Custody - Education & Health

Question:

My wife has custody of our children. Does that mean that I don’t have a say in their education and choice of schools ?

Answer:

No ! The Supreme Court of Justice has held that a minor child's education and  studies are a matter for both parents and where they disagree the court should decide. A custodial parent has no exclusive right to decide  the type of education or school  a child shall attend just because the minor lives with him/her. Both parents have equal rights and duties concerning their mutual child's education by virtue of being the minor's natural guardians. Education is an important part of guardianship .As mutual guardians both parents have an important role to play in educating their child.

Case:

My ex- wife has custody of our son who is at primary school. She does not tell me much about what is going on. I would like to be informed about parents’ evenings and events at school. Do I have a right to this and if so, how can I insist on my right if my ex-wife won’t respect it ?

Answer:

Firstly , both parents are a child’s natural guardians and both of them have roles to fulfil as such under the 1962 Legal Capacity and Guardianship Law. Education is one of the subjects mentioned which parents, as natural guardians, are responsible for. A non-custodial parent has the right to be informed and , to a certain extent, involved in his/her child’s education. The non-custodial parent has a right to be informed about parents’ meetings and events at the school and to attend. If the mother, the custodial parent, does not respect these rights the non-custodial parent can ask the court to give orders/instructions regarding these which will bind her.

Case:

I am separated and in the process of divorcing my husband . I have temporary custody of our children. At the moment we live near one another, in the same municipality. I want to move slightly out of the area. This means registering the children for a different school. Can I do so without the father's permission?

Answer:

No. Being the custodian does not give the custodial parent an advantage over the other parent when it comes to decisions about their mutual children's education. Under the Legal Capacity and Guardianship Law of 1962 , education is one of the duties of parents by virtue of them being their children's natural guardians. Decisions on education and place of residence must be made jointly and in the absence of mutual consent, by the court, upon application by one or both of the parties. Accordingly, you cannot move the children's place of residence or school unilaterally, without their father's consent, unless you apply and get permission to do so from the court.

On what basis will a court decide which type of school a child should attend if there  is a dispute between parents ?

Answer:

Ultimately the choice of educational framework should be in the “child’s good”. The child's own wishes will also be taken into account, presuming he/she is old enough and sufficiently mature. However, the child’s wishes do not always co-incide with his/her “good”, and the court will not bow to them. Nowadays, courts are very aware of the emotional consequences that the choice of a religious or secular school may have on a minor’s relationship with his/her divorced or separated parents, if they have differing views and lifestyles. They will try and avoid a child attending a school which will endanger a fragile relationship they have , usually with the non-custodial parent, even if this is against the child’s wishes.

For example in July 2004 Tel Aviv Family Court refused permission for a 12 year old girl who had been attending a state religious primary school to start at a secular junior high because of possible emotional damage . Her father was a member of “Chabbad” and the court held that their relationship would be jeopardized by her attending a secular school because the cultural gap between them would widen and could not be bridged.

Question:

My ex- wife and I have joint custody over our mutual children. We have both lived close to one another, in the same municipality until now. Recently she moved a short distance away, but into the border of a different municipality. We both wish the children to carry on at the same school , which has a special "Tali" programme for Jewish educational enrichment. We are worried that the move to another municipality could jeopardize this. What's the situation ?

Answer:

If you have joint custody over your mutual children, and have the documentation to prove it, and the children are registered on your Israeli I.D. card, at the address within the municipality where they currently study, as well as being registered at their mother's address, then there should be no problem with their continued registration at their current school, despite their mother's move , as they are still residents of the municipality , even though they live part of the time outside it.

Case:

My ex-wife has custody over our mutual children and refuses to honour a court decision ordering them to study at a specific school, where they have been studying happily for a few years, and is threatening to register them at another school, against my wishes. What legal action can I take ?

Answer:

Firstly you can file for contempt of court , and secondly you can file another application, for an order preventing her from registering your children at the other school and for another order to compel her to continue registering them at their current school. According to Israeli law, decisions about children's education must be made jointly by parents, as part of their duty as their minors' natural guardians, and in the absence of mutual consent, the court will decide, upon application by one or both of the parties.

Question:

Which court – the family one or the rabbinical one – has jurisdiction over a child’s education when both parents are Jewish ?

Answer:

In general, primary jurisdiction over education lies with the family court. This is because the 1995 Family Courts’ Act gives it jurisdiction for pleas according to the 1962 Legal Capacity and Guardianship Act ,which includes custody and education.

However, the rabbinical court can gain jurisdiction over a child’s education if one of the parents files a divorce plea there . The 1953 Rabbinical Courts’ Jurisdiction (Marriage and Divorce) Act gives it exclusive jurisdiction over any matter bound to a divorce plea, with the question of custody being perceived as bound by its very nature. It can also gain jurisdiction over custody or education outside of divorce under the same act if both parties agree.

Question:

If two parents disagree about which court – the family one or the rabbinical one – has jurisdiction over a child’s education ,how is this resolved ?

Answer:

The parent who denies that a particular court has jurisdiction to hear a dispute concerning a minor child’s education will bear the burden of proof . In other words if, for example, the other parent files a plea on education at the family court, then the parent objecting to its jurisdiction will have to prove to the family court that it lacks jurisdiction to hear the case.

Question:

Is the importance of giving a Jewish child a religious education recognized by the courts ?

Answer:

Not as much as in the past, and less so at cases heard before the family court than those heard before the rabbinical court

Giving a Jewish child a religious education is not a high-priority factor when courts decide on which kind of school would be in a “child’s good”. So stated Tel Aviv Family Court in July 2004 : “.. The main factor in the question of transfer from one stream of education to another needs to be the emotional aspect for the child, and if, as a result, the switch will result in emotional damage of any kind. The fact of giving or not giving a religious education to the minor, is a factor of low weight,” it said.

Question:

If two parents disagree over how religious the school their children attend should be , can a court dealing with a plea concerning this ,take the initiative and make its own “compromise” decision on choice of school, without having a full discussion on it ?

Answer:

No ! The Supreme Court of Justice ruled in September 2003 that Ashkelon Rabbinical Court had been wrong to make its own unilateral “compromise” ruling that three children who attended secular educational frameworks and whose father wanted them to attend private ultra-Orthodox institutions should attend state religious schools as a “compromise”.

The mother had petitioned to the Supreme Court of Justice after her appeal to the Greater Rabbinical Court had failed. Although it rejected her claim that the family court and not the rabbinical one had jurisdiction over their children’s education , it cancelled all the orders made by the rabbinical court, including a 200 shekel fine it imposed for each day the children remained in secular educational frameworks, in contempt of its order.

“ The paramount factor must clearly be the children’s good. Surely, it is likely that there will not be a match between a compromise of some kind and the children’s good,” it held, adding that preference should be given to the children’s good .

An expert's opinion on  what was in the children’s good should have been obtained before any decision was made , the court continued. This had not been done, it said. Accordingly, it ordered the district rabbinical court to obtain a report from a suitable source expressing an opinion about which educational framework would be best for each of the couple’s three children. Until this was done, the children should continue learning in their current , secular frameworks, it held.

Question:

Will a court automatically allow a younger sibling to attend the same kind of religious or secular educational framework as an older sibling if both children are in the custody of the same parent ?

Answer:

No , not necessarily, and each case will be decided on its merits. For example, in July 2004 Tel Aviv Family Court refused a 12 year old girl permission to switch from a state religious educational framework to a secular one, although her elder brother attended a secular school.

Two years previously the court had refused permission for the elder brother to attend the secular framework, instead of a state religious one, but despite this, he had actually done so. At the time the court had warned against the emotional risk such a switch would entail as the father had already started seeing the son less after he changed form a “Chabbad” school to a state religious one. After the switch to a secular school, the father declared that he had renounced all responsibility for his son’s education, something which fall solely on father’s according to Jewish law.

When the younger sister asked for permission to start at a secular junior high school, the court referred to its warnings and how its prophecies had come true. It refused permission for the younger sister to attend the school, saying that it would not be in her good, as the switch would jeopardize and even end her relationship with her ultra-Orthodox father just as her brother’s had done so .

Question:

Who is responsible for a Jewish son’s education, the mother or the father ?

Answer:

According to Jewish law, a father is traditionally responsible for educating his son in Torah (religious law) and Mitzvot (good deeds), and the mother has no role. However, according to Israeli civil law both the mother and father have joint and equal responsibility under the 1962 Legal Capabity and Guardianship Act, for their child’s education, irrespective of who is custodian.

Case:

I have filed for custody of our children at the family court. My husband has now filed for divorce at the rabbinical court. When I looked at the divorce plea I noticed that he had included their education. Is this possible ? We have very different views on education and religion and I thought I would ‘call the shots’ if I filed at the family court first. Am I right ?

Answer:

The rabbinical court can gain jurisdiction over subjects associated with divorce such as child custody where no proceedings have been started by one of the parties on that issue in a civil court. Thus, if a wife files for custody at the family court before her husband files for divorce at the rabbinical court he will be prevented from binding that issue , or an aspect of it such as education, to his plea.

This point was tested by a petition to the Supreme Court of Justice by a wife who had filed for custody and maintenance of her child in the civil system. A few weeks later her husband filed for divorce at the rabbinical court and bound his son’s education into the plea. The rabbinical court held that it did have jurisdiction over the son’s education and passed judgment on the subject. The wife petitioned to the Supreme Court of Justice which ruled that the rabbinical court lacked jurisdiction to rule on the son’s education as child custody proceedings – which covered the subject of education - had already been started in the civil system .

Question:

I divorced at the rabbinical court and gained custody over our two children. My husband was unemployed and on drugs at the time. He has now become newly religious and is threatening to “report me” to the rabbinical court because I do not send the girls to a religious school. What should I do if he asks the rabbinate to order me to pull them out of the secular state school where they are happy and into a religious one ?

Answer:

Once you have actually divorced at the rabbinate jurisdiction for your girls’ education will lie at the family court, and not at the rabbinical one, unless it was specifically bound into the divorce plea or agreed otherwise by both parents.If, however, your husband does try to go ahead with his plan at the rabbinical court you would be advised to object to jurisdiction there both in writing and orally at any hearing.