Divorce dis­crim­i­na­tion • By YONAH JEREMY BOB

Both men and women share rough per­sonal sto­ries of be­ing done wrong by the court sys­tem

The Jerusalem Post Magazine - - CONTENTS - YONAH JEREMY BOB

Sup­port groups for fa­thers and moth­ers agree on lit­tle when it comes to court lit­i­ga­tion re­lat­ing to divorce, al­imony and child cus­tody is­sues. Maybe the one thing they agree on is that each side feels dis­crim­i­nated against both in their in­di­vid­ual cases and in how the sys­tem is set up. How does a sys­tem get so bro­ken that it can dis­crim­i­nate against men and women at the same time?

First, there is no way around the fact that divorce and the break­down of a fam­ily struc­ture are usu­ally go­ing to have some amount of messi­ness and carry costs to those in­volved and to so­ci­ety. Be­yond that, how­ever, it ap­pears that there are two ma­jor prob­lems that ex­ac­er­bate the is­sue in Is­rael. One is the courts them­selves, and the sec­ond is the bro­ken dy­nam­ics that have

plagued at­tempts at re­form in the Knes­set.

FOR “SHIMON” (his real name is con­fi­den­tial due to the sen­si­tiv­ity of the is­sue), his main com­plaints about the court sys­tem are the im­bal­ance on al­imony-eco­nomic is­sues, the de­fault ad­van­tage to women in young child cus­tody bat­tles, in­con­sis­tent rul­ings be­tween dif­fer­ent re­gional fam­ily courts and pre­sump­tions that fa­thers are lousy par­ents.

Dis­cussing the is­sues with the Mag­a­zine, he asked why, if there was no ex­plicit ev­i­dence against a spe­cific fa­ther, a fa­ther “must prove that he is a good dad… in­stead of just fo­cus­ing on the best in­ter­ests of the child.”

Assert­ing, “For a fa­ther to get even time” with his kids, “he must do a lot,” he com­plained that due to un­sub­stan­ti­ated claims against him by his ex-wife, he had to en­dure psy­cho­log­i­cal re­views (which even­tu­ally de­clared him a fit par­ent). Shimon said that his ex­pe­ri­ence is com­mon and that fam­ily courts should shift to only re­quir­ing psy­cho­log­i­cal re­views for fa­thers with crim­i­nal records or with other clearly ob­jec­tive sus­pi­cions against him.

“Sim­ply get­ting di­vorced should not make some­one a sus­pect,” he said.

Re­gard­ing the ac­tual ex­e­cu­tion of his divorce in the rab­bini­cal courts, he had lit­tle to say. How­ever, his ex­pe­ri­ence was that most of the key is­sues for him re­gard­ing al­imony and child cus­tody were de­cided in the fam­ily courts. Ini­tially in De­cem­ber 2017, he said that the fam­ily court gave tem­po­rary cus­tody over­whelm­ingly to his wife sim­ply be­cause the de­fault un­der cur­rent laws for fam­i­lies with chil­dren un­der the age of six is to give pri­mary cus­tody to the mother. With no ini­tial ba­sis to fa­vor Shimon or his ex-wife be­yond that de­fault rule, the court sim­ply “went based on the de­fault law,” grant­ing his wife cus­tody for 11 out of ev­ery 14 days and giv­ing him only three days. Ex­as­per­ated, he stated, “That makes you more of an un­cle that vis­its a bit than a fa­ther.” Com­ment­ing based on his and other men’s ex­pe­ri­ences, he said that psy­cho­log­i­cal re­views can get drawn out for years and re­ally wear down a fa­ther. Later, he was given al­most equal cus­tody – six days out of 14 com­pared to his wife’s eight days. But he said the over­all “sit­u­a­tion was ab­surd” be­cause he was hav­ing to pay NIS 2,600 in al­imony per month in ad­di­tion to close to equal costs of child care.

Shimon said he would have un­der­stood hav­ing to pay sub­stan­tial al­imony if it was a penalty of sorts for not want­ing more than lim­ited cus­tody, and if the al­imony in some ways re­im­bursed the mother for be­ing stuck with the vast ma­jor­ity of the child care. Also, he might have un­der­stood a court or­der for sub­stan­tial al­imony if he had a much larger in­come and his exwife, by agree­ment of the cou­ple, had mostly been an at-home mom. But in their sit­u­a­tion, where ev­ery­thing was mostly equal, in­clud­ing that he and his wife had nearly equal in­comes, he asked why was he or­dered to pay such sub­stan­tial al­imony.

The only as­pect that lim­ited this unfairness was that he would not have to con­tinue to pay the al­imony af­ter his child reached age six. On the other hand, he said that the only rea­son the al­imony was lim­ited came back to the struc­tural im­bal­ance in which moth­ers had an ad­van­tage over fa­thers re­gard­ing cus­tody and al­imony un­til their chil­dren reached age six.

Why did he ac­cept the court’s of­fer of six days of cus­tody in a two-week pe­riod, plus sub­stan­tial al­imony? “If a judge of­fers you some­thing al­most equal, you for sure say yes… If not, you have to do more tests,” he ex­plained. Cer­tainly there was no point, he said, in try­ing to press the judge about why the pro­posal was not an even seven days and seven days be­tween the par­ents. Re­gard­ing in­con­sis­tency in the courts, Shimon said he knew of much worse cases than his in dis­tricts like

Jerusalem and oth­ers. One rea­son, he said, that his fi­nal cus­tody ar­range­ment was only a bit dis­crim­i­na­tory was that the Tel Aviv fam­ily courts have a rep­u­ta­tion for be­ing fairer to fa­thers. Yet he noted that courts in other dis­tricts rou­tinely gave fa­thers no more than 25% cus­tody of their chil­dren even if all ob­jec­tive eval­u­a­tions of the par­ents were equal.

An­other way he said he was luck­ier than many fa­thers he knows was that he had am­ple counter-proof in writ­ing to dis­prove his wife’s vague and gen­eral char­ac­ter­i­za­tions of him as an in­com­pe­tent par­ent. Shimon said his wife had sent him text mes­sages when their child was sick ask­ing him how to deal with cer­tain sit­u­a­tions and say­ing she was not sure what to do. He was the one who had known how to care for their sick child.

He ad­vo­cates end­ing any de­fault fa­voritism to­ward moth­ers and for new rules that are fo­cused solely on “the best in­ter­ests of the child” in de­cid­ing cus­tody is­sues. Still, he said he ex­pected the Knes­set to even­tu­ally reach a com­pro­mise in which moth­ers main­tain an ad­van­tage in child cus­tody dis­putes for younger chil­dren, but where the ad­van­tage is re­duced from an age six cut­off to age two.

That is from the point of view of the fa­thers.

MOTH­ERS HAVE en­coun­tered a whole dif­fer­ent set of in­di­vid­ual and struc­tural dis­crim­i­na­tion is­sues.

“Elana” (her real name is also be­ing kept con­fi­den­tial) told the Mag­a­zine that the source of many of the prob­lems she and other moth­ers face is the con­nec­tion be­tween the process of ob­tain­ing a get ( Jewish divorce), on one side, and child cus­tody and al­imony is­sues on the other side. Over the years, most women have said that the rab­bini­cal courts dis­crim­i­nated against them in fa­vor of men. They have as­serted that the rab­bini­cal courts of­ten al­lowed men to hold back their con­sent to divorce their wives in or­der to ex­tort the women into agree­ing to un­fair over­all terms.

Although gen­eral progress has been made over the years both in terms of the fam­ily courts tak­ing over more pow­ers from the rab­bini­cal courts and with the High Court of Jus­tice or­der­ing spe­cific re­forms in the rab­bini­cal courts, Elana said dis­crim­i­na­tion per­sists. In her case, she said that the rab­bini­cal courts have al­lowed her hus­band to in­def­i­nitely ha­rass her. She said that four times, in­clud­ing ear­lier this month, her ex-hus­band sued to elim­i­nate his al­imony obli­ga­tions to her based on the ar­gu­ment that she vi­o­lated a com­mit­ment to bring up one of their chil­dren un­der haredi laws and cus­toms.

What is most bizarre about this claim, she stresses, is that her ex-hus­band has al­most never paid his al­imony obli­ga­tions since he was or­dered to by the fam­ily courts in 2010 – and even cur­rently is not pay­ing. She said he cur­rently is around NIS 200,000 in ar­rears. In other words, he is tak­ing her to court not to re­lieve him­self from hav­ing to pay, but just to gain a podium to be­rate her.

Ac­cord­ing to Elana, the rab­bini­cal courts al­low this be­cause they not only fa­vor men, but also fa­vor haredi and re­li­gious per­sons over sec­u­lar per­sons. She said the sys­tem is “so pit­ted against women... a man can do that and he has that power even with no real leg to stand on… He should be taken to court for con­tempt charges… for not pay­ing al­imony… In­stead, I am be­ing dragged into court.”

While she re­mained re­li­gious for many years af­ter she di­vorced her haredi ex-hus­band, at some point she be­came more sec­u­lar. Some of this was a nat­u­ral process that also oc­curred as her chil­dren got older and some of them reached the age where they de­cided they pre­ferred to at­tend sec­u­lar schools and move in that di­rec­tion. As long as the chil­dren were younger, she said that she had tried to keep them on a re­li­gious path as agreed with her ex-hus­band. Yet at a cer­tain age, par­ents must step back and re­spect their older chil­dren’s de­ci­sions, she con­tended.

It was pre­pos­ter­ous for her ex-hus­band to sue her for not try­ing to force her older chil­dren to re­main like him, she said. In­ci­den­tally, some of their chil­dren did re­main haredi so it does ap­pear that dif­fer­ent chil­dren chose dif­fer­ent paths on their own. In any case, even if she had vi­o­lated the re­li­gious up­bring­ing as­pects of the agree­ment, there are High Court rul­ings pre­vent­ing the rab­bini­cal courts from us­ing

such is­sues to in­val­i­date al­imony and other is­sues.

If that is true and the rab­bini­cal courts know that they can­not even give re­lief to Elana’s ex-hus­band, then why do they bother hear­ing his ar­gu­ments – which are re­runs of three ear­lier rounds? Ac­cord­ing to Elana, this proves the sys­tem in­cor­po­rates struc­tural dis­crim­i­na­tion and that the rab­bini­cal courts are only hold­ing hear­ings to al­low her ex-hus­band to ha­rass her.

How has her hus­band man­aged not to pay? Just like many men who with­hold a divorce as lever­age to get their wives to sign onto other un­fa­vor­able terms, she said he pulled the same trick. She said he forced her to sign an agree­ment that made it ex­ceed­ingly dif­fi­cult to col­lect al­imony even as he re­mained tech­ni­cally ob­li­gated. To get him to agree to a divorce, Elana said she had to agree that none of the pow­er­ful co­er­cive mea­sures that fam­ily courts can use would be used on him. This meant she agreed that any ar­rears would only be col­lectible through the stan­dard bailiff’s court process, which is more lim­ited in en­force­ment.

In prac­tice, this meant that the only way she could com­pel her ex-hus­band to pay was to im­prison him in debtor’s de­ten­tion. This was not some­thing she ever wanted to do as it meant ap­pear­ing ruth­less to their chil­dren. Over the eight years and the large debts, she did get him ar­rested four times when she was in dire eco­nomic need, but the NIS 200,000 still in ar­rears makes it clear that she mostly was left un­able to col­lect.

Next, she dis­cussed the idea that women feel that the rab­bini­cal courts dis­crim­i­nate against them and the strat­egy of trans­fer­ring power to what they view as the fairer fam­ily courts. Elana said that there are even holes in this ap­proach. Although in gen­eral terms she agreed she was bet­ter off in the fam­ily courts than in the rab­bini­cal courts, she said her fam­ily court judge barely gave her the time of day.

She said the 50/50 child cus­tody ar­range­ment the fam­ily court or­dered was un­fair since, in prac­tice, her ex-hus­band pays no al­imony. Also, she pointed out that at the time the court is­sued its or­der, her hus­band was the only one work­ing and she had no salary. More­over, there were a num­ber of is­sues with her hus­band’s par­ent­ing, some doc­u­mented by a psy­chol­o­gist, but that “be­cause he isn’t com­pletely crazy” the judge was not in­ter­ested.

Es­sen­tially, she said fam­ily courts deal with such hor­ri­ble and bizarre cases that courts im­pose 50/50 ar­range­ments sim­ply be­cause they do not have the “head space” to sort through cases where the mother just puts much more time and ef­fort into par­ent­ing than the fa­ther. Ad­di­tion­ally, she said that when the cou­ple first sep­a­rated and her hus­band re­fused to leave the house (and was re­fus­ing to grant her a divorce), she was greatly dis­ad­van­taged by the court sys­tem for sev­eral months re­gard­ing cus­tody of her chil­dren. This re­lated to her ini­tial act of leav­ing the house as she was seek­ing the divorce and he re­fused to leave. A closer look at the cir­cum­stances would have spared her months of sep­a­ra­tion from her chil­dren, but the courts did not look into the case’s de­tails for an ex­tended pe­riod be­cause of the back­log of other cases it was deal­ing with.

This is what women say is wrong with the sys­tem at the court level.

HOW DO the sys­tem and at­tempts at re­form look at the Knes­set level?

In Jan­uary, the Knes­set’s joint com­mit­tee re­lat­ing to ed­u­ca­tion and so­cial wel­fare is­sues passed the first read­ing of a range of con­tra­dic­tory bills deal­ing with the is­sue of child cus­tody. On one end are So­cial Equal­ity Min­is­ter Gila Gam­liel and Likud MK Yoav Kisch, who are push­ing for ei­ther com­pletely elim­i­nat­ing the le­gal ad­van­tage for women re­gard­ing cus­tody of chil­dren un­der age six or for re­duc­ing the ad­van­tage to age two. In the mid­dle is Bayit Ye­hudi MK Shuli Moalem-Re­faeli, who seeks only a re­duc­tion to age four, but might ac­cept age three or two if she feels po­lit­i­cally cor­nered. Non-po­lit­i­cal ex­perts from the So­cial Wel­fare Min­istry have rec­om­mended a cut­off age of three.

Fi­nally, women’s groups ad­vo­cate no change to the age six cut­off. Al­ter­na­tively, they rec­om­mend only chang­ing the child cus­tody to women de­fault rule af­ter re­forms they seek are en­acted to make the sys­tem less stacked against women re­gard­ing the is­sue of divorce. Many of the re­forms they ad­vo­cate have been blocked since 2015, when haredi par­ties re­joined the coali­tion govern­ment on con­di­tion that many pro­gres­sive re­forms in a va­ri­ety of is­sues would be held in abeyance.

Lawyer Nitzan Shiloni of the Cen­ter for Women’s Jus­tice told the Mag­a­zine that her or­ga­ni­za­tion “is com­mit­ted, in both ide­ol­ogy and in our work, to con­struct­ing a le­gal sys­tem that re­flects gen­der equal­ity. Chang­ing only one area of fam­ily law as if in a vac­uum, while ig­nor­ing the big­ger pic­ture of a sys­tem that is en­tirely in­equitable, does not achieve equal­ity. In­stead, it fur­ther dis­em­pow­ers women, who are al­ready at a dis­ad­van­tage.”

Con­tin­u­ing, she stated, “As long as the rab­bini­cal courts are au­tho­rized to ad­ju­di­cate fam­ily law, as long as Jewish laws of divorce put men and women on un­equal foot­ing and as long as women are ex­torted into un­fa­vor­able divorce agree­ments in ex­change for a get, it is im­pos­si­ble to talk about ‘equal­ity’ that ben­e­fits only one party in the equa­tion. We wel­come com­pre­hen­sive re­form in Is­rael’s fam­ily law that would en­sure jus­tice and equal­ity for all men and women.”

On the flip side, Shared Par­ent­ing chair­man Guy Raveh told the Mag­a­zine, “Any­one who is fa­mil­iar with the area of fam­ily law” is aware “that the ex­ist­ing laws are ob­so­lete and lead to need­less bat­tles be­tween di­vorc­ing par­ents. Cur­rently, the state views fa­thers as sec­ond-class or an­cil­lary par­ents” both in the law on the books and in the day-to-day strug­gles in courts.

He at­tacked the cur­rent sit­u­a­tion in which “the eco­nomic bur­den of chil­dren un­til age six is solely on the fa­ther. There is no re­view or sort­ing through of the rel­a­tive in­come of the mother. Many fa­thers must work over­time hours and some­times mul­ti­ple jobs,” which in prac­tice means they lose out on time with their chil­dren. The “start­ing point of the dis­cus­sion should be an equal shar­ing of child cus­tody,” with­out which “the best in­ter­ests of the child” are lost in the shuf­fle.

How do you im­prove a sys­tem that has so many con­tra­dic­tory trends and so much mis­ery and counter-mis­ery? No one has found an ob­vi­ous an­swer yet, but get­ting to the heart of the is­sues and be­ing able to lis­ten to both sides can al­ways be a start­ing point.

(TNS)

(Wiki­me­dia Com­mons)

A VERSE from Zechariah in Hechal Shlomo Jewish Her­itage Cen­ter in Jerusalem pro­claims, ‘Ex­e­cute the judg­ment of truth and peace in your gates.’ Fa­thers have com­plained that courts give the de­fault ad­van­tage to moth­ers in young child cus­tody bat­tles and even pre­sume that men make lousy par­ents.

(Marc Is­rael Sellem)

THE RAB­BINI­CAL Court of Tel Aviv. It has been said that rab­bini­cal courts al­low men to hold back con­sent to divorce their wives in or­der to ex­tort the women into agree­ing to un­fair over­all terms.

(Wiki­me­dia Com­mons)

RABBINATE HIGH Court of Ap­peals, Jerusalem, 1959.

(Marc Is­rael Sellem)

SO­CIAL EQUAL­ITY Min­is­ter Gila Gam­liel (pic­tured) and Likud MK Yoav Kisch are push­ing for ei­ther com­pletely elim­i­nat­ing the le­gal ad­van­tage for women re­gard­ing cus­tody of chil­dren un­der age six, or re­duc­ing the ad­van­tage to age two.

(TNS)

(Wiki­me­dia Com­mons)

FAM­ILY COURTS of­ten deal with ‘hor­ri­ble and bizarre cases.’

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