The tender years presumption: what it says, and what actually happens in court
The presumption is still in the statute book, but it is no longer what it was. A gap has opened between the wording of the section and what happens in the courtroom, and anyone who prepares from the wording alone arrives unprepared.
"The first question I am asked is whether a father has a chance. The answer depends far less on the child's age than parents assume, and far more on what actually happened in the months before the case."
Adv. Ester Efrati · Head of the Family and Inheritance Department
What the law says
The source is the Legal Capacity and Guardianship Law, 1962. Two sections matter here, and they work together.
- Section 24 provides that where the parents live apart they may agree between themselves who will hold the child, what the rights of the other parent will be, and how guardianship is divided. Such an agreement requires the court's approval.
- Section 25 applies where there is no agreement, or where an agreement is not being kept. The court then decides for itself according to the best interests of the child, and the presumption sits inside that section: children up to the age of six will be with their mother, unless there are special reasons to order otherwise.
Note the wording. The presumption is not applied where the parents agree between themselves, but only where the court is called on to decide. That point is almost always forgotten, and it is why an agreed arrangement is the strongest tool available to both sides.
Who the presumption applies to
The wording covers children up to the age of six only. In practice its influence is wider, for two reasons.
The first is the principle of not separating siblings. Where a family includes a child under six alongside older brothers and sisters, the court will usually avoid splitting them, so the arrangement set for the youngest shapes the arrangement for all of them.
The second is the force of the first arrangement. In the months after separation an arrangement forms in practice, and where the presumption is treated as the default it shapes the interim arrangement too. An interim arrangement that has run for a year becomes very hard to change, even after the child has passed the age of six.
What the presumption does not do matters just as much: it does not touch guardianship, which remains shared, and it does not set the other parent's parenting time. Even where the child lives with the mother, the extent of contact is decided separately and on the circumstances.
When the court departs from it
The statute speaks of "special reasons", and the case law has translated that into a requirement for weighty grounds. These are the situations in which a departure is seriously considered:
- Impaired parenting capacity on the mother's part, including neglect, abuse, or a mental health or addiction issue that affects the care of the child.
- The father was the primary carer in practice over a significant period, and that is the continuity the child knows.
- An arrangement already operating that serves the child, for example an equal division that has held since the separation.
- Risk or cut-off, such as systematic prevention of contact with the other parent.
The case law has repeatedly held that so long as the presumption has not been repealed, the court may not ignore it, and that departing from it requires weighty grounds. A father's advantage in parenting capacity, where the mother's capacity is also good, is not enough on its own.
The practical conclusion: "I am the better parent" is not a ground. What works is presenting a factual record of care actually given.
What changed in the case law
In 2005 the Schnitt Committee was appointed to re-examine the law of parental responsibility on separation. After years of work it recommended abolishing the presumption altogether and examining each case by how the parents actually function.
The recommendation did not become law. The presumption is still the governing rule. But it did change the climate: in recent years the family courts increasingly order equal arrangements, including for children under six, where the circumstances allow it.
Two conditions recur in those decisions: geographical proximity between the homes, and an ability on the parents' part to communicate. Without them, even a court willing to depart from the presumption will hold back, because the arrangement will not survive daily life.
So the answer to "is the presumption still there" is both yes and no. It is there in the statute book, and its weight in the courtroom depends far more on the facts of the case than on the wording of the section.
The best interests test in practice
"The best interests of the child" sounds abstract, but in court it translates into a concrete list of considerations. The Supreme Court set out the core of that list, and the examination still follows it.
- The child's view, with the weight appropriate to age and understanding.
- The quality of the relationship between the child and each parent.
- The ability to maintain contact with the parent who does not hold the child, including a real willingness to allow it.
- Stability and continuity: educational framework, neighbourhood, sleep, routine.
- Parenting capacity of each parent, examined separately.
To all of these the particular circumstances of the case are added. There is no formula, and the courts repeatedly stress that every case is examined on its own facts. What does exist is a consistent pattern: a parent who enables contact with the other side and documents an orderly routine is in a better position than a parent who runs the case on accusations.
The welfare report and its weight
In most custody cases the court orders a report from a social worker for court procedures. It is the document that turns the best interests of the child from a general idea into a concrete picture, and it is usually the single greatest influence on the outcome.
What goes into it: meetings with each parent separately, a meeting with the children, sometimes home visits, and approaches to the nursery, the school or the health fund. It ends with a recommendation on the arrangement.
The court is not bound by the recommendation, but in most cases it carries decisive weight. Departing from it requires reasons, so preparing for the report matters no less than preparing for the hearing.
Two recurring mistakes: presenting a picture that does not match the actual routine, which is almost always exposed; and turning the meeting into an arena of accusations against the other parent, which is recorded as a sign of difficulty in co-operating.
The link to child support
In 2017, in BAM 919/15, the Supreme Court held that for children aged six to fifteen both parents are liable for support, and that the division between them follows the ratio of their incomes and the actual extent of parenting time.
On the face of it that is a separate subject, but it connects to the presumption in two ways. First, the ruling applies from the age of six, which is exactly where the presumption stops. Second, and more importantly, it turned the division of time into a financial figure, so it shapes the dynamics of the negotiation in the years before that too.
What this means in practice: an arrangement set when the child is three does not sit in a vacuum. It becomes the starting point when the child turns six, and from then it also has a financial consequence.
More on the pages custody and parenting time and child support.
How to prepare
These are the things that affect the outcome more than the legal argument, and most of them are settled before anything is filed.
- The arrangement formed in the first months. This is the strongest single factor. An arrangement that has run for six months is examined as an existing state of affairs.
- Factual documentation: the days and hours actually kept, collection from nursery, medical appointments, involvement in the educational framework.
- Living close to the other parent and to the child's framework.
- One orderly channel of communication that can be produced later.
- Avoiding unilateral steps such as moving home or changing the child's framework without consent, which count against whoever took them.
And finally the route itself. An agreed arrangement approved by the court removes the question of whether the presumption applies, because it is only engaged when the court has to decide. See also application for dispute resolution.
In summary
The tender years presumption is still law, and it is still the starting point when the court has to decide about a child under six. But it is a starting point and not an outcome, and departing from it is possible where there is a factual basis for it.
Two things affect the result more than anything else: the arrangement actually operating in the months after separation, and the way each parent conducts themselves towards the other parent and towards the social worker. Both are settled early, long before the hearing.
If you are at the start of a case and weighing how to prepare, contact us to examine your circumstances.
To speak with us: Jerusalem 02-5953322 · Tel Aviv 03-3030430 · WhatsApp 050-4411343
What people ask most
Is the tender years presumption still in force?
Yes. The section has not been repealed and it is still the governing rule. That said, in recent years the family courts have tended to examine each case on its facts and to order equal arrangements even for children under six, where the circumstances allow it.
Up to what age does it apply?
Up to the age of six. From six onwards the court decides by the best interests of the child with no gendered starting point. In practice, where there are older siblings the arrangement set for the youngest affects them too, because courts avoid separating siblings.
Does it apply where the parents agree?
No. It is engaged only where the court has to decide. An agreed arrangement approved by the court removes the question, which is why the agreed route is the strongest tool available to both sides.
What counts as "special reasons" for departing from it?
The case law requires weighty grounds: impaired parenting capacity, neglect or abuse, a father who was the primary carer in practice over a significant period, or an equal arrangement already operating that serves the child. A general advantage on the father's side, where the mother's capacity is also good, is not enough on its own.
Can a father obtain custody of a child under six?
Yes, but it requires a factual basis rather than an assertion. What works is a documented record of care actually given, geographical proximity, and an ability to maintain a proper relationship with the mother. The arrangement that operated in the months after separation is the most influential factor.
What is the difference between custody and guardianship?
Guardianship is the right and duty to take decisions about the child, and it remains shared by both parents even where the child lives with one of them. The presumption concerns where the child lives, and it does not reduce the other parent's guardianship.
What happens to the father's parenting time in the early years?
It is set separately and on the circumstances. Even where the child lives with the mother, the extent of contact and overnights does not follow automatically from the presumption. It is examined by the child's age, the distance, work routines and the continuity of care.
What is a welfare report and how much weight does it carry?
An opinion by a social worker for court procedures, prepared after meetings with the parents and the children and sometimes home visits. The court is not bound by the recommendation, but in most cases it carries decisive weight, and departing from it requires reasons.
Did the Schnitt Committee abolish the presumption?
No. The committee recommended abolishing it, but the recommendation did not become legislation. Its effect is visible in the case law and in the legal climate, not in the statute book.
Does the presumption affect the amount of child support?
Not directly, but they are connected. Since BAM 919/15 in 2017, support for children aged six to fifteen follows the ratio of incomes and the actual parenting time. The arrangement set in the early years becomes the starting point when the child turns six, and from then it carries a financial consequence too.
What should be documented?
The days and hours actually kept, collection from the educational framework, medical appointments, involvement in daily life, and the co-ordination correspondence. Documentation built up over time is worth more than a bundle collected after the case has been opened.
Can an arrangement set in the early years be changed?
Yes. By agreement, an updated version is filed for approval; absent agreement, a material change of circumstances is required. The child's age is itself a recognised change, so passing the age of six is a natural point at which to revisit the arrangement.
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