Can I Have My Mommy Back?

A few months ago I received a judgment in a case which is, to the best of my knowledge, a precedent that opens the door to the Family Court declaring void provisions in divorce agreements where a parent – basically not understanding what he or she is doing – relinquishes his or her legal parenthood. My hope is that this will deter those unscrupulous lawyers who have done this in the past, and the practice will become obsolete. Here’s the judgment, in Hebrew:

Very briefly, this is the background.

A number of years ago a young woman was referred to me by another lawyer. I sat with her, only to hear that her husband, who had custody of their three young children, had taken them to another country – she didn’t know in which city they were living, received phone calls once a week but didn’t have a phone number for them, and wanted to know how we could take action so that she could visit them abroad, a contingency provided for in the divorce agreement. My thoughts immediately went in the direction of the Hague Convention on the Civil Aspects of International Child Abduction which has provisions in cases where visitation rights are not being honored.

Then I asked to see her divorce agreement.

When I saw it I turned blue, purple, red and white, to say nothing of seeing stars.

I informed my client, as gently as possible, that in her divorce agreement she had not only given up on custody, but she had in fact relinquished her rights and responsibilities as guardian of her children. What that meant was that she had no standing to apply to have the provisions regarding visitation enforced under the Hague Convention, since legally, as a parent, she didn’t exist.

In Israel, custody basically means where the child lives most of the time. After divorce both parents generally remain what is called the legal guardian – אפוטרופוס – of the child. Under Article 15 of the Law of Legal Capacity and Guardianship, 5722-1962, guardians have equal rights and responsibilities regarding core issues, such as education, place of residence and religious matters.

Basically, if you don’t have guardianship, you don’t exist as a parent from a legal point of view.

It turned out that the woman had not been represented in divorce proceedings. She had wanted a divorce for a long time, and the husband said she would only get one if she relinquished custody. She agreed, and he took her to his lawyer’s office, where she was presented with an already drafted divorce agreement which she was asked to sign. She thought that she agreed that her husband would have custody, and she would have visitation rights. No one pointed out to her that she was signing a document in which she was saying she agreed to no longer be the legal parent of her children.

There are two bad guys in this story – one is the lawyer who did this and the second the Beit Din which authorized the agreement. It seems from the transcript of the hearing of the confirmation of the agreement that the dayanim in the Beit Din didn’t actually understand the ramifications of her relinquishing guardianship, but they certainly should have. They also certainly had a duty to explain to my client those ramifications. It seems that it was enough for them to hear that she had decided she no longer wanted to be observant to make whatever provisions were in the agreement acceptable. Moreover, they should never have confirmed such an agreement without first involving a social welfare officer, or a mental health professional to express an opinion on whether or not the agreement reflected the best interests of the children.

I think that a lawyer who is writing an agreement in a case where the other side is not represented and relinquishes rights and responsibilities, should be reprimanded if the lawyer does not at least give the person an opportunity to consult with a lawyer, or at the very least, with a trusted outside party. Not surprisingly, not everyone agrees with me.

Be that as it may, because of the fact that the agreement was confirmed and given force of judgment by Beit Din, and because my client had no legal standing as a parent of the children, I was in a quandry about what action to take. Ultimately, I filed with the Family Court in Jerusalem, which has jurisdiction to adjudicate whether or not an agreement is binding under Contract Law and made the claim that the section of the agreement in which the mother relinquished guardianship was void since it violates public policy of the State of Israel. I was helped in the suit by my colleagues Susan Weiss and Yifat Frankfurter of the Center for Woman’s Justice. We asked that the mother have standing to file the suit as a “close friend of the children” a special provision in the Family Court Law.

I won’t go into all the details of the proceedings, which took a long time since the ex-husband did everything to throw wrenches that would slow things down.
Finally, in February 2010 the Family Court in Jerusalem (Justice P. Marcus) accepted our claim, and “restored” the mother’s legal parenthood to her.

My only disappointment with the judgment was that the Court based its ruling on the rights of the children to two parents, and the fact that their interests were not taken into account when the decision was given force of judgment by the Beit Din. I would have rather seen a strong statement about public policy, which would mean that such an agreement offends the morals and basic values of Israeli society.

The postscript to this is that the ex-husband did try to appeal the decision in the District Court. I didn’t represent my client in that proceeding, but I learned that the judges in the District Court would have none of it, and basically, the ex-husband had to withdraw the appeal, leaving the decision as an important precedent (though not binding) for others in a similar situation.

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3 Responses to Can I Have My Mommy Back?

  1. slowly making our way to israel, BH :) says:

    there as no mental illness involved? it was strictly related to observance? thought provoking article.

  2. shaananlaw says:

    Had there been mental illness, then at least there might have been some kind of an argument to be made for diminished guardianship. Maybe. However, the problem was there was no such history, and no mental health expert appointed to investigate the parents or the children before the divorce agreement was confirmed.

  3. Pingback: Wonderful Update | The Missing Peace

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