Divorced Father's To Gain More Custody, Gender Bias Addressed
The Jerusalem Post
---- January 22, 2007..... Editor's note - the following news story on father's,
children rights and gender bias discrimination in Israel was optimized for the
Internet's search engines - SEO by Leyden Communications Israel.
little more than a month ago, representatives from the Israel Rabbinic Courts
Administration gathered in Haifa to discuss and learn more about a controversial
law regarding child custody following divorce.
It was an innocent conference,
say its organizers, aimed at examining the relevance of the Tender Years Presumption
Law, which was passed in 1967, and "presumes" the mother will look after the child
until the age of six unless the court is convinced she is incapable of doing so.
year we plan a conference in Israel that raises an important issue that has happened
over the past year," explains Dr. Mordechai Frishtick, national supervisor for
social affairs within the Israel Rabbinic Courts Administration.
"In the past, for example, we have examined conversions or the rights of the child,
many different subjects. The rights of children are central to our work and we
wanted to hear about it from all angles."
lawyers, social workers, sociologists and government policy makers in Israel were
invited to speak at the conference, which also examined international and local
studies about the changing role of the father in a child's life.
the old psychological studies say the mother is the most important figure in the
life of a young child and the father is less important," continues Frishtick.
"This theory needs to be reevaluated; today there are many fathers who want to
raise their children and custody needs to be decided based on what is best for
need to have more rights or the custody needs to be shared equally. There are
development issues that are enhanced by shared custody. It needs to move in the
direction of a partnership," he states, adding that the conference was for informational
purposes only and "no concrete conclusions were reached on the matter."
the issue of divorce is certainly a hot topic - the Israel Rabbinic Courts Administration
reported less than a week ago that the divorce rate in Israel is steadily growing
with 9,963 divorces in 2006, compared to 9,595 the previous year - women's rights
advocates and women embroiled in custody and divorce battles see the impetus to
change or cancel the law as a serious threat.
conference is an alarming development," says Dr. Ruth Halperin-Kaddari, chairwoman
of the Rackman Center for the Advancement of the Status of Women, a member of
Bar-Ilan University's Faculty of Law and Israel's representative on the UN Committee
on the Elimination of Discrimination against Women.
"It is all part of a growing trend in the direction of using a new rhetoric of
gender equality. In the secular legal arena, there is a growing concept of gender
equality and now the language is being used by the rabbinate too," without the
internalization of the ideology. The concept of gender equality presented in Western
countries has no place in today's Israel, continues Halperin-Kaddari, where women's
rights in life-cycle decisions are governed by the religious courts and Halacha,
which clearly favors men.
the Western world, where divorce is a civil legal regulation, it is gender neutral,"
she elaborates. "There is no question of whether the divorce will be granted,
it will always be granted, the question is just when? However, in the case of
Jewish law, which is the case in the State of Israel, there is an infrastructure
of discrimination against women. In terms of divorce, men have control over the
woman's ability to open a new phase in her life. He can move on and start a new
family, but for women there is the fear of her future children being considered
mamzerim. "All talk
of gender neutrality is hollow here, it is a false concept."
advocates for the Israel Rabbinic Courts Administration might argue that there
are just as many women refusing to accept a get as there are men who refuse to
give one, Halperin-Kaddari defends the Tender Years Presumption Law from a different
angle. "This [law] is the only area in which women have more power than men in
divorce disputes," she says. "If this is supported, it will have a serious impact,
taking away what little power women do have."
Dotan (name has been changed) is one woman who can testify to the unfairness of
the rabbinic courts in deciding custody battles. Describing herself simply as
an aguna, whose husband has refused to grant her a divorce, Dotan believes that
the decision passed down by the rabbinic judge in the custody fight with her estranged
husband for the rights to their two children shows little consideration for the
"My son [aged three] wants to go with his father, but my daughter [15 months]
wakes up in the night crying and does not want to go with him," explains Dotan.
"We separated just after she was born and she does not even know him, she never
lived in the same house as him." Dotan recalls the day last Succot, when the baby,
suffering from mild pneumonia and a high fever, was forced to leave her mother
and go with her father because of the Israel family court order stipulating physical
custody; in Dotan's case that means one night a week, one weekend in every two,
and half of every national holiday with their father.
"I'm sure there are good fathers out there but despite that, little children need
to be with their mothers, especially if they are very sick," she says, adding
there is no way to explain logically to a 15-month-old that she can't be with
her mother because a court decided. But trying to explain the situation to her
children is only part of Dotan's struggle. Financially ruined and mentally exhausted,
she says that during the 18-month fight for the right to have physical custody
of her children, her husband presented testimony that she was an unfit mother
who purposely left her children alone for long periods of time and was friendly
with several drug addicts. "He clearly lied, but they still forced me to undergo
psychological evaluations," she says. "The courts should not be allowed to determine
custody of children, they do not consider what is good for the child."
Dotan does not dispute that her children should spend time with their father,
she believes that the judges need to be more flexible in their verdicts on custody
arrangements. Her situation is symptomatic of an Israel legal system that provides
no criteria for judges to determine what is in the best interest of the child,
says family law expert, attorney Shmuel Moran, a member of the Israel Justice
Ministry's Schnitt Committee, appointed well over a year ago to examine the Tender
Years Presumption Law and provide recommendations for either abolition or improvements.
"The law in Israel definitely needs to be changed, but not necessarily abolished,"
he says, explaining how its language is far too open and does not provide useful
guidelines for judges to use as criteria for determining custody cases. "There
are no criteria stating what is best for the child, except for this law," continues
Moran. "There needs to be something that helps decide what is best for each family;
each child must be checked individually."
Like Frishtick, Moran points to the changing role of the father in the life of
a child and to the growing changes in conjugal roles.
women I talk to want their husbands to be more involved in caring for the children
even after divorce; it frees up time for them to move on with their lives," he
says. "This law has been abolished in most other countries, and there has been
a rise in the sharing of responsibilities; that is the direction we are moving
However, Moran is aware of the argument presented by women's rights advocates
and says that any type of abolition of the law needs to come together with other
changes to the system.
believe we need to be careful not to hurt women's rights more than they are already,
but today we need to think about what is better for the children," he says, highlighting
that in many countries in which the law has already been abolished custody is
still granted to the mother in 90 percent of cases.
the Schnitt Committee yet to present its findings, Moran does have one suggestion
on how painful custody battles could be avoided: mediation. "I am very much in
favor of compulsory mediation," he says.
"Listen, I am a lawyer and make money off these cases, but deciding who looks
after the children is not a case for the courts, it's an internal family problem.
If the family cannot reach an agreement, then they need to go to a professional
who can help them reach a compromise."
mediation is also the main focus of the Israel Forum for Our Children's Future,
a group promoting father's rights to be custodians of their children, headed by
Ya'acov Ben-Yissachar. Himself a father who was embroiled in an ugly legal struggle
with his wife over custody of his daughter, Ben-Yissachar describes himself as
one of the few fathers to have succeeded in "winning" the custody battle against
his wife - he now has physical custody of his daughter, 12. After his experience,
Ben-Yissachar says he is now on a crusade to change the whole process by which
divorces are accomplished.
mediation were compulsory," he says, "then 70 percent of the custody cases would
finish before they had even started." However, he also believes that joint custody
should be the starting point.
believe in equal custody; all the research shows that equal custody is the best
thing for the child," states Ben-Yissachar, who is now studying to be a lawyer.
like in a marriage - where both partners have to learn to be flexible - so too
after divorce the former couple needs to behave rationally and be flexible with
their partners." After describing how wonderful his relationship is right now
with his daughter's mother, how harmoniously they planned and executed their daughter's
bat mitzva just a week ago, Ben-Yissachar then admits that they are still not
yet divorced. Asked why, he says he would not allow the divorce to happen unless
his wife agreed to relinquish custody.
Ben-Yissachar and Moran see the recent Israel Rabbinic Courts Administration conference
as a positive step to deciding custody of children after divorce, Halperin-Kaddari
remains unconvinced: "They [the Rabbinic Courts Administration] are not ready
to tackle the real problems. If we were starting from an equal basis, then we
could talk about equal divorce negotiations. We would be willing to discuss change,
but at this point any changes will give little advantage to women, who will now
have to prove they can be an appropriate custodian."