Israeli Panel Recommends Abandonment of Tender Years Doctrine

January 20th, 2012 by Robert Franklin, Esq.
An Israeli panel has recommended – and its Justice Minister has endorsed – abandoning the Tender Years Doctrine that automatically grants custody of children under the age of six to the mother.  Read about it here (Jerusalem Post, 1/19/12).

Justice Minister Yaakov Neeman embraced Wednesday recommendations made by a specially appointed panel to revoke a controversial custody law that favors mothers of young children in divorce disputes.

A spokesman for Neeman told The Jerusalem Post that while the minister had yet to fully adopt recommendations made by the Schnitt Committee, he did see the suggestions as a viable solution to the problem of determining where to place children when their parents get divorced.

He said that the recommendations, which were made by a panel headed by Dr. Dan Schnitt that has been meeting for the past five years to discuss the relevance of the 40-year-old law, would now be passed onto the ministry’s legal advisors to draft alternative legislation.

This comes after a committee of the United Nations recently criticized Israel for maintaining such an antiquated and anti-father system of child custody.  Fathers’ rights organizations have long criticized the law as well for coming between fit fathers and their children.

According to Ha’aretz, the report cited the need for “a new normative arrangement of parents’ relationships with their children.”  But apparently that goal may be thwarted in a couple of ways.

The first is the outright opposition of feminist groups to any change whatsoever in the Tender Years Doctrine.

Immediately after the ministry announced that it had received the recommendations, women’s rights group expressed concern that canceling this presumption in the law would further complicate divorce proceedings, making the issue of custody grounds for battle and drawing the children into the fight.

Women’s rights organization Na’amat released a statement saying that it would take all necessary measures to prevent the recommendations from being adopted.

Well, it can’t be denied that custody decisions become much less complicated when one of the parties presumptively has no rights.  After all, what could be simpler for a judge than ascertaining which parent is the mother and automatically giving her custody?

But what’s remarkable is the group’s frank dismissal of the wellbeing of the child.  Shoving the father out of a child’s life is all but guaranteed to have adverse effects on the child’s outcomes in a number of different areas including educational, emotional and psychological.  Kids without fathers tend to do worse in a wide variety of ways than do children with fathers, as an avalanche of social science accumulated over some 40 years has shown.  But the facts be damned; Israeli feminists are far more interested in being anti-father than they are in being pro-child.

Remarkable as well is the fact that, as far as I’m aware, no feminist organization anywhere any time has come out in favor of equal rights for mothers and fathers in child custody matters.  I’ve seen countless examples in which those organizations in the U.S., Canada and the U.K. oppose equality in custody cases, but never once has one said “fathers and mothers should be treated equally.”  Go to any feminist website, and you’ll see the claim made that feminism is all about gender equality.  Strange that, when it comes to fathers and mothers, the opposite is true.  They not only don’t support equality of the sexes, they outright oppose it.

The second reason to doubt the impact of the committee recommendations – even if they get by the opposition of feminist groups – is a stumbling block called the “tiebreaker.”  Apparently the panel making the recommendations labored long and hard over what courts should do when parents are equally qualified, equally fit, loving parents.  According to Ha’aretz, the acrimony was so great, one member of the committee resigned in protest.

Apparently too, it never occurred to the panel that, if both parents were equal, maybe equal custody would be the obvious solution.  No, the members never got away from the notion that one parent must have primary custody, and therefore there must be a “tiebreaker” to decide who would get it.  That of course is just loony.  Simply order equal custody to equally-qualified parents and the job is done.

But the panel, not content with requiring the concept of a tiebreaker in the new law, went on to be unable to decide on one.  So rather than do the obvious, fair, just and right thing – recommend equal custody for equal parents – the members clung to primary custody and then failed to let judges know how to decide who should get it.

The result will be no surprise to anyone who follows family law matters.  Judges will likely continue to err on the side of maternal custody.  My guess is that, in a society that still writes the Tender Years Doctrine into law, whatever the panel recommended would be largely ignored by judges.  But the opposition of feminist groups and the absence of any direction on the issue of a “tiebreaker,” virtually assures it.

Still, the issue is now part of public discourse.  Fathers’ rights groups have made their wishes known and the reasons for them, and feminist groups have dropped any pretense of gender equality.  So the issue is in the public domain and, once there, history suggests it won’t go away and that the interests of fathers and children will continue to grow and improve.

It’s a start.

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