Litigating for God

I recently had the pleasure of attending the annual AFCC conference, held this year in Los Angeles. It was a reinvigorating to hear great presentations, interesting new research and fresh perspectives on the kinds of issues we grapple with on a daily basis.

For those of us coming from Israel where professional organizations are fairly stratified, the interdisciplinary nature of the AFCC gives tremendous added value to the sessions; attending the conference were not only lawyers, but also social workers, psychologist and judges, so that each group brings their perspective on Family Law issues to the table, making for an enriched learning environment.

Jerusalem lawyer Ya’akov Katzin and I presented at the conference. Our session was called “Litigating for God“ which discussed the experience of dealing with issues related to children – particularly custody and education – in the  Beit Din, the Rabbinic Court, as opposed to the Family Court.

Following is an abridged version of our presentation. We were fortunate to speak before a wonderful audience which asked really excellent and insightful questions.

We open with a little background and a brief explanation as to the legislative history which created a world of parallel, often conflicting jurisdictions between the Family Court and the Rabbinic Court, the Beit Din. Following the collapse of the Ottoman Empire in WWI, the British were granted the Mandate over Palestine-Eretz Yisrael in 1922. During the Ottoman period, the prominent religious groups in the region – Moslems, Jews and major Christian sects – were granted judicial autonomy regarding personal status issues – marriage, divorce, inheritance, and the British more or less continued with this system. The British passed the Palestine Order in Council in 1922, and for our purposes today, the relevant articles are Articles 51 and 53.

With the establishment of the State of Israel in 1948 and the development of the Israeli court system, District Courts were granted what was basically parallel jurisdiction with the Beit Din over matters relating to child and spousal support, custody and visitation, and division of moveable property. In 1995 the Family Courts were established, and replaced the District Court as the branch of the civil court system to adjudicate all inter-family conflicts in civil courts.

The Rabbinic Court retains sole jurisdiction over marriage and divorce between Jews, much as the Muslim Sharia courts have jurisdiction over these matters for Muslims, and ecclesiastical courts over various Christian communities. In addition, issues which are linked, or “incidentally attached” to the divorce suit – custody, alimony and property, may also fall under the jurisdiction of the Beit Din.

The term “the race for jurisdictions”, which some of you may have heard, developed, because to state the matter crudely, the party which files first –  whether in Beit Din or Family Court – stakes out which court will have jurisdiction over some of the major matters under dispute which require adjudication during the divorce proceedings – spousal support, custody and division of property. The issue of jurisdiction – who can adjudicate which matters and at which point in the dispute, whether post or pre-divorce is complex and far beyond the scope of this discussion.

Despite how complex and crazy this may sound – which it is – as an aside, we’d like to point out that the justice system in Israel in general is good, and the Family Law system works well in comparison with some other Western countries. Of course the system has its faults, but there is no corruption, there is a strong culture of broad access to the courts, extensive legal aid, access to social services and an emphasis by the courts on problem-solving.

To return to our topic, there exists an internal tension when dealing with the authority of the Beit Din: while its legal authority is based in secular or civil law, the Beit Din sees its ultimate authority as deriving from Jewish Law, and the scholarship of the members of the tribunal. As such, the members of the Beit Din are the defenders of not only the Jewish legal system, but of Jewish life itself. Their authority may technically derive from civil law, but their legitimacy derives from a higher authority, to which they answer.

From the earliest years of the State, there have existed tension and power struggles between the civil court and the Beit Din. Having said that however, it seems to me that since the 90’s the tension has been exacerbated, attributable to three factors: First, the legislation of Basic Laws, most particularly the Basic Law: Human Dignity and Liberty;  as a conglomerate, the Basic Laws are considered by many to make up Israel’s constitution. The judicial activism of former Chief Justice Barak’s court trickled down through the entire court system, and the broad nature of this law, gave the courts in Israel, including the Family Court, a kind of interpretive freedom which many in the Beit Din would say the secular court has used to chip away at their jurisdiction. Second, the establishment of the Family Courts; as with any judicial system, the Family Court has its flaws, however, it’s relatively user-friendly, most of the judges care, and by and large, the system works Similarly, the trend throughout the world to grant children greater rights and roles in judicial proceedings which impact them has also allowed the Family Court to claim certain cases as their own, thereby pushing out the Beit Din. Third, there are those who point to political currents in Israel which have made it difficult to appoint rabbinic judges,  dayanim, from a religious-zionist orientation, and a religious leadership constantly looking over their shoulders to make sure they are not offending various rabbinic leaders in the ultra-orthodox world.

The primary law when discussing issues regarding children in general, and children of divorce in particular, is the Law of Legal Capacity and Guardianship. Enacted in 1962, the law was in many ways very advanced in its time in terms of the way in which it established parental rights and responsibilities. Both in this law, and in early court decisions, we see an emphasis on the child’s interests, as distinct from any other consideration, legal or moral such as whether the parents of the child are married.

It is critical to point out both in general and for the purposes of our discussion today that in Israeli law, the term custody, really only refers to where the children generally spend most of their time, similar to physical custody in American Law. The law determines that both parents are natural guardians of the children, meaning that both parents have rights and responsibilities for matters regarding education, place of residence and property issues, whether or not divorced, and even whether or not the parents were ever actually married. In the overwhelming number of divorce agreements and court decisions regarding children, both parents retain their guardianship status with no diminishment of their rights in this area. Clearly, this increases the areas for dispute between divorced or divorcing parents, and these are many of the issues that end up in the Beit Din.

According to the law, parents are to act according to the “best interests of the child” and the courts must also base their decisions on this principle.Where the parents are involved in divorce proceedings, Article 79 of the same law explicitly gives the Beit Din the authority to rule on these issues. The Beit Din is bound by the law, and must also rule according to what the best interests of the child are.

Of course, the primary conflict and tension between the two systems is, what in fact constitutes the best interests of the child?

Over the years, the courts have tried to flesh out this sometime amorphous concept (at another session at the AFCC conference, psychologist Dr. Philip Stahl referred to the best interest test as “the fuzziest legal concept”): in 1998 the Israel Supreme Court issued what has come to be known as “the David ruling” defined the best interests of the child as:“it would appear that we can all unite around a general equation according to which the heart of the best interest of the child, its nucleus, is the child’s right to remain physically and mentally healthy, and that his emotional, physical and material needs should be met. This is a basic right that is possessed by all adults – that they will not be injured physically or mentally – and it is the right of all children who are not adults, rather, minors.”

By contrast, while Jewish Law is certainly desirous that children be physically and mentally healthy, the guiding principle of Jewish Law, found in Jewish legal codes and responsa for centuries, is that the foremost responsibility of the parent is to educate the child as to Jewish life, law and values. Thus, despite the fact that a Supreme Court decision from decades ago ruled that the Beit Din cannot use “religious” considerations in determining the best interests of the child, that ruling is to some extent like asking the Beit Din to ignore what it sees as its central role –ensuring the continuity of Jewish  life and values.

The inherent tension in the decision-making process in what is arguably the most difficult area of Family Law, often makes for a frustrating experience, both for the families and for the lawyers involved.  We have represented in cases in which the Beit Din has ruled that the less fit parent have custody, because he or she is more religious. We have represented in cases in which there is an expert opinion indicating that the custodial parent has alienated the children from the non-custodial parent, and the Beit Din refuses to take the necessary steps to restore the relationship with the alienated parent, because the alienating custodial parent is stricter in their religious observance.  Not infrequently, we are involved in cases in which one parent wants the child to attend a school associated with a “less religious” educational system, and in some of these, the Beit Din has not even allowed for an expert opinion, but simply ordered that the child be enrolled in the “more religious” system. In some cases, the Beit Din is aware that they are on weak legal ground, so rather than deliver an explicit ruling – which can then be appealed – they will draw out the decision-making process, so that the willingness to pursue an unequivocal judgement dies by atrophy;  someone simply gives up, runs out of money, or the parties reach a compromise agreement which obviates the need for the Beit Din to rule on the matter, but which fails to adequately address the child’s needs and interests.

Anyone familiar with the legal system can venture a guess that there are lawyers out there who will make use of this system to further their client’s goals, regardless of the best interests of the child. While there are unscrupulous lawyers throughout the legal system, the assumption is that that the adversarial system will flush out the truth. Although we know that doesn’t always happen, in the case of a lawyer pursuing an issue in the Beit Din because one parent is more religious than the other, he or she is working on the assumption that the Beit Din is not going to do a thorough investigation of the best interests of the child from an emotional and psychological perspective, and that the less religious parent is already going in with a handicap.

Over decades, the legal system has developed safeguards to mitigate some of the problems discussed. First and foremost are the extensive powers of judicial review granted to the Supreme Court. The process of judicial review really warrants a seminar unto itself, but to very briefly summarize: decisions of the Beit Din are subject to the judicial review of the Supreme Court sitting as a High  Court of Justice. It’s basically part of administrative law, and allows the Supreme Court to intervene in decisions which were made without jurisdiction or if the Beit Din makes what is referred to as a patently unreasonable decision or without regard to basic constitutional values such as equality, freedom of movement and the like. In order to file such a pleading, the decision of the Regional Rabbinic Court must first be appealed in the Rabbinic Court of Appeals, and only then does one have the option of filing in the Supreme Court (in theory, if there is a particularly egregious decision, one can forgo the appeal court, but in fact, the Supreme Court rarely allows this). Then, the Supreme Court has discretion as to whether or not to hear the petition. So, it’s a long and expensive haul to actually get to the Supreme Court; not everyone can afford it, not everyone has the emotional wherewithal to take this path, and one can’t be assured that whichever judge initially receives the petition will see it as deserving of judicial review.

Another safeguard is that the law allows children to file autonomous suits before the Family Court. Our experience has been that judges in Family Court are not eager to accept these cases if they view them as an attempt to manipulate the system and circumvent the legitimate jurisdiction of the Beit Din. The use of a guardian ad litem can also be helpful to some children, but once again, not for all.

We felt that this topic was germane to the Globalization theme of this conference, since there is more discussion in some Western countries of allowing various religious and ethnic groups access to their own legal tribunals to adjudicate issues relating to the family. The Israeli experience shows some of the difficulties and tensions of such a move, and the necessary safeguards that must be in place to ensure that the needs of children are addressed and protected. Without strong legislation which lays down parental rights and responsibilities, and without the possibility of judicial oversight, children are likely to be at risk.

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One Response to Litigating for God

  1. Pingback: Alienation – Hasidic Style | The Missing Peace

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