Custody - Parental Death

Case:

I am divorced and have custody of our two children. I have recently been diagnosed as having cancer and am currently undergoing treatment.I am worried about what would happen to the children should I die.Their father lives abroad and has not contacted them for several years. He is an abusive person. My brother lives nearby and the children have a close relationship with him. He said that he would be willing to bring them up for me if the need arises. Can I do anything like making a will to ensure my brother and not my “ex” would get custody if I die ?

Answer:

Both parents are the natural guardians of their children and this normally applies even when they are divorced. If the custodial parent dies the non-custodial parent is usually granted custody as he/she is the remaining natural guardian. Thus, for example, if the mother has custody and the father has visitation rights and a reasonable relationship with the children, then he will get custody. However, in an exceptional situation like yours, where the father exists and is technically the children’s natural guardian but has severed all connection with his offspring and fulfills no parenting role at all, it could be possible for your brother to apply for and be awarded custody of the children at the family court. Though an instruction in your will about  who should bring them up should you die would not be legally binding, your wishes would be taken into account by the judge. Another option would be to make an affidavit stating your preferences. If a legal battle were, however , to ensure between your brother and your “ex” the court would decide, putting the children’s good first.

Question:

My husband and I wish to raise our grandchild, following our daughter's tragic death.Our grandchild has been living with us since he was born, as his mother moved in to live with us when she became pregnant. The child's father was never married to our daughter and hardly knows our grandchild. Our daughter had sole custody .Would we have a chance of winning custody and what lies before us ?

Answer:

In principle, Israeli law favours a child being raised by the surviving biological parent, if the custodial parent dies, unless there are very strong factors weighing against this. An example would be lack of parental ability on the part of the surviving parent. The Legal Capacity and Guardianship Act of 1962 respects the blood connection between biological parent and child, and the Supreme Court has held many times that this can only be forsaken in exceptional and extreme circumstances, even when the court clearly thinks that the child would be "better off" growing up with grandparents or other relatives. Furthermore, it does not matter if the child's parents were unmarried, married or divorced ; the biological link is the important issue .

Thus, in general, grandparents' chances of gaining custody will fall short of those of the surviving parent, but each case is decided on its merits, and the court should only decide after all competing parties have undergone parental capability testing by a clinical psychologist, who is appointed by court as a neutral expert. The expert's report and recommendations will be presented to court, and together with a report of a social welfare officer also appointed by the court, it should form the main piece of evidence in the custody proceedings.

In January 2008 Beersheva Family Court ruled on a custody battle between a biological father of a three year old and his grandparents on his late mother's side, with whom he had been living since he was born, following his parents' divorce.  Although all parties had parental capability and the court was full of praise for how the grandparents had been looking after the child since his mother's death,it found in favour of the father, on the basis of him being the biological parent. It noted the expert's comment that if the child grew up with his grandparents he may bear a heavy emotional price for filling the vacuum in their lives created by his mother's tragic death. It ordered a gradual transfer of physical custody of the child over a period of several months, under the guidance of professionals. In this case,the father's new wife, a mother of children herself, was also tested by the expert, as was their relationship, as her role was held to be crucial, as the biological father himself lacked parental experience and did not have a close relationship with the minor.

Case:

Our daughter died tragically, leaving our grandchildren without their mother.
Can we get joint custody over them with our son-in-law ?

Answer:

In contrast to biological parents, who are natural guardians of their minor children, with automatic legal rights of custody, grandparents do not have custodial rights over their grandchildren under Israeli law. They only have visitation rights, at the most.

Accordingly, in order for you to share custody of your grandchildren with your son-in-law, your grandchildren's father, you would be advised to reach an agreement with him on this, and , if you are successful, to get it authorized by court. Before authorizing the agreement the court will appoint a social worker and order him/her to prepare a report, which will include an opinion and recommendations on the matter.

In the absence of prior agreement on the matter, the chances of grandparents gaining joint custody over their minor grandchildren, following the death of a parent, are not high, if the surviving biological parent is normative but un-coperative.

Question:

Do grandparents have a chance of bringing up their grandchildren if the mother – their daughter – dies and her ex-husband lives abroad ?

Answer:

Grandparents can file for custody at the family court but the father, as the child’s natural guardian, will have priority as the choice of custodian. He is the first choice custodian and his right will only be taken away if there are exceptional reasons. Grandparents at best have visitation rights.

In one case the Tel Aviv Family Court decided that a father, a Swedish citizen and resident, should have custody of his10 year old son, who had been living in Israel since he was a toddler, following his mother’s sudden death. This was so although the professional report commissioned by the court recommended that the child should remain with his maternal grandparents in Israel – and although the child wanted this, too.

An Israeli citizen, the child’s deceased mother, had married in a civil ceremony in Sweden. After the couple divorced there, too, a Swedish court awarded them joint custody of the child. The mother brought the child to Israel to visit her family but never returned. The father eventually agreed to the child remaining in Israel but kept in regular phone contact with the child who visited Sweden every Summer. After the mother’s death when the child was 8, the boy moved in with his maternal grandparents, who lived adjacent to them, against his father’s wishes.

The court held that no exceptionally weighty reasons were found that justified preventing the father from gaining  custody. He was said to be a positive person who had made suitable domestic and schooling arrangements for his son’s move to Sweden. It ordered psychological counselling to help prepare the child ,who loved his father and was well-balanced, for his new life. His worries about changing his lifestyle were normal, could be overcome and took second place to his father’s natural right to bring up his son, the court held.

Normally when the custody battle is between two biological parents the key factor is what is in the child’s good/best interest., and the views of a child can be accorded  considerable weight. Where one parent dies ,however, and the custody battle is between the surviving parent and other relatives, the minor's wishes bear  less weight. They  become  secondary to the surviving parent's  natural right to bring up his child after the custodial parent's death,  the court pointed out,.

Question:

Can a child who is orphaned be brought up legally by a half or step sibling who has a close relationship with the minor ?

Answer:

If the recommendations of the professionals appointed by court in the ensuing custody case are in favour , then it is possible for a half-sibling or step sibling to be legally involved in bringing up the child, although the exact status will depend on the circumstances of the case.

The fact that the sibling is not the offspring of both the minor's biological parents does not disqualify him , as the Krayot Family Court stressed in October 2007, when it ruled on who should bring up a ten year old orphan whose parents had been killed in an accident. It said: "There is no logic, in today's reality, to restrict the interpretation of "brother" just to the biological brother from both parents. It is not the biological connection that matters here...the brother is a close and significant figure for the minor and fulfills her needs."

The court declared the girl a "needy child" by law, and held that she could continue to live in the home of her half-brother, a married man with young children, with the welfare authorities being granted custody. The minor had declared a clear preference for living with her half-brother and reports showed that living with her grandmother had been detrimental to her. Supervised visitation was set up with the grandmother. She was found to be lacking the skills to bring up the child, and had actively incited the minor against her half-brother, claiming that he was disqualified from bringing her up because he was not a full blood relative .

Question:

If a married Moslem couple have a child and the husband dies, who gets custody of the minor, the mother or the late father's family, and what if she remarries ?

Answer:

According to Israeli civil law when one parent dies the other becomes the sole custodian, although if there is a "special reason" an additional guardian can be appointed for the child . However, according to Moslem religious law when a widowed mother remarries she loses rights of custody to her late husband's family.

The Supreme Court of Justice has ruled on this difference . It has held that even the Sha'ari (Moslem religious ) courts are subject to Israeli civil law – The 1962 Legal Capacity & Guardianship Act and the Women's Equal Rights' Act of 1951 - which takes precedence.

"There is no doubt that the rule in the religious court whereby a woman who remarries loses her rights to custody of her child contradicts the law of the state which governs the matter and the law is also binding on the Sha'ari courts. .. .. the marriage of a minor to another man after the death of the father is not in itself enough to constitute a "special reason' for the appointment of another guardian", it said in July 2005.

However, where the mother remarries and is a victim of violence on the part of her new husband so that she cannot provide a safe and pleasant environment for her child , this does amount  to a "special reason" justifying the appointment of an additional guardian , it held.

In the case dealt before it, the Supreme Court of Justice rejected the mother's petition to interfere with the Sha'ari's appeal court decision transferring custody of the minor to the late father's brother and his wife . It dismissed the mother's claims that the decision had been based on Moslem law – and not civil law which put the child's welfare first. It held that evidence and reports from the authorities /professionals involved showed that living with the mother in the new family unit was dangerous for the child due to her new husband's violence – and that there was no reason to interfere with the appeal court's findings and decision .