Co-parenting and child custody after divorce – a real revolution!
About two years ago I was consulted by a man who wished to raise his children on the basis of co-parenting with an equal division of the time and burden of bringing up the children. At the time of his separation from his wife, the father took upon himself a very large share of parenting duties and he functioned as the main provider of the needs of the children even though they were very young.
“I want to bring up my children. I want to be a father to them every day and not a father who visits them occasionally”.
He did not have any other issues regarding the divorce file. Not even financial. I well remember that he told me at the beginning of the divorce proceedings that even if he was required to pay his wife child support as if they lived full time with her, he would be prepared to do so, as the main thing for him was to be able to bring up his children.
At that time, about four years ago, a determination of co-parenting was very rare. Section 25 of the Legal Capacity and Guardianship Law in Israel provides that children up to the age of six will be in the custody of their mother unless there are special reasons to decide otherwise. Such a determination is called “the early childhood custody presumption”
The honorable intentions of the father impressed the experts who recommended co-parenting in this case, despite the fact that the law determines differently.
It is important to note that about two to three years ago an application for co-parenting was exceptional. Many of my colleagues rejected such a possibility; however many things have changed in recent years and what was exceptional has become the norm.
About two years ago the report of the Schnitt Commission was published. It cancelled the early childhood custody presumption by law and recommends shared parenting, that is an equal division of parenting time, and recommended that this be the default option at the time of the separation. Accordingly, upon the parents’ separation, the division of custody between them should be equal.
It must be emphasized that the Schnitt Commission report is a recommendation to amend the Law but the Law itself has not yet been amended. Thus Section 25 of the Law still determines the early childhood custody presumption.
Today, however, despite this legal situation, the default option of most of the judges of the Israel Family Court is co-parenting which involves the division of parenting equally between the two parents. If a father wishes to bring up his children on the basis of shared parenting with the mother he will succeed in gaining this, unless exceptional circumstances apply.
This matter also affects the issue of the child support which the father must provide to his children. In the past, irrespective of the periods during which the children were staying with him, he was obliged to pay in full for the essential needs of the young children without any regard to his financial ability and also without regard to the amount of time the children stayed with each of the parents.
Today considerable significance is given to the period of time the children are living with each parent. Although as a rule the father’s obligation to pay child support has not been completely cancelled, this time factor has a profound effect on the amount of child custody the father will be required to pay.
There is no doubt that in the case of co-parenting child support will be reduced to half, or sometimes a third, and there are judges who have gone so far as to reduce child support to zero.
These matters are dynamic and are undergoing many changes. Despite everything said above, I hope that, at least as regards the issue of custody, parents will succeed in obtaining judgments that are for the good both of the children and themselves and are unaffected by any other considerations.
Parents need to consult experts in this area out of court and not to allow themselves to rely on the legal system. In the court the parties can argue about property, maintenance and alimony, the ketuba (Jewish Marriage Contract) and everything else. Leave the children out of it.