In Parashas Shemos we learn of the heroic deeds of the Hebrew maidservants, Shifra and Pu’ah, who decided to refrain from performing the wicked decree of Pharaoh. The king of Egypt had declared that they should kill all Hebrew infants. They, however, were not prepared to do so, and rather “revived the infants” (Shemos 1:18).
The Gemara expounds on the greatness of the midwives’ actions: “It is not enough that they refrained from executing his words, but they were provided them with water and food” (Sotah 11b). Abarbanel explains how this is derived from the words of the verse: “They gave life to the infants – meaning that they not only refrained from killing them, but even made special efforts to revive them and sustain them after birth, so that they gave them life, in contradistinction with Pharaoh’s instructions.”
The Gemara notes further that the very names of the midwives alludes at the virtue of their deeds; both 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).
In the present article we will discuss the question of custody in Torah law.
The matter of the midwives mentioned in Parashas Shemos demonstrates the special connection of women with children and infants. Is this connection translated into an “advantage” of a mother over a father in matters of child custody? Which considerations do halachic authorities mention in relation to questions of custody? How, if at all, has the halachah of child custody changed over the generations?
These questions, among others, are discussed in the present article.
Best Interest of the Child in Secular Law
In secular courts of the modern era, the basic principle underlying matters of custody is the welfare of the child. Thus, Article 25 of the Israeli “Law of Legal Capacity and Guardianship (5762-1962)” states: “If the parties did not come to an agreement [concerning matters of custody] … the court has the right to determine these matters as it sees fit in the best interest of the child.”
The Article adds an important presumption, which takes inspiration (see below) from Torah law: “However, children under the age of six will be in the custody of their mother, barring exceptional reasons to do otherwise.”
The expression in the best interest of the child recurs a number of times in the law, and the idea forms the supreme legal standard for questions of custody in all modern countries (as reflected in the constitutions of all US states). 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).
Having said this, the interpretation of the concept – what exactly is the best interest of the child? – differs from place to place and from time to time (and in the US from state to state). We will return to this crucial point later.
The Case of a Nursing Child
In Torah law, the principle of a child’s welfare is notable in a number of Talmudic halachos. An example of this is the Mishnah (Kesubos 5:9), which states: “If [the mother] was nursing – the amount of handiwork [that the married woman is required to produce for her husband] is reduced and the amount for her maintenance [that her husband is required to provide for her] is increased.”
This halachah is codified by the Rambam (Ishus 21:11): “As long as a woman is nursing a child, her husband must add wine and other things to her maintenance that are beneficial for her milk” (see also Shulchan Aruch, Even Haezer 80:11). The Gemara (65b) explains that wine is beneficial for a mother’s milk, and the Ran (commentary of the Rif, 28b) explains that the responsibility for feeding infants is placed on the mother: “Since they are drawn after her, she cannot refrain from feeding them.”
At the same time, responsibility for maintenance of the child is specifically the father’s. This principle emerges from the halachah concerning a divorced couple. In cases of a divorce, the mother is formally exempt from nursing her child, and the onus is placed on the father to find a suitable arrangement. Usually, however, the mother will not have the option of refraining from nursing, it is the good of the infant (who is attached to his mother) to continue, and the mother must therefore do so – though she can demand payment for this from the father (see Even Ha-Ezer 82:5).
Even this ruling is given by the Rambam (Ishus 21:16): “When a woman is divorced, she cannot be compelled to nurse [her child]. If she desires to nurse the child, [her ex-husband] must pay her a wage… If [the child is able] to recognize his mother… he should not be separated from his mother because of the [possible] danger [the separation will cause] the child. Instead, the woman is compelled to nurse the child for a wage until he reaches the age of 24 months.”
The best interest of the child – in the case of a nursing infant, his basic physical needs – is thus clearly important in the eyes of Chazal. Yet, the rule concerning maintenance is not necessarily applicable in the sphere of custody.
Principles of Custodial Preference
With regard to custody, we find a clear custodial preference in favor of the mother for a child of tender age (until the age of six years old).
This preference is implied by a Talmudic ruling concerning the question of how far a small child is permitted to walk (beyond the boundaries of his place of residence) on Shabbos. Rav Ashi notes that a child under six is still attached to his mother, and therefore his place of residence on Shabbos is dictated by that of his mother. This halachah 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 or her mother until the age of six is also prominent in 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 regards to a daughter, we moreover 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.
This is in contrast to the custodial preference for boys, which is assumed by later authorities to be the father, on account of the obligation to train him in Torah and mitzvos.
Basic Halachic Rulings
The principles above are incorporated into the ruling issued by 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 the child 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.”
This ruling is not agreed on by all authorities. The Ra’avad objects to the halachah, arguing that a father is obligated to begin educating his child at an early age, and this is impossible when the child is in the mother’s custody. The Maggid Mishneh refutes the argument, explaining that the teaching which a father is obligated to give his child 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 Mi-Gash 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 Geonic period, including those of Rav Sherira Gaon and of the Halachos Gedolos, the Ri Mi-Gash, explains that the mother should be the custodian. Although in the particular case the father’s frequent absence home could also have played a major role, the Ri Mi-Gash 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 foundations 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 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 the right of custody to the parent who can better enhance the best interest of the child.
A similar reasoning was the legal rationale in the ruling given by the Rosh (82:2), who was consulted concerning the custody of a son who was less than six years old. He explains that the mother is generally the best custodian for a daughter at this age, because she is at home more and thus can enhance her best interest in several spheres. For a son, the father is generally the appropriate custodian, because he is able to grant him a comprehensive Torah education and to enhance his spiritual welfare (this is not in accordance with the above Rambam).
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 Mi-Padua. Concerning the matter of 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 is 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.
Doing what is in the best interest of the child, all things taken into account, is codified by the Rama (Even Haezer 82:7). Though agreeing with the starting point of the Shulchan Aruch, whereby 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 that privilege.
In modern times the dominance of the child’s best interest has further advanced, in conjunction with its domination in secular courts. It is without doubt the premier factor that Dayanim take into consideration in determining custody.
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 can de facto be considered inferior to the other.
This concept finds a number of 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 support his daughter and wed when the time comes to a specified man. The widow, however, wished to leave town together with her baby daughter, and 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 will not apply. A similar statement is made by Shut Mabit (Vol. 2, no. 62).
Based on these considerations, the Rabbinate court 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 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 for 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 Bi-Yeyuda (Tinyana, no. 89) likewise writes that spiritual best interest are sufficient to give the father custody of children under the age of six. Although the Shulchan Aruch rules the presumption 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.
So, too, the Beis Din of the Israeli Rabbinate often give 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 the principle is far from uniform, leading to a measure of tension between secular courts and the Rabbinate.
Indeed, there are a number of 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 from a different perspective to the secular courts.
In the final analysis, finding the best interest of a given child involves placing together a number 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 find, the overall welfare and benefit of the child remains the guiding standard.