Naomi Chazan
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Not equal, not enlightened, not fair

Shared custody for divorced couples may sound like a good idea but it will hurt women when they're most vulnerable

In the tumultuous atmosphere of Israeli politics, oftentimes the most significant changes take place below the public radar. This is what is about to happen in the most delicate spheres of religion and state and gender equality should the proposed changes in child custody arrangements become law in the coming months. At issue are not just alterations in parental rights (vital to those involved but seemingly of minor general interest in a country overwhelmed by security matters, growing poverty and increased international distress), but in many respects the extent of religious domination over personal status and its consequences for the essential equity of Israeli society.

Much of the struggle for equality in Israel, especially in the past few years, has centered on the position of women in the public sphere. Discrimination against women on buses, attempts to deface the representation of women on billboards and posters, the silencing of women’s voices in official ceremonies and, above all, the ongoing struggle of the Women of the Wall to equal access to holy places have all become the subject of considerable contestation. But in truth, the persistence of gender discrimination in the public realm in Israel is a direct outgrowth of its embedment in the private sphere, where formally women do not enjoy even a modicum of equality in the rabbinical courts which maintain complete control over marriage and divorce.

Any attempt to create equality in parental rights which does not address the fundamental gender inequality that exists in personal status is an abuse of the basic concept of equality: it will strip women of one of the few protections they possess today, it will weaken their position privately and publicly and it will perpetuate the monopoly of religious authorities. In the name of abstract equality, actual equality in Israel will be distorted beyond recognition. The only way to ensure some justice (and to advance a semblance of equality) would be to either separate divorce proceedings from attendant custodial and property settlement issues or, at last, to institute civil marriage and divorce in the country.

The present effort to alter custody arrangements relates to provisions included in the Capacity and Guardianship Law of 1962. In a conscious attempt to somewhat protect women against gross abuse during divorce proceedings, Article 25 grants women virtually automatic guardianship of their children under the age of six (unless proven unworthy to fulfill these duties). In most cases, formal custody is shared, with fathers receiving the right to be with their children twice a week and half the time during Shabbat and holidays. The “Tender Years Doctrine” has become a mainstay of personal law in the country for the past fifty years, providing a buffer—but hardly an ironclad safeguard—for women while separation arrangements are ironed out.

At first glance, this system is demonstratively problematic. By embracing the stereotype of women as virtually sole nurturers of their children, it does little to encourage gender equality in the family. It runs the risk of turning a blind eye to the varying needs of children, especially in their formative years. It potentially ignores the importance of stability and continuity in the life of many children after the separation of their parents. And, ostensibly, in order to prevent undue pressure on women in the divorce process, it may place a not insubstantial financial and emotional burden on fathers.

These legal provisions in what is an already immensely charged climate of family breakdown (which inevitably highlights the conflicting perspectives of both parents) have therefore been the subject of debate for quite some time. As norms began to change, the demands of male rights groups (notably the Coalition for Children and Family and “A” is for “Abba”) began to gain traction. In 2005, Professor Dan Schnitt was appointed to chair a public commission to review the current custody law and to suggest improvements to existing arrangements. The recommendations of the Schnitt Commission were submitted last year to then Justice Minister Yaacov Neeman. These were nothing short of revolutionary: they suggested that the automatic custody given to mothers be jettisoned in favor of the purportedly more egalitarian principle of shared parental responsibility. This transformation was meant to put Israel in the same place as most countries in the democratic world.

Indeed, Israel is one of the last democracies to protect the custodial rights of mothers. It is easy, therefore, to tout the intention to eliminate this bias as yet another sign of how Israel is becoming an integral part of an enlightened global community (which includes, among others, Australia, Canada, Great Britain, the United States, Spain, Denmark and almost all of Western Europe). But these countries, unlike Israel, do not relegate questions of personal status to religious authorities, nor do they condone ongoing inequality in civil matters.

The issue has now come to a head. Last week, the Ministerial Committee on Legislation approved in principle the Justice Ministry’s draft proposal, which adopts the key recommendations of the Schnitt Commission. Tzipi Livni announced that the Tender Years Doctrine would be applied only up to the age of two, while the principles of stability and the needs of the child would take precedence over considerations related to parental capacities (which in the past favored mothers). In fact, Livni’s proposal does not diverge markedly from a private member’s bill proposed by Gila Gamliel, which totally eliminates any initial advantage given to women in custody proceedings.

Women’s organizations have vociferously opposed the proposed legislation, claiming that it could totally disempower women when they are most vulnerable. Some female legislators have been subjected to personal threats—not to speak of public abuse—by proponents of the change. It is far too easy to dismiss this confrontation as another, rather tiresome, repetition of past bouts between male rights activists and outspoken feminists. It is much more than that.

Should the notion of shared parental responsibility—so just in theory—become law, Jewish women in Israel will be stripped of one of the last defenses they have against husbands determined to give them as little as possible during divorce proceedings or unwilling to grant them a divorce at all. In extreme cases, women will be forced to choose between their children and their freedom and wellbeing. Even Solomon wouldn’t know how to adjudicate such cases.

Moreover, the new suggestions do little, if anything, to reduce the stranglehold of rabbinical courts. To the contrary, the inherent disadvantages of women in divorce proceedings will only be exacerbated should the current proposals be enacted, as demands for custody by men could be used to blackmail women to reduce—or even forsake—property or custody claims. Surely, that is not something that anyone determined to promote fairness and justice would want to encourage.

But above all else, the adoption of the suggested recommendations would actually intensify gender inequality in Israel. In situations where the starting point is unequal, insistence on equal opportunities (here: custody) actually increases the resultant inequality. In a counter-intuitive—but extremely accurate—way such a move would, in the name of equality, defy the capacity to achieve this objective.

Equality—in the home, in the workplace, in the public sphere—is the root value of any democratic society. It cannot be irresponsibly invoked to rationalize moves that only deepen existing inequities. In a perfect world, the present proposals make eminent sense. They should be embraced by men and women alike—but only if, as in other countries, civil marriage (and divorce) were possible in Israel. In its absence, the only way to avoid the diminution of women and the constriction of their economic rights would be to make any custody case contingent on the prior granting of a divorce (thus reducing the scope of the involvement of religious authorities in these matters). If this sequence is not inscribed in law, then the suggested legislation must be rejected out of hand. In the peculiar situation of Israel, it is regressive, undemocratic and patently unfair.

About the Author
Naomi Chazan is professor (emerita) of political science at the Hebrew University of Jerusalem. A former Member of the Knesset and Deputy Speaker of the Knesset, she currently serves as a senior research fellow at the Truman Research Institute at the Hebrew University and the Van Leer Jerusalem Institute.