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Child Custody in Jewish Law: A
Pure Law Analysis
Michael J. Broyde

IV. Strangers and Relatives Seeking Custody The halachic rules for situations where those competing for custody are not the mother and father but legal strangers to the children raise a very interesting issue as a matter of law: Are relatives considered strangers? Do family members other than parents (siblings, siblings-in-law, or grandparents) have a presumptive claim of custody to the children (based on their relationship with the parents) which is terminatable only on the same grounds as the parents' claim itself themselves? The answer to this question is disputed by the various authorities with numerous decisors supporting each position. Rabbi Moshe Isserless' (Rama) remarks in Shulchan Aruch provide the framework for this discussion. After Rabbi Karo states that a daughter resides with her mother even after the mother remarries and the father dies, Rabbi Isserless adds: Only if it appears to the Beit Din that it is good for the daughter to remain with her mother; however, if it appears to them that it is better for her to reside in the house of her father, the mother cannot compel the daughter to remain with her. If the mother dies, the maternal grandmother cannot compel that her grandchildren be placed with her. Rabbi Moshe Lima in his commentary, Chelkat Mechokak, explains Rama's first rulings by stating that Rama does not rule that the daughter cannot reside with her mother, but merely that it is not obvious that she must. He adds that if the daughter wishes to be with her paternal grandparent, she is entitled to do so; if she has no opinion, the Beit din should contemplate whether it is appropriate to uproot the talmudic rule that daughters reside with their mother. He explains the second rule as limited to a case where the father is alive; however, if both parents are dead, the maternal grandmother has a stronger claim to custody of the girls throughout childhood and of the boys until they are six. Thus, these rules do appear to grant relatives some greater claim than strangers; it would seem reasonable that these rules implicitly are based on the notion that grandparents have the same rights (except vis-a-vis the parents) as their now-deceased children. The legal basis for these preferences is addressed in the responsa literature in some detail. Four basic legal theories have been set forth. The first asserts that the basic rights and duties of parents are obligations and privileges that are similar to inheritable rights and duties. Thus, in a case where a man who would have custody of his children were he alive dies, his wife, his father inherits the right-obligation-mitzvah-duty to educate the grandchildren; along with that obligation-right-duty-mitzvah he is given custody. Similarly too, if a woman who would have custody were she alive dies, her mother would be entitled to custody assuming she is fit, even if others are more fit. A second theory can be found in Rabbi Mordechai ben Judah Halevi, Responsa Darchai Noam (E.H. 26), in relation to a situation common in our society. The responsum concerns a man who had just ended his second marriage; his first marriage ended in divorce, and his second marriage ended in the death of his second wife, with whom he had had a number of children. Being unable to take care of these children himself, he arranged for them to be raised by his first wife, whose marriage with him had ended in divorce. The children's maternal grandparents, from whom the husband was estranged, sought custody. The author of Darchai Noam ruled that since the father was alive, his rights to the children still existed and so long as his custodial arrangements were satisfactory, others (perhaps even others capable of providing a better home) could not seek to subrogate his rights. According to this approach, relatives have greater rights solely because they are most likely to be appointed agents of the parents. Thus, when a particular parent is alive and entitled to presumptive custody of a child, but is in fact incapable of being the custodial parent, the primary legal factor used to determine which stranger shall receive custody is who is designated as an agent of the parent. Thus, this responsa adopts a theory of agency rather than guardianship as it relates to parental rights. While the author of the responsa does not phrase the discussion precisely this way, it is manifest that his analysis is predicated on the ability of the father to appoint someone to watch his children (in the absence of the mother). This approach accepts the ruling of R. Asher discussed above, as it addresses these issues from the perspective of parental rights. Such a position is explicitly adopted by Rabbi Moshe Trani who primarily analyzes custody of children as matter of inheritance of rights and agency law according to Jewish law. The third theory indicates that all levels of relatives are equal to each other, but in legal advantage to complete stranger. The earliest source for this appears to be Otzar Hagaonim (Ketubot 59b) which states that when both parents are unavailable (either unfit for custody, unwilling to take custody or dead) the court should decide between the maternal and paternal grandparents who desire custody based on the best interests of the child rationale. There is no acknowledgment of the legal possibility that the children can be placed with complete strangers. This approach seems to be the one most easily found within the words of the Rama on Shulchan Aruch 82:7 and the explanation of Chelkat Mechokak and draws support from Beit Yosef also. The final possibility, explicitly found in R. Aderet is that, in the case of orphans, based on the principle "the court is the guardian of orphans," a pure best interest of the child analysis is made. Indeed, it is precisely in this category of case that R. Aderet explicitly states the best interest of the child rule. He writes: As a general rule, Beit Din must closely inspect each case [of child custody] very closely, since Beit Din is the guardian of orphans, it is to find out what is in their best interest. Similar observations can be found in the words of many authorities who discuss the status of relatives or strangers in child custody matters. In the case of orphans, where potential custodians are strangers, it would appear that most authorities accept the opinion of R. Aderet. V. Conclusion This article has analyzed various basic disputes among the Jewish law authorities the application of halachic rules in child custody determinations. Essentially three disputes were discussed: by what standard may one remove a child from the custodial parent; who then is entitled to custody; and what is the status of relatives in custody determinations. All of these disagreements can be regarded as manifestations of the theoretical dispute between R. Asher and R. Aderet discussed in Section II (although the responsa rarely explicitly acknowledge the dichotomy). According to R. Asher and those who accept his rule, parents always are entitled to custody if they are fit, even if others would be more fit. So too, when one parent is incapacitated, dead or otherwise unfit, the other parent may assert rights against strangers. Some would go even further with R. Asher's theory by incorporating some sort of concept of transferable rights to children; upon the death or incapacity of the parents, the children can be transferred to an agent or heir according to the wishes of the parent. R. Asher's analysis accepts that basically the talmudic rules are to be followed unless they lead to custody being given to one who is not fit or incapable. According to R. Aderet, the presumed rule is not one of rights but of best interest of the child. In this approach, Beit Din accepts the talmudic rules as presumptively correct and then seeks to determine what actually is the best interest of the child by determining whether the general talmudic presumptions are applicable to any particular child. It is not a system of rights, but a system which seeks to do the best for children, and not for their parents. It thus actually rejects "rule-based" determinations and insists that custody will be given to the most fit person, rather than the one designated by the father (or mother). Thus, fewer default rules and no absolutely concrete ones are found in this system, at least once the parents are divorced, separated or incapacitated. Which of these two schools of thought is normative within Jewish law has yet to be conclusively established. However, it seems that the consensus of modern halachic authorities who are not members of the Israeli Rabbinical Court system in Israel are inclined to accept R. Asher's approach as normative, at least in cases where the children are not orphans; the Rabbinical Courts of Israel, however, appear more inclined to accept R. Aderet's approach and engage solely in determining what is in the best interest of the child.  

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