Introduction
As I wrote in The role of women, there is no denying that in much of the Western world today, women are far more likely to earn a significant percentage of household income. Similarly, men are more likely to be responsible for a significant amount of childcare and other domestic chores. This raises questions over whether historical assumptions relating to child custody and maintenance in the case of divorce remain valid today, both in the secular justice system and for batei din.
In this post, I will outline the halachic principles set by Chazal and some changes that have been made to their application in the last century or so without significant opposition. I will also discuss some further, more recent changes that have been suggested, over which there is less of a consensus.
Physical Custody
If a divorced couple have non-adult children, the primary question will be over where these children should live. The gemara tells us that a daughter stays with her mother, but is ambiguous regarding sons.[1] The Rambam writes that sons also live with the mother until the age of six, after which the father may issue an ultimatum – if the son stays with the mother, he will no longer provide for him.[2]
The Ra'avad and others argue that the father must have a right to custody over sons from birth, in order to teach them Torah. However, the Shulchan Aruch rules in accordance with the Rambam, with no mention of any dissenting view.[3]
It is important to point out that it appears from the words of the Rambam that even after the age of six, it is the mother who has the inherent right to custody. If she wants to keep her sons with her and is able to provide for them independently, the father can only withhold maintenance payments.[4]
The Rambam goes on to clarify that although the mother has this right, she has no obligation to exercise this right. In the rare event that she opts out of providing childcare, the ultimate responsibility lies with the father.[5] It may be said that the mother has the right to custody but no responsibility (should she choose to forgo her right); the father has only responsibility and no inherent right.
Child Support
The source for the cut-off point at the age of six appears to be the father's obligation to support his children financially, which is only halachically binding until the age of six.[6] After this age, although a father is still expected to support his children and is considered exceptionally cruel if he does not, he cannot be forced to do so.[7]
It follows therefore that although the mother has the inherent right to custody, once children have reached the age of six, the father can use his technical exemption from paying for child support as a bargaining chip. However, Chazal put a stop to this in the case of daughters, forcing the father to support them even in their mother's house. The Rambam explains that the mechanism for this is the authority of beis din to force people to give charity.[8]
Presumably, the distinction made between sons and daughters is based on what Chazal saw as being best for the children. It was assumed, as a general rule, that daughters are better off with their mothers. With sons, the question is more complex, as the father's obligation to teach them Torah is in conflict with the benefit of being with the mother. It was therefore decided 'not to interfere', leaving it to the parents to negotiate where natural bargaining chips exist.[9]
The Institution of 1944
The rationale for many of the rules above has become obsolete, and this has been recognised by batei din. Firstly, in 1944 the Rabanut HaRashit (Chief Rabbinate), using their powers under the British Mandate, instituted that courts would be able to force fathers to support their children until the age of 15. They explained that in their times, there would be significant ethical dangers for children below 15 if their maintenance was not legally ensured.[10] This was extended to the age of 18 in 1980.
Although it may not have been the original intention of this institution, it would seemingly have a knock-on effect for physical custody. The father no longer has a bargaining chip that he can use to get custody of his sons, as he is obligated to support them until the age of 18. Indeed, batei din nowadays in general do not distinguish between boys and girls when it comes to physical custody of the children.
However, this does not mean that the mother always gets full physical custody. Maharam Padova, quoted by the Rema,[11] writes that as the mother's 'right' of custody over daughters is only based on this being in the child's best interests by default, it is up to beis din to adjudicate whether this holds true in each case. In practice, this means that nowadays, for children over the age of six, it is most common for the parents to divide physical custody equally (or almost equally).[12]
The distinction between children under and over the age of six remains until this day, with both batei din and secular courts in Israel in general awarding the mother with custody of children under the age of six. Recent attempts to change the law have not succeeded, and were also opposed by the Rabbanut.
As we have seen above, the halachic basis for this distinction is far from clear, once the father has the enforceable obligation to support his children until the age of 18. It appears that the old default position has been (partially) retained for a different reason, that young children are in general better off being with their mother.[13]
Recent Developments
In a world where men and women are increasingly being seen as identical, it may be only a matter of time before full gender equality is applied to child residency. Whether this is a positive change or not is a broad, largely non-halachic question, and I will not voice an opinion here. I will just mention that a minority of dayanim have argued that change is required,[14] such that no full halachic consensus exists already today.
Some serious halachic consideration is also required regarding gender equality with respect to child support. We have so far assumed throughout that any obligation to support one's children falls solely on the father. This is explicit in the words of Chazal quoted above, and was unquestioned until recently. The question is whether this still applies in a case where each parent has a similar income. Does it make any sense for the father to bear full financial responsibility for his children, when everything else is divided equally?
This question is subject to significant controversy, both in the secular courts and in batei din. Among dayanim, there are three basic approaches:
1) The full obligation, at all ages, remains fully on the father in all circumstances. Both the institution of Chazal for children up to the age of six, and that of the Rabbanut for children aged 6-18, explicitly obligate the father alone, irrespective of the parents' income.[15]
2) The above is true regarding children up to the age of six. However, the institution of the Rabbanut for children aged 6-18 is more flexible, and follows the standard rules of tzedaka. As such, it is dependent on the respective incomes of the parents, and they must share the expenses proportionally.[16]
3) Even for children under the age of six, both parents must share the financial burden in proportion to their income. Chazal placed the obligation on the father alone based on the conditions of their time, whereby women did not have any significant income, and even those who did would likely remarry and surrender this income to their new husband.[17]
A full analysis of the arguments given by the various poskim is beyond the scope of this post.[18] However, I do have two observations to make which I believe are important.
Firstly, in relation to the institution of the Rabbanut for children aged 6-18, the question as to whether this can apply to the mother as well as the father should be moot. If the needs of the times require an update to this institution, this update should be made by the Rabbanut irrespective of whether it can be read into the original institution. The Rabbanut of today has no less authority than the Rabbanut of 1944, and they must display the same level of courage and responsibility.
Secondly, even if these institutions cannot apply to the mother, a ruling of the Haifa Beis Din makes a crucial point in relation to the obligation of the father.[19] The obligation of the father to provide for his children was certainly instituted for the benefit of the children. However, in some situations, the children actually stand to lose out from this obligation.
In the case in question, the father was on unemployment benefit of 6,000 NIS per month, whereas the mother had a monthly salary of 14,500 NIS. The parents shared physical custody equally. Forcing the father to pay maintenance would inevitably lead to the children living a life of increased poverty half of the time, and thus would make no sense.[20] It was therefore possible to prevent some degree of injustice without resorting to any creative new obligation on the mother.[21]
In Conclusion
Divorce is always a difficult situation, and the responsibility of settling related disputes in a just manner is great. However, this area also presents an opportunity for batei din to lead the way by finding innovative ways to ensure that any suffering is kept to a minimum. The system in place in the secular courts is far from perfect, and if the batei din can implement superior methods this could create a significant Kiddush Hashem.
[1]
Kesuvos 102b. Rashi and some other rishonim understand that this rule applies
only when the father has died, but the accepted halacha is that the same is
true after divorce.
[2]
Hilchos Ishus 21:17. The continuation of the gemara says explicitly that if a
father dies leaving a young boy, he stays with the mother and not with the
heirs of the father (for a girl this would be obvious). Sons of living,
divorced parents, are not discussed.
[3] Even
Ha'ezer 82:7. The Magid Mishne explains that the father's obligation to teach
his sons Torah at this age does not require a large amount of time, and may be
fulfilled during occasional visits.
[4] See however
Chelkas Mechokek on the Shulchan Aruch.
[5] Ibid.
21:18. Even if there is no father, the mother does not have any obligation
towards her children and may leave them for the community to adopt.
[6] Kesuvos 65b
[7] Kesuvos
49a-b
[8] Hilchos
Ishus 21:18. This concept was discussed in Tzedaka
- who gets what?
[9] Rashi
and the Ran explain differently, that the entire obligation of the father to
provide for one's children is only part of the husband's obligation to support
his wife. It applies until the age of six because during this period, children
are dependent on their mother and are therefore considered 'subsidiary' to her.
According to this, the mother's right to physical custody precedes the father's
obligation of child support. I have not followed this view above, as it implies
that the father's obligation to support his children only applies if he is
married to the mother, and this is not accepted as halacha (the Ran himself
raises this issue). See however Igros Moshe, Even Haezer 1:106, who supports
the position of Rashi and the Ran.
[10] The
full explanation, signed by Chief Rabbis Herzog and Uziel, can be seen here (in Hebrew). At the time,
although batei din did not have the authority to rule on cases of child
maintenance, the government courts would adjudicate based on Torah law when
dealing with Jewish families. The problem cited was pre-divorce - cruel fathers
would sometimes use their technical exemption from providing for their
children, in order to force their wives to accept a get.
It is interesting to note
that following this institution, a dispute developed regarding its
interpretation. Many poskim claimed that as the purpose was only to enforce
child support in the case of recalcitrance, it applies only where the children
have a need for this support and the father has the means to support them. If
for example the children are wealthier than their father is, or if the father
is mentally incapacitated, it may not apply. However, R' Herzog and R' Uziel
themselves insisted that the institution applies in all cases (see Shu"t
Yabia Omer, Even Haezer siman 22, for details).
[11] Even
Ha'ezer 82:7
[12] This
is the case in Israel and in many other countries, although in some countries
it is still more common for the mother to be awarded full residency by default.
[13] According
to Rashi and the Ran this is in fact the original reason, but as mentioned in
footnote 9, this view is not the accepted halacha.
[14] See
for example this
piece (in Hebrew) by R' Uriel Eliyahu, dayan in the beis din of Netanya. He
argues that more often than not, shared residency is the most beneficial for
all parties, and that studies to this effect do not stem from a problematic
blurring of gender roles. Rather, there is a recognition that children should
not miss out on the distinct attributes that their fathers and mothers have to
provide.
[15] This
is the position of R' Daniel Edri, dayan on the Beis Din HaGadol, in several
rulings. See for example https://www.psakdin.co.il/Court/2320020#.YfmE1upBzDf.
The suggested justification given by R' Edri for the one-sided obligation on
the father is that (divorced) women typically (re-)marry and become subservient
to their (new) husbands, and thus are unable to support their children. I can
only assume that although he is aware that this is no longer borne out in
reality, he believes that this is the ideal and that halacha is designed to
direct us back towards this ideal.
[16] R'
Shaul Yisraeli, Chavos Binaymin 2:42. This is also more or less the position of
the secular courts in Israel today.
[17] R'
Uriel Eliyahu in this
piece. Although in my view he presents some strong arguments, R' Eliyahu is
currently somewhat of a lone voice.
[18] Some
of these arguments are based on the questions discussed in footnotes 9 and 10
above.
[20] The
couple had two children, one below the age of six and one above. Somewhat
incredibly, the beis din obligated the father to pay limited maintenance costs
in respect to the child below the age of six, and only applied the logic above
to the institution of the Rabbanut. In my view, the institution of Chazal would
also not apply in such a case.
[21] In
regards to the original question, the beis din ruled in accordance with the
first view above. Thus despite the mother's high income, they did not impose
any obligation on the mother to pay maintenance.
