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Part Three - The Social Program

Restoring the Status of the Family (2/2)

The Court's Conduct During the Disintegration of the Family Unit

Dissolution of the family unit is a difficult and painful experience, both for the couple and for their children. Often, the separation process is accompanied by disputes about responsibility for the children and the distribution of the financial burden involved in raising them, causing the state to intervene in another aspect of family life and in the conflict of divorce in order to resolve the dispute.

In our view, the state should act as a mediator and conciliator in this process, encouraging partnership in raising the children and not creating incentives to exacerbate the dispute and prolong the legal proceedings. To this end, a clear, substantive, fair and equal policy for deciding these disputes should be established: This policy will protect the child's best interests and welfare without harming the rights of either of the parents. The policy should prevent abuse of children or of state institutions in the framework of the conflict between the parents. This policy will be based on the principle that the welfare of the child requires giving equal status to both of the child's parents,[12] except for exceptional cases that are clearly proven. Zehut will achieve this goal by means of these steps:

Handling complaints of domestic violence

Dealing with complaints of domestic violence is a complex problem. The state is obliged to protect the safety of residents and the complaint therefore requires it to distinguish between the suspect of an offense and its reporter in order to prevent further violence – before all the details are clarified. In the case of a complaint of domestic violence, this means exclusion from the house and children, which is to say a severe blow against suspect before his guilt is proven, and often before any evidence is found to support the charges against him apart from the complaint itself. Besides, as a rule, domestic violence occurs in the home, without the presence of independent witnesses, making it difficult to investigate the complaint or reject it in the absence of conclusive evidence either way. Add to this the impact of changes made under the State Attorney's Office Guideline 2.5,[13] under which the prosecution and the police cannot be subject to criminal investigation and prosecution in cases of false complaints of domestic violence.[14] One should also take into account the possible consequences of such a complaint on divorce proceedings, particularly on the attempt of domestic violence suspects to win parental status and visitation with the children.

In the situation that has been created, filing a false complaint of domestic violence seriously and immediately harms the suspect, is difficult to disprove, and even if it is determined that the complaint is false and and there is a reasonable suspicion that it was filed maliciously – the complainant will almost certainly not be investigated. We believe that this state of affairs requires the authorities to prepare for the possibility that a complaint may be false and to determine appropriate procedures for handling false complaints.

Preparations for the treatment of false complaints

It is almost impossible to know the scope of the phenomenon of false complaints of domestic violence. In the first place, it is difficult to collect reliable data and the politicization of the issue leads to the publication of unreliable results obtained by questionable research methods. We do not want to engage in a debate about the extent of the phenomenon – the damage caused to suspects due to such false complaints is so severe that we believe each case deserves attention.

Guideline 2.5 of the State Attorney's Office has been changed to encourage domestic violence victims to complain to the police.[15] And reading the articles as written, it is possible to conclude that their purpose was to protect complainants who filed justifiable complaints and then withdrew them,[16] but the interpretation accepted by the prosecution is that we should not investigate suspected false complaints at all. Changes that were added in response to this interpretation recommending criminal investigation of false complaints intended to harm the suspect did not sufficiently affect the conduct of the police and prosecution in practice.

You can not right a wrong by doing wrong to someone else. The desire to protect victims of domestic violence and encourage them to complain to the police cannot come at the expense of the victims of false complaints. A person who suffers a false complaint is severely harmed and is as worthy of state protection as any other citizen. Besides, we should treat any attempt to harness state institutions to harm an innocent man with severity. State authorities, the police in particular, must take action against those who make malicious false complaints.

Because the police and the prosecution insist on hiding behind a broad interpretation of the changes made under the Guideline 2.5 and ignoring the changes that were added to it later, in order to rule out this interpretation we must eliminate these changes to Guideline 2.5 of the State Attorney's Office and issue clear instructions regarding prosecution and police, according to which a well-founded suspicion of a false complaint would be grounds to open a criminal investigation.

New procedures will be formulated for the police regarding false complaints. The procedures will include, among others, diagnostic methods for false complaints which are as rapid as possible, a definition of the level of suspicion which requires the initiation of an investigation, and a definition of the scope of evidence required to recommend an indictment.

The police and prosecution will be given guidance for the implementation the change. In addition, the police will refresh procedures related to offenses of domestic violence.[17]

Adopting the principles of shared parental responsibility

We believe that the welfare of the child requires the presence and influence of both parents in his life, where the parents have equal status and joint parental responsibility for the child's upbringing, except in extreme cases. This view is well established, supported by the findings of the Schnitt Commission and reflected in its recommendations. Therefore, Zehut will adopt the Schnitt Commission's recommendations regarding joint parental responsibility.

Among other things, the Zehut party will act to eliminate the Early Childhood presumption in accordance with the recommendations of the Schnitt Commission and in accordance with empirical findings that determine that it is not consistent with the child's welfare. Thus, Israel will join other advanced countries, all of whom already have canceled it.

The possibility of applying these laws retroactively will be weighed in consideration of the best interests of the child.

Calculation of child support by a fixed and equitable formula

Under the current law, the burden of economic support for children[18] falls entirely on the father[19] and does not sufficiently take into account the amount of time the father is allowed to spend with his children or the financial situation of the mother. This law is not equitable and is not relevant to today's reality or the idea of shared parental responsibility. In addition, the amount of financial support is calculated not only on the father's actual income, but on his "earning potential," which is set at the discretion of the judge and may be lacking any basis in reality. In fact, there is no way to calculate in advance the amount of financial support that may be imposed on the father to provide for his children, and the Family Court judge has wide discretion in its determination.

This issue was investigated by the Shiffman Commission, which recommended the adoption of a clear, transparent and equitable formulation that takes into account the actual income of both parents and their custody/visitation times. We will act to fully adopt the conclusions of the Shiffman Commission. The possibility of applying these conclusions retroactively will be weighed, from the concept that child support comes at the request of the state[20] and that the state therefore has the right to determine new arrangements.

This is good news for fathers, who will not have payments imposed on them that they cannot meet and which are liable to to bring them to the edge of starvation and to turn them into unwilling criminals.[21] We believe that equality in the financial burden of the child will also benefit the children, and eventually even the mothers, because it will significantly reduce the feelings of frustration and despair among the fathers and will eliminate one of the significant causes of friction between parents, making it easier for them to cooperate in raising their children. We believe that the vast majority of parents will be diligent in their child support payments without any resistance or feelings of frustration when the size of these payments is determined in an equitable manner befitting their income.

Regulation and review of court appointed social workers

The court can appoint a social worker to conduct a survey, designed to help the judge distribute custody/visitation time between parents and determine their parental status. Often, the judge will adopt the detailed recommendations of the survey in full. According to the findings of the Silman Commission, there has been a sharp increase in referrals to court appointed social workers.

According to the findings of the Slonim-Nevo Commission, there are cases of failure to follow social work regulations when preparing the report, and there is no uniform and clear format for writing the report. As a result, it is not always clear what the claims and conclusions in the survey are based on, and there is no clear distinction between facts and opinions. There is no external supervisory body to which one can submit a complaint about how the report was prepared or about the conduct of social workers. Complaints reach the desk of the regional or national social worker, who often was an actual participant in the preparation of the report. Naturally, most of the complaints are rejected. There is no real opportunity to challenge the conclusions of the report before it goes to the judge, which, as noted, is expected to adopt its conclusions in full.

This manner of conduct gives court appointed social workers great power and practically unlimited freedom of action, without any supervision or control. This is a form of conduct unbecoming a public body in a free country, especially as it deals with such a sensitive and essential issue.

Zehut will act to establish an external and independent review body that will be responsible for reviewing complaints on the social work system and its employees and be able to impose professional sanctions against them.

Zehut will act to establish an Appeals Committee so that it will be possible to appeal the conclusions of a report before it goes to the Family Court. The Appeals Committee will be comprised of external professionals and independent public representatives, as recommended by the Slonim-Nevo report.

Zehut will act to create clear procedures and an obligatory uniform format for the preparation of the report. The procedures will dictate precisely what investigations need to be performed as part of the review and the information that the social worker will have to provide to parents before beginning to write the report. The template will require separating facts, opinions, and conclusions in the report. The template will require sources to be given for the facts and an explanation of the reasoning process that went into the conclusions.

Zehut will act to restrict the ability of the court to appoint social workers to prepare such surveys in accordance with the conclusions of the Silman Commission.

A thorough review of the Family Courts

Adopting the principle of shared parental responsibility and adopting the formula recommended by the Shiffman Commission for calculating the level of child support will not give too much discretion to the Family Court regarding parental authority and child support payments, except in extreme cases where such discretion may be warranted.

In others areas, we should aim to set clear, fair and equitable guidelines. In judgments concerning children the best interests of the child should be maintained without harming the rights of the parents.

Zehut will support a re-examination of the policy of family courts, of the laws pertaining to them, and of their work and their powers by a balanced committee of jurists and experts. The committee will examine the need for the powers of the Family Court that are not related to significant family matters such as child-rearing and common property. Similarly, the committee will examine the guidelines used by the Family Court in handing down verdicts and their suitability in terms of key principles such as equality before the law, individual liberty and the current understanding of the child's needs and best interests.

The committee will ensure that the discretion given to judges is not too broad and does not allow expansive interpretations of the law and the use of "judicial activism." It will also ensure that the rulings of the family courts are based primarily on facts on the ground and neutral expert opinions, and do not rely on theoretical estimates and unfounded assumptions.

In addition, the committee will develop recommendations to prevent the elongation of discussions that cause delays of justice.

[12] Equal parental status means equal rights before the law to make decisions regarding the child's life. Equal status does not necessarily entail equal expenditure to financially support a child or equal custody time with the child, and vice versa; different custody times or different expenses should not damage the equal status of the parents.

[13] This guideline deals with the policy of opening an investigation and prosecuting those who submit false or contradictory evidence.

[14] In fact, these changes did not require it explicitly, but this is the policy that has been adopted. Details will come in "Dealing with false complaints."

[15] Domestic violence crimes are considered crimes that are rarely reported, although the extent of non-reporting is questionable.

[16] At least that was the original version of the changes.

[17] By emphasizing the prohibition of the presence of people who have not investigated or been investigated in the domestic violence interrogation rooms of the police.

[18] Known as child support payments.

[19] This is true for Jewish families and the reason for it is Torah law.

[20] The state determined the amount of financial support needed for children as part of its job to resolve disputes. Financial support is not compensation for the benefit of the child but an expression of the duty the state imposes on parents to take care of the material needs of the child, according to its understanding of those needs. When the understanding changes, the state requirements must also change accordingly.

[21] Given that non-payment of child support is considered an offense.

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