Transferring custody from mother to father is one of the most sensitive issues that comes before the Family Court or the rabbinical court. Under the tender years presumption, children up to the age of six are placed in their mother’s custody, but there are circumstances in which the court decides to transfer custody from the mother to the father. In the past this was an exceptional step, but in recent years more and more rulings have granted sole custody to the father.
In this article we will look at the sensitive issue of transferring custody from mother to father: the grounds on which the court will order the change, how the transfer is actually carried out, and how the courts approach granting sole custody to the father.
Transfer of custody from mother to father – when will the court order a change of custody?
The court may decide to transfer custody from mother to father in several situations:
When the mother was granted sole custody, but some time later her life took a turn for the worse in ways that could harm the children’s well-being. For example, she suffered a financial collapse, she was fired and has been unemployed for a long time and cannot find new work, or she owned a business that failed. Any of these, and more, can lead the court to transfer custody from the mother to the father.
When the mother has changed her way of life in a manner that keeps the children from maintaining the lifestyle they were used to. For example, during the marriage the parents led a religious life, and some time after the divorce the mother stopped observing, or the reverse: the parents led a secular life, and after the divorce she adopted a religious one. Such a change can harm the children and prevent them from living as they always have, and in these circumstances the court may transfer custody from the mother to the father.
When the mother does not honor the father’s visitation times as set in the divorce judgment. Usually, when the mother receives sole custody, the father is granted visitation arrangements fixing the days and hours when he is entitled to see his children. When the mother blocks those meetings, or makes them very hard to hold, the court can decide to transfer custody from the mother to the father.
Transfer of custody from mother to father when the mother is found unfit
Custody may also change hands when the mother is found unfit to raise the children: when her mental health has deteriorated, when she has become addicted to alcohol or drugs, when she has fallen seriously ill in a way that impairs her functioning as a mother, or when she moves from apartment to apartment so often that she cannot give the children stability. In these situations and others, the court may transfer custody from the mother to the father.
Sometimes custody passes from mother to father by agreement between the couple. There are cases where the mother does not want to raise the children and prefers her freedom and a new life without that responsibility, or where she is under such pressure at work that she cannot meet the day-to-day demands of raising them. Even when the transfer is consensual, it is important to go to court and have it rule that the father is the sole custodial parent.
When deciding custody, the courts weigh the children’s best interests and their wishes. If, for example, the mother moves somewhere far from where she now lives, so that the children would have to move to a new city and a new school and leave their friends, and they do not want that, the court will consider granting custody to the father.
When the mother lacks parental capacity and cannot raise the children and look after their well-being, the court will consider granting custody to the father. When it orders a transfer of custody on grounds of parental incapacity, it bases its decision on assessments by a psychologist and by social workers.
How do you apply for a transfer of custody from mother to father?
A father who asks the court to transfer custody from the mother to himself must file a claim with the court.
When the transfer of custody is not by agreement between the parents, the father must present the court with evidence proving that the mother cannot raise the children and that their best interests require moving custody from the mother to the father.
The father can file the custody claim with the Family Court or with the religious court that matches the couple’s religion: the rabbinical court, the Sharia court, or the Druze court. Bringing the case before a religious court requires the consent of both spouses.
The claim must be filed with the court or religious tribunal whose jurisdiction covers the couple’s shared place of residence, or their last shared place of residence.
How do the courts approach transferring custody from the mother to the father?
From the courts’ perspective, transferring custody from mother to father reflects a newer, more egalitarian approach. Whereas in the past most rulings leaned on the tender years presumption and granted custody to the mother, today there are more and more rulings in which the court grants custody to the father from the outset, or moves custody from the mother’s hands to the father’s.
To sum up, transferring custody from mother to father – fathers have standing too!
Notwithstanding the tender years presumption, under which children up to the age of six are raised by their mother, there are more and more rulings in which the court decides to transfer custody from the mother to the father. Where the court finds that the child’s best interests require it, it will put those interests ahead of the presumption and grant custody to the father.
