Grandparents Rights – Adoption & Custody

by Tzvi Szajnbrum on April 8, 2010

by Tzvi Szajnbrum, Attorney at Law

The Rights of Grandparents – Adoption and Custody of their Grandchildren

General

The position of the grandmother, grandfather or both, in adoption or custody proceedings – Israeli law does not automatically give a grandmother or grandfather any advantage when it rules on adoption of a child or appoints a legal guardian (awards custody). We will, herein, further examine the various possibilities and stand up for the rights of the grandparents.

The Guiding Principle

The courts place great weight and recognize the importance of children growing up with their biological parents and immediate (nuclear) families. In principle, they regard raising children by their grandmothers or grandfathers as secondary to the original, immediate families. On the issue of adoption or custody, the main concern is for the “good of the child” and the rights of the grandparents are subject to this central principle. The “good of the child” is an intangible, subjective concept and in reality, depends on the viewpoint of the judge who rules on the case.

Do the parents of the parents of the children have any rights to their grandchildren?

  • The rights of the grandparents to raise their grandchildren in place of the biological parents, in the event that one or both of the parents is deceased, namely their son or daughter, is unable to fulfill the role of parent.
     
  • The right to visit and maintain their relationships with their grandchildren – visitation rights and continuity of the relationship between the grandparent/s and grandchildren, in the event that either or both of the parents have lost custody.
     
  • The right to raise the grandchildren when the parents do not want a relationship between the grandparents and grandchildren.
     

Israeli law has two ways to legally establish the position of the grandparents as “parents” of their grandchildren and this is by legal adoption, according to the Child Adoption Law, 1981 (Chok Imutz Yeladim, 5741) or guardianship. The legal ramifications of adoption are to sever existing ties between the minor and his/her biological parents and establish a committed legal relationship tie between the adoptive parents and the minor. The adoption process, concerning the matter at hand, results in abrogation of the rights of the parents, whereas the grandparents are awarded all the rights given to parents. The adoption process is relatively complicated and involves social welfare authorities and various therapists and the process ultimately results in adoption in only three cases:

  1. Upon Consent: The biological parents of the minors consent to the adoption of their children.
     
  2. Unfit Biological Parents: When the parents of the minor are found to be unfit to care for their children, or when they abandon the children. This is subjective and often turns the process into a veritable “World War” for all involved. In my opinion, it would be far better if the widespread legal system in Israel would be less paternalistic so that the courts would take a less active role and not interfere as much in these cases.
     
  3. In Case of Death: In such a case, the court will allow the grandparents to express their opinions regarding adoption of their grandchildren. However, there is no certainty that they will automatically be awarded custody or allowed to adopt their grandchildren.
     

Legally Appointed Guardian

Appointing a legal guardian is a much more flexible and multifaceted process than the adoption process, since the guardian does not sever the relationship between the grandchild and his natural parents. The legal status of the child`s parents does not change, as long as the grandparents are appointed the guardians of their grandchild, in addition and as a complement to his/her natural parents.

When is a legal guardian appointed?

As I pointed out before, the court is authorized to appoint a legal guardian to the grandchild in a wide variety of cases such as: in case the child`s parents died or if they cannot function as parents, which brings the court to conclude that the good of the child requires appointment of an additional guardian, alongside the natural parents. There could be limitations on the guardian, such as limiting his/her rights only regarding the property of the minor or for a limited period of time. Of course, the court has the right to supervise the guardianship.

The rights of grandparents who immigrated to Israel with their grandchildren and without the biological parents

The waves of immigration in the 1990`s brought many children to Israel without their parents, some of whom are in boarding institutions (such as – Naale, under the auspices of the Ministry of Education and Chalom, under the auspices of the Jewish Agency) and some of them live in the community in various programs, such as children living with their grandparents, whose parents are not in Israel, or who have no parents, or were abandoned. These families are up against legal and bureaucratic obstacles that delay assistance and rights (Guardianship legally appointed abroad is not valid in Israel, inter alia, due to suspicion of forged documents). The process of appointing a legal guardian in Israel is lengthy and can take between a year to a year and a half; the lack of grandparents` guardianship for their grandchildren interferes with getting a stipend for the children and at times even affects how much assistance they`ll get from Guaranteed Minimal Income benefits (Havtachat Hachnasa); likewise, the classification of a “single parent family” under the Single-Parent Family Law, does not include a legal guardian and therefore, these families are not legally recognized as single-parent families and do not receive the rights to which they are entitled according to this law. Nevertheless, it should be noted that in certain cases these families do get recognition as “single-parent families” and receive assistance, accordingly.

Principles of the assistance given to those families

Ministry of Absorption (Misrad Haklita)

In the event that the child is entitled to make Aliya according to the Law of Return, the Ministry of Absorption registers him/her on the Immigration Card (Teudat Oleh) of the grandparent and gives them more aid accordingly, as is given to a single-parent family. In cases where the child is not eligible according to the Law of Return to immigrate to Israel – the Ministry of Absorption issues a temporary order regarding “The Rights of the Accompanying Children of Immigrants” (Zakaut Yeldey Olim Nilvim), according to which a child under the age of 18 (not including age 18) that immigrated with his/her parent/s (including his/her grandparent/s) that have the status of Olim, will be given “permanent resident” (toshav keva) status by the Ministry of the Interior, or the status of “temporary resident” (toshav ara`i) and his/her family will be granted the right for an Absorption Basket (sal klita) as a single-parent household.

Housing Ministry

The aid given to single-parent immigrant families is particularly high in comparison to other categories of eligibility.

  • Help with rent: In the event that the grandchild is registered on his/her grandparent`s Immigrant Card, the Ministry of Housing will automatically regard them as an “Immigrant Family” (Mishpachat Olim) and in order to get increased help as a “Single-Parent Household,” they must go to the Exceptions Committee (Va`adat Charigim) in the Ministry.
     
  • Help with mortgages for buying a home: Even in matters of assistance in buying a home, there is consideration for the grandfather/grandmother who immigrated to Israel with his/her grandchildren as an “Immigrant Family” and in order to get more aid as a “Single-Parent Household”, they must go to the Exceptions Committee.
     
  • Public Housing: A grandparent who immigrated to Israel with his/her grandchildren is entitled to public housing, even if they are not the legally appointed guardians of the children.
     

Ministry of Social Welfare

The Ministry of Social Welfare, together with the local Social Welfare Office and welfare clerks, is able to help the grandparent/s who immigrated with their grandchildren and filed for legal guardianship (as stated, legal guardianship from abroad is not valid in Israel). The Ministry`s assistance is given in the form of legal counsel and seeing the cases through, by the welfare clerks responsible for checking out applicants for guardianship and submitting recommendations on their behalf to the courts.

Old Age Stipend, Surviving Relative Stipend and Guaranteed Minimal Income

In order to receive the aforementioned stipends and get assistance for the grandchild, according to the law, there is no need to establish legal guardianship, save for meeting the criterion of being the sole supporter.

Children’s Stipend, Stipend for an Abandoned Child

An “abandoned child” is eligible for National Insurance benefits – An “abandoned child” is classified as “a child whose parents abandoned him/her in Israel and only if one of his/her parents is an Israeli resident, or if he/she is a child whose parent who is an Israeli resident abandoned him in Israel and his other parent died, does not live with him and is permanently barred from fulfilling his role as a parent to the child, or is missing, as long as neither the National Treasury nor local authority do not support the child.” In other words, for the child to be eligible to get the Abandoned Child`s Stipend (Kitzvat Yeled Natush), one of his/her parents must be an Israeli resident and cannot be getting any government support. If the children do not fall under the “abandoned child” category, the family can get increased assistance from Guaranteed Minimal Income. (From a document of the Center for Research and Information, the Knesset site.)

Summary

Each case must be examined on an individual basis and in cases where the general interest (including the good of the child, of course) allows for adoption of the grandchild by the grandparents, the authorities will allow this under these or other conditions.

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