Custody and Visitation Rights Within a Divorce

A divorce procedure contains many difficulties but the biggest one is, with no doubt, the family rift it causes. Up to the divorce the parents leaded their family together but the divorce causes the family to split up, hearts the parents and in some cases, the children even more. The issue that comes up in divorce cases with children is, regulating the custody and visitation rights for the non-custodial parent. This issue is difficult both emotionally and practically.

Due to the importance of this subject I’d like to review the law regarding child custody and visitation rights. I’ll explain what the court’s considerations are, what visitation rights are, what joint custody is and other related subjects.

Bird’s eye view of divorce proceedings

Custody and visitation are just a part of an inclusive procedure called the “divorce procedure”. This related to a number of subjects and issues that need to be regulated by the couple when divorcing to spiting up the family.

The first issue the couple need to regulate is the divorce itself, i.e. the couple have to file to the Rabbinic court for a divorce.

The second issue the couple need to regulate is the matter of child alimony. The duty to pay child support is an absolute obligation of the father. The purpose is to ensure the wellbeing to his children.

The third issue the couple need to regulate is the common property. A couple who start a family accumulate property during their marriage, such as a house, vehicles, savings, businesses etc. when divorcing the question of how to divide the property arises.

The forth issue the couple need to regulate is custody and visitation rights. A couple who has children together do not stop being parents because they are divorcing and the question that arises is which parent will be the custodial one and what will the visitation rights for the non-custodial parent be like.

What is custody?

Custody is a legal status that defined which parent will be responsible for bringing up the couple’s common children. When the couple live together this is not an issue because both parents are custodial but when the couple divorce, this question does arises and could cause dispute between the couple.

In many cases the parents cannot agree which one of them will be the custodial parent and each one tries to “pull” to his/her side. The issue of custody can be solved between the parents and their agreement has to get authorized by a court. If the parents cannot agree, the court will have to determine which parent will be the custodial one. The parent who is not the custodial one will get visitation rights, i.e. spend time with his/her children and take care of them during regular days in the week and usually every other weekend (this is the standard but each case is decided upon according to its circumstances and the parents’ wish).

What is the law if a parent breaches the visitation agreement?

One of the saddest things to see is a child waiting for a parent to come, and that parent doesn’t come, even though he/she promised. A parent who has visitation rights to see his/her child has to honor those rights and the agreement. Not honoring the agreement or severing it can seriously harm children psychologically and hurt the other parent who often cannot go to work or other places because of a violation of visitation rights.

However, there may be cases where a parent violates the visitation rights due to special circumstances, such as illness, a special event etc. But when violation of the visitation rights actually becomes frequent and regular, the other parent can take several actions. On one level, you may apply to the court to impose financial sanctions on the violating parent. In addition, the custodial parent may submit a request to the court to reduce his visitation, because if the other parent is violating the visitation regularly, he/she apparently has no interest in regular meetings with his/her children. In cases of permanent violation of visitation rights, it is very useful to get legal advice.

What is the non-custodial parent’s responsibility?

Legally, parents are their children’s natural guardians. When the parents are divorced the law doesn’t change although the custodial parent has the initial right to decide about his/her/ children on some subjects. Custody division does not detract from the parents’ to take care of their children. The above coordinates with the provision of the relevant law

The provisions of the relevant law, as stipulated in Article 15 of the competence and guardianship 5722-1962 law, stating that custody “includes the duty and the right to take care of the needs of the minor, including education, studies, training for work and vocation and maintaining his assets, managing and developing them; And with it the authority to have the minor and determine his residence and the authority to represent him.” The means that a non-custodial parent has responsibilities toward his/her child too. Determination of custody cannot harm the right and moral and legal authority of parents to their children, subject to any decision of the court regarding custody.

Which one of the parents usually gets custody?

The mother usually gets sole custody for the children and the father usually get visitation rights. The reason for this is the – “Mother Automatic Custody of Preschoolers” rule (I’ll explain more about this below) that states that the young children are more attached to their mother. It is important to state that one of the reasons the mother gets full custody is the view that bringing up children is something the mother should do. This being said, during the past years there is a rift in this approach and more and more courts veer form this rule and give the custody to the father. Moreover, more and more families choose to go for joint custody (more about this subject, below). But with all these changes, in most cases, the other is still the one to get full custody and the father gets visitation rights.

What is the “Mother Automatic Custody of Preschoolers” rule?

As mentioned above, one of the reasons that mothers usally get the right to full custody is the rule of automatic custody of preschoolers. Article 25 of the competence and guardianship 5722-1962 law stipulates that if the couple no longer reside together and they cannot agree about custody, the court will rule in the best interest of the children, as long as the children will be under their mother’s custody up to the age of 6 years, unless there are special circumstances to rule differently. This article regulates the Mother’s Automatic Custody of Preschoolers. According to this, a child up to the age of 6 years is more attached to his mother therefore the closeness between the child and the mother must be maintained. However, as mentioned, in the past years there has been a change in this attitude and the judges are more flexible. For example, if in the past a baby could sleep only at his mother’s house, nowadays the judges allow the baby to sleep at his father’s house too. But, these changes are minor and the general rule is the Mother’s Automatic Custody of Preschoolers, which guide the family courts’ and the Rabbinic courts’ rulings.

What is custody transfer?

Let me describe a situation: a parent got sole custody of the children. But something happened and he/she cannot function as a custodial parents (Sickness, loss of a job, crisis – are some examples). Or a different case where the custodial parent is an alcoholic or is addicted to drugs – which diminish his/her ability to function as a custodial parent. In such cases, the other partner (the children’s other parent) can file to court and request that the custody be transferred. Note that custody transfer is rare, especially if the children are young. When debating whether to transfer custody, the court will examine, specifically, if the transfer will be for the good of the children.

What is temporary custody?

There are cases where the couple part long before the court rules for divorce and before the issue of custody is decided. Therefore, the need to settle the issue of custody, temporarily, arises and “Temporary Custody” need to be determined. Both parent can file a request to the court, to be the temporary custodian parent, until the court determines the final custodial parent.

Which court is authorized to rule in matters of custody?

In family laws, there are two jurisdictions.  The first is the Rabbinic court (for Jews and other religious courts for non-Jews) and the second is the family court. The Rabbinic court has the authority to rule, solely, on matters of marriage and divorce but can rule on other connected matters such as alimony (wife and child), claim for the money written in the Ketuba, claim for domestic peace etc. the family court can rule in any matter regarding “family members” i.e. parents and children, grandparents, brothers and sisters, married couples or common-law spouses. Some of the subjects the family court rules are: adoption, alimony, child custody and visitation rights, wills and inheritance, determining one’s age, surrogacy, property as well as agreements within the family, such as financial/prenuptial agreements, same sex couples’ agreements etc.

The Rabbinic court can rule in matters of child custody and matters of property on one condition: if one of the couple files for divorce and the claim includes and binds the claim for custody. If the other party does not object (one can object) then the Rabbinic (or other religious court) “obtains” the right to rule on the matter of custody.

Mid-Summary: the family court is the legal jurisdiction which rules in matters of child custody. However, in cases as described above, the Rabbinic court can “obtain” the right to rule in this matter too. The Rabbinic court will rule according to the civil law, i.e. the Israeli law, in contrast to matters of marriage and divorce which are ruled according to the religious-Jewish law.

How to file for custody?

Parents who cannot agree regarding the issue of child custody can decide by signing an agreement or by having a legal procedure. I feel that in such cases, the peaceful way is best. If the couple can reach a divorce agreement that includes custody and visitation rights (or joint custody), it is the preferable and wiser way to go.

If the couple cannot reach an agreement, they have the right to file a claim to determine custody, at the family court. The one who claimed for divorce at the Rabbinic court can bind the claim for custody with the one for divorce.

I’m frequently asked if it is worthwhile to bind the custody claim with the divorce claim. To that I answer, each case is individual. There are cases where it is best to bind the claims and have them handled in the Rabbinic court and there are cases where it is best to file for custody separately, in the family court. It is advisable to get specific advice from a family lawyer.

What is joint custody?

Joint custody is when the parents share equal parts in raising their children. No visitation rights to one parent and custody to the other, rather bringing up the children together. Both parents carry the same burden equally. The children spend the same amount of time with each parent – all this provides a more stable “family unit”. The parents benefit from having more time with the children and being more involved in their lives.

This being said, joint custody does have its shortcomings, contrary to common belief. When a parent has visitation right he/she is in charge of the raising of the children only when they are with him/her. But when one has joint custody the responsibility does not stop at all (as if you were still married). Joint custody causes the parents to be in contact more than sole custody-visitation rights. And, even though the couple decide to go for joint custody, the father is still required to pay child support. He might pay a smaller sum but he will still have to pay for his children. In some cases, joint custody will increase the financial burden, especially for fathers. Parents are not always aware of the shortcomings that come with joint custody, therefore it is advisable to get advice from a family lawyer, if this is an option you would like to consider.

During the past few years more divorced parents prefer the joint custody option. One of the reasons for this could be a change in the perception of the family. If in the past it was thought that the mother is the one who has to bring up the children, nowadays, the modern approach sees both parents responsible for the upbringing of the children, together. More so, nowadays, many fathers express their will to be more involved in their children’s lives, which leads to joint custody being more and more common. As a rule, the family court has the authority to rule for joint custody, whether the parents agree or not. Eventually, the terms for joint custody focus mainly on the best interest of the children. If the court finds that the children’s best interest is to have joint custody, then it will order for joint custody without the consent of the mother or the father.

Child support during joint custody

The obligation to pay child support is an absolute obligation the father has to fulfil. The question arises what happens when the couple go for joint custody? When having joint custody, the father takes a larger part of bringing up the children, including more time spent with the children. In such cases, should the father be obliged to pay child alimony? Is there joint custody without payment of child alimony? The answer to that is, the fact that the parents choose to have joint custody does not diminish the father’s obligation to his children, even if the custody is joint.

That being said, when parents have joint custody, the court can order diminished child support. This will be done only if the court is convinced that the joint custody is truly and honestly exists. The court will take in to account the harm that could be caused to the children due to the reduction of the amount of child support. The court will also examine the mother’s income, the standard of living the parents have and the times the children spend with the father. Each case is examined individually. For more detailed information it is best to consult with a family lawyer, who will give more individual advice.

To sum:

Child custody and visitation rights are an essential subject that has to be settled and regulated by a couple who are divorcing. No doubt, this is a very emotional and painful subject. Child custody can be done in one of three ways: 1. Full custody on one of the parents. 2. Visitation right for the non-custodial parent. 3. Joint custody. The matter of custody can be regulated by signing an agreement of by going to court.

I recommend going to a lawyer to get advice since custody procedures are very complex. Don’t hesitate, go to a experienced family lawyer.