Family Lawyers
The Tender Years Doctrine in Israeli Family Law
Under Section 24 of the Legal Capacity and Guardianship Law, 5722-1962, when parents decide to live separately, they may reach an agreement regarding the custody and guardianship of their child. This agreement determines which parent will have custody of the minor — in whole or in part — and what visitation rights the non-custodial parent will have.
By Igal Mor, Adv. & Notary
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Member states shall use their best efforts to ensure that both parents share responsibility for the upbringing and development of the child. Parents, or legal guardians as the case may be, bear primary responsibility for the upbringing and development of their children. The child’s best interests shall be their fundamental concern.
Under Section 25 of the law, if parents cannot reach an agreement — or fail to honor an agreement they have made — the court may decide custody matters on the child’s behalf, based on what it determines to be in the child’s best interests. Critically, the section further provides that this judicial discretion applies only to children over the age of six. Children under six are to remain with the mother unless special circumstances warrant otherwise, such as neglect or abuse. This legal presumption is known in Israeli legal scholarship as the “presumption of early childhood,” and is equivalent to the Tender Years Doctrine recognized in American law.
Although the presumption of early childhood is enshrined in legislation, it remains controversial and is frequently debated in Supreme Court decisions. In practice, it means that when a couple separates or divorces, children under six are automatically placed in the mother’s custody without consideration of the father’s suitability. This presumption is particularly significant because, to avoid separating siblings, courts often extend it to all of the couple’s children regardless of age — effectively preventing fathers from obtaining full custody.
The Schnitt Committee and the Principle of Best Interests of the Child
As a social and legal concept, the best interests of the child reflects a broad consensus that society has both the right and the responsibility to weigh in on how children are raised — even when those views differ from the parents’. This principle guides the court in all decisions concerning child custody and child support, with the goal of ensuring the best possible care for the child.
The Committee for Examining Basic Principles in the Field of Children and Law defined the best interests of the child by reference to the 1989 International Convention on the Rights of the Child. Under this framework, the child’s best interests encompass the child’s rights, needs, and interests — assessed through factors including the child’s expressed wishes, age, and relationship with each parent. The weight assigned to each factor may vary depending on the nature of the decision and the child’s age and developmental stage.
As Justice Dorner articulated, when applying the best interests of the child standard, the court must consider multiple factors, including the children’s expressed preferences, the quality of the relationship between the children and each parent, and the objective and subjective ability of each parent to maintain meaningful contact with the children.
The Schnitt Committee was established in 2005. After six years of deliberation, the committee published its recommendations regarding parental responsibility in separation and divorce situations. The committee’s mandate was to reexamine existing doctrines governing parental responsibility to ensure that the best interests of the child principle is properly implemented. Its central and most dramatic recommendation was to abolish the Tender Years presumption. Rather than automatically awarding custody to the mother, the committee proposed that each case be examined individually, with the most appropriate arrangement determined based on each parent’s parental abilities.
In What Manner Is the Minor's Welfare Assessed?
As established in case law, welfare assessments and expert opinions constitute central and highly significant elements of the evidence before the court. These expert evaluations transform the abstract concept of “the best interests of the child” into a concrete, substantive standard with real meaning.
The Current Legal Landscape
Despite the Schnitt Committee’s conclusions, the Tender Years presumption has not been formally abolished and remains part of Israeli statutory law. However, the committee’s recommendations have significantly influenced judicial practice. Today, family courts increasingly decline to automatically award custody to the mother, instead examining each case individually and granting joint custody to fathers — even when the children are under 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.
In 2017, the Supreme Court issued a landmark ruling (Case 919/15) establishing that when parents share joint custody — with an equal distribution of parenting time and comparable incomes — both parents bear responsibility for child support for children aged 6 to 15. When the parents’ incomes are not equal, the support obligation is distributed proportionally based on each parent’s financial capacity.
This was a precedent-setting and dramatic decision. Under religious law — which governs marriage, divorce, and child support in Israel — the obligation of child support falls exclusively on the father. However, in today’s reality, women constitute a significant portion of the labor market, and their monthly income often equals or exceeds that of men.
The ruling has generated considerable debate among family court judges. Some believe the revised standard is now the prevailing rule and that it is sufficient to reduce the father’s child support obligation and impose a corresponding duty on the mother. Others maintain that a higher threshold must be met, requiring evidence of substantial changes in circumstances since the ruling was issued.
In rabbinical courts, however, the Supreme Court’s ruling is not followed, as it directly contradicts religious law, which places the support obligation solely on the father. Rabbinical courts continue to adhere to personal religious law and generally avoid joint custody arrangements.
Custody decisions following a separation or divorce are among the most emotionally charged and complex legal matters a family can face. It is highly advisable to retain a law firm specializing in family law and divorce to navigate this process as smoothly as possible — while ensuring the best outcome for the children.
Conclusion
In the Supreme Court’s most recent rulings (November 2022), the Court emphasized that the Tender Years presumption remains in full force, as the legislature has not yet formally abolished it. The doctrine therefore continues to apply as valid law.
Given the significance of the Tender Years Doctrine and its ongoing impact on custody decisions, it is essential to consult with experienced professionals in divorce and family law at the earliest stages of the process.
Mor & Co. Law Firm has an established family law practice. Our firm handles complex divorce and custody cases, providing skilled representation and litigation in court on a daily basis. We bring extensive experience to all aspects of family law, including child custody and residence arrangements. Our commitment is to leverage our knowledge and expertise on your behalf while safeguarding your rights throughout the legal process. For legal advice on matters relating to divorce, custody, residence arrangements, and child support, contact us at 02-595-3322 or via WhatsApp at 050-811-6181.
What Is the Tender Years Doctrine?
