Custody of Children

Since according to Jewish divorce law the wife has an inferior status (namely, the husband can divorce her, she cannot divorce her husband), does he have the same advantage in deciding who shall have custody of the children? Or does the wife have definite rights in the matter? (From Rabbi Morris W. Graff, Miami, Florida)

The question implies that if it is an advantage to be given the children, the advantage would always be given to the husband; but that if it is a burden to have the responsibility of the children, then the burden might be put upon the wife, since in general the husband has superior status in matters of divorce.

However, the law does not consider the question of advantage or disadvantage to husband or wife, respectively, but considers primarily the interest of the child or children, and as the law develops, it approximates quite closely the American law—or at least the law of the Commonwealth of Pennsylvania, as it has been described to me by a learned lawyer.

In Jewish law, however, there is a different status as to custody for male and female children, but it really concerns the welfare of the children. The duty to study the Torah is incumbent upon male children, not on female children; and the duty to see that the male child studies the Torah is legally incumbent on the father, not on the mother. This difference between boys’ and girls’ duties and between the different duties owed to them expresses itself clearly in the law. Generally, young children belong with the mother. This is the implication of the Talmud in b. Ketuboth 65b, 102b. The law is clarified and codified in the Shulchan Aruch, Even Hoezer 82 : 7. A female child is always with her mother. A male child is also with his mother, but after he reaches the age of six, his father can demand him (to arrange for his instruction or to teach him himself, which is a primary form of the commandment). Maimonides (Yad, Hilchos, Ishus, chap. 21 : 17) gives the law in the same way. The father must support the child while the child lives with the mother up to the age of six. After the age of six, the father can say, “If the boy lives with me, I will support him; if he stays with the mother, I will not support him.” But the daughter stays with the mother even after the age of six. Abraham ben David (Rabad) says in his note that the father can demand the son before the son is six, because he has to teach him Torah at the age of four or five. But Joseph Caro (in “Bays Joseph”) says that this is not correct; that the systematic study begins after six, and the simple things that the child has to learn before that age, he can learn in the company of his mother.

However, all this depends upon whether the boy or girl can be raised decently by the mother. Moses Isserles (Cracow, sixteenth century), says in his note to the Shulchan Aruch that this decision that the daughter be with the mother depends upon whether the court feels that it is good for the daughter to be with her. If the court feels that it is better for the child to be with the father, the mother cannot insist upon having her. This is based upon a responsum of Meir, of Padua (sixteenth century, Italy; should be #53, not #93). Also, if the mother herself should die, the grandmother (the mother’s mother) does not have the right to insist that the children be with her. There is a note based upon a decision of David Ibn Zimri (Cairo, Egypt, sixteenth century) that when in the case that came before him the mother was immoral, the child was taken away from her and given to the father; if the father is dead, the child may be given to other relatives.

The law, in spite of the fact that it begins with a basic difference in status between male and female, nevertheless arrives at the same humane attitude held by the laws in Pennsylvania and, I assume, in most of the other states, that the custody of the children in case of divorce is determined by what is beneficial to the children, and the primary presumption is that they go with the mother.

As far as Reform Judaism is concerned, all the above has comparatively little bearing. In general, we accept the validity of civil divorce and therefore must accept the decision of the civil courts as to custody of the children, but we have certain religious preferences—as have also, undoubtedly, the Catholics—which may well influence the courts. First of all, if it is a mixed marriage and if the mother is Jewish, then the child is Jewish according to Jewish law, since in mixed marriages the child follows the religious status of the mother. We would therefore want the mother to have the child so as to raise it as a Jew. If, on the other hand, only the father is Jewish, the child is non-Jewish, according to Jewish law. In that case, the child’s religion is dependent upon his own choice, or, if too young, upon the choice of the parents and we have no preference as to custody.

Moreover, if both parents are Jewish, but one is likely to raise the child religiously and the other is indifferent, we would prefer that the child be given to the more religious parent. I am sure that in the latter case, since both parents are Jewish, the courts would follow our preference, if expressed.