Sunday, July 1, 2012

Rav Sternbuch: Divorce:Who gets custody of Kids?

Rav Sternbuch (1:783):Question: In the case of a couple getting divorced, who gets the custody of the children? Answer: It would seem that according to Torah law it depends upon what is best for the children. Kesubos (102b) states that the daughter typically goes to the mother – because that is best for her as is explained in Rema (E.H. 82:7). The son typically goes to the father after the age of six as is explained in the Be’er haGolah. That is because the father teaches his son Torah and provides him with guidance. Consequently it is typically best for the son to be with the father. However beis din always must decide what is best for the children as is stated in a responsa ascribed to the Ramban (#38) as well as the Radvaz which is cited in Pischei Teshuva (2:7). Look at Rambam and Ravad (Hilchos Ishus 21:13) whether a son should go to his father when he is less then six when he has already taught him Torah. Also see Noda B’Yehua (E.H. #89), that if they are not in the same city then the son should be with the father even when he is less than six. In modern times since yeshivos are readily available, there are times when it is best for the mother to have custody to educate her son and to send him to yeshiva and he will be as well educated as if the husband had custody. See Rashdam (E.H. 123), that it is obvious that everything is done for the good of the education of the children. And today there are excellent schools also for girls. The main point is to judge what is the best place for the education of the children and their welfare. Therefore in the present case, I advised that for the time being that the custody be reversed so that the son goes to his mother because she will supervise him and send him to an excellent yeshiva. Whereas the daughter should go to the father who will watch her since she has grown some and wants to be with him and he will supervise her. This is according to the Chelkos Mechokek (2:10) that in the case where the daughter says she prefers the father that it is to her benefit and her wishes should be complied with. This is also the view of the Maharshdam we mentioned before – that everything depends on what is good for her. We have also decided that in another year, there were will be a new evaluation to decide what arranged is in their best interest.

13 comments :

  1. What if the child will do equally well with either parent?

    And what rights does the non-custodial parent have?

    Can the custodial parent move to another town?

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  2. liberated mother??July 1, 2012 at 4:31 PM

    when the shulchan aruch talks about a woman having the children, isn't it discussing aa situation where the mother will stay home with child - be there when the child gets on and off the school bus - cook and take care of the child. situations have changes - now its off to day care maids nannies etc. do motheres have rights over father in these times????

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  3. See Rabbi Broyde's article on the subject
    http://www.jlaw.com/Articles/childcus1.html

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    Replies
    1. I wouldn't take R. Broyde too seriously.

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    2. Do you have another discussion of this issue?

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    3. That was just a general statement about his halachic reasoning.

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    4. Abe,
      Instead of slandering people, why not show the flaw in his halachic reasoning? Read the article, look up the sources, and show us where he goes wrong.

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  4. The crop of BT is getting weirder and more grating, we hear about the BT in Israel who do not flash the toilet on Shabbos because maybe there are Jews who are working for the water bureau, a BT woman in a shul blocked with her body an access to baby vomit because she thought it is sechita and of course the burka ladies and the cult members of Lev Tahor which is 100% BT operation.

    And not to forget the BTs that Tropper inflicted on our communities.

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  5. I can't believe you wasted your space or time or energy on this no-brainer.

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  6. In today's Jewish world, the job of educating young children has been relegated to yeshivas, thus, there is no real justification for giving fathers full custody of young boys. Very few children learn Torah from their fathers.

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    Replies
    1. There is no real justification for giving mothers full custody of young boys (or young girls.)

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    2. James, formal learning Torah from their fathers is only part of the father's role. The boys need a personal male role model of dedication and practicum in Avodas Hashem which the cheder/talmud torah can only approximate.

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    3. Agreed. I think shared custody is generally a good idea. I was merely pointing out that the justification for granting custody to fathers does not really apply today.

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