Orlev, Hotovely urge caution on cancelation of custody law

50-year-old law automatically awards custody of children under six to their mothers in divorce cases.

Mother and daughter child custody 390 (photo credit: Thinkstock/Imagebank)
Mother and daughter child custody 390
(photo credit: Thinkstock/Imagebank)
The heads of two prominent Knesset committees cautioned Tuesday against hurrying to cancel a 50-year-old law that automatically awards custody of children under six to their mothers in divorce cases.
“The law needs to be evaluated further, but I would not cancel this arrangement automatically because there has not been a significant enough change in cultural attitudes that warrants reversing it by 180 degrees,” commented MK Zevulun Orlev (Habayit Hayehudi), chairman of the Committee for the Rights of the Child.
Orlev, together with MK Tzipi Hotovely (Likud), chairwoman of the Committee on the Status of Women, heard from a Justice Ministry panel that had recommended repealing Article 25 of the Capacity and Guardianship Law, known as the Tender Years Presumption Law. Panel members says the move would make custody arrangements more equitable.
Speaking on Tuesday at the Knesset, Prof. Dan Schnitt, who has headed the panel for the past five years, explained that attempts had been made to hear from “everyone who has a position on this subject.”
He said it had been very difficult to find a balance on the issue, but that the goal was to ensure that children from divorced families had access to both parents. He added that it was up to the courts to consider equality and stability in the child’s life.
During Tuesday’s hearing, the debate over Schnitt’s recommendations became quite stormy, with one person being escorted out by security guards. On one side, women’s rights groups such as Naamat and the Women’s International Zionist Organization (WIZO) argued that without greater equality for women in society, each custody dispute would turn into an ugly, drawn-out case involving the children. On the other side, fathers’ groups argued about their rights to a fair hearing and to having access to their children.
Hotovely criticized the debate, saying it was turning children into “objects,” and that while the desire for equality was legitimate it was coming at the expense of the children.
“Every child should live in one house and not be forced to pack up his or her belongings every two days. Adults would not be able to stand up to that disruption. It is turning the children into the battle ground,” she said.
While both Hotovely and Orlev agreed that the existing law is possibly outdated and might need to be changed to create more gender equality in custody arrangements, both urged that it not be done in haste.
Orlev suggested that perhaps it should come gradually, with the age of the so-called tender years presumption being reduced from six to four over the next half-decade.
He ordered the Knesset Information and Research Department to study the statistics for a follow-up session scheduled to take place in the coming months.
While most of the Knesset members present at Tuesday’s hearing also cautioned against hasty changes, MK Yulia Shamalov Berkovich (Israel Beiteinu) said the current arrangement was hurtful not only for fathers who do not receive custody of their children, but also for paternal grandparents and other relatives on the father’s side. She said that many people, including divorced mothers who want to see the law changed, had approached her.
“Divorced mothers also feel that fathers should be involved in raising their young children. They want help from their husbands,” Shamalov Berkovich said. “It should not be that after a divorce men can shake off all responsibility while women have to stay at home and care for the children.”
Shamalov Berkovich has already drafted a private member’s bill aimed at replacing the Tender Years Presumption Law with a more gender-equitable alternative.