In a case over the custody rights of three children from a mixed Christian-Muslim marriage, Kayan has received a decision from the civil family court acknowledging its authority in the case. The case, dating from 2001, can thus be re-opened in the civil family court, even though it had already been ruled on by the Sharia Court. The court has come to this unusual decision due to the fact that Kayan's client converted to Christianity after the Sharia Court had delivered the ruling, so that the Islamic court no longer had any authority over her case.
D., a 40-year-old Arab Christian woman from Israel, had converted to Islam for the purpose of her marriage to a Muslim man from the Occupied Palestinian Territories. Three children were born during the marriage, the youngest now nine years old. After the couple divorced in 2001, the custody case was opened in the Sharia Court, which granted custody to D., the mother. Several years later, the father reopened the case in the Sharia Court, successfully claiming custody on the grounds that D. did not provide a good religious education for the children. He and the children then moved back to the OPT. After D. unsuccessfully appealed against this decision to the Sharia Appellate Court, she appealed to the High Court of Justice. The High Court ordered the Sharia Court to abide by Israeli law and to decide according to the best interest of the child, laid down in the opinion of social workers appointed by the court. However, despite the fact that social workers' opinions were all in favor of giving custody to D., custody was again given to the father.
Another appeal brought about an agreement between the two parties for joint custody. Half the week, the children were to stay with their father, and the other half, with D. D.'s ex-husband was responsible for taking the children to their mother. It was at this time that the mother converted back to Christianity. After her ex-husband did not bring the children to Haifa as agreed, D. opened a new case for custody at the family court. Kayan's lawyer Shirin Batshon-Khoury represented her, claiming that the children would suffer damage from not being in contact with their mother, and that the children's situation should be checked by a court-appointed psychologist and the welfare services. She also argued that the father should uphold the joint custody agreement, and that in the best interests of the children, they should not be schooled in the OPT but in Haifa, where the level of education provided is higher.
The crucial issue in this case was whether the family court would have authority over the case, since the same case had already been tried by the Sharia Court. The same case cannot usually be handled by another court, in order to prevent plaintiffs from attempting to receive a more favorable verdict the second time. In D.'s case, however, the family court decided that it did have authority over the case, because D. had converted back to Christianity after the divorce, so that the Islamic Court had no authority over her anymore. The family court also ordered D.'s ex-husband to uphold the joint custody decision conferred by the Sharia Court. D.'s appeal for sole custody is still awaiting a ruling from the family court.
This case predates the Amendment of the Family Courts Law in 2002, which allows women to appeal to family courts as an alternative to religious courts in family law cases except for marriage and divorce. D. thus had no alternative at the time but to bring the custody case to the Sharia Court. Today, women and men can opt to open cases related to marriage breakdown either in family courts or in religious courts. However, since both courts have parallel authority over family law cases, the case will be handled in the court that sees the case first, brought by either of the partners.
In addition to this court case, Kayan is also trying to oblige D.'s ex-husband to implement the joint custody decision via involvement of both the national appointee in the Ministry of Justice for cases of custody and visiting rights for parents with mixed citizenship of Israel and the OPT, and his Palestinian counterpart. An international agreement for such cases is lacking.
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