Analysis: Custody wars - Should children of divorcees go to the mother or the father?

The contentions issue has countless layers that go to the heart of determining the direction of these divorced families’ lives.

By
June 15, 2016 08:15
Divorce

Divorce. (photo credit: ING IMAGE/ASAP)

 
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A war is brewing.

Not one which is being fought with knives and bullets or rockets and bombs, but one which is being fought in the bedrooms and living rooms of the one third of Israeli families who get divorced.

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The war is over who gets custody of small children: Mothers or fathers?

The current law is that if the parents cannot agree to a shared custody arrangement until age six, the mother gets custody.

Fathers, with the help of Social Equality Minister Gila Gamliel, have been fighting in recent years to replace this rule with a simple principle that judges will decide child custody disputes according to what is in “the best interests of the child” in the given case.

Husbands-fathers phrase the war in terms of philosophically what is best for the child and ending reverse discrimination against men because of women’s perceived weaker position socio-economically. They say that women use the current law to cut them off from their children.

Wives-mothers phrase the war in terms of what is best for the child in our world’s harsh concrete realities and in preventing men from being able to once more start to use custody fights to reduce the alimony they pay to their ex-wives. They say that men seek lower alimony without necessarily being ready to be the one who takes off of work when their child gets sick or for early pick-up from daycare.

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But the issue has countless layers that go deeper and to the heart of determining the direction of these divorced families’ lives.

MK Rachel Azaria (Kulanu) is in favor of keeping the law as is. She told the Jerusalem Post on Monday that while having courts decide child custody according to what is in the best interests of the child sounds good, it does not come out that way in the real world.

She said that 90 percent of men make more money than women and that substantial anecdotal data also suggest that mothers are far more likely to be the designated parent to leave work early to pick up kids from daycare and when kids are sick.

Azaryah noted that in other countries where the default rule of giving mothers custody of young children was annulled, that the result has not been greater harmony for children. Rather, it has been far more litigation in court over what “the best interests of the child” means and often fathers getting out of paying as much alimony without taking on enough parental duties that their ex-wives can work more.

She also painted a morbid picture of a brand new days old baby being traumatized by having to be ferried back and forth between parents every few days in order to be equal philosophically.

Azrayah said she does not believed pristine justice cab always be achieved in such complex life circumstances and that the law should due the maximum good, along with the minimum bad, even if it was not a fair rule in every case.

Gamliel has rejected this approach. She says that statistics and special sad cases can be spun and that the only way to assure a fair process is sticking to the “best interests of the child” standard.

Her position would be not to get bogged down in other countries experiences, which might sound the same while being  different, and to trust the courts to properly weight the child’s best interests.

Other supporters of the fathers’ position note that whatever Azaryah thinks about other countries moving toward the “best interests of the child” standard, that is the clear trend. They also note that an initiative by Justice Minister Ayelet Shaked to resolve more divorce disputes in arbitration could resolve concerns about drawn-out court litigation. Moreover, they say that one can support higher wages for women and still support greater equality for fathers on custody issues.

Gamliel also likes to add that Israeli courts are already moving to the “best interest of the child” standard in many cases since they see the law is flawed, and that changing the law is following the signals sent by the courts.

Tossing in a dose of real life, supporters of changing the law have also argued that though the law on the books allows for a more shared custody arrangement after age six, that this never happens in real life.

Once they have been raised until age six by their mothers, all children and courts pretty much automatically pick the mother for good.

Former justice minister Tzipi Livni tried to work a compromise where a version of the age cut-off for giving mothers custody as the default would only run until age two, and then the court would already intervene.

This would theoretically create a more even court debate than at age six when the child is already more set with the mother.

Livni’s compromise did not go through in the last Knesset.

Then Gamliel, finding the compromise runs into the same philosophical inequalities, went for a full elimination of the custody default rule with collation support and discipline invoked, losing seven months ago in one of the coalition’s few defeats. The issue was simply too heated to successfully enforce coalition discipline.

Shaked then took over the issue. Last week she told the Post that she was trying to work a compromise on the issue, but she clearly was moving at a slow cautious pace after Gamliel lost the last Knesset vote.

This led to an attack by Gamliel on Shaked on Monday when she postponed a vote over the issue for an additional two weeks after the issue has sat for around seven months since losing a full Knesset vote.

Yet supporters say that with a wider coalition, the vote should press forward.

It appears that Shaked is likely to seek a compromise as Livni did, though possibly with an even older cut-off age of three or four years old.

Azaryah and her supporters are not thrilled with this idea, but are prepared to take it seriously under the circumstances.

Gamliel and her camp are furious with the idea finding it violates the idea of putting what is best for the child first just as much as a cut-off of age 6.

But with compromise in the air and Shaked often valuing what can pass over philosophical principles, she implied to the Post that the slow process would likely end in reducing the age cut-off, but not replacing it entirely.

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