JEWISH LAW AND CHILD CUSTODY

ANSWER:  The Talmud,Ketubot 65b,  lays down down a number of rules concerning the adjudication of custody disputes.:1)children below six are to be placed with the mother although the father continues to be liable for their support;2)boys above the age of six are to be placed with their fathers;3)girls above the age of six are to be placed with their mothers.Despite the seemingly-absolute nature of these directives,halachic authorities are unanimous in  regarding them at most as rebuttable presumptions or guidelines  to be superseded or ignored when their application would be inconsistent with the child’s welfare. De facto ,therefore,Jewish law does regard welfare of the child as the primary factor for consideration. This,however,does not mean that the  halachic standard  is identical  to that employed under secular law.This divergence may stem from two distinct factors:.

(1)The Evidence Needed to Rebut the Talmudic Presumption: There are two schools of thought concerning the  rebuttal of the  Talmudic presumptions.Some authorities(Approach #1) take the position that the Talmudic rules must apply unless the parent  who would be awarded custody under  those rules can be shown to be unfit..For example,custody of boys over six must go to the father even where it is clear that the mother is the better parent  unless the father can be shown to be unfit.See,for example,R. Ovadiah Hedaya,Yaskil Avdi EH 2:2(4).Other authorities(Approach #2)-and this has tended to be the position of the Rabbinical Courts in Israel-apply the Talmudic presumptions only where both parents are equally fit(which is rare) ;where that is not the case, they  will award custody based exclusively on the “best interest of the child”.Indeed,on occasion this has led to a child being placed with neither parent where a third party,eg,grandparent,was regarded as the best caregiver See Piskei Din Rabaniim 1:55-56 and 3:353..Professor Michael Broyde,an authority who has written extensively on this topic,,has argued that these two views depend on whether one regards custody determinations  as matters of parental rights akin to property(subject to forfeiture in the event of unfitness) or as matters concerned exclusively with what is best for the child   See Broyde,”Child Custody in Jewish Law”,. 37 Journal of Halacha and Contemporary Society 27(1997)These same tensions and polarities exist in secular domestic relations law as well which has gradually replaced a model based on property rights with one based predominantly though not exclusively on children’s welfare. Thus,while both halachic approaches deny custody to an unfit parent,,only Approach #2  is  conceptually identical to the standard employed in modern secular law.

(2)Differing Standards for the Determination of Fitness:It must be emphasized that even where the tests are in principle the same,a custody award of a beit din will often not be identical to that of a secular court.In determining whether a parent is fit  or the most fit (depending on the standard),a beit din will look at many factors that a secular court may simply regard as irrelevant.. For example,a parent who does not practice Judaism or who is not willing to give their child any type of jewish religious education would almost certainly be regarded as unfit within the standards of Jewish law regardless of his/her suitability in all other respects.It is almost definitionally not in the best interests of a Jewish child to be raised in a non-Jewish environment  absent issues of abuse and the like                                  .From a secular perspective at least if the child is  too young to have formed an attachment,a difference in religious perspective between the parents does not tip the balance one way or the other and the custodial award is likely to be made on the basis of other factors..                                                                                                                                                    It should also be noted that, as a matter of halacha, parties are obligated to submit disputes concerning child custody and visitation to a beit din and must abide by the beit din’s decision.As a matter of secular law,the decision of a beit din on custody/visitation/support is not legally enforceable  because courts in their capacity as defenders of children reserve the right to make their own independent assessment of what is in the children’s best interest and will not defer to the determination of an alternative body, even  a body that the parties had accepted as  having binding authority to make the decision. In theory,therefore,a party unsatisfied with the beit din’s decision might be able to successfully overturn it in secular court  .Such an effort ,however,whether ultimately  successful or not,  is a serious violation of halacha and a descration of G-d’s name.See commentary of Rashi ,Exodus  21:1. From the beit din’s perspective, the more  professional its deliberations are,the more complete the evidentiary record is,the more likely a court will view its decision with favor.The beit din should thus  be encouraged to utilize resources of psychologists,social workers,and other mental health and family professionals  both to insure the greater accuracy of its decision and to maximize the probability that its decision will be legally recognized and enforced.

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