When we think of a family we usually imagine a father, a mother and happy children. This is the format most of us have grown up with. During the past years this format has been shaken and a family nowadays doesn’t require a father and a mother. Families can be compounded from friends who decided to have a family together, from single mothers who had a child by artificial insemination or same-sex couples who adopted a child abroad, etc.
There is no doubt that the establishment called family has changed in the last years. In this article I’d like to discuss a type of family called shared parenting. Two people decide to have a family with each other. What is the relevant law in such cases? How does one conduct shared parenting? What are the reasons for this new kind of family? What is important to know about this kind of establishment? What is a shared parenting agreement? These are some of the questions I’ll address in the article below.
This article is not intended as legal advice and should not be relied on it as such. For individual advice you are welcome to contact my office.
Shared parenting – what is it?
Shared parenting is a format where two people, could be from the same sex, choose to have a family together. Usually, these two people used to be strangers. In some cases, two old friends choose to have a family together. In other cases, the two people choose to have a family by artificial insemination or international adoption.
Sometimes one woman chooses to have a family with no father figure by artificial insemination (obviously, this case is not connected to shared-parenting but is presented as an example). Sometimes couples who are not in a relationship (together) choose to have a family because they cannot have a child in the natural way. All the above options will create the establishment of shared parenting.
If we’d like to define shared parenting, I’d suggest the following definition: shared parenting is a framework of a family, established by two people who are not is a relationship with each other, so as to bare and raise a child together.
Due to the fact that shared parenting is usually done by two parties who are not a couple and/or are not married, one of the most important subjects is the shared-parenting agreement drawn between the parties. This agreement is not trivial and must be take very seriously since it will accompany the parties for many years. Therefore, it should include a range of subjects, starting with trivial subjects that would normally be “sneezed” at to very curtail subjects, as will be explained below.
As for the implication of shared parenting, this can be done in several ways: shared parenting is an option for two people who want to have a child by artificial insemination. The couple could be a man and a woman or same-sex couple. Another way is having intercourse with no emotional commitment. Another way still is to use the services of a surrogate mother, i.e. a third party who conceives by artificial insemination or intercourse and carries the couple’s child.
In the article below I’ll explain the following: the reasons for the rise of shred parenting. The options and possibilities before people who want to have shared parenting. What exactly is shared parenting and which subjects should be included in the agreements regulating the shred parenting.
Shared parenting – how did this option evolve?
Significant changes in the perception of the family, both in Israel and abroad, have led to a variety of social changes. For example: the rise in the institution of common-law spouses, the increase of shared custody, the change in the perception of fatherhood, and the recognition of the rights of same-sex couples. The result of all this is also the recognition of the shared parenting model.
If in the past the perception of the family was very conservative, according to which a family must include a father who is responsible for earning a livelihood and a mother who is responsible for raising children, today this perception has changed. For example, many families have a shared-parenting model, in which both spouses have full and equal custody of their children. In addition, if in the past couples of the same sex could not have established a family (when, until the 1970s, same-sex couples were considered criminal offenses by Israeli law), many same-sex couples now have families.
This raises the question of what led to the increase of the institution of shared parenthood. Let’s present some of them:
Among the social changes that have led to an increase in the status of the institution of shared-parenthood, the change in the perception of the rights of same-sex couples stands out. Another change is in the family itself, for example more spouses who maintain shared custody, etc. Moreover, changes in the concept of human rights, including the right to establish a family, the right to dignity, etc., have led to very important social changes, among other things that reflect on the shared parenting system.
Rise in the status of women:
If in the past the old concept was that the role of the woman is to raise the children, today there has been a significant increase in the status of women. This rise has gone side by side with the modern world for the past 100 years. If from the 1920s women were allowed to vote in the elections, women now play very important roles. Among other things, women serve as prime ministers, presidents, etc. An increase in the status of women also led to an increase in the rate of participation of women in the work market. As a result, the family institution has undergone significant changes. In other words, the woman is no longer in her archaic role as responsible for raising the children, rather today many women prefer to invest their energies in developing their careers. Hence, quite a few women do not marry and at a certain stage choose to bring children without marriage. The result of all this is the increase in the prevalence of the institution of shared parenthood.
A change in family structure and perception:
We live in the reality of a global world: we are much more mobile, available and in fact connected all over the world, at a distance from social networking. We also live in an age of excess information, are more aware of our rights and want to have many pleasures, sometimes at the expense of things previously considered taboo, including family life.
As a result, in the current reality of life, the establishment of a family is not necessarily the first goal of each of us. In the past it was obvious that at a certain age a family was established and children were born. Today, this taboo has been broken and family is not always the first priority, as many prefer to taste the tastes of the world, to experiment with new things and to check the limits. All of these facts have a direct impact on family perception. For example, if in the past marriage was necessary, today many couples live together in the form of common-law couples, i.e., a relationship that is not necessarily formal. If in the past the role of the husband was to support the family, today this role is not necessarily exclusive to the husband, rather many couples invest equally in career development and choose to raise the children together.
The global development and the changes in the order of priorities also led to the development and strengthening of the institution of shared parenthood. Many people seek to raise a family at a later age, in some cases with no help of a partner. Many women seek to have a child at a later age without a partner. So if we sum up this point, we can say that global changes and modernization directly affect the development of the institution of shared parenting.
Marriage and Divorce Law in Israel:
If we focus on our little corner, which is the State of Israel, we can examine in depth how the institution of shared parenthood has developed and strengthened. I believe that the fact that in Israel, marriage and divorce are subject to the personal-religious law, directly affects the institution of shared parenthood. Let me explain: in most countries of the world marriage and divorce matters are governed by the laws of the state, which is secular in most cases. In Israel, according to the Rabbinic Courts (Marriage and Divorce) Jurisdiction Law, 5713-1953, marriage and divorce are subject to the religious law, so that many spouses in Israel are barred from marrying, both because religious law does not recognize Same-sex couples and even marriages of spouses who are not members of the same religion, and therefore, the enforcement of religious law on matters of marriage and divorce directly affects the desire of many couples to refrain from formal marriage in the State of Israel. I believe that this has implications on the institution of shared parenthood.
An increase in the level of medicine:
There is no doubt that the rise in the level of medical services and technological progress has a decisive contribution to the rise of the institution of shared parenthood. The possibility of artificial insemination did not exist in the past. With its existence, it is possible to bring children and establish a family, even by means that were not previously known. This option also enables women and same-sex couples to have a family. Hence, if we relate to the rise in the status of women, social changes as described above, and changes in the family’s perception, all these are well integrated into the changes in the medical world, so that all these factors also contributed to the development of the institution of shared parenthood.
Ways of having children in the form of shared parenting:
As I briefly noted in the first part of the article, there are several options for people who wish to maintain shared parenting. I’d like to emphasize that this refers to people who do not have an intimate relationship, but partners who were involved in bringing a child into the world and raising him/her together. These are the options currently available:
The Conservative Way: One way to implement shared-parenting is to have intercourse, even if it is a non-committed sexual relationship. Some couples choose to have sex in order to bring a child into the world without having an intimate relationship in the future.
Surrogacy: Surrogacy is the having a child with the help of a third party. In other words, a couple who together turn to a woman, fund the fertilization and the necessary treatments in order for her to become pregnant. In such cases, the couple, in accordance with surrogacy agreements, are responsible for the financial support of the surrogate until birth.
In Israel there is a specific law that deals with surrogacy, which is called the Agreements for Carrying of Embryos (Approval of Agreement and Status of the Newborn) Law, 5756-1996. This law states that if a couple sign an agreement to bring a child through surrogacy, the surrogate must not be married, the parties to the surrogacy agreement must be adults, the sperm that the surrogate will bear as the offspring has to be of the intended father, and the surrogacy agreement must be approved by a special committee established by virtue of the above-mentioned law.
Artificial insemination: artificial insemination is another way to bring a child into the world, especially in circumstances where shared parenting is wanted. Artificial insemination is a medical procedure in which sperm from an anonymous donor or from a partner is inserted into the woman, the treatment is designed to produce fertility in the woman’s body, at the end of which the woman will be able to conceive. Fertilization treatments are carried out in the State of Israel and to this end one must meet a number of conditions, which I will not elaborate on in this article. Please note that fertility treatments sometimes take a long time.
Shared Parenting Agreement:
In order to maintain shared parenting, it is worthwhile to draw an agreement, due to the fact that two people who might be strangers, are establishing a family. The agreement is intended to regulate all relations between the people seeking shared parenting.
Since this is an agreement between two strangers, it is worth clarifying two points. The first point is that this is an agreement that must be approved by the Family Court. This is because it is a very complex agreement, which will regulate many issues that will affect the lives of both sides for many years. The second point is that it is important to be assisted by a family lawyer, for the purpose of drafting a shared-parenting agreement and for representation throughout the process.
Issues to be arranged in a joint custody agreement:
A shared parenting agreement is a very complex and substantive agreement. This is because this is an agreement between two parties that are not partners, but two parties that join together for one purpose, namely the establishment of a common family. Therefore, the shared parenting agreement should include a wide variety of issues. Let us review some of these issues and emphasize that this is not a complete list:
The child’s name: This is a seemingly trivial matter, but again I emphasize that a shared parenting agreement is held between two parties that do not maintain a common household, and certainly not a “regular” couple, but two parties that are strangers to each other. Therefore, consent to the name of the child is a matter worth arranging in the agreement.
Rights and obligations during the pregnancy: As a family lawyer who has already had experience in drafting shared parenting agreements, I recommend that the rights and obligations of both parties be arranged during pregnancy, from the tests to be performed during pregnancy to birth (birth at home or hospital, etc.). I also recommend that the shared parenting agreement regulate the manner in which the tow people will function financially during pregnancy, i.e., what their obligations are in terms of financial funding during pregnancy.
Regulation of residence: In a joint custody agreement, it is recommended to agree on the physical proximity of the parents to each other. It would be a good idea to arrange that both parents would commit themselves to living next to each other, at least until the child is old enough to travel by bus. Consider, what if one of the parents wants to move because of a change in a place of work? What will happen in the event that a parent receives a job offer in a foreign country? What are the conditions under which the parent can leave and move to a foreign country? These are all issues that should be arranged in the framework of a shared parenting agreement.
Payment of alimony: Another critical issue that is important to arrange under a shared parenting agreement is liability for child support. In Israel, the liability for child support rests with the personal religious law of the father. In other words, a father is absolutely committed to his children’s alimony. Therefore, it is important to arrange, as part of a shared parenting agreement, the issue of alimony, the rate of alimony and more. It should be noted that if this is not a relationship that creates a liability for alimony, such as two mothers, in such a case, liability will be imposed by virtue of an agreement and not by the religious-personal law.
Regulation of the issue of custody: Another important issue to be regulated in the framework of a shared parenting agreement is the issue of custody. In other words, it is necessary to arrange which parent will receive the exclusive custody of the child, and what the visitation rights of the other parent will be. Alternatively, the parents can agree on joint custody and in such a case the parents’ obligations and rights should be regulated exactly.
Understandings is event of death: Another issue that I would recommend to arrange under a shared custody agreement is what happens in case of death of one of the parents. Who should be registered as a policy beneficiary in such cases, what will be the rights of the child in the estate of the parent in relation to other heirs, whether in the event of death, grandparents will have visitation rights etc. These are very important issues that should be settled within the framework of the agreement.
Shared parenting is a unique way in which two parties, who may have been strangers to each other, form a family, with all that entails. On the other hand, this is not an easy procedure at all, since these foreign parties need to arrange in advance many issues, simple and complex ones, and at the same time, practically implement the shared parenting. Therefore, in order to make the process easier, it is important to seek legal advice from a skilled and experienced family lawyer.