Two revolutionary developments have taken place in recent years in family matters.
The first regarding the issue of child custody at the time of separation of spouses.
The second concerning the issue of the amount the father is obliged to pay for the maintenance of his children, legally known as “child support“.
In the past it was accepted that children up to the age of 6 were categorically in custody of their mother at the time of their parents’ separation, in accordance to the “Law of Legal Capacity and Guardianship” (Article 25). This approach is called “early childhood presumption”, and in practice what would have happened, regardless of age, children up to 18 years of age. In most cases, would have been transferred to the custody of the mother by default.
In this manner, the welfare officials would recommend in cases of disagreement between the parents over the proper custodian that the custody of the children, regardless of age would be with their mother.
Accordingly, child support as allocated for the children would be at the rate specified in the law and as detailed in other articles, at the rate of their full needs.
Today the attitude toward as adopted by the courts in Israel on the issue of custody after separation, is toward “joint custody”.
Justice Nachshon Fischer said in this regard: “The ruling adopted by the courts at this time, regards joint custody as the proper and fair conduct between the parents” and thus determined that the default is not necessarily custody with the mother, but with joint, i.e. equal distribution of the children’s stay with both parents.
I do not say that from now on, in every divorce dispute, the custody of the children will be shared and the parental division will be equal, but it can be said at least that a high percentage of the cases brought before the court, custody and parental division are equal.
Of course, if a parent claims that “joint custody” is not in the best interest of the children and will produce evidence to that effect, it is clear that the custody will not be shared..
Another reality is that if one of the parents does not want or cannot stay with the minor in equal parental division, for reasons that are not dependent on him, such as work or illness, or he feels that he cannot, for his own reasons, share custody, In such cases custody will not be shared and the custody will be with the more capable or willing parent.
Following this approach, the issue concerning custody of children under the age of 6, is also often discussed in the courts and the approach is often and in accordance with the circumstances to determine that even preschoolers will live in co-parenthood.
Towards the end on 2018, the Knesset passed a bill to annul the “early childhood presumption” and half a year ago, it was agreed to raise a bill that would reduce or almost completely eliminate the presumption of early childhood, which is likely to be heard in the near future and thus also concerning children under the age of 6, the custody will be shared, as opposed to sole custody of the mother.
Another “revolution” is reflected in a Supreme Court decision in 917/17, in which a new approach concerning child support was adopted, which essentially altered the way child support is allocated.
According to this ruling, starting from the age of 6, child support is not calculated according to the traditional principle that necessary needs are categorically imposed on the father, but rather the obligation of what is called in Jewish law: “charity” is adopted, meaning that the distribution will be equal according to the income of each parent.
Following this guideline, the court will examine the income of each parent, the needs of the child and the amount that each parent has to provide for the needs of the child, along with the time each parent spends with the child/children.
In this reality, when the children are in the custody of the mother, the rate of child support is lower than in the past, since the court takes into account the mother’s disposable income and brings into consideration the income of both parents in relation to the needs of the children.
Similarly, following this ruling, when the custody of the children is shared (the default today), and the parents’ income is similar, even if there is a small gap, child support will not be allocated at all or it will be very low and certainly significantly lower than the amounts allocated before the new ruling was issued
In summary, it can be said that when a couple comes to divorce or to take separate paths , they should take into account the reality that there parental responsibility will be equal regardless of gender , and the rate of the child support will also be calculated according to the ability of each parent, and division of custody between parents.
