This section deals with agreements about children which can cover a subjects such as custody, maintenance (child support), visitation, including travel abroad during holidays/vacations, education, health (medical/dental/psychological treatment) etc. However, as children are not parties to agreements made by their parents, they can never really bind them and are never really final – even though they may receive court authorization and be part of a judgment. Circumstances and needs of minors change – and it is possible to apply to court to alter the terms of an agreement which was incorporated into a judgment.
Agreeing About Child Custody
Question:
Can parents make an agreement about the custody of their children, and can they agree on changes to an earlier agreement they made on custody ?
Answer:
Yes. In the Legal Capacity & Guardianship Act of 1962 there is reference to two possible situations about child custody – where parents are in agreement over this, and where they are not. Where the parents agree on child custody they can ask the court to authorise a written agreement on this , and incorporate it into a judgment. Before it authorises the agreement and passes judgment the court can appoint a social worker to make a report and recommendations about custody, so that it will have professional backing for its decision. Agreement over changes in custody also require court authorisation.
No Automatic Authorisation of Agreement Re Child Custody Switch
Case:
When I divorced many years ago my wife was granted custody of both our children. The eldest, our son, is now 15 and wants to live with me instead. His mother is in favour of the change , too , and is willing to make an application to court to alter our custody agreement to this effect. Will the court automatically authorise the custody switch if both parents agree on it and the child initiated the move ?
Answer:
No. The family court will not automatically authorise an agreement between parents to switch custody of a child from one of them to the other where this would involve splitting up siblings. It will appoint a suitably qualified professional to examine whether splitting up the two children is in their good. Usually there is a preference towards keeping siblings together . Having said this the court cannot ignore the fact that both parents agree to the change in custody – and the wishes of the minor who wants to move in with the other parent. The professional will examine all these competing interests, attempt to balance them out and make recommendations to the court which will then make its decision
Solution To Rift Over Visitation In Agreement
Question :
My husband and I are close to reaching a settlement over divorce but are stuck on the issue of visitation. Although he doesn’t object to me having custody he wants our children to spend all the festive meals with him and his family. I disagree and fear that this could blow our chances of reaching a divorce agreement. What should I do ?
Answer:
Where a rift over visitation threatens to jeopardize the signing of a comprehensive divorce agreement creative drafting that suggests putting the decision in the hands of a neutral professional could save the situation. The parties could agree that as both of them remain the children’s natural guardians they are, therefore, mutually responsible for their upbringing, but that any disputes concerning the children, including over visitation, should be decided upon by a neutral professional. This could be someone that both parties agree upon or a professional appointed by the court and to whom it delegates powers concerning visitation. This would save costs and guarantee impartiality.
'Final Settlement' & Divorce Agreement Concerning Child Maintenance
Question:
My divorce settlement with my “ex” husband was supposed to be final; it said at the end “neither side has any further claims against the other.” At the time I agreed to very low child maintenance. Am I bound by it or can it be increased ?
Answer:
Your situation - where two parents or guardians make an agreement on child maintenance - is different from one where two sides battle the matter out in court and the judge decides on the matter. Where the parties present an agreement to court for authorisation and the matter is never fully discussed in court, then such agreements are never final. Usually, the child/ren involved was/were not a party to the agreement, and therefore is/are not bound by it. The parents/guardians are supposed to agree , acting in their child’s good. Thus, if the maintenance you received is not high enough, your child/ren can file for maintenance from their father in their own right, through you, irrespective of the wording you mention.
It should be noted that judgments relating to the maintenance of minor children are also not final.This is an exception to the rule that judgments are final after the deadline for submitting an appeal has passed or where the appeal was submitted on time , but rejected.
Child Support Increase Contrary to Divorce Agreement
Question:
Can a mother with custody file for an increase in child maintenance although in her divorce agreement with their father, which the court authorized, she promised not to do so, as the father gave up his rights in joint property to provide accommodation for the children ?
Answer:
The issue is not clear-cut – a plea for an increase in child maintenance can be made but the court has discretion to reject it. Firstly – the children are not bound by commitments made by their parents in agreements concerning their interests of which they were not a party, so that in principle, the minors themselves can file their own, independent plea for an increase in maintenance via their custodial parent, their mother and natural guardian. However, if a plea is made for an increase in child maintenance but the court finds that the level paid is reasonable, particularly in the light of the value of mutual property the father forfeited in order to provide the accommodation element of child support , and that this was done in a satisfactory manner , then it will probably not interfere with the original level, and will reject the plea for an increase.
Agreement About Children's Education or Health
Question:
Can parents who separate or divorce make an agreement about the education and health of their children?
Answer:
Yes, these subjects could be covered in the custody part of a separation or divorce agreement , together with a mechanism for decision making regarding educational/health problems, that includes, for example, consulting and getting opinions from professionals in the relevant fields and dealing with emergency situations. It can also deal with agreement regarding the funding of any special educational or medical expenses such as private lessons, psychological counselling, orthodontic treatment etc. Finally, it can even mention which court – the family court or a religious court –the parties agree should have jurisdiction over the matter in the event that the dispute resolution mechanism set up fails.
Jurisdictional Query Over Children's Education
Question:
Can a parent who ‘agrees’ in his/her divorce agreement to the rabbinical court having continuing jurisdiction over a minor’s education succeed in having a dispute on the subject heard at the family court instead ?
Answer:
In principle, it would seem that continuing jurisdiction would lie at the rabbinical court. However, in the Yosef Petition Case it was held that so long as the rabbinical court has not discussed the question of the children’s good regarding education before it authorizes an agreement by the parents , then the rabbinical court will not have continuing jurisdiction over a plea filed after the divorce on this issue. Furthermore, in the Engelman Case the Jerusalem Family Court held that where the rabbinical court does not hold a hearing on the heart of a subject relating to guardianship before it authorizes the agreement , and no professional report on the ‘child’s good’ is presented to court, then the authorization of the agreement does not give it continuing jurisdiction . Here, it was also held that a child is not bound by his/her parental agreement and his/her right to apply to the family court over education even if the agreement expressly says continuing jurisdiction over this lies with the rabbinical court.
Divorce Agreement – Children’s ‘Exceptional Medical Expenses’
Question:
I am divorced and my ex-wife has custody of our child. According to our divorce agreement which was authorized by court and incorporated into a judgment, I am liable to pay half of any “exceptional medical expenses” which are not covered by the ordinary health insurance “ subject to consent”. My ex-wife has just handed me an enormous bill for dental treatment that the child has had – and demanded that I pay half , according to our divorce agreement. Am I bound to pay ?
Answer:
No ! The ex-husband’s/father’s participation in his child’s exceptional medical expenses is conditioned upon his consent. The idea is free and prior consent – and not enforced, retro-active consent. In other words the ex-husband/father cannot be forced to agree to pay half the cost of dental he was not informed of / consulted about beforehand.
Father’s Consent To Extraordinary Medical Treatment – Good Faith
Question:
According to my divorce agreement my ‘ex’ only has to pay half of any of our children’s medical expenses not covered by the ordinary health insurances if he consents to this. I am worried that he will abuse this and refuse to okay treatment I have paid for. Are there any limitations placed on his ability to refuse or consent to treatment that he has been asked to contribute to ?
Answer:
The ex-husband/father does not have absolute freedom of choice to refuse or consent to treatment. When exercising his right to consent or refuse he must act in good faith and not out of spite against his ex-wife/the mother.
Emergency Dental Treatment – No Time For Consent
Question :
My teenage daughter, who is in my custody, broke several teeth, including her front ones, while mucking around with friends. She was in great pain and hysterical, and terrified of what she looked like. We rushed to the dentist and she had treatment. My ‘ex’ refuses to contribute to the cost. Under our divorce agreement he is supposed to pay for half of the cost of medical treatment not covered by ordinary health insurance – subject to his consent. He said I should have asked for his consent beforehand. I replied that there was no time – and there was no real choice anyway. I did try to ring him when she was at the dentist’s but his mobile was engaged all the time and I was more concerned with giving emotional support to our daughter. Is his refusal to consent justified ?
Answer:
It seems not. The father’s participation in his daughter’s exceptional medical expenses is conditioned upon consent, which implies that he will be informed beforehand. An However, there are situations in which this is not possible. An emergency would fit in to this category, in which case the father’s refusal to consent afterwards would be unjustified
Exceptional Medical Expenses - Reclaiming Expenses From Other Parent
Question:
Under my divorce agreement which was authorized in court, my ‘ex’ and I have to share the cost of any exceptional medical expenses not covered by our sick fund insurance. She has now filed me with a financial plea concerning exceptional medical expenses in the past and in the future and has included two specific demands . She has demanded that I pay half of the cost of dental treatment our daughter has had and half the cost of counselling our son has had. Each bill was for several thousand shekels. What are her chances of succeeding in her plea ?
Answer:
Very low. It would seem that her plea is unnecessary. The father should consider asking the court to strike out the plea because the mother could have taken steps at the bailiff’s office against the father. As no conditions are attached to the father’s undertaking to pay half of exceptional medical expenses the mother can present the divorce agreement and the medical bills at the Bailiff’s Office and ask for the father’s undertaking to pay half of these costs to be enforced.
Cosmetic Surgery For Teenage Daughter & Father’s Financial Obligation
Question:
My ex-wife is pressurizing me into agreeing to pay half the cost of an expensive nose job for our teenage daughter. She claims that our daughter has a complex about her nose and that if she doesn’t have surgery she could suffer emotional damage. Our daughter does have a very prominent nose, but I think the problem is my wife and not my daughter’s nose. She doesn’t know how to put a stop to our daughter’s never-ending demands to subsidize her every whim. In our divorce agreement I am supposed to pay half the cost of exceptional medical expenses – if I consent. Am I justified in refusing ?
Answer:
It would seem so as refusal would appear to be reasonable in the circumstances. Surgery like this is not life-threatening and consent should be obtained in advance, according to the divorce agreement. If, for example, the divorce agreement had conditioned consent upon recommendations of appropriate medical experts and a psychologist was of the opinion that the teenager would suffer severe emotional damage unless she had the operation then the situation would be different.
Agreement Between Lesbian Couple Re Unborn Child
Question:
Can a Lesbian couple who live together make a valid agreement about jointly raising a child born to one of them who receives sperm from an unknown donor ?
Answer:
Yes! Beersheva Family Court authorised a similar agreement between two Lesbians who it had previously said were to be regarded as a ‘couple’ under the Family Court Act of 1995. The court authorised the new agreement and incorporated it into a judgment even though the child was yet to be born . The parties agreed that they would be jointly responsible for the expenses involved in bringing up the child they planned to have together . They agreed that in the event of a split-up the biological mother would have custody of the child, and declared their intentions that the other woman would have visitation rights in the event of a split-up, according to the child’s best interests at the relevant time. The women also agreed on a sum of child maintenance to be paid in the event of a split up, and this was authorised according to the Family Law Amendment (Maintenance) Act of 1959 which obliged the spouse of a biological parent to support his/her spouse’s child .
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