Child custody (hereinafter: “custody”) is a sensitive and very broad matter; one that includes a wide range of sub-issues related to the custody and upbringing of a child. The issue of custody arises when the parents of the child do not live together (due to divorce, joint parenting or separation). The law dealing with custody matters is the “Legal Capacity and Guardianship Law, 1962” (hereinafter: “the law”). In this article, we will discuss the physical custody of the child as well as the issues that accompany it.
Different Types of Child Custody
A minor’s parents are his natural guardians custodians (Section 14 of the law).
There are different types of custody, listed as follows:
- Physical custody
The physical possession of the minor, his place of residence and his life. When one parent receives “full custody”, the other parent will receive “temporary visitation” with the minor.
In “joint custody”, the minor is with each of the parents for equal/almost equal periods of time, and there is no need for temporary visitation.
- Legal custody
Even when one parent has received exclusive custody of the minor, this does not mean that they will make the important and decisive decisions regarding the raising of the minor. These are the decisions the parents will have to make together, as provided in Section 15 of the law:
“Parental guardianship includes the duty and the right to take care of the minor’s needs, including his education, studies, training for work and an occupation, as well as safeguarding his assets, management and development; and attached to this is the authority to have possession of a minor and to determine his place of residence, and the authority to represent him”.
In the various decisions that parents make regarding the minor, they must act in his best interest;
“In guarding the minor, the parents must act in the best interests of the minor, in the same way that devoted parents would have acted in the circumstances of the case” (Section 17 of the law).
Who is authorized to decide on the issue of child custody?
The minor’s parents may, at the time of separation, make an agreement between them, which will determine the issue of custody. Section 24 of the law states that the court will approve this agreement if it is in the best interests of the minor:
“If the minor’s parents live separately – whether their marriage was threatened, annulled or ended, whether they are or are not married – they may agree among themselves regarding who will be the guardian of the minor, in whole or in part, which of them will be in possession of the minor, and what will be the rights of the parent who does not have possession of the child in terms of coming into contact with the child. Such an agreement requires the approval of the court and will be approved upon the court’s understanding that the agreement is in the best interests of the minor”.
Section 25 of the law determines that if the parents have not reached an agreement on the issue of custody, the Family Court (hereinafter: “the court”) or a Bet Din, a trusted rabbinical court (hereinafter: “the rabbinical court”) will make a determination on this issue:
“If the parents have not reached an agreement, or if they have reached an agreement but the agreement has not been implemented, the court may determine the matters referred to in Section 24 according to what is in the best interests of the minor“.
The Overriding Principle in Child Custody – “The Best Interests of the Child”
As we see in the various sections we have mentioned above, “the best interests of the child” is the most important principle by which custody is determined. However, what is the principle of the best interests of the child? How do we know what is really best for him?
In the judgment of David v. The Great Rabbinical Court, a number of principles were raised that will help us understand the concept of “the best interests of the child”:
- “The core of the best interests of the child, the centre of the best interests of the child, is the right of the child to the safeguarding of his physical and mental health, that his mental, physical and material needs are properly provided for”.
- “We speak for the rights of the child – for his independent right – and not for the right of his parents or for the sake of anyone else who seeks to do for his benefit”.
- “The court must rule in favor of the specific child that is standing before the court”.
Since the best interests of the child is a very general concept; one that is ambiguous, depending on values and views, in the judgment of Plonim v. Almoni, a certain approach was introduced when determining custody, the “rights of the child” approach:
- The concept of “rights of the child” teaches us that a child possesses rights. The concept of “rights of the child” is within the scope of the legal protection of the child. It is expressed in the recognition of his rights and in the fact that the totality of the rights is also a guarantee to ensure his well-being. Therefore, according to this approach, the concept of the rights of the child can serve as a legitimate measure for resolving custody disputes, since it protects the child and his general well-being in a better way than the principle of the best interests of the child.
In order to know what is in the best interests of the child, the court/rabbinical court may listen to and take into account the will of the minor himself. There are a number of conditions within this issue, as detailed below:
- The minimum age for listening to a child is 6
- The older the child, the more his will is taken into account
- The child will not be heard in the presence of his parents or their representatives
- The statement of the minor will not be specified in the decision of the court/rabbinical court
Experts’ Opinion on the Issue of Child Custody
When the court/rabbinical court discuss the issue of custody, they are usually assisted by various experts including psychologists and social workers. In the judgment of David v. The Great Rabbinical Court, it was determined that only in rare and exceptional cases will the decision of the court/rabbinical court contradict the experts’ opinion:
“Only rarely and in exceptional circumstances does a court make a determination – in matters of a child’s mental and physical health – contrary to the opinion of experts. Moreover, and why they saw it fit to reject the experts’ recommendation. Of course, the law is different when contradictory opinions are presented to the judge.”
The Presumption of Early Childhood in Child Custody
Section 25 of the law establishes the “presumption of early childhood”, according to which custody of children up to the age of 6 is given to the mother, as long as there are no special reasons that contradict it:
“Children up to the age of 6 will be with their mother if there are no special reasons to instruct otherwise.”
The presumption of early childhood is based on the fact that the relationship between a child, who is young in years, and his mother, is stronger than the relationship with his father. Substantial evidence is necessary in order to challenge this presumption. The presumption is valid even when the mother emigrates overseas (Plonit v. Almoni).
In light of the recommendation of the Schnitt Committee (the public committee that examines the legal aspects of parental responsibility in divorce) to withdraw the presumption of early childhood, and to establish custody according to the best interests of the specific child, we see changes in the approach of the courts, however the presumption of early childhood is still arbitrary and in existence.
Jurisdiction in Child Custody
The issue of custody is generally subject to the jurisdiction of the Family Court. A rabbinical court can also receive authority to discuss custody (as long as such a process is not initiated in court), in accordance with the rules listed below:
- In the case of a divorce claim, the issue of custody is inherently involved in the claim, and there is no need to explicitly involve it.
- If it is not a divorce claim, and the parents have agreed together to discuss custody in the court, the minor has the right to file an independent claim in court (Katz v. The Great Rabbinical Court)
- If the rabbinical court has an in-depth and substantive hearing on the issue of custody, it acquires continuing authority regarding future claims on the issue in custody
- If the rabbinical court does not have a substantive hearing on the issue of custody and only approves an agreement between the parents, it does not have continuing authority regarding future claims.
Jurisdiction in Matters of Education
As we mentioned above, when a divorce claim is filed in a rabbinical court, there is no need to involve the issue of custody, as it is already included in the divorce claim by virtue of its nature. The issue of the education of the minor does require an explicit inclusion, as a divorce claim by its very nature does not involve this issue (Amir v. Haifa Regional Court).
When a custody claim is filed in court, the issue of education is included within it and there is no need to explicitly involve it.
As we have expanded above, the overriding principle in the subject of custody is “the best interests of the child”. This principle is not passed over, even when it comes to issues of education. The rabbinical court dealing with matters of education will decide according to the best interests of the minor, not whether the education complies with religious law, as evidenced in the judgment of Ploni v. The Great Rabbinical Court of Appeals, where it was ruled:
“Regarding the issue of the child’s education, it has been determined more than once that the rabbinical court must decide on the best interests of the specific minor facing it, and not necessarily on the basis of the answer to the question of whether this education follows the position of religious law. The court must ignore the theoretical determinations of religious law regarding the desired education for the child and must examine what is in his best interests under the circumstances of the specific case.
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