Visitation arrangements between same-sex couples in Israel
Relationships are full of challenges, especially when small children are involved. Not only that, but same-sex couples face double the difficulties that heterosexual couples face.
To have a child, a couple of women will need a sperm donor, while men will need to turn to a surrogate mother, or alternatively Adopt child.
Either way, these are expensive and lengthy procedures, and unless the partner who is not the biological father (or mother) receives an adoption order or a court-ordered parenting order, which is anchored in a legal agreement, then if, God forbid, the couple decides to separate, the issue of custody of the children may become a serious problem.
In the event of a separation between same-sex couples who are raising children together, it will be necessary to bring up the following for discussion: Child Custody Issue and visitation arrangements. These issues will be determined in accordance with the legal aspects of same-sex parenting and its unique complexity.
In the review before you, attorney Sharon Segal presents a comprehensive and detailed explanation regarding the rights of same-sex couples who have decided to separate, in everything related to child custody and visitation arrangements.
Legal anchoring for your relationship with your children
Some couples feel that signing agreements that deal with what will happen if a breakup comes, in effect, postpones the moment and turns the question of what will happen if it comes into what will happen when it comes, and therefore prefer to avoid it.
However, when it comes to same-sex couples who decide to bring children into the world, the decision to legally anchor the relationship between the non-biological parent, the social parent, and the child is of great importance, in a way that will give him rights and obligations just like the biological parent.
There are two ways to anchor the relationship in question according to case law in Israel: through an adoption order or a judicial parenting order. Both orders will grant the social parent equal rights with regard to the child, in the event that the couple separates.
It is possible to pre-arrange in an agreement what will happen in the event of a separation and sign an agreement that will pre-arrange a decision on custody, visitation arrangements, and so on.
The Supreme Court has long ruled, as part of the Attorney General’s Office v. Zemr proceeding, that in order to give binding legal validity to an agreement, the couple will need to bring it to a family court for approval.
When you break up and there is no written agreement…
In the event of a separation, if the spouse has an adoption order or a court-ordered parenting order, his status will be that of the biological parent, and then the hearing in family court will be like a regular hearing for heterosexual couples, and the social parent will be able to demand visitation arrangements and even joint custody, if he so desires.
On the other hand, in the absence of an agreement, the decision on custody and visitation arrangements will be made in the Family Court, subject to the principle of the best interests of the child.
The spouse who does not have an adoption order or a court-ordered parenting order will be able to file a lawsuit to maintain contact with the child and for visitation arrangements, even though, from a legal perspective, there is no relationship between them that is anchored in law in advance.
To win the lawsuit, he will have to prove unequivocally that she was an active partner in raising the child until the separation from her partner (the child’s biological parent), in accordance with the ruling issued in February 2018 in a proceeding before the Lod District Court.
Real-life example: Ruling in favor of a social parent
The case in the District Court involved two women who had lived together as a couple for 11 years. As part of their life together, the two decided to have children, and then one of them had a child through sperm donation. The two mothers lived together with the parents of the partner (the one who was not the biological mother) and raised the child together until they were 4.5 years old, when the women decided to separate.
In the initial stages after the separation, the biological mother agreed that her partner would maintain contact with the child, but after six months she changed her mind and forbade her ex-partner from meeting the child.
The spouse, in response, filed a lawsuit against Home Family Law In Rishon LeZion, for joint custody and visitation arrangements, and also requested a temporary order to establish meetings between her and the child.
She justified her request by saying that the child was born as a result of her and the biological mother’s joint will, and that throughout the entire pregnancy and the 4.5 years after the child’s birth, she cared for the child as a parent in every way, and her family even helped raise him, including providing emotional and financial support.
On the other hand, the partner claimed that the child was born of her own free will and that she was a sole parent, even though at that time she and her partner were in a relationship.
On January 25, 2018, the court granted the non-biological mother’s request for a temporary order and established visitation arrangements once a week, from the moment the child’s educational program ends until 7:30 p.m., including the option of giving a gift at the end of each meeting in an amount not to exceed 100 NIS.
The court also referred both women to parenting guidance and ordered them to report on the progress of treatment within 60 days.
The decision was made after hearing a report and opinion from a court-appointed expert, but before any evidence was heard. Everyone supported gradually renewing the relationship between the non-biological partner and the child, and the expert added that the child was interested in meeting the partner and that the interaction between them was good.
Therefore, the court justified its decision by claiming that failure to establish a temporary arrangement could lead to a situation where, at the end of the process, the child would not want to renew the relationship with the partner. This is because he may be incited by his mother, and not only that, but it is forbidden to tear a child away from a figure that was familiar to him, because this could cause him developmental and emotional damage.
The biological mother appealed the decision to the Lod District Court, claiming that the order constitutes a final judgment that could cause irreparable harm to the child and that her rights as a biological mother should prevail over the rights of her partner, who has no legal status in relation to the child.
The court also previously ruled that it cannot be said that joint custody of same-sex couples cannot be recognized with respect to children brought into the framework of the joint relationship, and accordingly, the spouse has the right to file a lawsuit to maintain contact with the child. Finally, the District Court dismissed the biological mother’s appeal.
Based on the data presented to the Family Court, the District Court determined that the Family Court’s decision was correct, as the data presented led to the conclusion that the relationship between the spouse and the child should be maintained at a measured level until the final verdict in the case is rendered.
This result Based on the principle of the best interests of the child This was after describing the emotional meeting between the child and the partner after the period of separation, which the expert described as positive but emotionally complex for the partner and the child, and that neither of them wanted to separate at the end of the meeting.
This is a fundamental, constitutional, and moral issue, and it is necessary to examine the harm that will be caused to the child and the spouse if a temporary order is not granted, compared to the harm that could occur if it is granted, with in any case the child’s best interests outweighing any other consideration.
Conclusions and recommendations you should implement
As we explained in the article, when it comes to parents who are same-sex couples, if the parent who is not the biological parent has regulated his or her status through an adoption order or a court-ordered parenting order, in the event of separation, the issue of custody and visitation arrangements will come up for discussion, so that the biological parent’s rights will be equal to those of the social parent.
If such an agreement was not signed in advance, the social parent will have to prove that he was indeed an active partner in raising the child until the moment of separation, in order to obtain an order that will allow him to maintain contact with the child, subject to the principle of the child’s best interests.
To sum up, in order to avoid a crisis if, God forbid, the moment of separation arrives, it is better in any case to regulate the status of the social guardian with the help of an order. If this is not done, you can contact and consult with Editor Justice Sharon Segal, which will help you obtain the long-awaited order and maintain the all-important connection with the child you raised and educated.
For detailed advice on determining visitation arrangements, you can contact Attorney Sharon Segal by phone: 077-997-4020
