August 5, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
On its face, this article describes little more than the usual sort of injustice meted out daily in family courts (Israeli National News, 8/3/15). The differences between it and countless others are that (a) the case occurs in Israel and (b) oddly enough, it casts light on the history of child support law in this country.
An Israeli mother filed for divorce from her husband, the father of their two children. As soon as the two separated, she went to live with her mother and cut off virtually all contact with the children. That appears to have been simply her acknowledgement of a fait accompli. The children didn’t want to live with her, so they’ve spent almost the entire time since their parents’ separation with their father.
The court, apparently in an effort to encourage a more meaningful relationship between the children and their mother, entered a shared parenting order. But the kids remained almost full-time in their father’s care.
Despite that, the judge entered a child support order based, not on the reality of the parenting time used by each parent, but on the time specified in the order. That means the father has been paying the mother child support for kids she rarely sees and toward whose support she pays nothing. In short, the father pays all the kids’ expenses because they live with him and he pays “child support” to the mother. In other words, he’s sending money to her not to pay his share of the kids’ upkeep, but to support her.
(This of course will sound familiar to many non-custodial parents in the United States. Here, those parents regularly complain that money paid to the custodial parent doesn’t necessarily go to the children. Parents who pay large sums every month but see their children poorly dressed, dirty and undernourished rightly wonder where the money is going. They argue that there should be a way of ensuring that the money is spent on items for the children and point out that, for example, the food stamp program has always required the money to be spent on food and related necessities. Given that, they say, it should be easy enough to require that child support be spent on children.)
Inbar Lev is the father’s attorney. She’s none too happy with the judge’s decision and plans to appeal.
Despite this, the wife sued for joint physical custody over the children and for child support — a demand that Lev called “unreasonable,” because “it enables the mother to continue to live at the father's expense without justification.”...
Lev claimed that the father cannot force his children to be with their mother and that they are the ones who decided to see very little of her. Therefore, she said, the court-ordered parenting schedule “is no more than a desire of the heart and certainly is [not] implemented in reality.”
She added that in the absurd situation that has resulted, the father is paying the mother child support, supposedly for the children, while at the same time paying in full for their livelihood. She demanded that the child support payments cease and that the father be reimbursed for funds already paid. In addition, she demanded that the state child allowance, which is currently paid completely to the mother, be transferred to the father.
That’s right, in addition to “child support,” the mother also receives the state child allowance for children who don’t live with her and whom she doesn’t support. You’d think there’d be some sort of penalty for collecting amounts from the government to which one is clearly not entitled, but if there is, the article doesn’t mention it. Attorney Lev intends to try to fix that astonishing injustice as well.
That bring us to the article’s history lesson.
According to Jewish law (Halacha), only the father is obligated to pay for his children's expenses. However, Jewish law also gives the father advantages over the mother in division of property, and determines that boys over the age of six will be in their father's care, while girls usually remain with their mother. Halacha also gives men more rights than women in inheritance, yet determines that a man divorcing his wife must pay her a sum specified when they were wed, in a document called the ketubah. Thus, a balance is achieved between the unequal rights and obligations of men and women.
However, modern secular courts in Israel have done away with the advantages and rights that Halacha gives Jewish fathers and men — while still saddling them with their exclusive obligations, and even widening these further. Thus, in the secular courts, children of both sexes and all ages go automatically to the mother's physical custody.
Even if the father is awarded equal parenting time as the mother, “his” days are usually called “visitation” while the mother is deemed to be the custodian. This is perceived as justifying the flow of child support to the mother.
There is no limit to how much of a father's earnings can be taken for child support, and even disability allowances are routinely garnished to this end.
At the same time, all male advantages in property division have been done away with in the name of equality.
Governmental committees that were set up to try and determine more egalitarian rules regarding custody and child support have met stiff opposition from women's groups, which have torpedoed them for years on end.
So, in the past, Israeli fathers were obligated to support their kids, regardless. But the law made up for that by granting them certain concessions in the division of property and the placement of sons with fathers. But then all that changed. Pardon me, some of that changed.
What changed was all to the benefit of mothers and the detriment of fathers. Property dispositions were made gender neutral, but now fathers lose their kids when Mom files for divorce and the obligation of support remains with Dad. For him it’s a lose/lose/lose proposition. For her it’s the opposite.
Needless to say, that’s just the way those “women’s groups” referred to by the article like it. They’ve successfully blocked any sort of reform that might give children an opportunity to maintain real relationships with their fathers but would reduce the cash flow from fathers to mothers.
Now, what’s interesting about this story out of Israel, apart from its outrageous facts, is the similarity of the history of Israeli law to that of the U.S.
Back in the 19th and early 20th centuries, when parents divorced, fathers routinely got custody of the children. As we know now, that wasn’t good for the kids who benefit from real relationships with both parents irrespective of whether they’re divorced. But the virtue of that arrangement was that it agreed with other law.
Back then, families were perceived of as pretty much indissoluble units and the male heads thereof were the ones to pay the bills. Wives and mothers generally had no obligation to pay the family expenses, regardless of how much money they had. Indeed, a married woman could run up quite extensive debts and not be required to repay a penny. Creditors went to her husband for satisfaction and he was legally bound to give it.
In England there was even a law requiring merchants to provide goods and services to married women on credit. If she went to the fishmonger’s for that evening’s dinner, he was required by law to simply give her the goods on credit and seek payment from her husband. Again, she had no legal obligation to pay.
Therefore, since fathers were required to pay the expenses of their children’s upkeep and mothers were not, it made since for dads to get custody of the children in the event of divorce.
Feminist groups didn’t like it. So they persuaded lawmakers to enact statutes reflecting the Tender Years Doctrine that held that children under a certain age (usually seven) would automatically live with their mother. But, just like in Israel, that change of the right of custody didn’t also entail a change in the obligation of support. Those laws expanded mothers’ rights while leaving fathers’ obligations where they were.
And of course, by maintaining the tradition that the child lose at least one parent in the divorce, the Tender Years Doctrine made no improvement in children’s outcomes. They were still traumatized by divorce.
Israeli law and that of the U.S. are significantly different animals. So it’s interesting how similar are their histories of child custody and support, how both contrived to turn fair systems into unfair ones and how mothers ended up with superior rights and fathers with superior duties.
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