court), and this in accordance with the rules listed below:
- When speaking of a divorce claim, the issue of custody is involved naturally, and there is no need to specifically involve it.
- If it is not a divorce claim and the parents have agreed together to discuss the matter of custody in court, the minor has the right to file an independent claim to the court (Katz v. The Great Rabbinical Court).
- If the court has discussed the issue of custody in-depth and objectively, it receives further authority over future custody claims.
- If the court does not discuss the issue of custody and only approves an agreement between the parents, it does not retain further authority over future claims.
Judicial Authority in Matters of Education
As we wrote above, when a divorce claim is filed with a religious court, there is no need to involve the matter of custody, which is included in the divorce claim naturally. But the matter of the minor’s education requires explicit involvement and it is not a natural part of the divorce claim (Amir v. Haifa Regional Court).
When the custody claim is filed with the family court, the matter of education is involved in it and there is no need to explicitly involve it.
As we have expanded upon above, the principle of custody is the “child’s best interest,” and this principle is not ignored even when speaking of matters of education. The religious court deciding on the issues of education will rule in the minor’s best interest, and not on whether the education conforms with the religious court, according to Anonymous v. The Great Rabbinical Court of Appeals it was ruled:
As to the issue of the child’s education, it has already been decided many times that it is incumbent upon the religious court to decide in accordance with the best interest of the particular minor standing before it, and not necessarily on the based on the question of does this education conform to the position of the religious court. The religious court must disregard the theoretical determinations of religious law about the education desired for the child and examine what is his best interest under the circumstances and in his specific case.
Interested in Settling Child Custody? The Office of Cohen, Decker, Pex & Brosh is at Your Service
At the office of Cohen, Decker, Pex & Brosh you will encounter lawyers who are experts in family law and who are qualified as mediators. Our lawyers will help you settle the matter of child custody in a divorce agreement, joint life agreement, joint parenting agreement, as well as in a single and separated proceeding.