Israeli Family-Law Forum - Child Custody

Yes - on the brief information provided, or  you must apply and gain court permission first. Even if you are the custodian, you do not have the right to move your child's place of residence unilaterally, if this involves moving to a different area of the country, and certainly not when the other parent, who is the child's natural guardian, with equal decision-making rights, objects. This is especially so where the move concerns a child with special needs. For a  move greater than c- 20-30 kms it is normally recommended to seek prior permission, even regarding a child without special needs.

In July2016 Ashdod Family Court granted a divorced father's request for an order preventing his "ex", who had custody of their children,one of whom is autistic,  from moving from the south to the centre of  the country, with the children, against his wishes,stating that stability and continuity are specially important in the caseof autistic child, and that a professional welfare report  strongly opposed the move, stating that the child was settled in a special educational framework suited to his needs, and taking him away from this would be harmful to him. In this particular case, the children had moved many times in the last few years, after their mother had remarried, twice.

 

 

As a general rule, no, but as an exception, yes. 

Separation of siblings is generally regarded as being against their best interests, but clearly each case is decided on its merits, and under Israeli law, after a certain age considerable weight will be given to a child’s own preferences, if held to be genuine. In contested custody cases, the court usually appoints a neutral  expert (clinical child psychologist ) to make a report and recommendations.

Yes, you do have a chance of gaining custody , if you can prove to the family court that your case is an exceptional one, and  special circumstances exist, which justify digression from the norm under Israeli law whereby the mother of a child under six is the preferred custodian. As part of  contested custody proceedings, the court will appoint experts (social worker and clinical pyschologist) to make reports and recommendations, and you can apply for an order to reveal your ex's medical history/criminal record, if there is no mutual consent to a waiver on this. The court will use this reports to assist it in deciding what is the best for the child, and which of you would be the better parent, after thorough parental ability testing is conducted, and any danger factors assessed.    

Action should be initiated at the family court,by filing for custody, temporary emergency custody and for an order temporarily prohibiting your son's return to his mother. Both you, as your son's biological father and natural guardian, and your son, as an independent legal personality, can file the plea, against his mother. The chances of getting custody transferred from his mother to you, his father, are good, because your son is of the age where he has a signficant say in the matter. Israel is bound by international law guaranteeing a minor's rights to have a "voice" in proceedings concerned him, and his wishes and viewpoint, will be taken into consideration according to his age and degree of maturity.

It is recommended to ask for an immediate referral to the family court's assistance unit, to see if it is possible to come to an understanding  The unit  is manned by neutral professionals - social workers and a pyschologist, and has staff specialised in hearing the "child's voice". If however, the child's mother insists on remaining the custodian, and even claims that he is being influenced or brainwashed by you then the court will have no choice but to appoint a specialist (clinical pyschologist) to make a report and recommendations, and the case will run the full course, and be determined by a judicial ruling, in the child's  perceived best interests.

Firstly, a plea can be filed for the transfer of custody of your son, to you,together with an urgent application for temporary custody, and for a temporary injunction probibiting his return to his mother. Both you and your son, who is an independent legal personality, despite being a minor, can bring the action, and initiate legal proceedings and the chances of transferring custody are high, on the face of it. Israel is bound to recognize the right of a minor to express his wishes and views, and for them to be taken into account, during the legal process concerning him, according to his chronological age and degree of emotional maturity. Your son is of the age whereby his wishes and views  are likely to be given substantial weight.

You are advised to iniitate the legal process at the family court, through a lawyer,  without further delay. The family court is likely to refer the parties to its court assistance unit, staffed by social workers an a psychologist, in an attempt to reach understandings, and there is a special member of staff trained to "hear" children. The family court also tends to appoint a welfare officer and order him/her to prepare a report, and make recommendations. If your son's mother claims that the child is being influenced by you, and that you are inciting him, there will be no choice except to request the appointment by the court of a clinical pyschologist , to prepare an expert opinion,and make recommendations, about custody and the "good of the minors", after "neutralizing" any incitement/influence by either party. 

No  - according to a Haifa Family Court decision of November 2015, which rejected an application by a father to throw out custody proceedings (for lack of jurisdiction) filed by the mother , in similar circumstances .The family court held that it had jurisdiction over the issue and that custody of an unborn child could not be tied into a divorce plea filed by the father at the rabbinical court a few months before their baby was born.  

Yes! Joint physical custody is incompatible with relocation of a minor. In order to relocate with a minor abroad, you need sole physical custody and the other parent's consent to relocation, or permission from the court. The other parent will normally retain joint legal custody i.e. equal rights of guardianship or parental decision making even if the parent with physical custody relocates, lawfully. Therefore, if your child's father means  equal parental time, throughout the year, and living  near one another,  then this would be incompatible with your ultimate plans to relocate with your mutual child. If, however, he is amenable to you moving overseas with your child, and having ongoing virtual contact, plus visits in both countries, and shared decision making, in issues of guardianship, then it would be possible to draft an agreement that would allow you to reach your ultimate goal, and also protect his rights as a parent, and your child's right to have a relationship with him.  
As a rule, changes in the sexual preference of a parent are not supposed to rule out the ability of that parent (be it the mother or the father) acting as custodian of minor children, unless the way that parent conducts his/her life actually harms , or is likely to harm, the children’s welfare. A drastic change in the sexual preference of a custodial parent is not supposed, in itself, to constitute grounds for cancelling a custody order, and does not attest, necessarily, to a lack of parental capability or incapacity to act as a custodial parent, unless the behaviour and lifestyle of that particular parent harm, or could harm, the children’s welfare. It is stressed that the children’s welfare and their best interests, are the key issue. Changes or a revolution in a custodial parent’s sexual preferences and their implications regarding custody are supposed to be checked out by professionals ( social workers and a clinical psychologist) who are appointed by the family court (if a plea for transfer of custody is filed). Family courts are supposed to behave equally towards each parent, without discrimination or prejudice, in relation to a parent who is not heterosexual, and each case is supposed to be dealt with and decided upon, according to its own circumstances, and merits.

If your child’s father files for custody in Israel, and the centre of all your lives , especially the child’s ,is outside Israel, then you can apply to have the Israeli proceedings thrown out at the outset, for lack of international jurisdiction, and inappropriate forum. If your child was born abroad, and has not grown up or been educated in Israel, then the court will most probably accept your claim.

It is also possible that the court itself will suggest or even recommend  that the plaintiff parent withdraw the claim, at the first preliminary court hearing, if it considers it lacks international jurisdiction. In November 2014, at a preliminary hearing, Tel Aviv Family Court recommended that the Plaintiff father withdraw custody proceedings he had filed, in custody proceedings between an Israeli couple (File 25739-07-14). Counsel for the father  agreed to withdraw the suit, and agreed that the U.S.A court had jurisdiction over child custody, after receiving the written response of  the defendant mother (represented by our law practice), who had already initiated custody proceedings in Washington,where  the child attended school. Neither party attended, but both were represented by Israeli counsel.

They may do...indirectly, when exercising discretion and deciding whether a move within Israel, with the mother, would , in the particular circumstances, be in the child's good, where parents are separated, if the father objects,claiming that this will jeopordize his relationship with the minor, and the mother is considered the preferred custodian. Depending on the circumstances, the court may (or may not!) consider that the child will benefit from having a contented mother, and that the move will not be harmful to the minor's relationship with his father. The overriding factor will,however, be the child's good, in the particular case. Where the mother and child's interests clash, the minor's interests will prevail.

Beersheva Family Court specifically stated in a case in October 2012 (File 48347-06-22) that determining what was good for the child included consideration for what was good for the mother,whom the court appointed expert recommended as the preferable custodian. The parents were unmarried and had been raising a child in a village in the Arava region, but had separated, and the court granted permission for the mother to relocate to a village in the centre, with the child, and awarding her custody. In doing so, it digressed from the expert's recommendation that the child remain in the Arava region, and be in the mother's custody,but that if she insisted on moving, the child should remain in the Arava, in the father's custody. Instead, it allowed the mother to move, and be the custodian, stating that she was entitled not to be in a "prison", and the move was "essential' for her. It adopted the expert's recommendations on other issues,to which the sides had agreed to in principle, before negotiations failed.

Yes! Initially, however, she will have to overcome possible prejudice or stigma associated with the child abduction proceedings,when she files for custody in Israel, but if the court decides that it is in the children's best interests to be in her custody rather than the father's, after receiving reports and recommendations from professional/s, then she can gain custody, even if she was found to have wrongfully removed or retained the children in the child abduction proceedings overseas.

In October 2011 a mother who voluntarily returned to Israel with her son, after the father initiated Hague Convention child abduction proceedings against her in Canada, and who was represented by our office in custody proceedings in Israel, was declared the custodial parent of her 7 year old son by Tiberias Family Court.

Yes, if your daughter is  normative,and your grandchild is under the age of 6,and she has been his primary caregiver since birth,then, with correct legal represenation, she should be able to gain custody in legal proceedings she should initiate in Israel. Israeli law gives mothers of children under 6 an inbuilt advantage as custodians,and only rarely will a mother of a child under this age not gain custody.

This should be the case ,too, with your daughter,despite her husband's threats,and  if the court determines that it is in the child's interests to be in her custody,and not the father's,then the appropriate visa arrangements can be made, with the Ministry of Interior,for her to stay in Israel with the child, who, by virtue of being born to an Israeli citizen,will, himself,  have  no problem of staying in Israel. Your daughter's status in Israel, however, depends on being married to and cohabiting with her husband, who is an Israeli citizen,unless she gains sole or at least joint  custody of their mutual child, if they separate or divorce.

Yes! If the mother agrees, it is possible to get an agreement  about joint custody drafted and authorized by the family court. If the mother is unwilling to agree to this outright,but there is de facto co-operation between you two on this ,  you are both capable parents and respect one another’s parental role, and are  both highly involved in your mutual children’s lives, then it is possible that the court will award joint custody,especially if the court-appointed welfare officer recommends this to be in the minors’ best interests.

Traditionally, courts in Israel demanded a very high degree of co-operation ,mutual respect  and involvement in the children’s lives before they would award separated parents joint custody. They also conditioned joint custody on the parents living very close to each other, and, of course,having the requisite parental skills.

Recently, however, Israeli courts have been recognizing the positive value of joint custody, even within a situation of conflict, as a trigger to improving normalization and co-operation between parents, which is in their minor children’s best interests. For example, Krayot Family Court held in 2008  that joint custody should be the preferred option. Furthermore, in September 2010, Jerusalem Family Court held that joint custody should be granted where there is ‘reasonable dialogue’ between parents concerning their children, even in a situation of conflict, if they both have  fairly equal parental abilities and are involved in their minors’ lives.
Thus, today, joint custody could be granted in a ‘mild’ but not ‘high’ conflict situation,where the parents co-operate,even if they do not live extremely close to one another, but rather reasonable travelling distance from the minors’ school/nursery etc.

 

Appeal the decision. Refusing to allow the appointment of an expert is tantamount to denying you the right to bring evidence, as the Supreme Court has established that professional reports are a vital tool in helping judges reach opinions in custody cases. You have 30 days to seek permission to appeal from the District Court on this temporary decision regarding the management of the case.

Yes, depending on the circumstances ,if the move  is within Israel, but possibly, only after court permission. Although formally, according to Section 15 of the Legal Capacity and Guardianship Act, decisions about where a child should live are to be taken jointly by the parents, even if separated or divorced, in practice, courts rarely interfere where the proposed move is within Israel.
 
If  there is no restriction on the mother moving with the child within Israel in the divorce agreement that was authorized into a court judgment, or in the custody ruling,  or the desired move is within a geographical range agreed upon or set, then the mother/custodian  is free to move within Israel, with their mutual child. If, however, there is a restriction that she wishes to ‘breach’, then she can only move in contradiction of this, after she applies for and gains court permission, should the father object. To succeed, she will have to prove that the move is reasonable and justified, and in the children’s good, and is not just out of spite, to distance the children from their father, both geographically and emotionally.
 

Incidentally, if there is no restriction against the move, and she actually moves with the child, it is likely that her ex-husband will react, and request a change in visitation rights from the court, to change days, or to share out the travel burden between more evenly, both physically and financially.

 

The exact answer would depend on the particular wording of your divorce agreement. However, in the absence of anything specific, custody relates to within Israel, so that you would not be entitled to move abroad with the child, even if there was no specific order forbidding her from being taken out of the country. Within Israel, while technically, according to section 15 of the 1962 Legal Capacity and Guardianship Act, decisions about where a child should live are supposed to be made jointly between parents, courts do not usually interfere to prevent a parent with custody from choosing where he/she live within Israel. However, in certain circumstances, the court may be asked to intervene in this connection, within a guardianship file that either parent may open.

 

 

Yes ! On the face of it, her chances of success are good. Although the father's right to custody,by virtue of being his biological child's natural guardian, would be pitted against any application of a relative to become an additional guardian, given the daughter's age and the very special circumstances, which would have to be set out and argued professionally, her own wishes are likely to be sufficient to overcome any opposition put up by the father.

 

Not automatically – only if it passes the correct legal procedure in Israel for the recognition of a foreign judgment.The 1958 Recognition of Foreign Judgments' Acts allows a civil or religious court in Israel to recognise a judgment from overseas,subject to certain conditions.
 
Incidentally, the recognition process does not have to take place at a rabbinical court just because the foreign civil custody judgmet involved two Jews.The family court can handle the recognition process.

Yes! Because of the mother's hospitalization in a psychiatric unit,and her inability to function as a custodian,either temporarily or permanently, you,as the minor's father,and their natural guardian,are entitled to apply to court for custody of your minor children. Together with your plea for custody, you can apply for temporary custody. The court will most likely request an urgent report from the welfare officer , a social worker with special qualifications and training to deal with these matters, before it makes its decision.

The permanent transfer of custody to the father depends on the physical and mental medical condition of the mother,and the assessment of her chances of recovery and return to full functioning. An order to transfer custody to the father, either permanently or temporarily, also depends on the recommendations of the welfare officer, which will be examined by the court, in terms of the children's good, and in the light of the father's parenting capability.

Not if the child's biological father is willing to raise her, and has the requisite parental capability. He, as her biological father, is her surviving parent, and natural guardian and will, therefore, have preference over you, despite your close relationship.

Yes - unless she gets court permission ! A divorced mother with custody who wants to take a minor child on holiday outside of Israel still needs the father's consent to do so - unless ,despite his refusal, she obtains court permission to go ahead, after she has applied for it.

Your children are free to file their independent custody plea, via you, as their natural guardian, at the family court and request that formal legal custody be transferred from their father to you, so that they can remain living with you, legally. An application for temporary custody can also be made.
 
Under Israeli law children are not bound by the terms of agreements made by their parents about them, and are independent legal personalities, with rights of their own that cannot be compromised by their mother and father, as their natural guardian. Custody rulings about children, even if formally called "judgments" are never really final, but are dynamic because of the minors' changing needs/wishes and changes in parental circumstances.
 
Within the proceedings, which involve the appointment of suitably qualified professionals to make reports and recommendations,on parental capability, custody and visitation, the children will have an opportunity to express their own opinion and wishes about where they want to live, and with whom. The preferences of the elder child,and possibly those of the younger one,will be taken into account, depending on their emotional maturity,with minors of around 10 years usually having a significant say in their fate. Ultimately the court will decide, with the children's "good" or welfare being the paramount factor.
 
 
 

No - the court should make a temporary custody ruling meantime, until the case runs its course,experts are appointed, their reports and recommendations made, testimony is given, and summations by both parties are given, and the court passes judgment.

Custody within  Israel only . It does not relate to custody outside Israel.

No! The custody decision denotes with which parent the child should live , while the other one has visitation rights. However, both parents normally remain the natural guardians of their children, irrespective of whether they are the custodian, or the non-custodian. Accordingly, decisions about their minor children are still to be taken jointly, under Israeli law, and both parents are obliged by law to act in their child's 'good' or welfare. Where parents cannot agree, either of them can ask the court to rule on the matter. The 1962 Legal Capacity and Guardianship Act specifically states this.

File for custody at the family court before starting divorce proceedings. A mother's inbuilt advantage in Israeli legislation ceases when the children reach the age of 6, though in practice mothers usually do win custody cases. To win custody, you will have to prove that your parenting ability and skills are superior to those of your wife. The court will appoint a social worker and a clinical pyschologist to make reports and recommendations, and you will have to undergo rigorous parental capability testing. The children's own wishes can,at their age, have an imporant role, especially if both parents have similar parenting abilities.

They look for which of the two parents has the superior parenting ability and skills, and can cater for the children's physical and emotional needs best. They will pay attention to the ability of each parent to separate the children's needs from his/her own, and genuinely respect the importance of the minors having an ongoing and meaningful relationship with the other parent. They will be mindful of a parent's inability to separate the battle with the other parent from the children's needs.

As a rule, courts in Israel are loathe to split up siblings, and only do so as an exception,usually after receiving the recommendations of a neutral professional appointed,which take into account the children's wishes, if they are of sufficient age and maturity. The chances of children being split up are greater the older they are, as their wishes play a more important role.

When the custody order does not relate to just one of the two parents, but is joint, relating to them both. The parents are joint custodians, rather than one parent only being custodian and the other having visitation rights.

The children 'live' with both parents, spending set times with each parent. Joint custody is the exception, and requires a high degree of co-operation and understanding between parents, who usually need to live close to one another  for the arrangement to work.

The Israeli court having jurisdiction over the custody proceedings. At first level, this is usually the familly court, but can be a religious court, in certain circumstances.  Custody will be awarded to the parent who has superior parenting ability and skills, usually on the basis of recommendations of reports prepared by professionals such as a social worker and/or  a clinical pyschologist. The court must make a decision in the 'child's good'  and is usually guided by the professional/'s recommendation, but is  not bound to follow it.

No! Israeli law provides an inbuilt advantage in favour of normative mothers as custodians where the child is under the age of 6.

Yes! Firstly, rulings on child custody are never final, regardless of whether they derive from parental agreement or a court battle. If both parents are in agreement, a joint application can be made to court about the transfer of custody. If,  however, the father is willing to be custodian, the daughter wants to live with him, but the mother objects, then legal proceedings to file for a change of custody can be made, in which case there will be a judicial decision one way or another. The 'child's good' will be the paramount factor ,and the wishes of a 12 year old child will normally be given considerable weight, and can sway the decision.