The court is only concerned with the good of the child.
The central theme in a divorce agreement between a couple is the matter of custody of the children at the time of separation. Today, when there are material disputes concerning which parent is best suited to be custodian, in most cases the court will appoint a psychologist as an expert to examine the suitable custodian, an examination known as “parental suitability”.
Likewise, in law children younger than six years of age are placed in the category of “tender age”, which means that children in this age group will be with their mother unless there are significant reasons for deciding otherwise.
This principle is secondary to the principle of “for the good of the child” and the central test is which of the parents is able to provide the child with a better life.
How is the “good of the child” determined? The courts in Israel and in the world adopted two parameters for examining this concept:
Firstly, satisfying the material needs, in other words determining which of the parents is best capable of providing a better standard of life for the child in the physical sense.
Secondly, and regarded as very important, is the issue of satisfying the emotional and spiritual needs of the child. In other words, which of the parents is most sensitive to the feelings of the child and is best able to fulfill these emotional and spiritual needs?
Judgment also acknowledges that when there is a conflict between these two parameters the latter applies. In light of the above, one of the central issues determining the custody of minor children and parental suitability is the question of with which of the parents will the child have the most consistent and secure relationship possible at the time of separation?
This issue received recognition as being a basic need in the framework of “The Convention of the Rights of the Child, 1989”, which determines that the child has the right to be in contact with both parents. This is his basic right as a human being.
In light of the above, prevention of a normal relationship of the child with the father because of the mother’s behavior after the divorce or conversely prevention of relationship with the mother because of behavior of the father, is a basis for transferring the rights of custody to the parent who is more capable of following the arrangements for a normal relationship with both parents.
The court recognizes that the centrality of the motive of “the good of the child” is necessary to impart to the child feelings of love for both the father and mother. They deserve this as a natural right of being parents but also, even more importantly, because nurturing these feelings will enable the child to develop in a more tranquil, happier and satisfying manner.
