Family Lawyers
Presumption of early childhood
According to Section 24 of the Legal Qualifications and Guardianship Law, 5772 1962, when parents of a child decide to live separate lives, they can reach an agreement regarding the custody and guardianship of the child. In what way will the parents be able to decide who will have custody of the minor, in whole or in part, and what rights will the parent who does not keep the minor in touch with him have?
Under Section 25 of the law, if the parents cannot come to an agreement, or if they failed to make an agreement that they did reach, the court may decide these matters for the child, based on its judgement of what is in the child’s best interest.
Moreover, the section also states that this discretion of the court will be exercised only with regards to children over the age of six, and until this age the children will remain with the mother unless there are special reasons to do otherwise, such as if the mother is neglectful, abusive, etc.
This determination is called in the legal academic literature, the presumption of early age . In the United States, there is the Tender Year Doctrine.
In fact, the presumption of early age is enshrined in legislation, but it is controversial and frequently discussed in Supreme Court decisions. Essentially, it means that once a couple separates/divorces, children under the age of 6 automatically go into the custody of the mother without the father having any input.
This possession is problematic in that even though it applies to children up to the age of six, the possession is actually applied to all of the children of the couple, regardless of their age, in order to avoid separating siblings. Therefore, the father does not have a realistic chance of obtaining full custody of his children.
The Schnitt Committee and the principle of best interests of the child
As a social and legal concept, the best interests of the child expresses a social consensus that society has the right to express opinions regarding how to raise children, even when those opinions differ from their parents’. As a result, this principle guides the court in its decisions regarding child custody and child support in order to provide the child with the best possible care.
The Committee for Examining Basic Principles in the Field of the Child and Law and Their Implementation in Legislation stated that the definition of the principle of the best interests of the child refers to that specified in the 1989 International Convention on the Rights of the Child, according to which the child’s best interests include the child’s rights, needs, and interests. Based on a number of factors relevant to the child’s life, including his desires, his age, his relationship with his parents, etc., the rights, needs and interests of the child will be considered.
As each of these factors is considered in the final weighing of the child’s best interests, their weight may vary in accordance with the type of decision in question, or the child’s age and abilities.”
According to Judge Dorner, when applying the principle of the best interests of the child, the court must consider a number of factors “The court will consider the opinions of the children, the quality of the relationship between the children and each of the two parents, the objective and subjective ability to maintain contact between the children and the parent who does not have custody.”.
בשנת 2005 הוקמה ועדת שניט. After six years of litigation, the committee published its recommendations regarding parental responsibility in separation and divorce situations. The committee’s purpose was to reexamine the existing doctrines regarding parental responsibility.
In order to ensure that the principle of the child’s best interests is being properly implemented, the central and most dramatic recommendation was to abolish the presumption of early childhood.
Rather than automatically awarding custody to the mother, each case should be examined individually, and the most appropriate arrangement should be determined based on each parent’s parental abilities.
In what manner is the minor's welfare assessed?
“In this regard, the ruling states that the reviews of relief and the opinions of experts are central, important and significant elements of the evidence before the court; the reviews are the opinions that transform the “best interests of the child” from an abstract concept into one infused with substance and meaning.”
Today's reality
Despite the conclusions of the Schnitt Committee, the presumption of early age has not been abolished and remains the prevailing law in Israel. However, the committee’s recommendations led to a change in the ruling on the matter. It is becoming more common today for the family courts to not automatically award custody to the mother, but rather to examine the cases individually and grant joint custody to the father, even when the children are younger than six years of age.
In spite of different schools of thought, the presumption of early age in law has not been abolished, and the court cannot ignore it. In addition, there should be compelling reasons to depart from it. There is no instance in the ruling where the father's parenting ability is superior to the mother's, since even if the mother's parenting ability is good (as determined in the present case), it will be sufficient to contradict the presumption of early age.
The Supreme Court established its ruling on the matter in 2017, on page 919/15. It states that if there is joint custody between the parents – equal distribution of time of stay and equal income – both parents will be responsible for child support for children aged 6-15. When their incomes are not equal, alimony will be distributed based on each parent’s financial capacity.
This is a precedent-setting and dramatic decision, since the religious law – which is the determining law in all matters related to marriage, divorce, and alimony in Israel – imposes this obligation exclusively on the man. Today, women constitute a large part of the labor market, and their monthly income often equals or exceeds that of men.
The ruling created quite a few differences of opinion among family court judges. There are some who believe that the revised ruling is the customary ruling. They believe that it is sufficient to reduce child support to the father, and impose this obligation on the mother as well. However, others believe this is not sufficient. They believe that there must be evidence that substantial changes have taken place in the circumstances since the new ruling was enacted.
In rabbinic courts, the legal ruling is not accepted, because it directly contradicts religious law, which imposes the obligation of support on the father, and therefore they still adhere to personal law and avoid joint custody.
When deciding custody after a separation or divorce, the decision is emotionally charged and complex. It is highly recommended to use the services of a law firm specializing in family law and divorce in order to complete the process in the most pleasant way for both parties, and in the way that maximizes the benefits for the children.
As a conclusion
In the Supreme Court’s recent judgments (11/2022), it has been emphasized that the presumption of early childhood remains ‘alive and kicking’, since official legislation has not yet abolished it, and therefore it remains valid.
Due to the importance of the presumption of early age, it is important to consult professionals with experience in the field of divorce and the family at the planning stage of the divorce process.
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 handling family and divorce cases, including day-to-day child custody matters.
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To obtain legal advice on matters relating to divorce, custody, residence arrangements, and child custody, please call 02-595-3322 or send us a WhatsApp message at 050-811-6181.
What is the early age presumption?
