Men's Groups as a New Challenge to the Israeli Feminist Movement: Lessons from the Ongoing Gender War Over the Tender Years Presumption

Introduction

Israeli law still contains the tender years presumption, according to which children under the age of 6 should live with their mother in cases of parental separation, unless special circumstances require a different custody arrangement.¹ In many other developed countries, this presumption was abolished during the last two decades of the twentieth century, among other reasons due to aggressive campaigns by men's organizations.² In these countries, the presumption was replaced with gender neutral legal language, encouraging shared legal parenthood and blurring the distinctiveness of the role of the primary care-giving parent by replacing the terms "custody" and "visitation" with terms such as "parental plan" and "contact".³ Similarly, at the end of 2011, a governmental committee (hereinafter: the Shnit Committee) recommended abolishing the tender years doctrine and adopting the terms "parental responsibility" and "parental times". These recommendations were embraced by the Minister of Justice, and are awaiting parliamentary discussion.⁴

Some feminists in other countries are critical of the outcomes of such legal changes. In the United States, Canada, and Australia, what seemed to be a move from a patriarchal rule that assumes maternal sole caring responsibilities post-divorce to a liberating rule that will lead to gender equality, turned out to be a tool in the hands of many fathers to avoid paying child support, restrict divorced mothers' freedom of movement, and enforce ongoing contact with an abusive ex-spouse.⁵ Moreover, the gender-neutral language used by the law in these countries did not lead to significant changes in the gendered labor division, but rather masks the ongoing reality in which in most post-divorce families, like in most pre-divorce ones, the mother is the primary caregiver.⁶

The dangers for women embedded in the abolishment of the tender years presumption are even more acute in Israel. Divorces in Israel are governed by religious laws and tribunals. Civil marriage and divorce are not allowed, and so women are subordinated to patriarchal religious norms that enable the husband to economically blackmail the wife for a divorce decree (Get).⁷ Indeed, Ruth Halperin-Kaddari and I have recently warned against the adoption of the foreign legal reforms described above into Israeli law, because it will harm women and children who already suffer from the current discriminatory legal system. In our paper, we argue that the tender years presumption should be changed to a primary caregiver presumption. Such a change will mark the option of paternal custody, if the father was the primary caregiver, and will allow shared physical custody in the rare circumstances when such an arrangement is possible and advisable, while saving most mothers the need to prove in court that the best interest of their children is to stay in their physical custody.⁸

I will not dwell any further on the pros and cons of each possible legal rule governing parental responsibility upon divorce, discussed at length in the above mentioned paper. Rather, I wish to shift the spotlight towards the innovative strategies used by the Israeli men's groups in their struggle to abolish the tender years presumption. After mapping these strategies I argue that the Israeli feminist movement does not address them adequately, hence not properly adjusting to the challenges of the third millennium.

Israeli Men's Groups' Strategies

In my empirical study of the field shaping divorce arrangements in Israel at the dawn of the third millennium, I have found several men's organizations that called for the abolishment of the tender years presumption. However, I concluded from the findings that "unlike the status of men's organizations in other countries, these Israeli men's organizations do not enjoy public recognition as carriers of a legitimate socio-legal change."⁹ Ten years ago, representatives of men's organizations were not invited to Knesset discussions, were belittled by women's organizations, ignored by the media, and disregarded by professionals in the legal and therapeutic fields shaping divorce arrangements. At the time, the only organization that managed to [End Page 30...