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