Family Attorney
The reversal of custody from mother to father
In some cases, after settling the issue of custody (parental responsibility) in a divorce agreement, it may be possible to establish joint custody (joint parental responsibility) or full custody with the father.
The purpose of this section is to discuss key issues that arise around this topic.
Please refer to the important note on the right side of the page.
There is no question that parental responsibility (custody) for the shared children is one of the most complex and sensitive issues in divorce agreements.
This issue is settled by the family court or rabbinic court, which determines which parent the children will remain with following the dissolution of the family unit.
Regarding this issue, there are three types of custody available
A. Mother has full custody
B. Joint custody – the children are with both the father and the mother
C. Full custody of the father.
מאת עו״ד ונוטריון יגאל מור
דיוק בייעוץ המשפטי. מצויינות בליווי המשפטי.
As “custody” undergoes changes and upheavals during this period, the alternative term “parental responsibility” is used more and more with the understanding that both parents share responsibility for their children, and when they will remain with each parent remains to be decided.
The terminology (language we use) has an effect on the creation of reality, and when both parents are defined as responsible parents, no fights need to take place over who is the custodial parent, and all that remains to be regulated is the amount of time both parents spend with their children.
Changes (reforms or revolutions) in legal/psychological doctrines take time, so we are currently witnessing changes in the application of this concept between the various courts, as well as in the various rabbinic courts (and even the various sharia courts).
There is a possibility that we may sin in this part of the site and use both terms. It is not intended to harm either gender. The purpose of this article is to explain one of the complex issues in family law that accompany most divorces.
Presumption of early childhood
Under the presumption of early age, custody of a child under six years of age automatically passes to the mother. According to this doctrine, which is rooted in Hebrew law (Jewish law), custody was automatically transferred to the mother when the law was enacted in the 1960s, since the mother is typically seen as the child’s most important and significant parent.
Due to the presumption of early age, custody was determined by the mother and typically the courts set up evidentiary arrangements in which the children were in the mother’s custody 2/3 of the time and in the father’s custody 1/3 of the time. In addition, the law provides mechanisms for changing custody arrangements, so, for instance, if the couple agrees, the presumption of early age will not apply.
The principle of the best interests of the child
It is the primary objective of custody law to reach a result that is in the best interests of the shared children in accordance with what is known as the ‘principle of the best interests of the child’. In many cases, the best interest of the child is aligned with the presumption of early age, i.e., the child’s best interest is to remain with his mother, but at other times, the child’s best interest actually conflicts with the presumption of early age, and it is in the child’s best interest to remain with his father.
When this occurs, the father may petition the court to determine or transfer custody to him and not to the mother, because it is in the child’s best interests.
Consequently, while legislators tended to view the child’s stay with their mother as beneficial, this presumption may be undermined by the principle of the child’s best interests.
Transfer of full custody from mother to father
It has been mentioned that changes in custody may be effected if a change in circumstance, in the opinion of the court, necessitates such a change.
A lawsuit may be filed for a variety of reasons, including:
- An example of parental neglect is when the father believes that the mother is unable to meet all of his child’s needs or that staying with her poses a risk to the child.
- When the mother’s attitude toward the child does not reflect the child’s mental needs, the father may consider transferring the child from her custody to his custody in order to protect the child’s health.
- Changes in the mother’s condition: a change in the mother’s health or mental state, as well as certain financial injuries, can be reasons for a change in joint custody.
- In case of addiction, the mother neglects the child or does not provide him with the essentials he needs.
- When a mother’s lifestyle does not match that of the shared children, such as repenting or leaving the question, a father may petition for a change of custody.
- In the case of parental alienation, the children’s residence with the custodial parent may incite the children, consciously or unconsciously, to no longer wish to maintain contact with their father. When serious cases such as these arise, the court may order a transfer of custody in order to prevent further harm to the father due to his absence from his children.
- When the children are grown up and of their own accord, a court may consider their wishes to transfer from the mother’s custody to the father’s custody in certain circumstances.
In custody disputes, professionals review the case and even conduct parental capacity tests, which are used to determine whether one or both parents are qualified to raise the child, and if both are qualified, which parent has the greatest capacity to do so. There is a parental ability test that is conducted by mental health and welfare professionals. A report is issued detailing the set of considerations and the examination’s recommendations.
Transition from sole custody to joint custody
It should be noted that while the presumption of early age is a legal presumption (which can be countered), spouses may certainly do so, and it has been suggested that they even come to an agreement regarding joint custody that will suit the family and balance their various needs. As opposed to visitation arrangements, in which one of the parents has full custody of the child while the other is entitled to see the child, this arrangement provides the child with full custody of the other parent. A joint custody arrangement, however, leaves parental responsibility to both parents.
The change is due to changes in the social relationship between men and women, large numbers of women entering the labor market, and career management that, on the one hand, reduces women’s economic dependence on their spouses, and on the other hand, introduces more egalitarian parenting that places the burden on both parents to raise their children.
Joint custody: so-and-so against so-and-so (B.A.M. 919/15)
As part of its ruling, the Supreme Court addressed with an expanded panel of seven judges the question of whether it would be possible in a situation of joint custody for the father to reduce his alimony payment as his ex-wife and he earn comparable incomes.
Previously, the norm in Israel required the husband to pay child support regardless of the father’s equal burden of raising the children and his equal earning capacity.
According to the court, if joint custody is determined, the alimony payments will be reduced. Consequently, in the case in question, each parent contributed equally and independently to child maintenance, i.e., each parent paid his own alimony.
The ruling revolutionized the field of alimony and custody, as it established a new law that takes into account the social and sociological changes that characterize Israeli society, including entry into the labor market and equal parenting.
It is important to note that the field of possession and custody is undergoing many changes both in the family courts and in the rabbinic courts at this time. A new ruling should be followed.
In Conclusion
Divorced parent with children and in your opinion it is necessary to change the established custody arrangement, apply for legal advice, in which we will examine whether there is a need to apply to the court / rabbinic court, and we will work to exercise your rights.
Since custody exchanges have such a significant impact on the child(ren), it is highly recommended to use professionals with experience in divorce and family law as early as possible.
Mor & Co. has an established practice in family law.
Our firm handles complex family law and divorce cases, as well as representation and litigation in court.
We have extensive experience in legal handling of family and divorce cases, including day-to-day dealing with matters related to child custody/residence arrangements.
Our goal is to do our best and provide our clients with our extensive experience while maintaining and being cautious in all matters concerning the legal process and protecting your interests.
For legal advice in matters related to divorce / custody – residence arrangements / child custody, we invite you to contact us by phone today at 02-595-3322 or WhatsApp at 050-811-6181
