Early childhood assumption – important for you to know!
One of the most important issues in the framework of Divorce proceedings For couples who have children together, there is, of course, the issue of child custody.
Within the framework of this issue, it must be determined what type of custody will apply to the children: joint custody for both parents together, or sole custody granted to only one parent.
The spouse who is determined to have sole custody will be called the custodial parent. In order to ensure that the relationship between the children and the other spouse who is not the custodial parent is maintained, visitation arrangements between them must also be determined.
According to the Legal Training and Guardianship Law, 1962, there are two Ways to determine child custody And the viewing arrangements:
Within the framework of the parents’ agreement, as stated in Section 24 of the Kashrut Law, which is of course the preferred method of the two. Or according to the decision of the Family Court / Home Rabbinic Law, as stated in Section 25 of the Kashrut Law, if the parents are unable to reach an agreement between themselves on this matter, or if they reached an agreement on this matter, but it was not implemented.
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Section 25 of the Kashrut Law states that the court will rule on the issue of child custody and visitation arrangements: “…as he deems best for the minor, provided that children up to the age of 6 will be with their mother unless there are special reasons for ordering otherwise.“.
That is, Section 25 of the Kashrut Law states that, in general, the court will decide the issue of determining child custody. In accordance with the overarching principle of the best interests of the child.
However, when it comes to small children up to the age of 6, the presumption of early age will apply, according to which, in principle, children up to the age of 6 will have sole custody with their mother, unless the existence of special reasons is proven that determine otherwise.
Such reasons can occur when it is found that the mother has serious problems with parental capacity, in which case it is preferable for the child to be raised by the father or by another person who is found to be suitable.
In other words, contrary to what the general public may think, the presumption of early childhood is a rebuttable presumption, and is not an absolute presumption, which ostensibly states that children up to the age of 6 will automatically be transferred to the sole custody of their mother.
This is a presumption of origin that states that it is ostensibly preferable for children up to the age of 6 to be transferred to the custody of the mother, but this is only as long as the existence of special reasons has not been proven that determine that the mother is not fit to serve as their custodial parent.
For example, this was determined by the Supreme Court in a proceeding HCJ 672/84 Averbuch v. Averbuch“Usually, a three-year-old child’s place is in his mother’s lap, but this is not a situation that should be avoided.”
Interpretation of the presumption of early age according to the courts in Israel
For many years, courts in Israel have interpreted the presumption of early age in such a way that they generally awarded full sole custody to the mother for children up to the age of 6.
This interpretation stemmed primarily from the reality that prevailed in the past in Israel regarding the traditional division of roles between parents, in a way that the main burden of caring for children fell on the mother, while the father was concerned with providing for the family.
However, as this reality changed, in a way that mothers also increasingly began to go out to work, and fathers began to take on more and more responsibility for caring for their children, and as awareness of the importance of the father in the child’s life increased, a corresponding change was also created in the courts’ interpretation of this matter.
As a result, courts in Israel have recently increasingly begun to award joint custody to both parents together, even for children up to the age of 6.
This was decided in a proceeding C.M. (Tel.) 1125/99:
“The presumption of early childhood was established in Section 25 of the Legal Training and Guardianship Law almost forty years ago, when the social reality was different. In the past, it was accepted that women actually fulfilled the role of caring for children while fathers invested in finding a livelihood. However, this trend has changed. There is equality between parents in all matters concerning the right and responsibility to fulfill the role of guardians. This is due to the change in the reality of life, in which the traditional division of roles between parents has passed. Furthermore, there have also been many opinions about the importance of the father in the child’s life…“
The courts also justified the change in their rulings by stating that the presumption of young age is only one of the considerations in determining child custody that the court must consider, and that it is not the only consideration in this matter.
For, in accordance with Section 25 of the Kashrut Law, the court must consider various considerations in this matter, within the framework of and subject to the overarching principle of the best interests of the child, so that the presumption of early age is only one of these considerations.
This was determined by the Supreme Court in a proceeding A”A 493/85: “The presumption of young age is not the sole consideration for discussion that will prevent a substantive discussion.”
From the overarching principle of the best interests of the child it also follows that Determining Joint Custody does not necessarily contradict the presumption of early age, especially since custody also remains with the mother, although not only with her. This was ruled in the context of the procedure TAMSH (Y-M) 19660/07 So-and-so n. Unknown and as part of the procedure RMS 56347-11-12.
The change in the rulings of the courts in Israel It was also influenced by the publication of the recommendations of the Schnitt Committee report from 2011, and the publication of the Parents and Their Children Law Memorandum, 2012 by the Ministry of Justice, even though both have not yet matured into binding law.
The Schnitt Committee recommended the abolition of the presumption of early childhood and the adoption of the shared parental responsibility model in its place. The committee reasoned this by saying that each child is an individual in his or her own right, and therefore, when determining custody of a child, there is no reason to apply the presumption of early childhood, but rather an individual examination of his or her personal best interests in this matter.
The Parents and Their Children Law Memorandum, 2012, also abolished the presumption of early childhood. The memorandum justified this by stating that the child’s right is that both parents be responsible for his upbringing and development and that he have a personal, direct, and continuous relationship with each of them, and therefore there is no reason to continue the prevailing presumption that a child up to the age of six will be in the mother’s custody.
The legal memorandum also established guidelines for parents and the court on how to act when parents do not reach an agreement between them regarding the regulation of the division of parental responsibility, its implementation, and how the principle of the best interests of the child should be applied.
As stated, the recommendations of the report and the legal memorandum have not yet matured into a binding law. However, in practice, My family Family Law They have increasingly begun to adopt in their rulings what is stated in these documents, and to award joint custody to the parents, in the appropriate circumstances.
For example, in the framework TAMSH (Tel Aviv) Procedure 8309-06-11 K.S. N. M.E.B., the court determined that it did not intend to give importance to the presumption of young age, but only to examine the best interests of the minor in question:
“The reality in which the Israeli family functions in the 2000s is no longer consistent with the reality within which the doctrine of the presumption of early childhood was formulated. The legal situation reflected in Section 25 of the Kashrut and Guardianship Law, 5722-1962 (hereinafter: “the Law”), which discusses the presumption of early childhood and gives priority to the mother as custodian, no longer reflects contemporary social and psychological theories concerning custody matters in divorce disputes, which faithfully express the needs and best interests of children living in a pluralistic reality that is very different from the reality in light of which this doctrine was formulated…
In juvenile justice, it is well known that the principle of the best interests of the child is the main thing and that all other principles will retreat from it. There is a built-in concern that if and to the extent that the court tends to give any importance to the presumption of early age, this may harm the best interests of the specific child…
Therefore, the court must abandon prejudices and mindsets, which may have been appropriate in past years, and focus on the only question at hand – what is in the best interests of the minor in this case? Would it be in her best interests to be in the custody and primary supervision of her mother or, perhaps, with her father, or perhaps it is in her best interests to have joint custody with both of her parents?“.
It should be noted that the government recently attempted to advance a bill to abolish the presumption of early childhood, which stipulated that children up to the age of six would not be handed over to the mother, but that divorced parents would gain joint responsibility for their children.
However, in early November 2015, this bill was defeated by the opposition during the preliminary reading process in the Knesset. However, the government announced its intention to promote this bill again, several months later.
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