Bill aims to revolutionize custody in divorce cases

Legislation would make courts take into account societal changes that have equalized parenting roles of mothers and fathers.

By GIL STERN STERN HOFFMAN
Yesh Atid MK Adi Kol 370 (photo credit: Courtesy Yesh Atid)
Yesh Atid MK Adi Kol 370
(photo credit: Courtesy Yesh Atid)
The approach of the courts to custody of children in cases of divorce would be changed completely on the basis of what is best for the children, according to a new bill proposed Monday by MK Adi Kol.
The legislation is based on recommendations of two government-appointed public committees that examined how to update custody regulations and bring them in line with United Nations conventions on children’s rights. One of the committees, appointed by Tzipi Livni in her first term as justice minister, dealt with the responsibility of divorced parents to their children.
“The bill is intended to guarantee the good of every girl and boy by ensuring that their parents maintain their rights,” Kol (Yesh Atid) wrote in the bill. “According to the UN, children have rights independent of their parents and rights to their parents.”
To that end, the bill would make the courts take into account societal changes over the past decades that have equalized parenting roles of mothers and fathers. The bill would replace regulations that have been in place since 1962 that have not been updated since then.
For instance, the bill would cancel the “tender years” clause in the current law that automatically grants custody of children up to age six to their mother unless there are special reasons not to. The law would encourage courts to instead guarantee the rights of children to the best possible relationship with both parents in an equal manner.
The committee Livni appointed, which was headed by Prof. Dan Schnitt, found that the “tender years” clause resulted in custody for all children being granted to the mother when one of the children is under six in order to keep the children together.
When the child became seven, custody was not reconsidered, so as not to change the lifestyle to which the children had grown accustomed.
“This situation resulted in children in most cases gradually losing their connection with their father who did not have custody,” Kol wrote. “The tender years clause violates the UN decision that requires countries to guarantee the recognition of both parents’ responsibility to raise the children, rather than have one of them be the primary parent.”
The bill would encourage the courts to work out an arrangement that enables both parents to raise the children in a way that is divided equally. But because each family is different, the Schnitt Committee did not specifically recommend that joint custody be divided exactly half-and-half but rather personalized for each family.
The courts would check the parents’ abilities to fulfill their parental responsibilities.
The bill would end the practice of granting custody to one parent and separately deciding how much time the children will spend with each parent.
The bill instructs courts to decide custody issues within six months, to prevent the children from enduring emotional difficulties. It requires parents to seek mediation to reach arrangements on custody before going to the courts.
Kol told The Jerusalem Post on Wednesday that her bill is not anti-feminist. She said she wrote her doctorate at Columbia University on the rights of children and that it was her duty to advance their rights in the Knesset.
"What is best for the children has to come first," she said.
"Israel is obligated by the UN conventions that the State has approved. It is time to pass the legislation to make it happen."
A similar bill was submitted earlier this month by Likud MK Gila Gamliel, which was sponsored by several Knesset members.
Guy Raveh, who heads the organization Shared Parenting = The Good of the Child, said it was important for both fathers and mothers to remain parents without granting one an advantage over the other. He said the current law harms mothers by making them the primary parent and prevents societal change.
“The innovation of this bill is that there will no longer be a division between one parent who has custody and another with an arrangement intended to merely keep a connection,” Raveh said.
“Rather, two parents will have responsibility for raising the children, dividing in a way they can both accept.”