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Israel: Landmark Decision on Child Support

(Aug. 3, 2017) On July 19, 2017, Israel’s Supreme Court, in an extended panel of seven justices, unanimously accepted appeals against decisions rendered by the district courts of Central-Lod and of Haifa to the effect that the responsibility for child support for children 6 to15 years of age who were under the shared custody of their Jewish parents lies mainly with the father. Rejecting precedents on this issue, the Court held that both parents were equally responsible for child support and that their respective contribution should be determined according to “their relative economic ability from all resources, including income from work.”  (Fam. Ap. 919/15 & 1709/15 Anonymous v. Anonymous introduction (decision rendered July 19, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew).) Justice Uzi Vogelman rendered the main decision for the Supreme Court.

Existing Law  

In accordance with section 3(a) of the Family Law (Alimony) Amendment Law, 5719-1959, a person is responsible for paying child support to his/her spouse and children in accordance with the provisions of the personal status law that applies to that person. (Family Law (Alimony) Amendment Law, 5719-1959, SEFER HAHUKIM [BOOK OF LAWS, the official gazette, SH] 5719 No. 276 p. 72, as amended); Fam. Ap. 919/15 & 1709/15, ¶ 5.) The child support paid by Jewish fathers, therefore, is determined in accordance with Jewish law.  According to the Supreme Court’s prior interpretation of the Family Law (Alimony) Amendment Law, a Jewish father has the sole responsibility for paying for the essential needs of his children from birth to age 15, calculated at a certain amount irrespective of the father’s financial status.  In addition, the father had to pay the relative share of the housing costs for any minor children and the mother, generally calculated as one-third or one-half of the total housing cost paid by the mother.  (Fam. Ap. 919/15 & 1709/15, ¶ 29(a).)

Additionally, based on accepted interpretation of relevant Jewish law, both parents may agree to supplement the essential needs of the child to ensure continuation of the standard of living to which the child was accustomed or which he/she is deemed by the parents to deserve. In such a case, the costs will be shared by the father and the mother in correlation with their respective income from all sources, including work income.  (Id. ¶ 29(b).)  The contribution of the mother to cover the costs of the non-essential needs does not diminish the father’s obligation to pay for the essential needs of the child.  (Id. ¶ 29(c).)  Unlike child support for younger children, support for children ages 15 to 18 is fully viewed as a moral duty and therefore applies equally to both parents. (Id. ¶ 29(d).)  The exclusive responsibility of the father to pay for the child’s essential needs until age 15 was not affected by the physical custody of the child, whether it was given to the mother, the father, or jointly. (Id. ¶ 56.)

According to a statement submitted to the Court by the Attorney General’s Jewish Law Department (AG), the determination that the father has exclusive responsibility to pay for the material needs of children aged 6 to15 was based on an interpretation of Jewish law texts that has been the subject of ongoing debate. The duty to pay child support for such children is viewed by many Jewish law scholars as a moral duty rather than a legal obligation.  The moral ground of the duty to provide child support from age 6 to 15 under Jewish law has not made that duty unenforceable, according to a regulation issued by the Supreme Rabbinical Commission in 1944. (Id. ¶¶ 16-17.)  Accordingly, the Supreme Court has previously determined that the regulation imposes on the father alone a legal responsibility that can be enforced like any other legal duty, including by execution of judgment.  (Id. ¶ 18.)  Considering the duty to be based on a moral obligation, the AG opined it needs to be interpreted in a more egalitarian way to reflect modern conditions; namely, the change in the status of women and in the division of family responsibilities. (Id. ¶¶ 30-35.)

Recommendations of the Shifman Commission

Describing a previous attempt to address the suitability in modern times of the above rules that applied on child support, Justice Vogelman noted that the link between the appropriate share of child support to be paid and the scope of custody to be exercised by each parent had been among the topics discussed by the Shifman Commission appointed in 2006 to adjust Israeli law to the Convention on the Rights of the Child.  (Id. ¶ 67; Convention on the Rights of the Child (adopted on Nov. 20, 1989, in force on Sept. 2, 1990), Office of the United Nations High Commissioner for Human Rights website.)  The Committee opined that the division of parental financial support for a child should be made on the basis of the parents’ relative income and the scope of care each one provides to the child as measured in “parenting days.”  (Id. ¶ 71.)

The Committee emphasized that the best interest of the child requires that the child enjoy similar economic conditions when staying with the father as when staying with the mother. To this end, the Committee recommended that a uniform law on child custody, applicable to members of all religious communities, be drafted to establish an administrative system for efficiently and expeditiously determining child support based on uniform formulas that would take into consideration the relative income of the parents.  The Committee’s recommendations have not been implemented in legislation to date.  (Id. ¶ 72.)

Decision

 According to Justice Vogelman, a Court reevaluation of the issue of child support in situations involving joint custody of children was needed, in view of the passage of time, the frequency of joint parental custody, and the different approaches taken by district courts on the subject. (Id. ¶ 75.)  In choosing among different possible interpretations of the duty to pay child support for children aged 6 to 15, Vogelman held, the Court must give preference to the interpretation that conforms to basic principles of Israeli law . That interpretation should therefore recognize that because payment of child support is based on a moral duty, it should equally apply to both parents.  The portion contributed by each parent, moreover, should reflect the way in which custody of the child is shared, if it is shared, and the parents’ respective income from all sources. (Id. ¶ 77.)

For various reasons summarized below, the Court favored the judicial interpretation of the duty to pay child support that recognized the egalitarian determination of that obligation.

  1. The Rule of in pari material: According to the rule of in pari materia (upon the same subject), “[g]iving an identical interpretation of subjects in closely related  areas realizes the principle of normative harmony.” (Id. ¶ 78, citing Justice Salim Joubran in HC 6728/06 Ometz. V. the Prime Minister, STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); In Pari Materia, FINDLAW, http://dictionary.findlaw.com/definition/in-pari-materia.html (last visited July 31, 2017).) When addressing the responsibility of a parent who is either not subject to the duty to pay child support under personal status law or who is not subject to the application of that law, the Family Law (Alimony) Amendment Law imposes equal duties on both parents at a rate proportional to their income from any source. (Family Law (Alimony) Amendment Law, 5719-1959, §§ 3(b) & 3A.)  Recognizing egalitarian division of parental child support for children aged 6 to 15 is similarly in accordance with “well rooted” opinion under Jewish law, according to Vogelman, and is therefore the preferred interpretation based on considerations of uniformity and harmony of laws.
  2. Uniformity for Different Age Groups: The interpretation would also bring the rules of Jewish law on child support for children aged 6 to 15 into conformity with those applicable to children aged 15 to 18, where the duty to provide support is based on a moral duty and is imposed on both parents according to their relative economic ability. (Id. ¶ 81.)
  3. The Principle of Best Interest of the Child: Joint custody, Vogelman determined, imposes an increased economic burden on the parents, as each parent is required to provide full accommodation, irrespective of the fact that the child stays with the parent only part of the time. Moreover, custody over a child may impact the level of current or future potential income of a custodial parent, who has to pick up the child from school, stay with the child when the child is ill, etc.  Therefore, the best interest of the child requires that both parents have enough resources to provide for the full scope of needs of the child as well as for additional needs to be paid for at a reasonable rate during the time the child stays with each of them. (Id. ¶¶ 82-89.)
  4. The Principle of Equality:  According to Vogelman, the exclusive responsibility of the father to pay child support is based on historical discrimination in human history that viewed women as inferior and destined primarily for giving birth and taking care of the home. (Id. ¶ 103.)  The current interpretation of Jewish law as imposing an exclusive responsibility of child support on the father results in gender-based discrimination, he concluded. (Id. ¶ 108.)

Implementation

Based on principles set forth by Justice Daphne Barak-Erez and agreed upon by all seven justices handling the case, the Court decided that in a joint custody situation each parent should contribute to the child’s ongoing living expenses. Unless determined otherwise by the family court before which the child support issues are under consideration, the Court held, based on the specific circumstances of each particular case, parental contributions will be offset by the amount paid by the respective parents for ongoing living expenses without transfer of funds between the parents.  The Court ruled that a coordination mechanism for handling expenses that are not ongoing living expenses should be established by the parents to cover expenses such as clothing, books, unexpected medical treatment, etc.  Ordinarily, such a mechanism will enable a parent designated as a “coordinating” parent, when both parents enjoy equal income, to receive payment for half of such expenses from the other parent; possible arrangements may include the use of a joint bank account.  Unless otherwise determined, the “coordinating” parent will be the one found by the family court to have been the principal caregiver of the child up to the time of the divorce. (Id. Vogelman, ¶ 146; Barak – Erez, ¶ 61.)