Our firm has extensive knowledge and experience in the process of determining custody of your minor children and the visitation rights of the non-custodian parent while keeping your children’s best interests and the preservation of your relationship with them at the forefront of our minds.
The handling of a custody proceeding demands the formulation of a broad strategy, which relates both to the factual situation and the dynamics between the parties. Our firm ensures cooperation with the entities handling the matter, whilst consulting with professionals, who provide insight and practical directives which have implications for the handling of the case.
There is no doubt that this is a proceeding which may cause you deep personal upheaval and self-examination.
While the basis for the dispute is your parental capacity and your relationship with your children – serious high quality and focused work on the part of your attorneys, will have a crucial influence on the manner in which the proceedings are conducted, as well as their duration and outcome.
Furthermore, in light of the protracted nature of the legal proceedings, the guidance and the legal advice may even alter the situation before the legal determination is made.
Both parents are their children’s natural guardians, and it is their right to take part in the making of decisions which concern the minors, including their education, their mental and physical health, their place of residence, etc.
However, in cases where the parents have separated, it is necessary to determine who will raise the children and who will be the children’s custodial parent. This may be accomplished by an agreement between the two parties, which shall be given the validity of a judgment, and in the event of a dispute between the parents, the Family Court or the Rabbinical Court shall decide in the matter (in this regard, see “The Jurisdiction Race“).
The principle of the child’s best interests – the main principle according to which the Court determines the custody of the minors is the protection of the minors’ best interests, insofar as practical, in the situation in which their parents are separated, in other words, to guarantee the maximum concern given the circumstances of the case for the physical, material and emotional needs of the child, taking into consideration his or her age and special needs.
When it comes to consider the minor’s best interests, the Court examines, inter alia, the question of the relationship between the minor and the non-custodian parent; the ability of the custodial parent to make this relationship possible; the child’s desires, feelings and opinions (taking into consideration his or her age and emotional maturity); the child’s age and developing aptitudes; the child’s physical and emotional well-being, which is a direct result, inter alia, of their parents’ parental capacity; the effect on the child’s life in the present and the future as a result of the decision and the child’s relations and relationship with his or her parents and with other significant people and their opinions; the availability and accessibility of each parent for the child. All of this comes in addition to the presumption of the pre-schoolers, as set forth below.
The Presumption of the Pre-Schoolers – with regard to children up to age six, a presumption exists in the Legal Capacity and Guardianship Law, 5722 – 1962 that the children’s best interest is that they should be in their mother’s custody. This presumption may be rebutted by the father, but only in exceptional cases.
The Child’s Desire – The Courts take into consideration the child’s desire, as one of the considerations in determining his or her best interests, when, depending on their age and development, the child is able to understand, distinguish, judge and make decisions for themselves with regard to their own preferences. In general, it may be said that the Courts in Israel tend to consider children of ten or eleven years and upwards to be children with their own judgment, and the Court should not ignore their true, reasonable and free desires as to which custodial parent they prefer, based on their own free will, and which is not the result of incitement by either one of the parents or any other entity.
Expert Opinions and Reviews – at the time of making a determination on the issue of custody and examining the minor’s best interests, the Court attributes great importance to the recommendations of the welfare officer on behalf of the Welfare Authorities, appointed by the Court, as a matter of routine. In cases of a more significant dispute, the Court appoints an expert (a psychologist or a psychiatrist) to give an opinion regarding the parental capacity of the parties and recommendations with regard to the custody and visitation rights. These are recommendations only, and the Court may depart therefrom, in its discretion.
Joint Custody – In special cases, where there is an atmosphere conditions of positive communication between the parents, maximum cooperation between them, respect for the other parent’s parenting and nearby residences, a joint custody arrangement may be determined. This is a unique arrangement which divides the raising and the care of the children between the two parents jointly. The salient advantages of this arrangement lie in the joint taking of responsibility by the two parents for their children, and the maintaining of a significant and continuous relationship between the two parents and their children, as opposed to the situation in which the non-custodian parent is entitled to “visitation rights” only. On the other hand, some people argue that this arrangement has a pivotal disadvantage in that it forces the minors to “wander” between two homes, and in that in the absence of a “main home”, their sense of stability and certainty may be harmed.
Even in cases where joint custody is not officially awarded, broad visitation rights may be determined, including sleepovers on weekdays and on weekends, and also half of the vacations and holidays, so that in actual fact, the children spend significant periods of time in the responsibility and care of the non-custodial parent.
In the event that the matter of the custody is submitted to the jurisdiction of the Rabbinical Court, they are required to adjudicate and rule upon the case pursuant to the general law of the State of Israel, however, additional considerations may be taken into account that are relevant to the Rabbinical Court.