Download This Paperמביטול חזקת הגיל הרך למודל השיקוף – בין דיני משפחה ובין דיני חוזים From the Tender Years Doctrine to the Approximation Rule – Between Family Law and Contract Law
15 HAIFA LAW REVIEW 15 (2021)
68 Pages Posted: 7 May 2020 Last revised: 7 Oct 2022
Date Written: April 10, 2020
Abstract
This article once again challenges the traditional Israeli Tender Years Doctrine and suggests it should be replaced with a better and normative one – the approximation rule. The latter doctrine, initially suggested in American legal literature, was eventually adopted in one of the most important and central, suggested legal revisions in the U.S. Interestingly, it was also tabled in 2016 at the Israeli Parliament. At the outset of my article, I explore the existing chaotic situation caused by the latest attempts to achieve more egalitarian child support and maintenance and the Tender Years Doctrine abolishment. After enumerating calls in the academic and judiciary circles to abandon this doctrine, I evaluate challenges and dilemmas posed by other suggested normative doctrines. In essence, this article wishes to establish the importance and centrality of the approximation rule in light of one of the most substantial modern legal doctrines – the relational contract. This doctrine has been gaining strength in the modern era and, more specifically, in the context of regulating both spousal and the parental relationships. Next, I argue that this a-gender [?], egalitarian, flexible, reasonable, just, and normative rule is the best method to be reconciled with the children's best interests and the protection of their rights. In conclusion, I call on the Israeli legislature to adopt the suggested ,2016 law regulating child-parents relationships as a unique and nuanced implementation of the approximation rule.
Keywords: Tender Years Doctrine, Approximation Rule, Family Law, Contract Law, Child Custody, Joint Custody, Best Interests of the Child
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