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The Obligation to Support One’s Child

The beginning of Parashas Ki Seitzei notes the severe punishment meted out to the rebellious child – the ben sorer u-moreh who “does not listen to the voice of his father and his mother” (Devarim 21:18). The rebellious child refuses to heed his parents’ instruction, and, “He is a glutton and a drunkard”  (21:20).

In the present article we will not discuss the laws of the ben sorer u-moreh, but will turn our attention to an interesting question relating to a rebellious child: child support.

When a married couple with children are divorced, the father usually has to pay monthly child support for the upkeep of his children in his ex-wife’s custody. This obligation, as we will explain, is firmly rooted in halachah.

What, however, is the halachah when a child rebels against his father, and refuses (for instance) to meet with him at all? Must a father continue to pay child support for a child with whom he has no connection – when he desires contact? On which principles is the obligation to pay child benefit based, and how is the obligation affected by the behavior of the child?

At the outset, it must be stressed that in all circumstances both sides must heed all the instructions of Beis Din. This article is written as a source of information and for its interest alone.

The Rabbinic Obligation to Support a Child

We find in the Gemara (Kesubos 65 b) that the fundamental obligation to support one’s child applies to children up to the age of six:

“Although they [the Sages] have said that a person is not obligated to sustain his children while they are young, he must sustain them while they are very young. How old is this? Up to the age of six.”

The consensus of the Rishonim is that the obligation is rabbinic. Citing the Gemara in Kesubos referring to a rabbinic enactment of child support (one of the enactments made in Usha), the Ramban (Commentary to Torah, Shemos 21:3) writes that there is no Torah obligation to support one’s children.

Although it is possible to understand that the enactment of Usha applies only to children over the age of six, the Ramban clearly understands that the enactment was made even for children under the age of six.

Indeed, the Avnei Milu’im (71:3) explains that there were actually two enactments made in Usha – one relating to children under the age of six, for which a full obligation was enacted, and one relating to children over the age of six, for whom the obligation of support derives from the mitzvah of giving tzedakah.

Child Support as Payment to Wife

The Ran (28b in the Rif’s pages) states that a father’s obligation to support his children is not an independent obligation to the child, but is rather part of a person’s financial obligations to his wife. This understanding (as the Bach, Even Ha-Ezer 71 writes) is derived from the Gemara, and it asserts that providing the needs of children is a part of providing the needs of a wife.

Based on this understanding, the Ran states that if the mother dies, there is no remaining obligation on a father to support his children – though he is not prepared to issue this as a definitive halachic ruling since other early authorities did not mention it.

The Shulchan Aruch (Even Ha-Ezer 71:4) rules that a father is responsible even for the sustenance of a child born out of wedlock, which the Chelkas Mechokek (71:1) understands as proof that the obligation is unrelated to a wife’s support (see also Mishneh Le-Melech, Ishus 12:14).

Yet, Rav Moshe Feinstein (Yoreh De’ah 1, no. 143; Even Ha-Ezer 1, no. 106) defers the proof, explaining that child support is certainly a factor in the obligation to support a wife. Concerning a child born out of wedlock he explains that there is a different obligation that may be based on laws of damages, or on an implied agreement that the father will sustain his child.

The Rambam’s Opinion

The Rambam implies on the one hand that child support is related to a wife’s sustenance, writing, “Just as a person is obligated to support his wife, so he must provide the sustenance of his young children, up to the age of six” (Ishus 12:14). A number of commentaries note that this indicates that the two are connected (see Maggid Mishneh; Bach; Ara De-Rabbanan, Mem, no. 406; Shut Maharam Alshich no. 38).

However, the Rambam also writes that the obligation to support a child applies even where the mother was raped (out of wedlock; Ishus 19:14), and also obligates child support even after divorce (21:17). The Avnei Milu’im therefore understands that according to the Rambam the obligation to pay child support is independent of a wife’s financial claim, and he understands the previous Rambam differently.

It is possible that according to Rav Moshe, the two rulings are reconciled, and although the obligation is related to a wife’s sustenance, it nonetheless applies even for a birth out of wedlock, and even after divorce.

Child Support after the Age of Six

We have already mentioned the enactment of Usha, which states that a person must sustain his young children. According to all opinions, the obligation to sustain children after the age of six is thus rabbinic. This obligation continues until a boy reaches the age of thirteen, and a girl the age of twelve.

This obligation is ruled by the Rambam (Ishus 12:14-15), who adds that somebody who refuses to fulfill his obligation is reproved by Beis Din, and if he has the means, the money is collected from his property against his will, and the children are supported until they are grown up. As the Rambam notes, this obligation and the basis for its enforcement it are consequences of the principles of tzedakah.

In the year 5704 (1944) the Chief Rabbinate of Israel declared that the obligation of sustaining one’s children continues until the age of fifteen, and this enactment was extended further at a latter date to the age of eighteen.

Over the years, various Dayanim of the Rabbinate related to the enactment differently, some seeing it as enforceable and others considering it unenforceable. Some related to it as a rabbinic enactment and others as an extension of the laws of tzedakah (see Rabbinic Judgments, Vol. 11, pp. 215-216).

Today, however, the predominant approach is to enforce the payment of child support until the age of eighteen. (In the case of a married couple, Rav Moshe Feinstein rules, in the previously cited responsa, that the requirement often continues longer.)  As noted at the outset, a person must follow the rulings of the Beis Din, and must never “take the law into his own hands.”

Denying Support to a Rebellious Child

The Mishnah (Kesubos 101b) discusses a case in which a husband agreed to financially support his wife’s daughter. The couple divorced and the daughter went to live with her mother, upon which the former husband claimed: “When the daughter comes to live with me, I shall support her.” The Mishnah states that this claim is not acceptable: He must support his daughter wherever she lives.

At first glance it would seem that this ruling applies to all of a person’s biological children. The rationale would be that since it is the father’s responsibility to sustain them, a denied claim for custody seems not to justify not paying child support.

However, the Rambam distinguishes between a boy under the age of six, and a boy over the age of six. Concerning the younger, the Rambam (Ishus 21:17) writes that the child is not separated from its mother. But for a son (not a daughter) over the age of six, the father has the right to custody of the child, and refrain from paying child support if custody is blocked (not by beis din).

This ruling is likewise given by the Shulchan Aruch (Even Ha-Ezer 82:7), based on the Talmudic principle whereby, from the age of six, a father has the right to custody of his sons, whereas a mother has the right to custody of her daughters.

The Chelkas Mechokek (9) accordingly rules that if a son refuses to go to his father, the latter is within his rights to refrain from supporting his child. Although a father has an obligation to support his son, the Minchas Avraham (3:4) explains that this obligation is founded on a moral obligation towards the son (based on the laws of charity), and this moral obligation does not apply where the father has a concrete claim that the son should be living with him, which is not honored by the child.

The above discussion is relevant where beis din granted the father the right of custody and the child fails to comply with the din. However, the common custom today is for Beis Din to award custody based on whatever is best for the child – a ruling founded on the Rashba (Meyuchasos 38), who writes that Beis Din should always weigh what is in the best interest of the child.Therefore, if Beis Din rules that the child must be in the mother’s custody, the father’s claims will fall away. The same principles will apply concerning visiting arrangements.

 

Additional Potential Claims of Fathers

Some have written that a father has the right to refrain from child support on account of his obligation to bring up his child properly: If a child is truly rebellious against his father, and acts in a callous and provocative manner, it is a father’s prerogative to bring him up properly, and withholding child support can be considered a means of rebuke for the child’s misdeeds.

Thus, one of the rulings of the Israeli Rabbinate mentions that a father must bring up his child not only to Torah but even to proper behavior, and therefore a father has the right to coerce his son to behave respectfully by withholding support (Vol. 13, p. 3; Vol. 2, p. 298).

It can also be claimed that the obligation to support a child over the age of six is based on the laws of tzedakah, and the obligation to give charity falls away if the donation will be to the detriment of the child himself (as by encouraging his misbehavior). This line of reasoning is also noted by rulings of the Israeli Rabbinate (Vol. 13, p. 6), and see also the ruling of Rav Ovadya Yosef (p. 20) who writes that support is a factor of the child living with his father.

However, as noted above these factors are not relevant where Beis Din issued an explicit ruling placing the child in his mother’s custody. In this case, the father has no claim to custody, and therefore may not withhold child support based on such a claim.

Moreover, even if a child refuses to meet with his father, it is important to note that such instances are often the result of bitterness and bickering between parents, leading to the child’s being set against his father by his mother. Under such circumstances, it is wrong to punish the child on account of a sin for which he is not responsible, and the father’s claims would not be accepted.

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