The Legal Capacity and Guardianship Law, 5728-1962, states that both parents are equal guardians of their children. This applies whether or not the parents are married. The courts interpret this to mean that both parents have an equal right to determine significant issue regarding the health, education and welfare of their children. Where parents are unable to agree, the courts are empowered to make the determination, generally after receiving a report of the social services agency or a psychological evaluation by a court appointed expert.
The Law creates a legal presumption that the custody of a child through the age of 6 is with the mother. In cases where both parents are considered equally suited to have custody, the presumption will work in favor of the mother. This presumption can be overcome by a showing that it is not on the child’s best interest.
A Government appointed committee has spent six years developing recommendations to revise and update child custody law. The report was submitted in 2011 and has yet to be adopted. Despite the fact that the no legislative action has yet been taken, the report has already been cited by the courts while referring to some of its recommendations. The most controversial recommendation was to abandon the legal presumption of custody for children up to the age of 6.
The Committee recommended to replace the current legal presumption with a presumption of joint parental responsibility from birth. The guiding principle in determining custody will always be the best interests of the child, as per Article 18 of the UN Convention on the Rights of the Child. Among the considerations which the Committee recommended be weighed by the court in custody matters are the following: the child’s right to have direct and regular contact with both parents; the care which each parent gave the child prior to the divorce; the ability to provide for the child’s development, stability and particular needs; the willingness and ability of each parent to insure the child’s rights.
The Committee also recommended that terms such as custody and visitation be replaced with “parental responsibility”. Some courts have adopted the report’s terminology, which is meant to create a different perception of children’s interest in divorce cases.