Israeli Opposition Knocks Down Contentious Joint Custody Bill in a Rare Political Win

According the contentious bill, children of divorced parents will not be automatically given to the mother.

Israel's opposition won a rare political win in the Knesset Wednesday after a bill to revoke the “tender-years clause,” according to which children over the age of two will no longer be automatically given to their mother’s custody in divorce cases, but rather put under joint custody, was defeated. This is a significant failure for the coalition, since the government had decided to support the new law. Forty-two MKs opposed the bill and 41 were in favor.

Minister for Social and Gender Equality Gila Gamliel, who tabled the new law during the previous Knesset term, was furious at her coalition colleagues when the result was announced.

“This is a badge of shame for the coalition and you might as well look for another coalition. Shame on you! To the opposition I say: You may have won this battle, but the government’s bill will ultimately pass.”

Knesset Spokesperson

Many coalition MKs preferred not to show up for the vote on this contentious legislation. MK Moti Yogev (Habayit Hayehudi) announced in the plenary that he would not be voting, but relented after pressure from Gamliel. He had intended to support the bill but the Knesset secretariat refused to register his vote. Following the coalition’s failure in passing it, MK Yinon Magal (Habayit Hayehudi) decided to postpone a vote on a bill that prohibits the entry into Israel of people who boycott the settlements or their products.

The vote on the custody bill ended a particularly tense Knesset session, which included vociferous exchanges between coalition and opposition members. MK Yoav Kish (Likud), presenting the bill from the podium, said that “circumstances have changed since this law was first legislated 50 years ago. It’s time to amend it. It’s important to note that there is no preferred parent, they are equals, and the child’s benefit is what matters. The authorities have followed their independent interpretation of the law, which impinges on parent equality and harms the children. The tender years clause must be rescinded. I know that there are different opinions within the coalition, but we’ll sit down and solve matters. In a war between the sexes everyone loses and children pay the price.”

Gamliel announced that the cabinet was in any case planning to present a similar bill in two months and pass it in the Knesset. She was subjected to harsh criticism after siding with fathers, proposing that they attain egalitarian parental status. “As Minister for Social Equality I will not allow an injustice to prevail only because women are subjected to other types of injustice. One out of every three couples goes through a divorce and fathers are condemned to poverty due to outdated, archaic laws. Why are they to blame if their marriages fail? Do you have the authority to declare someone a second-rate father? The fact that I’m a confirmed feminist doesn’t contradict the fact that justice must be served.”

MK Zehava Galon (Meretz) responded to Gamliel’s words: “It’s quite astounding to hear the person who is responsible for gender equality legitimizing the inflicting of damage on children. You all know that with this bill you are legitimizing assaults on women, and you know that there is no equality in marriage relationships. Women are extorted and the only thing left to them is the preferred granting of custody over their children. What you are proposing will harm both women and children.” Turning to Kish, Galon added: “You are completely ignoring the fact that men and women are unequal.” Her party colleague MK Michal Rozin said after the vote that “the attempt to revoke the preferred custodianship of mothers is an attempt to create a formal equality in a reality that is patently unequal. I’m proud of my female colleagues in the opposition for their cooperation in defeating this bill.”

According to the version promoted by Gamliel and Kish, parents will be given joint custody over their children after divorcing. The Ministerial Committee for Legislation decided to pass the bill in a preliminary reading Wednesday, and to bring it back in two months for ratification. This bill adopts the recommendations of the Schnitt committee that examined court procedures with regard to parental responsibilities following divorce.

The Schnitt Committee, headed by sociology Prof. Dan Schnitt, was appointed in 2005 to examine the legal aspects of parental roles after divorce. Its final report was submitted in 2011 to then-Justice Minister Prof. Yaakov Neeman. Its main recommendation was to revoke the tender years clause, which determines that children under six will automatically go to the mother, and replace it with a more egalitarian formula enabling both mother and father to exercise their responsibilities as parents. The committee suggested the legislating of guidelines that would let the courts to determine the best interests of the child when parents disagree about custody.