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Child Custody in Jewish Law: A
Pure Law Analysis
Michael J. Broyde

Child Custody in Jewish Law:
A Pure Law Analysis

Michael J. Broyde

I. Introduction
Child custody determinations are among the most difficult in any legal system as they pose many of the classical difficulties related to mixed fact and law determinations. This article will survey Jewish law's approach(es) to several purely legal issues related to child custody determinations and will examine the theoretical halachic underpinnings of such determinations. Specifically, this article is divided into four substantive sections: the first addresses the theoretical basis for child custody determinations; the second discusses disputes between parents as to who should have custody; the third discusses the status of relatives and strangers in child custody disputes and the fourth draws certain theoretical conclusions based on the previous three sections. Of course, all reasonable legal systems must acknowledge that certain people are unfit to be custodial parents of their children and Jewish law accepts that fact. That does not, however, minimize the importance of certain purely legal questions that are raised in all child custody determinations. It is the thesis of this article that there are two implicit basic theories used in Jewish law to analyze child custody matters and that different rabbinic decisors are inclined to accept one or the other. Indeed, which of these theories one adopts substantially affects how one decides many "hard" cases. One of these theories grants parents certain "rights" regarding their children while also considering the interests of the child, while the other theory focuses nearly exclusively on the best interests of the child.

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