Mommy vs. daddy

[Cello64]

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LAUREN GELFOND FELDINGER, THE JERUSALEM POST

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Half an hour passed and his excitement quickly turned into a sinking feeling. Ofer, a separated father, had arrived early at the playground on one of the three days a week he had visitation rights with his son, and watched a stream of pre-schoolers make their way into the first day of kindergarten, endearing little book-bags in tow.With his son nowhere in sight, he finally entered the principal's office and was told, "Your son is not and was never registered here."

Though he and the boy's mother had agreed to make joint decisions on the boy's education, an agreement mandated by Israel's Capacity and Guardianship Law of 1962, the mother had apparently changed her mind. She wasn't answering her cellphone, so, fighting back tears, Ofer drove from kindergarten to kindergarten around the area in a desperate search. When that failed, he made his way to the Jerusalem Municipality, only to find them on strike. He banged on the door again and again, and eventually a sympathetic worker let him in, checked some papers, and offered a tip on where his son might be registered.

Ofer waited all morning and when school was out, he put his son in the car to take him home for the afternoon. But suddenly the mother showed up and opened his car door and screamed, "Stop pushing me, you wife-beater." A crowd gathered, the police showed-up, and, says Ofer, there was an automatic presumption that he was guilty - because he is a man.

"Though it was the first time she had ever made such an accusation, they treated me like I was a bad person, like every father after divorce is a potential murderer," he says. "They took my gun (that I use for protection when work takes me to the territories) and the courts, without an investigation, prevented me from seeing my son."

The presumption of the state, the police and society, he says, is that "men don't have hearts; don't have feelings. We are just cash machines for child support, but our human side, our love and dedication to our children is not important."

Though Ofer says the courts eventually dropped the abuse case against him, the issues remain: He is traumatized by unfair laws and practices that keep him and his son apart, and his ongoing struggle to see his son as much as possible without obstacles continues. Though his battle is a personal one, there are thousands of men across Israel like him, working with divorce lawyers and affiliating with a new crop of men's rights organizations that are trying to bring the issues of divorced and separated fathers to public attention.

These fathers and activists argue that the law, as well as the public, is gender-biased in favor of mothers and against fathers, and that mothers are taking advantage of the law. This not only hurts fathers, they charge, but more important, it hurts the children.

COMPARED TO other western countries, the Israeli fathers' movement is relatively quiet and, some say, behind the times.

Fathers-4-Justice, a largely European group, has made headlines over the last year for stopping traffic. In a public awareness campaign launched in 2004, members dressed as Superman, Batman, Robin and Spiderman climbed a suspension bridge in England at rush hour, flailing a banner reading "Superhero Fathers 4 Justice Fighting for your right to see your kids." The organization apologized to backed-up commuters for denying them access to the bridge, stating in a press release that like the commuters, "thousands of fathers are denied access to their children every day by this country's archaic family laws."

In 1979, the Hollywood film Kramer vs. Kramer highlighted the subject of gender bias in the courts through the re-telling of a real-life, precedent-setting case. Though the movie won numerous awards, law professionals said the film exaggerated the legal issues, which had already been partly and previously redressed in the courts.

The US and many European countries have already reconsidered the legal benefits granted to mothers after divorce, in favor of gender-neutral language that gives both parents equal legal opportunities. But even in these countries, men argue that mothers are still overwhelmingly, and often unfairly, granted rights denied to fathers.

In Israel, by contrast, the public outcry over such issues has been more like a squeak.

Last month, the Israel Fathers' Rights Advocacy Council sent announcements to its 8,000 members to flood the Kfar Saba Family Court for a mass public protest against gender-biased custody laws. But only about 10 people showed up.

"People need to work, or are in reserve duty, or simply don't have the time or money to travel to protests," explains Ya'acov Schlosser, the head of the organization and author of Zchuyot hagever b'mishpaha? ("Men's Family Rights?").

Launched in 1987 as Israel's first public awareness group on fathers' rights, IFRAC later re-focused its attention on the Knesset, "where there is electorate strength," says Schlosser. "The laws are bad, this is a feminist country, and the rabbinate, the family court, the police, and everyone are against men. Men are not protected in the legal system."

In 1997, in hopes of reaching the Knesset from within and not just as a lobbyist, he helped launched the IFRAC-affiliated Ra'ash Party - a Hebrew acronym for rayon ha shivion, ("the idea of equality") and a double-entendre on the word ra'ash, or noise. But when the single-issue party ran for the Knesset in 2003, it didn't even get a foot in the door and was soon forgotten.

Today the party and the council work together, and with 100 activity advisers around the country, provide social, emotional and legal support to members. One member admitted that his inability to spend time with his daughter, on top of losing his wife, and spending most of his time and money fighting a losing custody battle, has caused him to have suicidal thoughts, which organizations like IFRAC have helped him keep at bay.

"The Internet, the information and chat rooms have served as a good support base for me and others," he said.

"Here in Israel, the 25 percent divorce rate went up to about 33%, and there are also many separations, and about one-fourth of all of these men have problems with their wives," explains Schlosser. "Women prevent joint-custody, or even prevent men from seeing their children. Men have to pay child support even if the women are millionaires and the husbands are unemployed."

One divorced father said he pays NIS 2,000 a month in child support of his NIS 7,000 salary, and that it is nothing compared to his friend who pays NIS 4,000 a month from his NIS 5,000-a-month salary.

"It's totally arbitrary," he says, "judges can figure a man should pay about NIS 2,000 a month per child, regardless of whether the child spends half the time at the father's house, and regardless of whether the father is not left with enough money to live."

IFRAC executive committee member Gary Pickholz invests a lot of his time raising funds overseas to provide financial assistance to fathers who spend all or most of their primary salaries on child support and can't afford legal fees or even taking their children out to a movie.

IFRAC provides such fathers with basic spending money for visitations and to cover exorbitant lawyer fees in Supreme Court legal motions against judges they say failed to apply the law, or in appeals cases against "false testimony of wives."

"It is almost impossible to afford lawyers' fees for appeals, so wives lie with zeal about the couple's income to secure higher judgments," charges Pickholz.

IT IS true that fathers are not normally granted shared custody in Israel, and it is the basic obligation of fathers to pay child support, admits Jerusalem family practice lawyer David Ernst.

"The system does not favor fathers and husbands," he says.

While the civil court does look at the parental qualifications of both mother and father, the rabbinic court can be stricter than the civil court on husbands, he says.

"I have a case where a man waited 20 years to get a get (bill of divorce). The law in Israel is based on fault, or guilt. If you didn't do anything wrong then there is no divorce, the rabbinic court won't force it. In this case, the wife said 'no' to the get, and after 20 years, he gave up his half of the house, his half of the car and paid her $100,000, and then she agreed to accept the get. The husband has to get a heter (permission) - if 100 rabbis sign an agreement, then the husband can marry again."

In contrast, the problems of women in the courts, he says, are much more well-known.

What distinguishes Israeli marriage and divorce law from those in other western countries, says Ernst, is the relationship between civil law and Jewish law.

Prof. Dov Frimer, a rabbi and lawyer currently teaching family law at Hebrew University, concurs, explaining that Israel's relevant laws - the 1962 Tender Years Doctrine of the Capacity and Guardianship Act - are based on Halacha.

"Israeli law places emphasis on obligation, and that comes directly from Jewish law. Judaism is a duty - not rights - oriented system. This is opposed to American law, which is based on Roman law, which is rights-oriented. An Israeli father has visitation rights because he has an obligation to care for and educate his children," says Frimer.

"But the fundamental doctrine in Jewish law is the 'best interest' of the child. This concept was introduced into Anglo-American law only in the 1800s. In Judaism, it goes back to Talmudic times, 1,000 years earlier."

In Jewish tradition, mothers are considered the best care-givers in most circumstances until age six (the basis for the Tender Years Doctrine). After that age, girls are considered better off with their mothers and boys with their fathers. These concepts can, however, create a conflict between the best interest of the child and rigid gender presumptions.

The sages responded to this potential conflict, says Frimer, by ruling that the guiding principle is the best interest of the child, but if parents are equally qualified, "then the Tender Years Doctrine principle or the gender presumption is the tie-breaker." In local civil cases involving Christian or Muslim parents and children, the courts may also look to Christian or Muslim Sharia Law.

As a rule, though, if a mother and father are considered equally good parents, and the mother does not encourage joint custody, she will be awarded full custody, and the father will be awarded visitation rights.

Joint custody is not an Israeli legal concept, says Frimer, explaining that Israeli law distinguishes between "guardianship" and "custody." "All the legal rights and obligations that parents have towards their children are within the concept of 'guardianship,' and that - by Jewish and Israeli secular law - is shared. When Israeli law talks about 'custody,' however, it only means physical custody: where the child is going to be sleeping and eating on a day-to-day basis, etc. In terms of Israeli law, the only issue is how much time each parent gets to spend with the child."

A lot of fathers do not understand this distinction, he says.

"The law will protect them if they exercise their legal rights. There is very little more the law can do because on a legal level, the father is a full partner in decisions that include education, health, welfare, where the child lives, where the child goes to school, all major decisions have to be made equally. There is a practical problem if the child lives more with one parent than the other, but that is indigenous to divorce."

This concept of guardianship is radically different from that of the US. In the US, Frimer says, the original concept of joint custody was the maintenance of three households, one for mother, one for father, and one for children, and the parents shuttled back and forth, not the child.

"Because the kids need stability, it was very successful, but very, very expensive. Most people could not sustain three households, so instead of parents, the kids started shuttling back and forth," says Frimer. "Most psychologists that I speak to say that is not so great for the kids, because they need a certain degree of stability, and that's also the opinion of the Israeli judges."

But fathers are not quick to agree.

"We're not the men of long ago: I raised my son and when he was sick I stayed home with him," says Ziv, a divorced father.

"But now I'm always afraid they'll take away the limited time I have with him. It doesn't matter how good a father I am, the woman gets automatic guardianship [unless she's violent, criminal, negligent, has a drug addiction, or is found physically or mentally unstable]. The law and the social workers still base their values on old-time men. It's true some men don't pay child support and some men don't want to be guardians. But why not start the law from a 50-50 basis?"

Court-appointed social workers and psychologists help judges determine how fit fathers and mothers are. Courts usually take the findings and recommendations into consideration, but they are not obliged to do so under the law, and may occasionally put them aside, says family practice lawyer Louise Borochov.

A 1983 study by Hebrew University professor of social work Eliezer Jaffe found that the Israeli social work world placed a lot of emphasis on women and mothers; and fathers were often overlooked. Today, it doesn't seem as if very much has changed, he says, after 40-plus years in the child welfare field.

"Social workers and psychologists need to know more about the problems of fathers and need to look at fathers as a subculture. Fathers are neglected and forgotten clients, but they are part of the family." Social workers in Israel, he adds, are overwhelmingly women treating women.

"It may be subconscious, but dads are very often left out of the decision making and treatment plans."

IFRAC raised funds to pay a psychologist to help train municipal social workers assigned to divorce cases. The organization also recently paid for the Ra'anana Municipality to hire a religious social worker, after discovering that all the Ra'anana social workers were secular while a large portion of the clients were religious and had specific concerns the social work staff was not familiar with.

AT THE root of the legal issues facing judges, social workers and psychologists are the fundamental questions: What is in the child's best interest and is a mother, by definition, a better care-giver?

"Though the 1962 law... gives built-in preference to mothers for custody of children under age six, there is a slow tendency for that to be challenged. Previously, it was challenged only if the mother was not a suitable parent, because of extreme circumstances - that she was a drug addict, a whore, or not physically or mentally able, for example," says Borochov.

But in an August 2004 case in Kfar Saba, a judge took the recommendations of a report and transferred custody from the mother to the father, because the father was found to better meet the physical and emotional needs of the child. The mother was not involved in any outrageous behavior, except that she did work almost all the time and the child spent most of its time with babysitters. The mother was also found to be a high-conflict person who sometimes put the children in the middle of the battles with the father.

This is not a binding precedent because it was not a Supreme Court ruling, but, says Borochov, it shows "slow recognition" of change.

In extreme cases, where children are being severely "poisoned" against the non-custodial parent to the point that they completely reject this parent, the court may even define the custodial parent as inflicting emotional abuse on the child and reconsider custody (see box).

The same holds true in abduction cases. But across state and national boundaries, the tangle of laws becomes even more confusing, and lawyers' fees even more expensive.

WITH THE help of disgruntled fathers' and men's advocacy groups, such issues have been heard by legislators in recent years, in an effort to knock-down the controversial Tender Years Doctrine.

In 2003, Justice Haim Porat of Tel Aviv's District Court, who has since retired, petitioned the Supreme Court to do away with the Tender Years Doctrine based on the argument of equality. Justice Dalia Dorner handed down the decision rejecting the petition, arguing that psychological studies were consistent with Israeli statutes, that the child until age six is presumed to be better off with the mother, except in extreme circumstances.

"Without shame, the court quotes psychological research that is 23-24 years old," charges Attorney Amir Shai, head of legal services for "Horut Sheva," an equal parenting advocacy association established in 2000. Though the organization is small, it is considered influential and meets regularly with Knesset members to lobby against the premise that a young child of divorce needs its mother, and for the principle that a child of divorce needs both parents.

"Fathers should be allowed to participate in raising the kids through equal time, or at least 30-40%, including overnights from an early age," says Shai. "Children sleep at the homes of grandparents and in day care, and there is no psychological research that says kids have to be in the same bed every night."

Such issues made their way to the Knesset on January 23, when the Knesset rejected a first reading of a bill to delete the Tender Years Doctrine, with some 40 against and nearly 20 for, says Shai.

"This time, the government opposed on the grounds they need a committee to evaluate [the issue]," he says, explaining it is a move that is cause for cautious optimism.

"There will be reforms, but the question is, how far will the reforms go and how long will it take?"

According to Shai and an official source, two new Knesset committees have already been approved in the wake of the January decision. Apparently, one committee to review custodianship has already been formed but has yet to meet, and another committee to review child support issues is in the process of being formed.

The Ministry of Justice did not reply to requests for confirmation.

MEANWHILE, AS legislators and advocates continue their debates, Ofer, unaffiliated with any group, is still trying to make sense of his rights and recover from what he calls an endless series of injustices.

After his wife moved his son to a different kindergarten without permission, and the court, as a result, gave him the power to decide where the child would go to school, he didn't move his son after all, in an effort to avoid hurting him. But now when he comes to pick him up and asks the teachers questions, he says, "Many act like, 'that's the mother's business; not yours,'" he says.

He also doesn't understand why it was so easy for his wife to accuse him of violence and why he was penalized before the investigation.

"Violence starts with something small, like a slap. I have never hit her back when she hit me and I consider slapping a form of physical and emotional abuse," he says. "Today I was in court and I told them the latest things she was up to; the judge said, 'ok, we'll schedule a hearing.' But he was cavalier; if it was reversed, the whole police force would be after me."

The worst thing of all, says Ofer, is the constant fear of not being close to his son and wondering how it will affect the child.

Last Hanukka, his wife called suddenly and said his son was sick and couldn't spend the holiday with him. Ofer says this also happens periodically on visiting days. Now, with Pessah and a visiting day fast approaching, he feels anxious about whether it will work out.

"When she calls and tells me he is sick, I never know if it's true. When I'm away from him, for even one week, I feel every minute of every 24 hours, but she's the mother; she has the freedom to decide," he says. "Divorce should be just between the parents, not between a parent and a child."

Parental alienation
It's not just considered a spat between ex-spouses. There is a name for the phenomenon in which a parent influences a child to hate, fear or reject the other parent without grounds. When American psychiatrist prof. Richard Gardner coined the term Parental Alienation Syndrome (PAS) almost two decades ago, it quickly caught on in legal and psychological circles. PAS has even been cited in Israeli case law in recent years.

Gardner defined PAS as a childhood disorder that arises almost exclusively in the context of child custody disputes.

"PAS may not only produce lifelong alienation from a loving parent, but lifelong psychiatric disturbance in the child," he writes, adding that this should be distinguished from true parental abuse or neglect, when the child's animosity is justified.

Gardner's work has been controversial in some circles, because he found that in the vast majority of cases, it was the mother who was doing the "brainwashing" against the father. In 2001, he explained: "My own observation since the early 1980s has been that in 85-90 percent of all the cases in which I have been involved, the mother has been [alienating the child against the father]. I recently conducted an informal survey among approximately 50 mental health and legal professionals whom I knew were aware of the PAS and deal with such families in their work. I asked: What is the ratio of mothers to fathers who are successful programmers of a PAS? The responses indicated that mothers are the primary alienators in 60-90% of the cases. Only one person claimed it was 50-50, and no one claimed it was 100% mothers."

In Israel, behavior defined as PAS is frowned upon by the court.

"It stops the children from having two valued parents in their lives," says adv. Louise Borochov. "There are extreme cases where as a result, a parent has lost custody. There was one very extreme case where a child suffered so badly [from PAS that] the court was afraid he would commit suicide... in such cases you can't [immediately switch custody]."

In all custody battles, the custodial parent's ability to recognize the legitimate role of the other parent in the child's life is always a major factor.

"It's important for the parent to recognize the child should have an ongoing relationship with both parents to develop emotionally," she said.

The court also takes this into consideration when a parent abducts his or her child to another jurisdiction. Seventy percent of "kidnappers" are mothers, charges Hebrew University professor, rabbi and advocate Dov Frimer. One lawyer explained that abductions and parental alienation are committed by both parents, but seem to be documented as being perpetrated more by mothers, since mothers are usually the primary guardians.

[justlaura]

That is quite a sad but interesting article, Kristine... thnks for posting it. Are you aware of Andrea's huge efforts on the part of Crescere Insieme? (http://www.andreabocelli.org/crescere.html)

[kbarham]

How sad life can be sometimes.

[Cello64]

That is quite a sad but interesting article, Kristine... thnks for posting it. Are you aware of Andrea's huge efforts on the part of Crescere Insieme? (http://www.andreabocelli.org/crescere.html)

Hi Laura-

You're welcome. Unfortunately, divorce is a very bitter experience especially if children are involved. I was aware of Andrea's devotion to Crescere Insieme and had that in the back of my mind when I was reading this article in THE JERUSALEM POST.

Let's just hope our legal system moves forward to protect the interests of children in the future. It is sickening to watch divorce attorneys getting rich as parents duke it out in the courts. I think I wound up buying my divorce attorney a Ferrari and there were no children to haggle over!!!!

Thanks for the link to Crescere Insieme.

Warmest regards,
Kristine