by Tzvi Szajnbrum, Attorney at Law
Who has Custody of the Children?
Background:
Mr. and Mrs. Smith lived together for 13 years, had two children together, but never actually married each other.
After 13 years they decided to separate. As a result, the “wife” sued the “husband” asking for custody of their two children. After a while, the couple decided by consensus to erase the lawsuit.
Only few months after, the wife became sick after surgery, eventually causing her death. When the mother became sick and incapable of taking care of the children, the father asked the court for custody but before a decision was issued, the mother died.
The children were living with their aunt (their mother’s sister) before and after their mother’s death. They were now “De Facto” under the aunt’s custody but not “De Jure”. She now wanted the legal (De Jure) custody.
The question before the Honorable Judge Asaf Zagury from the Nazareth Family Court was: Should the children be physically moved to their father immediately or temporarily stay (eventually permanently) with their aunt? This was the dilemma in the case due to mutual accusations between the father and the aunt.
The Social Workers:
After a few urgent hearings and detailed testing conducted by the social worker appointed by the Judge, the social worker concluded from the children’s behavior as follows:
“Apparently there is incitement of hatred against the father (by the aunt) and they are torn between the aunt and her family, and the father. For example, it appeared that the minor l. b. held telephone conversations with his father from his school without the aunt’s knowledge, which I concluded was prohibited by the aunt”.
“In spite of the father‘s mental condition (PTSD), he was certainly suitable to function as a father and apparently was a good father”.
The Aunt:
The aunt claimed that the minors were not willing in any way to live with their father; she claimed the father was a miser who evaded his obligations towards the minors, including health insurance funding. She noted that the mother’s unwritten will stated that she, the aunt, continue to raise the minors and that she was willing to do so. She noted that the minors are like her biological children, she is capable of satisfying all of their needs and she was able to take care of them.
The Father:
The father claimed during the hearings that he has all the conditions to raise the minors; he also claimed that he lives in a spacious house and that he has free time to take care of his children. The father believed that the aunt was poisoning the minors against him and he also claimed that during the common life with the mother (now deceased), he was the one who brought up the minors; therefore he has the ability to manage the household.
The Law:
Parents (as guardians) have the duty (obligation) and the right to guardianship to take care of the needs of the minor, including his education, studying, training for work, as well as saving his assets, and with these rights and obligations they also will have the authority to custody and to choose the place of residence.
By law, when one of the parents dies the court can appoint another guardian besides the remaining parent as an “extra guardian” or even as a replacement for both the parents (rarely done).
The Decision:
In an eleven page decision, the Honorable Judge Zagury decided to return the children to the father.
He also added that the father should let the children see the aunt and her family on a regular basis.
In addition the Judge wrote:
“I order (oblige) the father, the aunt and the members of her extended family to cooperate with welfare authorities, to ask what are the messages to be sent to the children and implement the instructions they receive from the social workers and the welfare system (in this context regarding both child custody and the transfer of the minors to the father).
A word of Wisdom:
This, like many other court decisions, is a utopian decision where an acting Judge sitting in a court room far from the family, “orders” them “to behave and cooperate”. Worse is the fact that the Judge is hurting the already very weak parental authority of the father by transferring it to the social workers.
In my opinion, these “instructions” should not be in any court decision ever. If it was easy and possible for the sides to have a normal relationship, seeking the best interests of the children, this case would never be judged; the problem would have been resolved in a civilized way by the contenders themselves.
What Should You Learn from this Case?
It is almost impossible to win a case when the best interests of the children are not the main goal and purpose of the legal battle. The contender’s sides are less important than the children – they are the only relevant side in a case regarding custody.
This case could have ended differently if the aunt and her family would have behaved in a more civilized way, but she chose emotions over reality.
If you ever have to fight for custody of your children, the first step, long before starting the case, is to consult with a professional in the field of education and psychology. You must learn how to present your case not only from the legal aspect but also show the Judge that you are a loving and caring parent. Yes, it is also a “show” where you are the actor. It is all about presenting the case from the human aspect with a strong legal basis.
Even better is not to fight in court but reach an agreement outside the court. It will cost only a fraction of a custody case and no one will be seriously hurt.
