Everything you need to know about child custody
Couples who wish to end their relationship and bring about the dissolution of their marriage are forced to deal with many controversial issues, such as the division of property, determining the amount of alimony, and more.
At the same time, it seems that the central and main issue in the separation process is child custody and visitation arrangements.
The decision regarding child custody is extremely significant and will have a decisive impact on the future of their children. As such, the decision regarding which parent will receive custody is left to the discretion of the court or tribunal in order to ensure the best interests of the divorcing couple’s children.
The legal situation in Israel regarding child custody
The relationship between parents and their children is, of course, a natural relationship that stems from the very nature of parenthood. The Israeli legislator sought to anchor these relationships and legally establish them by enacting the Legal Capacity and Guardianship Law.
The latter states that parents are the guardians of their children and therefore have a duty to take care of all their financial, mental, and health needs.
The duty is examined in the context of the best interests of the child, where the couple decides to split the family unit and separate. In this situation, it must be determined which of the parents will win custody and what the visitation arrangements will be for the other parent. It is understood that determining custody is entirely dependent on the parental capacity.
Legal custody and physical custody
Before we examine the issue of parental capacity, it should be clarified that the issue of “custody” is divided into two types:
Legal custody – The joint responsibility of both parents for all of their children’s needs, including the associated expenses.
Physical custody – The decision as to which parent will receive the representation and actual custody of the children, hence the determination of the place of residence and regular daily supervision. For the other parent who did not receive physical custody, visitation arrangements will be determined.
Parental competence
As stated, the authority to decide on physical custody is vested in the Family Court or the Rabbinical Court. The entire set of considerations will be examined in the context of the best interests of the child, while reviewing the data and circumstances existing at the time of the separation.
The decision regarding physical custody is influenced by various considerations as determined by law and case law.
However, any such consideration will be examined within the general framework of existing parental capacity at the time the decision is made, and future parental capacity after the separation.
clarify:
Parental capacity is the totality of the facts and circumstances regarding each of the parents. If necessary, the judicial court will refer one or both parents to examine their actual ability to receive physical custody. Among other things, the parents will be examined regarding their mental and emotional capacity, their financial capacity – including their current and future earning capacity, past events, and more. Welfare reviews also serve as a tool in the judicial assessment to determine parental capacity.
In this context, it should be emphasized that even in cases where there is a divorce agreement or a preliminary financial agreement that determines the custody of the children in the event of separation, the discretion on the matter is given to the judicial body, even if it was not requested to do so by one of the parents. It should also be emphasized that the presumption of early age – a principle that states that the child should be left with his mother until the age of 6 – is also affected by the parental capacity, in this case the mother.
It therefore follows that the decision regarding child custody depends on the circumstances existing at the time of the separation and the parenting capacity arising from them. As such, the issue overrides any prior agreement or joint decision of the parents, before the circumstances existing at the time of the actual separation were formed.
In light of the above, a parent who seeks to gain child custody on the grounds of the spouse’s parental incapacity, or alternatively one who seeks to defend against this claim, should seek legal advice from a lawyer knowledgeable in the field.
This action will ensure the fulfillment of his legal rights and a judicial decision in accordance with the best interests of his children.
