A Justice Ministry committee is set to recommend a revolutionary change in the law regarding child custody in divorce cases. The committee, which is headed by Prof. Dan Shnit, handed in an interim report to Justice Minister Daniel Friedmann in which it recommended striking the "Tender Years Clause" from Israeli divorce laws. The clause, determines that in divorces, children under the age of six will always be transferred to the mother's custody, unless there are extreme circumstances precluding this.

Since their establishment 13 years ago, Israel's family courts have used the clause to justify a policy of automatically transferring children of all ages to their mothers' custody. This was justified by arguments that a child who grew up with his mother up to age six should be allowed to stay with her for the sake of continuity and stability, and that siblings should not be separated.

The Shnit Committee recommended in the interim report that the Tender Years Clause be replaced by a "Parental Responsibility Clause" which would determine that it is every child's right that both his parents be responsible for his safety and welfare.   

The interim report recommended that separating parents would work out an agreed "parenting plan" that would involve both parents in taking care of the children. These types of parenting plans, the committee stated, are used in other countries, including Australia and Canada.

The report's authors think these parenting plans could be reached by the parents with the help of a mediator or therapist. If the parents are unable to work out an agreed plan, the

"It's not a victory for the men or for the women," Prof. Shnit told Channel 2 TV, "but for the children."

court will determine a parenting plan for them, based on a set of criteria that will include the parents' skills and interviews with the children. "It's not a victory for the men or for the women," Prof. Shnit told Channel 2 TV, "but for the children." Shnit noted that research showed that in most cases, children of divorce fared best when both of their parents participated in raising them.

The committee's final proposals will be submitted as bills for Knesset approval with governmental support.

The interim report created a flurry of debate between women's groups, men's groups, and parents' groups.

Men's groups representatives saw the proposal as "a ray of hope" that would enable fathers to gain custody, or at least shared custody, of their children in divorce. However, some voiced skepticism about the laws' chances of passing in the Knesset. A parents' group called "Equal Parenting" (Horut Shava), which was represented in the Shnit Committee and had lobbied for its

Separating parents would work out an agreed "parenting plan" that would involve both parents in taking care of the children.

establishment, was also pleased by the announcement.

Women's representatives were divided. Irit Rosenblum, a feminist lawyer who heads the "New Family" organization, called the report "a great step forward for women's liberation." The Tender Years Clause, she said, "perpetuated women's status as a homemaker, the only parent responsible for the children and the one who has to take full responsibility without being able to demand full equality… because of her duty to raise the children. We cannot demand an egalitarian world when our status as mothers is fixed by the law."

However, a larger and older women's group, WIZO, opposed the proposed changes. "It is true that the child's best interest is of uppermost importance," said Ronit Erenfreund Cohen, a WIZO official. "However, cancelling the Tender Years Clause creates a suspicion that it was carried out with ulterior motives, because the change could be used as a means for the father to pressure and blackmail the mother during divorce. His pressure could express itself in lowering the child support," she explained.

Israeli divorce law borrows mostly from Halakhic (religious Jewish) law and does not give a divorced woman alimony. Jewish marriages do, however, involve a commitment by the husband to grant the wife a lump sum in case of divorce (in the marriage contract or ketubah), and rabbinical courts enforce this commitment, which often involves large sums. It should also be noted that the term "custody" in the debate refers to physical custody. Legal custody of the children is always shared by both parents.