A comprehensive empirical study conducted at Tel Aviv University states that family court judges engage in judicial activism, which ignores the law and harms weak families and children. According to the researchers, Prof. Daphna Hecker and Adv. Orit Jackman-Ladani, "judges do not see themselves as bound by the law and legal rules, but rather rule from their sense of what is just and proper."
The study analyzed 4,915 family court rulings dealing with alimony disputes between divorced persons and child custody disputes in the decade between 2009 and 2019. "The findings reveal judicial activism from below (of lower courts, N.B.), which ignores the existing law on the book and creates ambiguity and lack of uniformity," the researchers wrote. Regarding the issue of custody of children after divorce, the law establishes the "presumption of early childhood," so that the mother usually bears custody. But according to the study's findings, "family judges have turned the law into a dying letter — if not dead."
Decrease in the rate of foods
The study reveals for the first time that 42 per cent of the verdicts had joint custody and 16 per cent of the father's custody. Judge Varda Ben-Shahar went further, ruling that despite the legislature's ruling, custody of a mother may cause "alienation from the other parent," to the point where joint parenting was established for a father convicted of violence against his wife.
Family Court (the subject has no connection to the report), Photo: Yehoshua Yosef
The researchers found that judges refer to their ruling as "mother's custody," but in practice set equal custody days, or set more days for the father and define it as "joint custody." "This is conceptual chaos created by marking the same order in different legal terms, including by different judges in the same district and in the same year," they said.
The researchers also present a number of rulings by Justice Erez Shani, which they call "emptying the presumption of early childhood through judicial looping, not to mention a logical contradiction." The researchers found that judges refer to their ruling as "mother shifts," but in practice set equal custody days or other cases in which they set more days for the father and defined it as joint shifts. "This is conceptual chaos created by the marking of the same order in different legal terms, including by different judges in the same district and in the same year," the researchers wrote, adding, "Not only that, but sometimes the confusion of concepts belongs to the same judge in different rulings."
Judge Shifra Glick, for example, set custody of 8 days for the mother and 6 days for the father and defined it as "joint," and in another ruling she set the same number of days but defined it as "mother's custody" – even though the days are almost evenly divided. The findings of the study were also repeated on the issue of alimony – the researchers found that while the cost of living has risen by about 14% over the past decade, each year there has been a decline in the proportion of alimony awarded in favor of the mother, up to 15% in the past decade.
Divorce disputes. Family judges verses "by feeling", photo: Thinkstock
The investigators state that even in cases of custody of the mother, there is an "erosion," as they put it, of the obligation imposed by law on the father to feed his children. For example, Judge Assaf Zaguri wrote that alimony can be reduced because "everything is in the eye of the beholder." Zagori even canceled alimony for a mother for an autistic child because she receives a pension from the state – which is given at all for impairing her ability to work.
300% increase in requests to change alimony
In 2017, the Supreme Court tried to settle the issue and created a new ruling. But it was too dim and meager. In practice, the researchers write, "Supreme Court ruling contributed to judicial chaos." The study reveals that many family judges applied the ruling "even in circumstances different from those for which it was given," and that family judges continued to reduce alimony while ignoring and deviating from the new Supreme Court ruling.
According to the study, the Supreme Court caused judges to make conflicting decisions, even in district courts – some even ruled that there is no new ruling at all. Following halacha, the study found a 300% increase in requests to change alimony.
Summarizing their findings, the researchers write, "The intensity of the chaos is already beyond the limit that a functioning legal system can afford, and is dangerously approaching an anarchic situation in which there is no longer "law" in family law. Therefore, the time has come to moderate the judicial activism of family judges and minimize its current, significant and cumulative damage."
They also wrote that "the legal situation that becomes clear from the findings of the study raises basic questions about the existence of the rule of law and the transformation of the judicial system into a 'system of judges.' Activist family judges see themselves less committed to complying with existing legal rules and more as responsible for implementing substantive policies and proper overarching principles.
Such is also the "principle of equality", which in child support rulings is the main reason why they see fit not to award alimony according to existing law, but to apply a different law, based on their sense of what is just and what is proper. Are such rulings consistent with the "best interests of the child"? Can they promote substantive equality between parents? The answer to both of these questions is no."
The researchers also strongly criticize Knesset members who, since the 1950s, have not bothered to regulate the law into modern reality.
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