Under the Legal Capacity and Guardianship Act 1962-5722, both the minor’s parents are guardians with equal rights over the minor, and have an equal right to participate in material decisions relating to his life, health, education, residence, etc.
It is important to properly distinguish the issue of custody from the issue of guardianship. A stipulation that principal custody shall vest in one of the parents, does not negate the guardianship of the other parent over the minor.
When a couple are embroiled in a divorce dispute, in the majority of cases the court will be asked to determine who shall have principal custody over the minors, or who will be stipulated as the custodian parent. Concurrently, the court will stipulate visitation (contact) arrangements between the minor and the other parent. The visitation (contact) arrangements can take various shapes and forms, pursuant to the circumstances.
In particular instances and special circumstances, the parents will be awarded joint custody over the minors, and the significance is that the minors will reside, permanently, in two homes and will divide their time between them.
The overriding principle guiding the court when determining the identity of the custodian parent, is the minor’s best interests. In light of this principle, the parental ability of each one of the parents may be reviewed, with the intention of examining the parental ability of each parent as derived from his or her personality and conduct, and even as derived from his or her ability to provide the minors with emotional support and a suitable residence and suitable living arrangements, corresponding to the needs of a child of his or her age.
Examining parental ability is no simple task. Therefore, the court must rely on social workers appointed from the ranks of the welfare authorities, who will talk to the parents, and at times with the minors, and will issue their recommendations in a report filed before the court.
In special instances, the court will appoint an expert from the field of psychology or psychiatry, to provide an opinion regarding the minor’s best interests with each one of the parents, and the recommended method of determining the question of custody.
Examining parental ability emphasises, on the one hand, the parent’s ability to provide for the minor’s emotional needs, provide the minor with a calm and supporting environment, be attentive to the minor’s difficulties and desires. On the other hand, the parent’s ability to house the minor in his home safely will also be reviewed, the time available to being with the minor, the parent’s financial ability to provide the minor with a suitable life style when visiting, etc.
Under the Legal Capacity and Guardianship Act, there is a legally binding presumption, according to which a minor up to the age of 6 is better off in the custody of his mother. The Presumption of Infancy may be rebutted, and to the extent that the father wishes to rebut it, the burden of proof rests on him. There is wide-ranging criticism of the Presumption of Infancy. Two different committees appointed by the State (the Schnit Committee, the Rotloy Committee) recommended abolishing the presumption, owing to the inequality it establishes, but to date, the presumption is still in effect.
In almost every instance in which the issue of custody arises, the court will appoint a social worker for the family, and instruct him or her to file a report within a certain time. The report will cover the background to the dispute, and the minors’ current circumstances. For the purpose of writing the report, the social worker is authorised to talk to the parents, also face-to-face, to meet the minor and to talk with professionals at the school, the class teacher, school counsellor, etc. The social worker must make recommendations to the court regarding custody and visitation (contact) arrangements that shall exist between the parties, and which correlate to the minor’s best interests. It is recalled, that these are strictly recommendations, and that even though, for the most part, these recommendations will be heeded, the court is not bound by them.
The answer varies with the minor’s age. If the court is persuaded that the minor is mature, or mature for his or her age, capable of expressing an opinion of his or her own free will, it will hear the minor’s wishes, and at times take them into consideration.
The immediate difficulty is of course involving the minor in the dispute, something which the court will for the most part seek to avoid.
The second difficulty is distinguishing the minor’s real and sincere wishes from things which one parent or the other forced the minor to say, or which arise from one parent turning the minor against the other.
Joint custody requires very special conditions to execute, and therefore the court will stipulate joint custody only in special circumstances.
For joint custody to be declared, the first issue is that the parents must maintain amongst themselves a good and fair-dealing relationship. Moreover, the geographical distance between the parents’ respective residences must be short. We recall that the significance is that the minors will in fact have two homes, and they must be able to live comfortably, to be able to sleep comfortably, prepare their homework and conduct an orderly routine of daily life, in each one of them.
The non-custodian parent is entitled to maintain visitation (contact) with his children. It is clarified, that Visitation (Contact) Arrangements, above and beyond the needs which they fulfil with regard to the non-custodian parent, they also correspond to the minor’s best interests in having a healthy and proper relationship with both parents, and are also intended to benefit the non-custodian parent in giving him or her some times of rest and respite from caring for the children. The customary minimum with regard to Visitation (Contact) Arrangements is one or two afternoons per week, without sleeping over, and visiting every other weekend, including sleeping over on the night between Friday and Saturday. In accordance with the circumstances of a case, the court may order more extensive Visitation (Contact) Arrangements, which also include sleeping over during the week or also for the night between Saturday and Sunday.