Shira was only 11 years old when her parents decided to divorce, and her father came into her room to tell her immediately. When Shira saw her father's face and his tone of voice she knew there was something wrong. The first question she asked after her father gave her the news was: With whom am I going to live?
The father Chaggai, felt very close to his daughter and thought it would be best for both of them if she lived with him. Chaggai contacted a lawyer to submit in his name a detailed request to the court.
Sigal came to me crying and distraught holding a lawsuit in her hand that her husband had filed in court, which stated that the mother Sigal had mental health issues and was not capable of caring for their daughter, because she was neglectful and caused their daughter feelings of anxiety.
We immediately submitted an indictment which described Sigal as exactly the opposite and that in fact the father was the negligent parent and estranged from their daughter.
Given the fact that the judge was presented with conflicting versions, he decided the same day to order a report from the social welfare officer. The father, the plaintiff, asked the court to review a letter from a psychologist that had seen his daughter and stated that it would be better for her to live with her father. Of course we also submitted a letter from a psychologist and what a surprise… this psychologist said that Sigal was a perfect mother.
After hearing all the evidence, witnesses and testimonies, the judge summoned the two sides to hear his detailed judgement:
- The most important and central principle that guides the judge in choosing a custodial parent is "the best interest of the child". This principle takes precedence over many other considerations.
- In Jewish sources, the Talmudic tractate which deals with marriage contracts discusses an accepted principle (which is subject to argument, of course) that says that children under the age of 6, are better off living with their mother because of her inborn and natural instincts of nurturing.
- There is an additional principle that says "a daughter stays by her mother forever" because she represents a female role model, however a son needs his father to be his educator.
- These principles can be negated when the mother is dysfunctional or there are other serious problems.
- These principles were given a place of honor in the law of Legal Capacity and Guardianship.
- Most of the time the court tries not to separate the children.
- In recent years the child's preference has been taken into account more often.
- Slowly and cautiously the courts in Israel have been adopting the possibility of shared custody (which is very popular abroad).
- Recently, there was a suggestion by the Schnit Committee to revoke the under age 6 principle and to judge each case individually, according to the parental skills of each parent.
- The ruling concerning custody and visitation rights are not final, and can always be reviewed.
- Both parents remain guardians of the child even though one has actual possession.
- When one of the parents does not comply with the visitation rights that were established in the agreement or judgement, there will be an execution office to enforce the law
- A parent who retains the child in violation of the judgement, can be criminally prosecuted.
Sigal was overjoyed when the judge rejected the father's claim and accepted her claim.
Chaggai, on the other hand, left the courtroom with his head bowed and in obvious pain.