When there is no child custody agreement (or divorce agreement) between a couple, authority to determine custody is given to the judicial court (Section 25 of the Legal Capacity and Guardianship Act). Jurisdiction to determine custody belongs to the divorce and family law court. Nonetheless, if a law suit is filed with the rabbinical court, and no application for a divorce hearing has been filed beforehand with the family court, the hearing to determine child custody and the hearing on divorce will be automatically tied together. This is only done in divorce cases, and not in other cases (marital reconciliation, etc.).
In which court the child custody hearing is held is one of the main causes of the jurisdictional race between the rabbinical court and the family court. The principle of “the child’s best interest” is the main consideration when determining which parent should receive custody.
If so, what is in the child’s best interest?
No law has been determined by the legislator regarding the concept of the child’s best interest. Moreover, there is no law determining the perfect arrangement for custody, and thus the legislator leaves it to the courts to add substance in the course of the legal proceedings. We can learn about the difficulties experienced by the courts when determining what is in the child’s best interest in divorce disputes from Judge Haim Cohen’s words:
“There is no more difficult, and sometimes heartbreaking, judicial task, than that of determining a young child’s fate…fit, adult parties stand before the court and both claim the right for custody…there is no argument between judges, that when the fate of a child is being determined, the court must speak for and represent him…in effect, what the child’s best interest is, is a matter of prophesy and judges are not prophets. Therefore, rulings on the fates of young children are among the most difficult and intense that judges need to make.” Courts regard the protection of children in divorce proceedings to be of the utmost importance.
Custody during Infancy
Custody during infancy is the exception to this. Section 25 of the Legal Capacity and Guardianship Act stresses that the best interests of the child must be considered and children up to the age of 6, in the absence of “special reasons for different parenting”, will reside with their mother. The burden to refute custody rulings regarding infants is imposed on the father (to date and so long as the Shnit Committee recommendations are not implemented). In certain cases, custody can be refuted during divorce proceedings, such as, for example, in the case of a mother that has abandoned her children. When determining which parent receives custody, the rule of thumb for the courts is consideration of what is in the child’s best interest, which takes precedence over the best interest of the parents or of the parents’ wills.
The Child’s Will
Divorce lawyers point out that the child’s will is taken into consideration when determining custody during divorce proceedings. Custody is determined by the children’s best interest, and in accordance with welfare recommendation reports formulated by a welfare worker, a social worker appointed by the divorce and family court or by the rabbinical court. The aim of a welfare report done within divorce proceedings is to provide recommendations for judicial evaluation, as to who will be the guardian parent.
The family court or the rabbinical court takes a number of points into account:
· The child’s will as he presents it.
· The family court or the rabbinical court give more weight to an older child’s will.
· The child’s emotional maturity is significant.
· An extensive check is carried out in order to determine if the child’s decision results from incitement or from external influence of one of the parents.
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