III. Determinations of Custody Between Parents The Talmud seems to embrace three rules that govern child custody disputes between parents:

1. Custody of all children under the age of six is to be given to the mother;
2. Custody of boys over the age of six is to be given to the father;
3. Custody of girls over the age of six is to be given to the mother.

Thus, the mother presumptively is given custody 72% of the time when the rules are strictly applied. The Talmud (Ketubot 59b) also indicates that these ideal rules of child custody presuppose that both the mother and the father desire custody of the children and both are financially capable of custody. Jewish law, however, rules as a matter of law that mothers (at least upon termination of the marriage) are under no legal obligation to financially support and maintain their children, whereas fathers are under such an obligation. These rules are codified in Maimonides' code and Shulchan Aruch, and are the basis of much of the discussion found among the later authorities. The above talmudic rules, read in a vacuum, appear to provide no measure of flexibility at all and mandate the mechanical placement of children into the appropriate category. However, Jewish law, as has been demonstrated by others, never understood these rules as cast in stone; all decisors accepted that there are circumstances where the interest of the child overwhelmed the obligation to follow the rules in all circumstances. It is apparent, however, that this interpretation of the talmudic precepts, which turns these rules into mere presumptions -- and allows custody to be given contrary to the Talmudic rules -- is understood by the various authorities in different ways. Two different issues need to be addressed. First, in what circumstances may one reject the talmudic presumption: need the presumptive custodial parent be "unfit" or is it enough that others are "more fit"? Second, in cases where the Talmudic presumption has been rejected, who should then be assigned custody? Is that determination based purely on the "best interest of the child" or must custody be granted to the other parent as a matter of law, assuming that the parent is "fit". The circumstances in which the talmudic presumption can be rejected are often not explicitly stated; thus it may be unclear whether, in any particular case, the parent designated to presumptively receive custody but denied that right, is "unfit" or merely that the other parent is "more fit". However, an examination of the responsa literature and decisions of the Rabbinical Courts in Israel does indicate that two schools of thought exist on this issue. Many decisors rule that these presumptive rules are relatively strong ones and can only be reversed when it is obvious that the parent who would be granted custody (or already has custody) is unfit. Other decisors adopt a lower standard and permit granting custody contrary to the talmudic rules when these presumptions are not in the best interest of the specific child whose case is being adjudicated. For example, Rabbi David Ibn Zimra, (Radvaz) discusses a case where a couple was divorced and the mother had custody of the seven-year-old daughter (in accordance with the rules discussed above). After a short time the mother became pregnant out of wedlock and the father sought to regain custody of his child based on the moral delinquency of the mother. Radvaz rules in his favor; however, an examination of his language indicates that it is based on the unfitness of the mother to have custody of the children and not merely on the fact that the father could do a better job raising the children. Many, including Maharival, and Rabbi Ovadia Hadayah, agree with this method of analysis. The contrary approach, based on the best interest of the child, can be found in the responsa of Rabbi Moshe ben Yosef Trani (Mabit) and Rabbi Shmuel ben Moshe (Maharashdam). Mabit describes a mutually agreed upon child custody arrangement between divorced parents which one parent now seeks to breach. Mabit states that it appears to him that the agreement is not in the best interest of the children and thus ought no longer be enforced and that custody is to be granted contrary to the agreement. He understands the "standard of review" to be the best interest of the child and not unfitness of the parent. So too, Maharashdam evaluates the correctness of a (widowed) mother's decision to move a child to another city away from the family of the father based on the best interest of the child. He concludes by prohibiting such a move, as it is not in the child's best interest. This approach can also be found in the works of many additional authorities. Both Shochatman and Warburg maintain that this is the predominant school of thought among judges in the Israeli Rabbinical courts who often issue statements supporting this approach. For example, one rabbinical court noted: The principle in all child custody decision is the best interest of the child as determined by the Beit Din. (emphasis added) or Child custody is not a matter of paternal or maternal rights, but is determined according to the best interest of the child .... Beit Din is authorized to determine what is in the best interest of the child ... according to the particular conditions of each case. (emphasis added) Along with the dispute as to when the talmudic rule is to be put aside, there is the second question of who should be considered eligible for custody once the presumptive rules are deemed inapplicable. Most authorities understand the presumptive rules as requiring that in cases where the mother does not wish to have custody (or is unfit or incapable), the children must be given to the father if he is willing and able. Rabbi Yakov ben Asher, writing in the Tur, states this quite clearly, when he rules: And if the mother does not wish to have the children in her custody after they are weaned she is free to decline custody of both boys and girl. These children are then given to the father to raise or be raised by the community if they do not have a father. This understanding of the rules discussed above only allows their use in situations where both parents seek custody; it assumes that in cases where only the father seeks custody, he always will be given such custody. So too, one finds support for the complementary proposition that should the father be unavailable or unfit and the mother desires custody, she is entitled to it. Other authorities strongly disagree with this understanding of the law and allow (after the termination of the marriage) placing a child with a non-parent rather than a parent, once the original talmudic presumption is removed and if it is in the best interest of the child. According to this rule, in a situation of death of one parent, once it is determined that placement in harmony with the talmudic rules is ill advised, it is possible to place the child with someone other than a parent if that is in the child's best interest. Indeed, one authority states this directly: "presumptively a girl is best raised by a knowledgeable woman rather than by a man, even her father." The theoretical underlying basis for these disputes will be discussed in section V.

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