II. The Theoretical Basis for Parental Custody The initial question in all child custody determinations is frequently unstated: by what "right" do parents have custody of their children? As explained below, two very different theories, one called "parental rights" and one called "best interest of the child" exist in Jewish law. These two theories are somewhat in tension, but also lead to similar results in many cases, as the best interests of the child often will coincide with granting parents rights. There is a basic dispute within Jewish law as to why and through what legal claim parents have custody of their children. Indeed this dispute is crucial to understanding why Jewish law accepts that a "fit" parent is entitled to child custody -- even if it can be shown that others can raise the child in a better manner. Rabbi Asher ben Yecheil (Rosh), in the course of discussing the obligation to support one's children, adopts what appears to be a naturalist theory of parental rights. R. Asher asserts two basic rules. First, there is an obligation (for a man) to support one's children and this obligation is, at least as a matter of theory, unrelated to one's custodial relationship (or lack thereof) with the child or with one's wife or with any other party. A man who has children is biblically obligated to support them. Flowing logically from this rule, R. Asher also states that, as a matter of law, in any circumstance in which the marriage has ended and the mother is incapable of raising the children, the father is entitled to custody of his children. Of course, R. Asher would agree that in circumstances in which the father is factually incapable of raising the children -- is a legally unfit father -- he would not be the custodial parent. However R. Asher appears to adopt the theory that the father is the presumptive custodial parent of his children based on his obligations and rights as a natural parent, subject to the limitation that even a natural parent cannot have custody of his children if he is factually unfit to raise them. For the same reason, in situations where the Sages assigned custody to the mother rather than the father, that custody is based on a rabbinically ordered transfer of rights. While this understanding of the parent's rights is not quite the same as a property right, it is far more a right (and duty) related to possession than a rule about the "best interest" of the child. The position of R. Asher seems to have a substantial basis in the works of a number of authorities. There is a second theory of parental custody in Jewish law, the approach of Rabbi Solomon ben R. Aderet (Rashba). R. Aderet indicates that Jewish law always accepts -- as a matter of law -- that child custody matters (upon termination of the marriage) be determined according to the "best interests of the child". Thus, he rules that in a case where the father is deceased, the mother does not have an indisputable legal claim to custody of the children. Equitable factors, such as the best interest of the child, are the sole determinant of the custody. In fact, this responsum could well be read as a general theory for all child custody determinations. R. Aderet accepts that all child custody determinations involve a single legal standard: the best interest of the child, regardless of the specific facts involved. According to this approach, the "rules" that one encounters in the field of child custody are not really "rules of law" at all, but rather the presumptive assessment by the talmudic Sages as to what generally is in the best interest of children. An enormous theoretical difference exists between R. Asher and R. Aderet. According to R. Aderet, the law allows transfer of Custodial rights (even from their parents) in any situation where it can be shown that the children are not being raised in their best interests and another would raise them in a manner more in their best interest. According to R. Asher, parents (or at least fathers) have an intrinsic right to raise their progeny. In order to remove children from parental custody, it must be shown that these parents are unfit to be parents and that some alternative arrangement to raise these children consistent with the parent's wishes and lifestyle (either through the use of relatives as agents or in some other manner) cannot be arranged. This legal dispute is not merely theoretical: the particular responsa of Rabbis Asher and Aderet, elaborating on these principles, contain a distinct contrast in result. R. Aderet rules that when the father is deceased, typically it is in the best interest of the child to be placed with male relatives of the father rather than with the mother; R. Asher rules, that as a matter of law, when the mother is deceased, custody is always to be granted to the father (unless the father is unfit). To one authority, the legal rule provides the answer, and to another equitable principles relating to best interest do. These two competing theories, and how they are interpreted by the later authorities, provide the relevant framework to analyze many of the theoretical disputes present in proto-typical cases of child custody disputes. Indeed, it is precisely the balance between these two theories that determines how Jewish law awards child custody in many cases.

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