Child custody and parental capacity

Couples who wish to end their relationship and bring about the dissolution of their marriage are forced to deal with many controversial issues, for example: Property division, Determining the rate of child support And more.

However, 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.

Therefore, the decision regarding which parent will receive custody is left to the consideration of the court or tribunal, in order to ensure the best interests of the children of the divorcing couple.

The legal situation 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 care for all their financial, emotional, and health needs. This duty is examined in the context of the child’s best interests, where the couple decides to split the family unit and separate.

In this situation, it must be determined which parent will have custody and what the visitation arrangements will be for the other parent. Of course, determining custody is entirely dependent on 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 lies with 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 set forth in the law and case law. However, each such consideration will be examined within the general framework of Parental competence Existing at the time the decision is made, and future parental capacity after the separation.

Parental capacity is the totality of the facts and circumstances regarding each parent. If necessary, the court will refer one or both parents to examine their actual ability to obtain physical custody.

Among other things, the parents will be examined regarding their mental and physical fitness, their financial capacity – including their current and future earning capacity, past events, etc. 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 stipulates 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 childhood – a principle that states that a child should be left with his mother until the age of 6 – is also affected by parental capacity, in this case the mother. It should be emphasized that the presumption of early childhood is under the eye of the storm due to the intervention of political elements in the Knesset.

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 seeking child custody must claim: Parental incompetence The spouse, or alternatively the one who wishes to defend himself against this claim, should seek legal advice from a lawyer knowledgeable in the field. This action will ensure the exhaustion of his legal rights and a judicial decision in accordance with the best interests of his children.

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.

For further reading on the subject: Determining visitation arrangements in the separation of a same-sex couple