CUSTODY OF DAUGHTER IN CASE OF DIVORCE

Husband and wife are divorced. They have a daughter and the mother has custody of the daughter. The father had been given the right to have the child visit him on Sunday. On Sunday, when the child visits the father, he sends her to the religious school of the Reform congregation to which he belongs. The mother is appealing to the court to upset this arrangement because she wants the child to go to a Conservative Sunday school, which is the form of Judaism adhered to by the second husband. What are the rights of the natural father in that regard? (From Dr. M. Z., Panorama, California.)

THE basic question of custody of children in case of divorce was already discussed in Reform Responsa, p. 209ff. There it was made clear that the traditional law makes a distinction between custody of a boy child and custody of a girl child. The distinction is based upon the fact that according to the old traditional law, the duty of studying the Torah was incumbent upon a boy and not upon a girl and that, furthermore, the obligation to teach the boy Torah (or to provide for the instruction) is an obligation incumbent upon the father and not upon the mother.

Because of these two facts, the traditional law of custody works out as follows: Infant children are in the custody of their mother. A girl child is permanently in the custody of the mother. A boy child can be claimed by the father after he reaches the age of six because at that age he must begin the study of the Torah. This basic law is given in the Shulchan Aruch, Even Hoezer 82:7.

While the law generally is clear, there are a number of modifying opinions. Isserles, for example, to the Shulchan Aruch, says that if the court decides that the mother is not a fit parent, then even the girl child may be taken away from her by the father. Abraham ben David, in his note to Maimonides, Yad Ishus 21:17, says that the father can claim the boy child before the age of six because religious education ought to begin earlier. Furthermore, there is some discussion and disagreement as to how long the father can be compelled to support the children while they are in the custody of the mother.

If, then, the question asked were settled merely according to the classic statement of the law, the decision would be that since the duty of teaching the Torah does not apply to the girl child, the father cannot have any claim upon her.

However, it is evident that this matter cannot be decided purely on the basis of the classical statement of the law, because here the whole question revolves around the religious education of a daughter, a situation which could not have arisen in the older law, where a daughter was not required to study the Torah. Since now it has grown to be our custom among Reform, Conservative, and to a consid-erable extent among Orthodox Jewry, that girls as well as boys are given religious education, then the father can claim custody of a daughter as well as custody of a son.

Of course, it may be argued that if we take into consideration modern conditions, then we might also say that nowadays husband and wife each has the responsibility of providing religious education. However, to this it may be said that while the equality of men and women religiously was proclaimed first by Reform and accepted, to some extent, by Conservative, it certainly has no validity in Orthodox Jewish law. There the right of the father as the provider of religious education is still paramount. Since, then, there is no Jewish consensus on the equal duty of the mother to provide education, but there is virtually an all-Jewish consensus on providing Jewish education for girls as well as for boys, then it would be logical to conclude as we have concluded, namely, that the father can claim, according to the general spirit of the law under modern circumstances, that he has a religious duty to provide religious education for his daughter.

What is more directly to the point, however, is this: The court has already allowed the father to have the company of his daughter on Sunday. On Sunday he takes his daughter to the religious school of the Reform Temple of which he is a member. The mother is now petitioning the court to take away this privilege from the father. Therefore, according to all legal systems, the burden of proof is upon her.

On what basis does she want to upset the present decision of the court? It can only be upon the basis that she wants the child to go to a Conservative religious school conducted by the congregation of which her second husband (not the father of the child) is a member. Is the court expected to decide that the Conservative religious school education is more Jewish or more worthwhile than the Reform in which the child is now being trained? Surely the court is incompetent to make such a decision, and we would protest against such a decision, if made.

Our conclusion, therefore, is as follows: Since under modern circumstances all agree that girls as well as boys must receive religious education, then the traditional duty of the father applies to the daughter too. Since he takes her to the religious school of the Reform Temple to which he belongs, he is fulfilling that duty. The mother, seeking to reverse the decision of the court, which gave Sunday custody of the girl to the father, can only do so on a claim that the religious education which she would want to provide for the child is superior to the religious education which the child now gets. This is certainly not an admissible ground for changing the past decision of the court.