Parashas Shemos notes the heroic deeds of the Hebrew maidservants, Shifra and Pu’ah, who refrained from carrying out the wicked decree of Pharaoh. Though he had commanded that they kill all Hebrew infant boys at birth, they refused to comply and rather “revived the infants” (Shemos 1:18).
The Gemara expounds on the greatness of the midwives’ actions: “Not only did they refrain from carrying out his orders, but they even provided them with water and food” (Sotah 11b). Abarbanel explains how this is derived from the words of the verse: “They revived the infants, meaning that they not only refrained from killing them, but even made efforts to revive them and sustain them after birth, so that they gave them life – the very opposite of Pharaoh’s instructions.”
The Gemara also notes that the midwives’ names hint at the virtue of their deeds. The words Shifra and Pu’ah are interpreted as referring to the positive treatment they gave the Hebrew infants (see Sotah 11b; Shemos Rabbah 1:13).
The incident of the midwives, along with other Torah passages, demonstrates the special connection of women to children and infants. In the present article we will discuss whether and how this special connection affects matters of custody.
Which considerations do halachic authorities mention in relation to questions of custody? Is there an automatic preference for the mother over the father? Does the custody issue depend on the age of the child? Is there a difference between boys and girls? And how, if at all, has the halacha of child custody changed over the generations?
These questions, among others, are discussed in the present article.
Principles of Custodial Preference
When it comes to children under six years old, halacha presents a clear custodial preference in favor of the mother.
This preference is implied by a Talmudic ruling concerning the question of how far a small child is permitted to walk (beyond the area of his residence) on Shabbos. This is an issue because a Jew may only walk within two thousand amos of his halachic residence on Shabbos. Sometimes a father and a mother have different halachic residences. Therefore, it is important to determine which is considered the child’s halachic residence. Rav Ashi notes that a child under six is still attached to his mother, and therefore his place of residence on Shabbos is that of his mother. This halacha is ruled by the Rambam (Eruvin 6:21) and by the Shulchan Aruch (Orach Chaim 414:1-2).
The bonding of a child to his mother until the age of six is also relevant to the laws of Sukkah. The Mishnah (Sukkah 28a) rules that a boy who “does not require his mother” must dwell in the Sukkah together with his father. The approximate age given for this stage of development is five or six years old (see Rambam, Laws of Sukkah 6:1; Shulchan Aruch, Orach Chaim 640:1-2).
With regard to a daughter, we find an explicit statement of the Gemara (Yevamos 102b) noting that the custodial preference is with the mother. The Gemara bases this ruling on a question of child support raised in the Mishnah. Although it is first suggested that the ruling might only apply to a minor, and not to an older girl, the conclusion of the Gemara is that it applies to a daughter of any age.
By contrast, for boys the custodial preference is assumed by later authorities to be the father, on account of the need to train him in Torah and mitzvos.
Basic Halachic Rulings
The principles above are incorporated into the ruling of the Rambam (Ishus 21:17):
“[The following rules apply after the 24] months have been completed, and the child has been weaned. If the divorcee desires that her son remain in her custody, he is not separated from her until he completes his sixth year. Instead, his father is compelled to provide him with his sustenance while he lives with his mother.
“After a boy completes his sixth year, the father has the right to say: `If [my son] is in my custody, I will support him. If, however, he continues to live with his mother, I will not give him anything.’
“A mother, by contrast, is given custody of her daughter forever, even after she passes the age of six.”
Not all authorities agree with this. The Raavad objects to the halacha, arguing that a father is obligated to begin educating his son already at the age of four or five, and this is impossible when the child is in the mother’s custody. The Maggid Mishneh refutes the argument, explaining that the teaching a father must impart to his young children can be communicated at visits.
The Shulchan Aruch (Even Ha-Ezer 82:7) echoes the Rambam’s ruling. However, later authorities write that individual circumstances are taken into account, as explained below.
Best Interest of the Child in Poskim
The Ri MiGash decided a case concerning custody rights of a father who regularly left his home to travel to other countries. The father wished to take his daughter into his custody, against the mother’s wishes.
Relying on sources of the Geonim, including Rav Sherira Gaon and the Halachos Gedolos, the Ri MiGash, explains that the mother should be the custodian. Although in that particular case the father’s frequent absence from home could also have played a major role, the Ri MiGash employs a more general argument for reaching his conclusion.
He explains that there is a legal preference for a mother as custodian of a daughter based on the reality that mothers can (and do) devote more time to the physical and emotional needs of daughters, and teach them what they need to learn in order to fulfill their feminine role in life and in the Jewish family.
The reasoning indicates that the basic halachos of custody as found in Chazal and codified by later Poskim draw on an evaluation of the child’s best interest.
Treating Each Case Individually
The focus on a child’s welfare is explicit in a responsum of the Rashba (Meyuchasos no. 38). While he agrees that the mother is generally considered the best custodian of her daughters, the Rashba adds that the court, which is “the father of orphans,” should investigate each case individually and grant custody to the parent who can best tend to the interest of the child.
A similar reasoning is presented in a ruling issued by the Rosh (82:2), who was consulted concerning the custody of a boy under the age of six. He explains that the mother is generally the best custodian for a daughter at this age, because she spends more time at home and can therefore further her best interest in several spheres. For a son, the father is generally the appropriate custodian, because he can give him a comprehensive Torah education and enhance his spiritual welfare. This is not in accordance with the above Rambam, who rules that a son under the age of six generally remains with his mother, but rather in accordance with the Raavad.
However, even the Rosh adds that Beis Din should investigate each case and prefer the custodian who will devote more time and effort to the child’s welfare.
This policy is clearly stated by Rabbi Meir Katzenelenbogen of Padua – Maharam MiPadua (Responsa 53). Concerning an eleven-year-old daughter, he writes that due weight must be given to the desire of the girl to be in the custody of her mother, or to remain with her brothers if she is living with them – assuming that responding to her wishes was in her best interest.
The Radvaz (Vol. 1, no. 429), moreover, discusses the custody of a young son after his father had died and his mother had remarried, explaining that even after a divorce (when the biological father is alive and the mother has remarried) the tender years presumption remains appropriate. The child will benefit from the love and care of his mother, and he will be taught his role as a Jewish man by his stepfather. The Radvaz assumes that even the Raavad, who as noted prefers the custodianship of the father even for a son’s tender years, will agree that in these circumstances the best interest of the child will determine that the mother’s custodianship is preferable.
Seeking the best interest of the child is codified by the Rema (Even Ha’ezer 82:7). Though agreeing with the starting point of the Shulchan Aruch, that a daughter remains in the custodianship of her mother even after the age of six, he adds that this applies only when the court feels it is in the daughter’s best interest to remain with her mother. If it appears that the daughter’s interest will be best served in her father’s custody, he is awarded custody.
Modern Rulings
In modern times the dominance of the child’s best interest has further advanced, in tandem with its central focus in secular courts.
In one case, an Israeli Family Court decision stated that the best interest of the child is the “pillar of fire and pillar of cloud by which the court decides all questions of custody, visiting hours, and education” (TMS (Nazareth) 12780-09-08). Israeli law likewise notes concerning custody that “the court has the right to determine these matters as it sees fit in the best interest of the child” (Law of Legal Capacity and Guardianship (5762-1962), Article 25).
Based on the above, the primary factor that Dayanim take into consideration in determining custody is the best interest of the child. Thus, several Dayanim have rejected the view that the father can force a son older than six to come into his custody by threatening to cut off maintenance if he is left with his mother (see PDR 1:61-62; Shut Yaskil Avdi Vol. 6, Even Haezer no. 31).
In one case, (Chief) Rabbis Hertzog and Uziel, together with Rabbi Shabtai, ruled that two daughters should remain in the custody of their father, due to this being in their best interest. They note that the presumption of custody of daughters in favor of the mother was not intended as a rigid rule, but was simply an attempt to determine what the child’s best interest was usually. Special circumstances of each case might justify deviation from the traditional custody assumptions of Jewish law (see also PDR 13: 335, 338).
Shut Tzitz Eliezer (Vol. 17, no. 50) likewise explains that sometimes custody of a son under the age of six or of a daughter older than six could be awarded to the father, or, conversely, the mother should be awarded custody of a son older than six. He maintained that the traditional custody assumptions should only be implemented rigidly in cases where the application of the standard of the child’s best interest led to the conclusion that the parents were equally suitable to be custodians.
The supremacy of the child’s best interest was accentuated by Rabbi Eliezer Goldschmidt (Shut Ezer Mishpat no. 28), who wrote of how in Torah law parents have only obligations towards their children, not rights, and that no parent is considered inferior to the other.
This concept finds several precedents, such as a famous responsum of Shut Maharashdam (Even Ha-Ezer 123), who discusses the question of a daughter who was orphaned from her father at a tender age, while still nursing from her mother. The father left a will appointing his brother over his property and instructing him to support his daughter and wed her, when the time comes, to a specified man. The widow, however, wished to leave town together with her baby daughter, and to return to her father’s home.
Although the general rule is that a mother is given custody of her daughter, the Maharashdam explains that this preference applies only as a factor of the daughter’s benefit. Where it is not in her benefit – such as in the case at hand, which involved a dangerous journey and the loss of guaranteed provisions and dowry – the principle does not apply. A similar statement is made by Shut Mabit (Vol. 2, no. 62).
Based on these considerations, an Israeli Rabbinate court likewise ruled that a father does not have an inherent right to visitations. Like other matters of custodianship, the question of visiting hours is decided by determining the benefit of the child, and not by parental right.
Spiritual Best Interest
Authorities make special note of the spiritual best interest of the child.
One example of this is another teshuvah of the Radvaz (Vol. 1, no. 263), in which he decided that a seven-year old daughter should be placed in her father’s custody, due to the mother’s inappropriate behavior. The reason why a daughter is usually in the custody of her mother is the daughter’s interest; where it is against her spiritual interest, it is the responsibility of the father, and even of Beis Din, to ensure she should not be in her mother’s custody.
The Noda BiYeyuda (Tinyana, no. 89) likewise writes that spiritual best interest is sufficient to give the father custody of children under the age of six. Although the Shulchan Aruch rules that a child of tender age should be with his mother, this does not apply where it is in the spiritual/religious interest of the child to be with his father.
Religious Conflict
The Beis Din of the Israeli Rabbinate often gives verdicts based on spiritual (or religious) interest, stressing that the child should be raised by the parent who can provide the best education for the child. Thus, although the legal dominance of a child’s welfare is accepted by the Rabbinate – a point already raised in 1954 by secular court justice Zilberg (CA 209/54 Steiner v. Attorney General, PD 9 241, at 251) – the interpretation of this principle has led to tension between secular courts and the Rabbinate.
Indeed, there are several cases (see, for instance BGZ 7395/07 Plonit v. High Appeal Court of the Rabbinate Et. Al. (2008)) in which the Israeli Supreme Court criticized the Rabbinate Beis Din for taking religious factors into account, and not focusing on the best interest of the child alone. Of course, Beis Din was in fact thinking of the child’s best interest – only that Beis Din sees this interest differently from the secular courts. Naturally, this is a delicate balance to make, and “spiritual health” is often directly related to the emotional health of a child.
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In the final analysis, finding the best interest of a given child involves weighing up a variety of different factors and trying to reach the best possible decision. Matters of custody continue to be among the hardest and most emotionally trying that Beis Din must face. Though at times hard to determine, the overall welfare and benefit of the child remains the guiding standard.
