Gov’t panel recommends revoking controversial custody law

Women’s rights activists prepare to challenge legislation seeking to replace law that grants custody of all children under age six to the mother.

January 6, 2012 05:01
4 minute read.
Mother and daughter.

mother and daughter family 521. (photo credit: iStockphoto)


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A Justice Ministry panel called to revoke a 40-year-old law that grants custody of all children under age six to the mother. The proposal suggested the law be replaced with a gender-equal alternative but did not spell out the details.

The panel, charged with assessing a law determining which parent should receive custody of a child during divorce proceedings, reached its conclusion this week.

While the findings of the committee, which has been meeting for more than five years and is headed by Dr. Dan Schnitt, have yet to be made public, they were discussed in detail at a conference held at the Rackman Center for the Advancement of the Status of Women at Bar-Ilan University on Tuesday.

Already Schnitt’s recommendations are causing a stir.

The controversy is over whether or not Article 25 of the Capacity and Guardianship Law, known as the Tender Years Presumption Law, which automatically awards custody of children under six to the mother, has a place in today’s society.

Dr. Ruth Halperin-Kadari, chairwoman of the Rackman Center, a member of Bar-Ilan University’s Faculty of Law and Israel’s representative on the UN Committee on the Elimination of Discrimination against Women, told The Jerusalem Post Thursday that the problem was not over whether or not to cancel the law but about the alternatives.

“The problem is that the [Schnitt Committee] recommendation to cancel the law comes without any guiding principle to put in its place,” she commented, adding that such a vague system could be disastrous, forcing couples involved in custody disputes to take unprecedented measures against each other and exposing children more than ever to the custody process.

“The Presumption Years Law managed to leave the children out of the dispute,” said Halperin-Kadari, “but canceling it will mean involving them in a major way, which is ironic because everyone wants to do what is best for the children but the result will be exactly the opposite.” She added that women’s rights activists have already planned to challenge the Schnitt proposal on every level.

Calling it “populist legislation,” she added: “It seems to us that the proposal to abolish the Presumption Law is simply yielding to political correctness using the rhetoric of equality.

“What we are saying is that our society has not yet reached the time or situation where mothers and fathers are truly equal and truly share in upbringing children in Israel,” she continued. “This is simply not the case in Israeli society, there has been no social revolution in changing the roles of fathers and mothers.”

A spokesman for Justice Minister Yaakov Neeman told the Post that the minister had yet to receive the Schnitt Committee’s official report and that he would need time to study its conclusions.

In its preliminary recommendations made more than three years ago, the committee – which was made up of both secular and religious judges, lawyers and non-government professionals, academics and medical staff – pointed out that “Guardianship is the responsibility of both parents even after divorcing” and that the courts should place an emphasis on “what is best for the child in order to ensure his or her healthy development.”

In addition, a complaint submitted last year to the United Nation’s Committee on Economic, Social and Cultural Rights, the Coalition for Children and Family (CCF), an Israeli non-profit organization vying for father’s rights, blasted the legislation as “blatantly discriminatory against men.”

Despite Israeli government reassurances that the Tender Years Presumption Law does take into consideration the best interests of the child and that joint custody is an increasing phenomenon here, the UN committee expressed serious concern over the practice.

“If it was not for crazy feminist hate-inciting monsters we could have achieved this change in legislation in 2003,” commented Daniel Zer, a father who has not seen his son for more than two years and who is active in the CCF. “This would already have brought us a whole slew of changes, including in the area of divorces and the rabbinical courts, which is also a problem for many men.”

Zer said that Schnitt’s recommendations were not that relevant because it was the state’s obligation to remove this specific law because “Israel’s basic laws require equality.”

He said that it was time for Israel to adopt similar measures followed in most Western country regarding custody placement.

“There either needs to be gender mutuality, where the law is simply silent about the gender of the parent and bases the decision on the best interest of the children,” said Zer, “or there needs to be joint custody with a two-home presumption.”

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