Child Custody - How Court Decides

Question:

How does the family court make judgments on custody ?

Answer:

Under Israeli Law ( the Legal Capacity & Guardianship Law of 1962 ) if separated parents - married or unmarried - reach agreement about which of them should have custody of their children and about visitation rights the court can authorize such an agreement and give judgment to this effect. It may appoint a professional to report and make recommendations on the matter before doing so.

If the parents do not agree on custody or the agreement was not carried out, then the court has the power to decide on custody and visitation rights instead. It’s yardstick is the child’s good though nowadays this is seen more in terms of children’s rights and wishes after the age of 10. Children under six are put in the custody of the mother unless there are exceptional circumstances warranting otherwise. The court has the power to appoint a professional to report and make recommendations regarding custody and parents may have to take a “parental capability” test. Although the court is usually influenced heavily by these reports and usually adopts their recommendations, it is under no legal obligation to do so.

The rabbinical courts follow a similar procedure, although the tradition of girls remaining with their mothers and boys after a certain age living with their fathers, remains to some extent.

What attitude do courts have regarding evidence in children's proceedings ?

Answer:

Israeli courts dealing with matters concerning children are under a legal obligation to accept, collect and hear as wide a range of evidence as possible, about the "child's good", especially from experts.

In the 1990's the Supreme Court of Justice said: " A finding in the matter of the minors' good… is the most difficult thing, and the judge isn’t in the place of God. "

Question:

Can a court ever rule on a custody battle between parents without having a report from a psychologist or psychiatrist ?

Answer:

While this would be very rare, it can happen. For example, in August 2005 Jerusalem Family Court ordered two children , aged 9 and 7, whose parents were separated and living with their mother , to be transferred into the custody of the father, based on the recommendations of a report made by a welfare officer/social worker. It reached its decision without the need for formal parental capability testing by a more qualified expert – a psychologist, psychiatrist or institute offering a team of professionals .

The court held it could not impose the parental testing it had recommended on the parents ,who had  had not  co-operated on the matter. Each had  been allowed to cross- examine the welfare officer and social worker who had been involved , and under the Family Courts' Act of 1995, there was only a burning need to appoint another expert if the first's report was disqualified, which was not the case here.

In its judgment, the court accepted the report's recommendation that the father should be awarded custody. He was the superior and more involved parent who could cope with both of the children together, while the mother could not, and tended to separate the siblings all the time, it held. It was in their good to live with him, it held, awarding the mother visitation.

Question:

Do courts in custody cases distinguish between what children want, and what the court perceives as in their good ?

Answer:

Yes, they do, or at least, they should do so. As the Supreme Court said in a leading case in the 1980’s : “ The wishes of a minor do not necessary coincide with his good, where the last aspect requires a broader perspective and the testing of different factors, such as continuity, habit, environment, age, economic conditions and a list of additional factors, according only to a broad and all-inclusive assessment, can a picture be created of what constitutes the good of a specific child in his special circumstances – and that is to differentiate between his wishes, which are likely to be temporary, subjective and even impulsive”.

Jerusalem District Court referred to this in August 2004 in an appeal case concerning a custody battle between two sets of grandparents over their grandchildren, whose mother had been murdered by their father.

Question

Can a court choose to disregard views expressed by a child for or against living with one parent ?

Answer:

Yes, while in principle the wishes of a minor of appropriate age and maturity form are taken into account when the court decides what is in his/her good/welfare/best interests, and at certain times prove to be the  determining factor, there will be exceptional circumstances when these will even be disregarded, or given only minor importance.

The Supreme Court has held over the years that the older and more mature the minor, the greater weight should be given to his/her wishes, as part of the decision-making process of establishing whether a custody decision is in his/her interests/welfare/good. Having said this, it has also cited circumstances when the court should refrain from this policy. One situation is where the minor's declared wishes do not really reflect his/her true wishes. Another is where the price for respecting a minor's wishes is too high – that it is likely to result in severe damaging to him/her (usually emotionally). However, even where this is so, if the court considers that a teenager may take active and unilateral action to frustrate its decision (e.g. by running away from a parent who is awarded custody , against his wishes), it may give greater weight to the minor's wishes, to avoid this, and its decision may reflect reality .It may not award custody to the parent he wishes, but it may , for example, increase visitation with the non-custodial parent.

Question:

How will a court decide on a custody battle over a twelve year old who declares openly that she wishes to live with her father and not her mother, where even the social worker on the case knows he is inciting her ?

Answer:

While a court decision on a child's custody is supposed to be based on the child's welfare, and relates to the relative parenting skills of the mother and the father, and relevant professional reports of a social worker and even psychologist , the wishes of a 12 year old should play a significant role, provided she is regarded as being sufficiently emotionally mature. Claims of incitement or brainwashing on the part of one of the parents will be checked and taken into account.

Question:

How do courts dealing with custody view the fact that one parent may be inciting a child against the other ?

Answer:

Courts in Israel are aware of the negative effects of parental alienation and the damage it can cause to children. Accordingly, they will be reluctant to grant custody to a parent who incites the child against the other parent.

In the Moran appeal case before Tel Aviv District Court Justice Haim Porat said that parental alienation syndrome: “ greatly harms the development of the child. It creates a one-dimensional conception of people and of relationships and especially distorts the understanding that he will have about the basis of relationships within the family. One of the important elements facilitating the existence of normal family life is the ability to see the other’s point of view. To understand that part of justice lies on the other side. A person who sees relationships through a division of good and evil is not capable of this. He develops with a very bad preparation for family life. Children who develop a syndrome of refusal to communicate learn to use the withdrawal of love as manipulation and punishment. They develop a general lack of belief and suspicion of people. They learn that they do not have a right to be on good terms with two people at the same time…”

Question:

Where an older child suffers from parental alienation will the court disregard any request he makes to be in the custody of the alienating parent ?

Answer:

Each case is decided on its merits, but yes, a court may give limited or no weight to the views of an older child who has been suffering from severe parental indoctrination/incitement by one parent against the other.

In December 2005 Tel Aviv District Court chose to ignore the declared wishes of a 15 year old to live with his father, and not his mother. The case was a classic and extreme case of parental alienation on the part of the father, who denied the mother's role/importance for the child, and had been locked in a custody battle against her for 10 years . Accepting the overwhelming consensus of all the professionals involved that the mother was the preferred custodian, who respected the rights and needs of the minor to see his father, the District Court rejected the father's appeal against the family court's judgment awarding the mother custody. It decided to adjust the visitation arrangements to reflect reality, but rejected the minor's wishes to live with his father. It increased weekday visitation with the father, but held that the minor should still sleep at his mother's house during the week, and should stay with his father at weekends and holidays.

Question:

How does the court decide where a teenager should live when he/she has left home , adamant not to return , and the social worker’s report recommends that he/she should do so ?

Answer:

In this situation the court will decide on what is in the ‘child’s good’. It will take into account both the teenager’s views and that of the social worker’s report , which is designed as an aid/guide only, and make its own decision based on its own interpretation of the child’s good.

A case before Jerusalem Family Court in June 2001 illustrates this point. The parents of a 17 year old girl who had left home to live with one of her elder sisters had asked the court to order her to return home and order a married man , whom the plaintiffs alleged had been exploiting her emotionally and sexually, to stop any contact with her. The teenager denied any improper relationship with the respondent and begged the court not to send her back to her ultra-Orthodox parents, whom she said mistreated her, or to the community in which she had grown up. The social worker’s report recommended that she should live in a boarding school rather than live with her eldest sister, not far from the respondent.

The court decided not to order the teenager to return to her parent’s home, holding that it would not be in the minor’s good as the evidence showed that the atmosphere was very negative ; the daughter had threatened to commit suicide if sent home, claiming her parents mistreated her . Neither of the minor’s elder sisters were in contact with the parents, who had disowned the eldest daughter after she had filed her husband for divorce. The evidence against the respondent showed that there was no real danger in her living with her eldest sister until she finished high school and became 18 , especially as the respondent undertook in court not to meet or phone her even though he denied all allegations , which it suspected could be unfounded, against him. The court said the respondent and his wife , who had been supportive over the sister’s divorce, could visit the sister’s home when the minor was present, but could not invite the minor to visit their home with her sister.

Question:

Why do courts ask for some expert who does not know a child to make reports and recommendations when the social worker knows him and the parents far more ?

Answer:

In order to reduce the potential for bias that a prior acquaintance or a long term relationship with the social worker creates. Furthermore, by appointing a psychologist or psychiatrist ,with higher qualifications and skills, to make a report and recommendation, as well as the social worker, the court will have the benefit of two reports ,from the individual perspectives of each professional , and thus get a broader and deeper picture of the situation.

During a custody battle in November 2001 , The Jerusalem Family Court explained the advantages of appointing an 'outside' professional :‘ Because one is talking about experts who do not know the history of the family in its every detail, the chance of winning over the expert to one side or the other or over-identification of a professional element with one side or another is reduced.’

Question:

What are the legal implications of one parent refusing to undergo parental capability testing conducted by a psychologist – if it is recommended by a social worker appointed by the court ?

Answer:

Refusal of one parent to undergo parental testing recommended by a court-appointed social worker is very likely to go against him/her, and reduce his/her chances of gaining custody if there is a battle for this between the parents, and the other parent undergoes such testing, and is found suitable.

Case:

The family court has asked the social worker to make another report as part of the custody battle that my ex-husband and I are having over the children. My husband is a very persuasive person who can put on a charming act. I fear that he is winning over the social worker. I do not have his charisma. Are courts aware of the potential for bias in these reports ?

Answer:

Yes. Passing judgment in a custody battle in November 2001,  Jerusalem Family Court talked referred to  these dangers and said : ‘ A social worker is likely, just because he is exposed over a long period of time to the parents of the children and to the children, ‘ to join’ the camp of one of the parents ; and it is likely also that an argument between one parent and the social worker is likely to result in the report receiving bias resulting from the improper relationship between the social worker and one of the parents.’

Question:

Does a parent have the right to demand that his/her lawyer be present at a meeting with a social worker, or welfare officer of the family court in custody proceedings ?

Answer:

No ! Jerusalem Family Court held that a father was unjustified in his refusal to meet with a court welfare officer (whom it had instructed to file a report ) without his lawyer being present. The right to be represented applies only to legal proceedings, and not meetings to prepare a report. These are not legal or even quasi-legal proceedings. Meetings with social workers, as with doctors and psychologists, are based on trust , and there is no place for a lawyer or a 3rd party there, it held.

Question:

Does the need ever arise for a second report from a professional where there is a dispute over custody or visitation and one side claims the original one was biased ?

Answer:
 
If the court dealing with the dispute decides to disqualify the report it ordered, then the need may arise for appointing another professional. However, if it merely decides not to adopt the findings of a certain part of it, then this need will not arise.
These points were made by Jerusalem District Court in January 2004 when dealing  with an appeal by a mother against a family court judgment refusing to reduce the father’s visitation rights concerning their seven year old minor son. The mother had claimed that the visitation schedule was against the child's interests and that the father sexually abused him. The family court had criticized the report for being superficial and jumping to conclusions,
unfavourable to the father. It had refused to accept findings relating to the alleged child abuse and held that, on a balance of probabilities, the father had not abused the son in any way.
The appeal court  decided there was no need for a replacement report because the report had not been rejected as a whole, only the part relating to child abuse. Furthermore, it said  the police investigation had been conducted professionally and thoroughly and had decided that  the father had not harmed the child, and had subsequently closed the file against him.

Question:

Can a party to a custody battle who actively requests or favours a certain professional being nominated by the court to report on parental capability , criticize it, and its findings, if they are against him ?

Answer:

Yes - a party is free to criticize a professional’s report, and its recommendations, but if he actually recommended that person’s appointment, and expressed belief in his professional background and conduct, and afterwards changes his tune if the report is unfavourable to him, then the court will take this into consideration ,in terms of the weight it accords to his criticism.

This issue was raised in August 2004 , during an appeal by paternal grandparents against a family court’s judgment that the maternal grandparents should have custody of the minors . The children’s father had murdered the minors'  mother and was serving a sentence of life imprisonment. The paternal grandparents had urged the court to appoint a particular institute, and particular professional, from Herzliya, and not from Jerusalem, where the case was being heard, to make the assessment. However, when he, too, like the social worker, recommended that the children should be transferred into the custody of the maternal grandparents, they objected, and criticized his report and its findings in their written summations.

“ The (maternal) grandparents repeat and remind us that the expert .. was appointed upon the request of the appellants, who expressed belief in his professionalism, and accordingly there is nothing to address in the appellants’ claims that there is a fault in the treatment of the professional…. Or his recommendations,” the judgment stated.

The professional psychologist in question stated that he had purposefully refrained from reading the social worker’s report beforehand, although this is common practice. He did so, he said because he had known that one side was pleased with the recommendations, and the other not, and did not want to be accused of bias, he said.

Question:

Does the court treat mothers and fathers equally without discriminating against either gender in custody cases where the child has reached school age ?

Answer:

In principle once a child is 6 there is no inbuilt bias towards mothers having custody. Under the 1962 Legal Capacity and Guardianship Law custody is awarded to mothers of children under 6 unless there are special reasons otherwise.

Once a child is over 6 and the parents do not reach an agreement over which of them should have custody, the court has power under the above legislation to decide who would be the preferable custodian, the mother or the father. It is supposed to be consider the parenting capability of each parent regardless of his/her gender. What counts is his/her suitability for a custodial role, which requires particular qualities.

The Jerusalem Family Court explained this clearly in a custody case in November 2001: “ There is no mathematical equality ; there is a division of labour here, so that each parent can invest as much as possible in the child’s good. The equality comes from a vision of the minor’s needs and which of the parents is more capable of fulfilling all of those needs … for example, it is likely that one parent is outstanding in giving warmth, love and affection and the other in intellectual enrichment, and it is possible that both of them are equal in those matters. And also the degree to which the parts of the personality of this and that parent harm are likely to harm the child must be weighed up, and to arrange these things so that the negative effect is reduced.”

Question:

In what circumstances may a mother not gain custody ?

Answer:

In a nutshell several possibilities exist, even though custody is usually awarded to the mother and not the father, especially when the child is under six, other than in exceptional circumstances which prevent her from looking after the child (e.g. where she is a drug addict) .
Aside from such extreme situations, a mother could fail to gain custody if the father is found to have superior parenting skills after both of them have undergone professional testing ordered by the court. Another possibility would be that both parents have good parental skills, but that the children are sufficiently old and mature to have a voice in the matter, and express a clear preference to be with the father, and their views are not a result of incitement , brainwashing or pressure. A further  possibility would be that a mother with previously good parental skills had deteriorated emotionally, or now leads a lifestyle that is likely to endanger the children, or their development.

Question:

Can a father get custody of a couple’s minor child because the mother in unemployed ?

Answer:

The question of whether the mother works or not is not the only, or the determining factor regarding which parent  gets custody. Furthermore, the court takes into account that if the mother gets custody, the father will pay child maintenance anyway, irrespective of whether the mother works or not.
When there is no agreement between the parties regarding custody, the court will examine which of the two would be the  more suitable custodian and can fulfil the minor's physical and emotional needs better.  Normally,  the court will appoint a suitable professional to make a report and recommendations on this.

Case:

I am separated from my husband with whom I am in the process of divorcing. I am having relationships with other men. Is this likely to affect my chances of gaining custody of our children ?

Answer:

As a rule no, but possibly , yes, as an exception. Custody is awarded to a parent who has the better parenting ability and in who is a better choice from the point of view of the child’s good . In principle it should have nothing to do with a parent’s sex life. However, if that parent’s particular lifestyle has a indirect negative effect on the child i.e. results in neglect or abandonment (e.g. if she goes out all the time and leaves the child with a baby-sitter) or over-exposure to intimacy/conflict ( e.g. if with a series of dates who sleep over at home) then this could reduce the chances of that parent gaining custody.

Question:

Can a divorced man whose ex-wife has custody and is openly lesbian ,act to stop her relationship with a woman for the sake of their mutual children ?

Answer:

Firstly, the mother has the right to express her sexual tendencies, whether she is heterosexual, bisexual or lesbian, and no legal action can be taken to force her to end her relationship with another person. Secondly, in principle there should be no direct connection between a parent’s sexual tendencies and his/her ability to gain or retain custody of minor children. However, in extreme cases, where the sexual behaviour of a custodial parent, whatever his/her tendencies, puts minor children in his/her care at risk, then he or she could lose custody to the other parent, if the latter is capable of raising them. The assessment of risk is normally made by a clinical psychologist appointed by the family court .

A father who believes that children in the custody of his lesbian ex-wife are at risk because of her sexual behaviour can take action himself and can either file for custody, or alternatively ask the family court to exercise its powers to intervene where minors are at risk. In either case a clinical psychologist is likely to be appointed by the court and he/she will investigate whether the mother’s lifestyle is putting the minors at risk.

Case:

I have two young children, of pre-school age and am in the process of divorcing my wife. We are both Jewish. She has become more and more secular since we married . I am far more traditional. What are the chances of me gaining custody, the object of which is to ensure that the boys get a Jewish education?

Answer:
In general the chances of a father gaining custody of minors under the age of 6 is very low as there is a rebuttable assumption in Israeli law that children up to that age should be with their mother, unless there are very special reasons otherwise. This is clearly stated in the 1962 Legal Capacity and Guardianship Act. Having said this, there have been attempts to reform the situation, which, if they become law, would create a more egalitarian atmosphere and give fathers a better chance of gaining custody of young children under six. The parental capability of both the mother and father would be examined even where the child is under the age of six, and the decision based on merit and the child’s good, rather than parental gender.

Incidentally, giving Jewish children a Jewish education is not in itself grounds for gaining or transferring custody.

Question:

Can an unmarried father get custody of his minor child who lives with his mother ?

Answer:

Yes. The fact that the father is not married to the minor’s mother does not prevent him from filing for custody in the first place , or from succeeding in the plea itself, as his marital status is not a relevant factor . To win a transfer of custody, he must prove to the court that his parental skills are superior to those of the mother , that it would be in the child’s good to live with him, and that the transfer is justified, given the possible disadvantages of a change . Depending on the child’s age, understanding and maturity, his views will be taken into consideration by the court. The mother will be entitled to file a defence. A social worker and/or psychologist will be appointed by the court to make a report and recommendations.

Question:

My wife and I have two children. We are divorcing and are considering the idea of each of us having custody of a different child. Is the court likely to agree to this ?

Answer:

In principle courts are reluctant to separate brothers and sisters as this is generally regarded as having a negative effect. However, each case should always be considered on its own merits. As the proposal to split custody is quite unusual it is likely that the court would appoint a professional to make recommendations on it, if it did not reject it outright.

Case:

I am separated from my husband and have custody of our two children. Their father has threatened to challenge me for custody in court. He says I don’t look after them properly, saying their clothes are dirty and un-ironed – and says he has taken pictures of them dressed that way to prove it. How would the court view this in a custody case ?

Answer:

Using a 2001  custody case before the Jersualem Family Court as a guide, it is likely that the court would view the father’s behaviour negatively, saying he was more interested in gathering evidence against the mother than in the children themselves. However, where evidence of one parent's clear and consistent failure inability to take care of a child's physical needs come from an independent source e.g. school teacher/counsellor , then the court would take it into account, and it could go against that parent.

Question:

Will a father automatically lose all chance of gaining custody of a teenage child because he is a self-professed homosexual ?

Answer:

No. In a custody battle the parental capabilities of both parents, and the view of the teenager concerned will be taken into account, if he/she is held to be sufficiently mature . In July 2003 Kfar Sava Family Court held that a teenage daughter should be in the joint custody of both parents, even though the father was homosexual. The court stressed that he was clearly the better parent . The mother had not overcome the shock of the father’s declaration about his sexual tendencies, it said, and had embarked on an all-out war against the father without caring about the emotional damage this was having on their 15 year old daughter. While it preferred to transfer custody to the father completely, after being impressed by the teenager’s maturity and decision-making ability, the court respected her desire to spend equal time with both parents, and ruled on joint custody.

Question:

Will a father’s history of physical violence go against him in a custody battle against the mother ?

Answer:

Not necessarily. It depends on the degree of violence and evidence of it, and against whom it was directed. For example if the violence was directed against a third party, or the mother, but not against the child ,then its negative consequences will not be so great, and it will just be one of the factors taken into consideration in deciding who is the more suitable parent, the father or the mother, assuming both of them have reasonable parental capabilities. However, if there is clear evidence of violence directed against the minor children over whom the father wants custody, this will definitely be a factor against him.

Question:

Will courts dealing with a custody battle always avoid separating brothers and sisters ?

Answer:

Courts will avoid separation of siblings as a rule, but will allow it as an exception. For example, in July 2003 Tel Aviv Family Court refused to transfer custody of a boy aged 13 to his father, with whom his elder brother lived, although it is accepted that it is preferable to keep siblings together. This was because the father’s incitement of his sons against the mother had caused them to suffer from “parental alienation syndrome” which was known to be harmful to child development. It accepted a warning by a social report that if the younger son was transferred into the father’s custody he, like his elder brother, would lose contact with the mother , because of the father.

Case:

My ex-wife has custody of our seven year old child. He stays over with me alternate weekends and during holidays. I am devoted to my son and being very concerned about the way his mother is bringing him up , I am considering challenged her for custody at the family court at some stage. He is my whole life. Is the court likely to view my devotion positively, especially as my ex-wife is dividing her attention between our son and her new ‘man’ ?

Answer:

The family court is likely to see devotion towards a child as positive , but only up to a point. If it regarded it as ‘over the top’ or obsessive this is likely to be regarded by professionals as counterproductive and in a custody battle this would weigh against the parent behaving this way .

In a case before the Jersualem Family Court in November 2001 the court pointed out the dangers of parents being over-devoted to a child.

“ According to the social worker the child receives a lot of attention; I admit that I fear the child will suffer from over-attention. What I mean is that I fear the normal development of the girl will suffer, not because only of her exposure to the drawn out battle between her parents, but also, even mainly, by her being at the centre of matters for each of her parents, and the possible harm this will have on her ability to give, when all the time she gets love, encouragement and material and other things from her parents. Even more, neither of the parents have married again; the child is being deprived of experiences of couplehood and a normal family.”

Question:

Will a court in Israel "legalize" the status quo and grant grandparents living in the country custody over a grandchild with tourist status, whom they have been raising, the request and agreement of the biological parents living abroad ?

Answer:

Each case will be decided on its merits, with the child's good being the deciding factor, but with the question of status playing an important role. Clearly, where the child is not Jewish and does not have a Jewish parent or grandparent, the chances will be much slimmer. Jewish roots are at the heart of gaining status in Israel and the State of Israel is likely to object to custody being awarded where the grandchild of the citizen does not have Jewish roots and the Ministry of Interior has refused to upgrade the minor's status.

In December 2007 Haifa District Court rejected an appeal by a non-Jewish grandmother and a Jewish stepfather ,who were immigrants from Russia in their sixties, against a family court ruling refusing to grant them custody of the grandchild,aged 8. The minor had been living with them illegally in Israel since he was 5, when his mother left him in Israel after visiting with him as a tourist. Both his mother and father, who lived separately in Russia, had asked them to raise the child. They had submitted documentation whereby they consented to custody and guardianship rights being transferred to the appellants. A social worker's report had recommended that it would be in the child's good to grow up in Russia, where both his parents lived, and where he had status. The appellants were not Hebrew speakers and had not integrated in Israel, it said.

The District Court stressed that parents cannot make a unilateral decision to transfer custody of their child because of convenience or career reasons and that it was not possible to consider the child's good without taking into account his lack of status. It said that usually, where the child is not Jewish, attempts should be made to deal with the question of the minor's status first, at the Ministry of Interior, and acquire status in Israel under one of the humanitarian exception grounds, and then to apply for custody in the courts.

Question:

Where , for various reasons, both sets of grandparents compete to raise their grandchildren , how will the court decide who gets custody ?

Answer:

Again the primary concern will be the minors’ good – with which set of grandparents will it be preferable to them to grow up . Both sets of grandparents will undergo parental capability testing and investigation by professionals – psychologist/s and social worker/s- appointed by court. They will make their reports and recommendations, and the parties will be entitled to cross-examine them when they appear as expert witnesses. Both sides will be able to bring other witnesses, but the main tool guiding the family court in custody battles is the opinion of independent, expert witnesses.

In August 2004 Jerusalem District Court reaffirmed the judgment of Jerusalem Family Court which had awarded custody to the maternal parents of two minors whose father was serving a life sentence for murder of their mother. Rejecting the appeal by the paternal grandparents, it found no reason to overturn the family court’s judgment . It said this was justifiably based on the recommendations of independent expert witnesses which both said that the paternal grandparents lacked the ability to fulfil the emotional needs of the minors, although they could fulfil their physical ones.