The Recent Developments in Custody Law for Muslims in Israel: Gender and Religion

Abstract

In this paper we explore how Shari‘a Courts cope with the issue of custody, in light of two Supreme Court rulings concerning custody cases, in which the regional Shari‘a court suspected the mother of living a Christian way of life. The article aims at discerning the debate between the Shari‘a Court of Appeals and the Supreme Court concerning the Legal Capacity and Guardianship Law and rulings in the issue of child custody, and at proposing an alternative line of interpretation that would help avoiding the debate. The article argues that Shari‘a courts have embarked on a “purification” process, removing secular elements from their legal discourse, both at the rhetoric and symbolic levels, and thus excluding any affinity to secular legislation. The Legal Capacity and Guardianship Law is a main focus of those “purification” efforts. This raises the question of why the Supreme Court actually reversed only so few Shari‘a court rulings. We suggest that it did not have to do so. Though explicitly not basing its rulings on civil law, the Shari‘a Court of Appeals actually imported the principle of the child’s best interest through the back door, by considering it to be a principle acknowledged by Shari‘a. The court reinterpreted religious legal literature and in fact Islamized Israeli law, in the sense of turning an Israeli legal principle into an Islamic one. Another softening of what appears to be a rigid position held by the Shari‘a court may be discerned in its rulings that allow drawing on social workers’ reports in order to determine a child’s best interest.