Rabbi Yona Reiss

Child Custody in Beth Din

 

The Talmud teaches “kashin ha-gerushin” – divorce is very difficult.¹ One of the most vexing challenges when dealing with a divorce case is making custodial determinations in terms of which parent will have primary custody of the children. As with any type of dispute, it is improper for such matters to be litigated in a secular court.² As a result, when our Beth Din deals with divorce cases, it is common that we also deal with custody and visitation issues.

There is a complication with respect to the enforceability of the ruling of the Beth Din. In the formulation of the requirement to establish rabbinical courts, the Torah states “you shall appoint judges and police officers.”³ The Midrash remarks “im ein shoter ein shofet” – if there is no police authority capable of enforcing the Beth Din’s decision, then there is no ability for the rabbinical judges to function in their judicial capacity.⁴

In many states, decisions by an arbitration tribunal regarding parenting arrangements are not capable of enforcement by the courts based on the parens patriae principle that the courts are the guardians of the children in divorce cases and therefore the parents have no right to delegate child custody decisions to an arbitration tribunal outside of the court system.⁵ However, as Rabbi J. David Bleich points out, this limitation on the Beth Din’s authority can be rectified by the parties through their signing the arbitration decision meted out by the Beth Din.⁶ The same way that a court will honor the parties’ signed parenting agreement (unless it manifestly disregards the welfare of the children), a court will honor the parties’ signed parenting agreement that is based upon a decision of the Beth Din.

As a result, the Beth Din will routinely hear and decide custodial cases through the mechanism of “collaborative arbitration.” This is a special type of arbitration process whereby the Beth Din works collaboratively with the parties and their attorneys to ensure that there is a process that is thorough and incorporates all court-recommended procedures, including consultation with child therapists and experts, and even, if necessary, the appointment of a GAL (guardian ad litem to advocate for the children), so that the attorneys (together with their clients) will be comfortable converting the Beth Din’s decision into a parental allocation agreement that will be signed by the parties and enforced by the secular court.

It should be noted that in 2009 the Supreme Court of the State of New Jersey ruled that an arbitration tribunal, including a Beth Din, is granted authority to adjudicate custody disputes, so long as the arbitration tribunal decides the case according to the standard of the “best interests of the children.”⁷ I recall that this decision to grant arbitration authority came in the immediate aftermath of a case that was handled by the Beth Din of America involving a nasty divorce between parties who resided in New Jersey and had submitted their divorce disputes to the Beth Din for arbitration. The Beth Din had issued several interim orders regarding custody, and the husband filed a court order seeking to void the Beth Din’s decisions, arguing that the Beth Din should not have authority regarding custody matters. The court declined the husband’s request, stating that the Beth Din seemed to be doing a perfectly fine job in the case. Shortly thereafter, the Supreme Court serendipitously issued its unequivocal decision that custody determinations were now subject to arbitration in the State of New Jersey.

However, it is important to determine the correct standard according to Jewish law for making custodial determinations. The New Jersey court required that an arbitration tribunal follow the “best interests of the children” rule. Is this principle followed according to Jewish law as well?

In this regard, we should note that there are two different categories of child custody. There is residential custody, which is the determination of where the children will reside, and then there is legal custody, which is the determination of which parent shall make major decisions on behalf of the child, such as with respect to schooling and medical care. The chief focus of this discussion will be on residential custody determinations.

According to the Gemara, a daughter remains with her mother regardless of her age.⁸ The Rosh quotes authorities who understand that this rule was articulated solely with respect to an orphaned daughter whose father passed away, and the question addressed by the Gemara is whether the daughter should be raised by her mother or by her father’s relatives.⁹ However, the Rosh then cites the opinion of the Ramah (Rabbeinu Meir HaLevi) that the rule applies to cases of divorce as well. This latter opinion is accepted as normative halacha by the Shulchan Aruch.¹⁰

What about the custody of a son? The Rambam rules,¹¹ consistent with other passages in the Talmud that deal with the right of a mother to determine a young child’s location for Techum Shabbos purposes (i.e., extending the area where the child can walk on Shabbos), that the mother has residential custody of all children below the age of six, including both sons and daughters.¹² The reasoning provided by some authorities is that any child at that tender age naturally requires the assistance of his or her mother.¹³ Above the age of six, the son would move to his father’s domain. The ruling of the Rambam is also codified by the Shulchan Aruch.¹⁴

The Ra’avad (ad locum) disputes this ruling of the Rambam since a father has responsibility to provide Torah education to his son, even prior to the age of six. If the son lives with his mother during this time, his father would be prevented from performing this mitzvah due to lack of access to his son.¹⁵

Interestingly, the Maggid Mishneh derives from this discussion a right of visitation for the non-custodial parent according to Jewish law.¹⁶ In response to the Ra’avad’s critique of the Rambam, the Maggid Mishneh states that while the young son needs to be with his mother to address his physical needs, the father can provide the child with his Torah instruction whenever he comes to visit.

However, the Rambam is clear that after the son turns six, the presumption is that the son would live with his father. Furthermore, the Rambam states that the father would not be obligated to provide support for his son if he is over the age of six and still living with his mother.

Nonetheless, the Rashba rules that the default principles of child custody can be overridden based on “best interests of the child” considerations.¹⁷ It is generally in the best interests of the daughter to be with her mother so that she can learn the ways of modesty and the proper manner of Jewish women from her mother, and it is generally in the best interests of the son to be with his father or other male relatives (if the father is deceased) so that he can be taught Torah by them. However, if the Beth Din determines that a daughter will learn the ways of Jewish women better if she is not with her mother, or that the sons will be taught Torah more effectively by not being with the father or other male relatives, then the parental arrangements should be modified accordingly.

The practice of rabbinical courts today is in accordance with the opinion of the Rashba.¹⁸ Accordingly, while there may be a default rule for young children under the age of six to remain with the mother for physical or psychological reasons, and for daughters above the age of six to remain with their mother to be taught the ways of a Jewish woman, and for sons above the age of six to remain with their father to be taught Torah, all of these default principles are subject to re-evaluation based on a case by case analysis. Thus, if it is determined, in consultation with child therapists and the educational professionals within the Torah community, that the healthy development of the child, from a physical, psychological or religious perspective, would be better facilitated through an alternative arrangement, the Beth Din will take that into consideration in fashioning the custodial arrangement.¹⁹

Along these lines, the Radvaz ruled that in a case where a divorced mother was not particularly modest in her conduct and her lifestyle was antithetical to Torah standards of behavior, that it would be better for her daughter not to remain with her mother under such circumstances.²⁰ Similarly, in more recent times, Rav Gedalia Felder ruled that when a boy above the age of six still had a psychological need to live with his mother, he should remain with his mother rather than move out to live with his father.²¹ In many cases, the Beth Din also needs to consider the psychological fitness of the respective parents, particularly if one parent is unfortunately abusive, in terms of ensuring that the children be in a healthy and nurturing environment.

Nowadays there are a number of factors that influence a Beth Din’s decision with respect to “best interest of the child” determinations:
(1) the fact that in many families, it is healthier for the well-being of the children for them to live with each other rather than have the boys live with the father and the girls live with the mother; (2) the possibility of having one parent serve as the primary residential parent for the children if the children thrive better with that parent, while granting the other parent generous visitation, so that the non-residential parent can also exert a possible influence on the growth of the children; and (3) the realization that the “best interests” of a child may not be an all or nothing proposition, and that just as earlier rabbinic authorities would place the son with a different parent depending on whether he was below or above the age of six, it sometimes makes sense to alternate different days or weeks between the two parents as well.

In this vein, it is important to recognize that according to Jewish law one cannot “waive” the right to parental custody or visitation.²² The Mabit addressed a case in which a mother had forfeited her custodial rights to her daughters, based on shalom bayis concerns, when she got remarried to another man.²³ Subsequently, the father married another woman with whom the daughters did not get along, and the daughters really wanted to return to their mother. Meanwhile, the mother’s new marriage unraveled, and she was more readily able to bring back her daughters to live with her. The Mabit ruled that since parenting is not fundamentally a right but a responsibility, there is no such thing as a binding “waiver” with respect to giving up custody of the children, and therefore since it was in the best interests of the daughters to return to live with their mother, it was appropriate to modify the custodial arrangements accordingly.

Since the halacha recognizes the value of each parent’s participation in the child’s life, many rabbinic authorities disfavor the moving of one parent away from the other parent, unless the other parent agrees, and appropriate arrangements are made for the other parent to still play a role in the child’s life. There is a particular emphasis on the importance of a father to remain within close geographical proximity of his sons in order teach them Torah.²⁴ With an increase nowadays in travel, and the possibility of telephone communications and the like, this type of long-distance arrangement has become more prevalent, particularly in cases when it becomes desirable for the main custodial parent to move away for remarriage purposes. However, in most cases the parents reside within the same geographical area.

As mentioned above, in addition to making determinations with respect to residential custody, there is also a need for the Beth Din to decide upon legal custody, which is the determination of which parent shall have primary authority to make determinations regarding the schooling, health care, extra-curricular activities, and religious standards for the children. In most cases where both parents are competent, religiously committed, and involved in the lives of their children, these functions will generally be subject to joint custody, meaning that the parents will participate equally in decision-making responsibilities. On occasion, the Beth Din will assign primary legal custody in one or more of these areas to a particular parent, depending upon the circumstances of the case, and the “best interests of the children” in terms of their physical, psychological or religious welfare. Sometimes, even when joint legal custody is appropriate, the Beth Din still needs to serve as the “tiebreaker” decision-maker when the two parents are unable to agree upon a school, or a health provider, or some other important determination.

Unfortunately, custody determinations can sometimes be contentious, particularly in the context of an acrimonious divorce. Rav Ezra Basri, a prominent dayan in Israel, cautions parents against using their children as cudgels in their battles against each other.²⁵ Similarly, he notes that it is important for dayanim to recognize how the facts of the case can sometimes be misrepresented by attorneys and rabbinic advocates. On these occasions, it is especially important for dayanim to be mindful of the dictate of hevu metunim be-din – to be deliberate in judgment, because these cases are in the realm of dinei nefashot – decisions that will have a profound impact on the future lives of the children.²⁶

Because of the delicate nature of the process, Rav Yaakov Yeshaya Blau notes in his seminal work, Pischei Choshen, that the Beth Din also needs to remain mindful of changes of circumstances that could require a shifting in the arrangements for the benefit of the children.²⁷ It is not unusual in these types of cases for the Beth Din to remain involved with the parties for many years to assist them with respect to changes in the custody and visitation schedule and arrangements. Ultimately, the dictum of hevu metunim be-din in this type of case has not only the connotation of being deliberate in judgment, but also being patient and forbearing in terms of the readiness to deal with the issues in the case for the long term, as part of the responsibility of the Beth Din to the parties, the children, and the broader Jewish community.

As with all matters, we pray for the worthiness to receive the requisite Siyata Dishmaya (assistance from Heaven) to render the proper judgments on behalf of our precious Jewish families.

 

NOTES

1. See Sanhedrin 22a.
2. See Choshen Mishpat 26:1 (it is prohibited for any dispute between Jewish parties to be litigated in secular court).
3. Devorim 16:18.
4. Midrash Tanchuma, Shoftim, paragraph 2.
5. See, e.g., Glauber vs. Glauber 600 NYS2d 740 (2nd Dept. 1993).
6. Contemporary Halachic Problems V, p. 33.
7. Fawzy vs. Fawzy, 199 N.J. 456 (2009).
8. Kesuvos 103a.
9. Kesuvos 12:4.
10. See Shulchan Aruch, Even Haezer 82:7.
11. Hilchos Ishus 21:17.
12. See Eruvin 82a-82b; Kesuvos 65b.
13. See, e.g. Rashi, Kesuvos 65b, s.v. Yotzei.
14. Shulchan Aruch, Even Haezer 82:7-8.
15. See Biur HaGr”a 82:10 who notes the opinion of the Ra’avad as well.
16. Hilchos Ishus 21:17.
17. Teshuvos Rashba Meyuchasos L’Ramban, siman 38.
18. See Chelkas Mechokek, Even Haezer 82:10; Nachlas Tzvi 2:285-286.
19. Based on these considerations, if the Beth Din deems it proper for a son to remain with his mother past the age of six, the father would still be required to provide child support. See Nachlas Tzvi, supra note 18.
20. Teshuvos Radvaz 1:263. See also Tzitz Eliezer 15:50.
21. Nachlas Tzvi supra, n. 18. Rav Felder also addresses the issue of the degree to which the child’s own wishes should be considered, something which the Beis Shmuel (Even Haezer 82:9) records as a relevant factor. Rav Felder writes that when it is clear from the context that the child’s wishes are reflective of his best interests, the child’s wishes should be respected – וז”ל ומוכר שזהו רצון האמיתי של הילד ולא רק פרי הסתה מצד האם. Cf. Radvaz, supra n. 17 (daughter’s desire to stay with promiscuous mother should not be respected when motivated by improper inclinations).
22. See Maharshdam Even Haezer 123 (the “right” of custody for a daughter to reside with her mother belongs not to the parent but to the child).
23. Teshuvos Mabit 2:62.
24. See Minchos Yitzchak 7:113 (mother had no right to take the couple’s one-year old son to California when father lived in Brooklyn and had already begun to cultivate a relationship with his son). See also Pischei Teshuva Even Haezer 82:4. The authorities disagree as to whether the same requirement to provide easy access for a father pertains in the case of a mother who wishes to move away with her daughter against the father’s wishes. See Be’er Heitev, Even Haezer 82:6.
25. Dinei Ishus, chapter 16 (introduction).
26. Pirkei Avos 1:1.
27. Pischei Choshen, Yerusha V’Ishus, chapter 9, note 105.