Issues in Divorce: Destroying one's children to spite an ex-spouse- INTERFERENCE WITH PARENTAL RIGHTS OF NONCUSTODIAL PARENT

This is the first in a series of posts dedicated to the hope that a certain father - who is an avid reader of this blog - will wake up to the fact that he is destroying his own children by permanently harming their psychological, intellectual and emotional development - solely to hurt his ex-wife. There is a special place in Hell for such behavior.

http://www.fact.on.ca/Info/pas/borris97.htm

Edward B. Borris, Assistant Editor, Divorce Litigation

 

I. Introduction

Interference by one parent in the relationship of a child and the other parent is almost never in the child's best interests. In fact, in extreme cases, actions by one parent to alienate the affections of the child from the other parent, to interfere win the other parent's visitation rights, or to remove the child to a distant state or country can often lead to liability in tort. See generally E. Borris, "Torts Arising Out of Interference with Custody and Visitation," 7 Divorce Litigation 192 (1995). Tort liability is not always an option, however, as many courts refuse to award damages based upon interference with visitation rights. E.g., Cosner v. Ridinger, 882 P.2d 1243 (Wyo.1994)

A noncustodial parent is not always left without a remedy, however, simply because courts in that parent's jurisdiction refuse to recognize tort actions arising out of interference with his or her parental rights. This article discusses a different type of liability which may result from interference with the noncustodial parent's rights: loss of custody. The article will first discuss whether a party may generally obtain a change of custody based upon such interference. The article will then examine specific acts by a custodial parent which may cause a court to change custody, including denial of visitation rights, alienation of the child's affections away from the noncustodial parent, and removal of the child to a distant jurisdiction. The section on alienation of the child's affections includes a discussion of Parental Alienation Syndrome (PAS) and recent cases that have dealt with PAS. The article concludes with a suggestion of possible provisions that practitioners may insert in custody decrees in order to prevent future problems between custodial and noncustodial parents.

II. Interference Amounting to a Substantial Change in Circumstances

Most courts and experts agree that except in unusual cases it is most important for a child to have a strong relationship with both parents. Thus, courts will typically conclude that an award of custody to the parent who is most likely to foster a relationship between the child and the other parent is in the child's best interests. For this reason, if a custodial parent has demonstrated in the past a pattern of interference with the relationship between the child and the noncustodial parent, unless other facts dictate a different holding, courts will frequently conclude that a substantial change in circumstances justifying a change of custody has occurred.

Not surprisingly, there is a long-standing tradition of awarding a change of custody where the custodial parent has interfered with the parental rights of the other parent. The Court of Appeals of Maryland clearly established this point in Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1965). In Berlin, the parties entered into a written separation agreement. Pursuant to the agreement, incorporated into the court's order, custody of the children was awarded to the mother, and the father received reasonable visitation rights. In addition, the parties also agreed that the mother would notify the father if the mother moved out of the Washington metropolitan area. Subsequently, the mother began denying the father his right to visitation. For this reason, the father requested a change in custody. The trial court granted the father's request, and the mother appealed. [...]

V. Conclusion

As the authority cited in this memorandum indicates, while obstruction of the noncustodial parent's relationship with the child will often lead to a change in custody, such a change is not guaranteed. Courts appear to recognize that the detriment to a child caused by occasional failures to turn a child over for visitation does not automatically require a change of custody. See Humphrey v. Humphrey, 888 S.W.2d 342 (Mo.Ct.App.1994) (no change of custody was warranted where mother failed to honor father's visitation rights on only one occasion). If, however, a custodial parent has developed a pattern of refusing to allow visitation or otherwise interfering with the noncustodial parent's relationship with the child, the court should award a change in custody. E.g., Sullivan v. Sullivan, 216 A.D.2d 627, 627 N.Y.S.2d 829 (1995) (modification of custody was justified where mother consistently violated court-ordered visitation and telephone contact).

In order to prevent a child's relationship with the noncustodial parent from deteriorating, certain provisions should be standard in every custody decree. First, every decree should require each person with a right to custody or visitation to foster the relationship between the child and other persons who have a right to custody or visitation. Second, every decree should state that persons who have custodial or visitation rights should not speak ill of another person who has custodial or visitation rights. Third, practitioners should consider placing restrictions on a custodial parent's right to relocate without informing the court or the noncustodial parent. Otherwise, similarly to the father in In re Marriage of McDole, supra, the noncustodial parent may surprisingly discover that the custodial parent has left the jurisdiction without a forwarding address.

These three provisions will not guarantee that no problems with custody or visitation will occur. Rather, a custodial parent who desires to destroy the relationship of the child with the noncustodial parent will succeed unless stopped. If, however, the above provisions are inserted into the decree, a violation of a specific provision could lead to a contempt citation. While not a panacea, the above three provisions may give the noncustodial parent the extra edge which he or she may need in a postdissolution custody proceeding. Furthermore, since the provisions encourage a strong relationship between both parents and the child, such provisions are generally in the child's best interests.

Schlesinger Twins:Rabbi Jacobs of Birmingham supports Beth

Baltimore mayor under pressure after 'space to destroy' remark - views the "T" word insulting as the "N" word

The Guardian

Pressure was growing on Tuesday on Baltimore mayor Stephanie Rawlings-Blake to lead the city away from violence after she was accused of delaying an emergency response and making statements alternately criticized as inciting riotous protests and dismissing protesters’ concerns.

At a news conference, Rawlings-Blake said she had ordered police to “give those who wished to destroy space to do that”.

On Monday night she made a testy appearance at a news conference in which she referred twice to protesters as “thugs”.

The mayor’s office later said Rawlings-Blake’s comments on Sunday had been misunderstood. “The mayor is not saying that she asked police to give space to people who sought to create violence,” the office said in a statement. “Any suggestion otherwise would be a misinterpretation of her statement.” 

Baltimore was the scene of violent clashes on Monday between protesters and police after a funeral for Freddie Gray, a 25-year-old man who died on 19 April from an unexplained spinal injury sustained while in police custody. At least 27 people were arrested and 15 police officers were injured, according to officials. [...]
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Baltimore Mayor Apologizes For Calling Protesters 'Thugs'

Huffington Post

Baltimore Mayor Stephanie Rawlings-Blake (D) is walking back critical comments she made about the violent protests in response to the death of Freddie Gray.

During the height of the protests on Monday, Rawlings-Blake referred to the protesters as "thugs" in a press conference.

"What we see tonight ... is very disturbing," she said Monday evening, the same day a funeral was held for the 25-year-old who died in police custody. "It is very clear that there's a difference between what we saw last week between the peaceful protests ... and the thugs, who only want to incite violence and destroy our city. I'm a life-long resident of Baltimore. Too many generations have spent their lives building up this city to have it destroyed by thugs, who in a very senseless way are trying to tear down what so many have fought for."

On Wednesday, she apologized on Twitter.

"I wanted to clarify my comments on 'thugs.' When you speak out of frustration and anger, one can say things in a way that you don't mean," she wrote. "That night we saw misguided young people who need to be held accountable, but who also need support. And my comments then didn't convey that."

Many who took issue with Rawlings-Blake's use of "thugs," including some of her fellow city leaders, argued that the word is racially charged. Baltimore City Councilman Carl Stokes suggested on Tuesday night that instead of calling the protesters "thugs," she may as well have used the n-word. [...]

Rav Sternbuch: Saving others from sin - Paying compensation after breaking a computer used to watch pornography

 Update: Added example of vigilante justice regarding the beating of an elderly woman as the result of mistaken allegations that she was involved in Nachlaot pedophile ring.

This teshuva (volume 6 # 292) is relevant in many situation where a person sees something seriously wrong and acts to prevent sin or harm to others. Is a psak needed? Is compensation required? This gemora (Bava Kama 28a) has been applied to a diverse numbers of situations - a teaching taking away a phone or gadget from a student, wife beating, husband beating for refusing to give a get, attacks on individuals who are viewed as threats to community, destroying a woman's sheitel or clothing viewed as immodest It involves attacking another person or his property because he has a different set of standards which the assailant views as sinful. A related issue is whether the owner of the computer has the right to defend his property against the attack and whether he needs to pay compensation for damaging the righteous assailant and his property.

In short this deals with parameters of vigilante justice

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Vigilante justice - a 72 year old woman was severely beaten - because of mistaken belief she was involved in the Nachlaot Pedophile panic - and it was believed that the police would not handle the matter properly. See the video  below. The story is the second one on the news report

I was told that the judge accepted Rav Shapiro's explanation of his words and the charges against him were dropped.

Nana10

הרב משה שפירא אמר לארבעה מחסידיו לתקוף קשישה בת 72. הוא האשים אותה במעורבות בפרשת הפדופיליה שהייתה בשכונת נחלאות בירושלים לפני שנתיים וחצי. "צריך להכות אותה עד לאשפוז, לא יהיה איכפת לי אם לא יהיה את מי לאשפז"
הרב משה שפירא, העומד בראש קהילה גדולה של חוזרים בתשובה בירושלים, אמר לארבעה מחסידיו לתקוף קשישה בת 72. בתיעוד שניתן לחדשות10 נראה הרב אומר: "צריך פשוט להכות אותה עד לאשפוז, וגם לא יהיה איכפת אם לא יהיה את מי לאשפז".

לפני כשנתיים וחצי הסעירה פרשת פדופיליה שהתרחשה בשכונת נחלאות בירושלים את הקהילה החרדית בשכונה. המשטרה עצרה שלושה חשודים במעשה, אך בקהילה נוצר חשד שהמעשים בוצעו בדירתה של ש', הקשישה שהותקפה. "צריך להיכנס אליה הביתה ולהחריב אותו. נכנסים כמה גברתנים רעולי פנים ועושים שם שמות, לוקחים גרזנים והורסים את הכל", הוסיף שפירא
לאחר שהבהיר בפני חסידיו כי אי אפשר לסמוך על המשטרה ועל הראיות שהשיגו, החליטו ארבעה מהם, אבות לילדים שהותקפו מינית לכאורה בפרשה, לתקוף את ש'. הם נכנסו לביתה, היכו אותה בכל חלקי גופה, כפתו אותה באזיקונים, חקרו אותה והמשיכו להלום בה עד שרגלה נשברה<

"

Epstein Torture for Get case: FBI request for search warrant concerning Rabbis Epstein, Wolmark, Ralbag Steinberg, and Belsky

See page 9-10 describing the Targets of this search warrant (September 2013)

   FBI request for Search Warrant Against Rabbis Epstein, Belsky, Ralbag

Telephone Shiur: Beth Din and Coercing a GET - by Rav Dovid Eidensohn

Telephone Conference Shiur #5 Wednesday April 29 9:30 p.m.

Call 605-562-3130 insert code 411161#

Beth Din and Coercing a GET

1. Even Hoezer 77 paragraphs 2 and 3 make it clear that in general it is forbidden to coerce a husband to divorce his wife despite her demands and protests. And yet there are some times when a husband can be forced to divorce his wife, such as when it is forbidden to live with a relative see EH 154.

2. Even Hoezer 1:3 should we force somebody over twenty years old to marry? Shulchan Aruch says yes and Ramo says the custom is not to force people in choosing a mate in marriage even if they are not doing the mitzvah properly. See the Gro there #9,#10 seems to approve of forcing people to fulfill the mitzvah not like the Ramo but like the Shulchan Aruch. Here forcing a mitzvah is permitted by some authorities, but forcing a GET is in general not permitted.

3. See Ramo in Shulchan Aruch EH I:10 a man marries two wives can we force him to divorce one. Two opinions in Ramo. Here two wives is a sinful marriage because of Cherem Rabbeinu Gershon not to marry two wives. And in a sinful marriage a divorce can be forced.

4. When the Shulchan Aruch rarely approves of forcing a husband to give a GET, how does this work? Today there are no mumchim. See gemora Gittin 88b. See also Choshen Mishpot beginning of Simon 1 in Nesivose, Tumim, and Ketsose in Simon 3.

5. Chazon Ish Gittin 99:2 when Beth Din mistakenly tells the husband he must give a GET and that is not the law, the GET is invalid for two reasons min haTorah. Thus a Beth Din has no power to force a GET when the Shulchan Aruch says the husband in that case cannot be forced. And if the Beth Din paskens without forcing the husband and the husband gives the GET the GET is invalid and the children are mamzerim diorayso.

6. What was the power of the Geonim to permit forcing a husband in defiance of the gemoras that clearly indicate that a husband in most cases cannot be forced to divorce? Tosfose Rid Gittin 89a based on gemora Bovo Basra מצוה לשמוע לדברי חכמים. What does this mean?

7. See also Tosfose Kesubose 63b AVOL discussion at length about coercing a GET.

8. Did the Geonim permit always to force a GET when the wife demands it, or was this a temporary ruling that is not applicable today? A machlokess HaRishonim in this see Ramban and Baal HaMoor on the Rif Kesubose 63b.

9. What is the authority of a Rov or a Beth Din to teach people the halacha and to insist that they obey? See Rashbo in Teshuva I:253.

Israeli police attack an IDF soldier for being disrepectful

Times of Israel  update: Two policemen have been suspended after video footage emerged on Monday showing them pummeling an Ethiopian-born IDF soldier, Damas Pakada, who alleged he was the target of a racist attack.

The incident took place in Holon, south of Tel Aviv, on Sunday evening, where police were cordoning off a street due to a suspicious object. 

“I feel terrible, and humiliated. This is a disgrace to the State of Israel,” Pakada told Channel 2 Monday. “It’s because of [my] skin color,” he said.

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THIS DESCRIBES  A SECOND INCIDENT -  In another disgusting Israeli show of contempt for the IDF IDF officer attacked in Jerusalem’s Mea Shearim

 Times of Israel  An IDF officer in uniform was assaulted on Friday by an angry mob in Jerusalem’s ultra-Orthodox neighborhood of Mea Shearim, an attack condemned by Prime Minister Benjamin Netanyahu as “outrageous,” and by Shas leader Arye Deri as “an act of terror.”

Following an in-home visit with one of his soldiers, the platoon commander was surrounded by a group of dozens of ultra-Orthodox individuals who began threatening him and pelting him and his car with eggs, stones, bags of water and soiled diapers. His car sustained significant damage.

Netanyahu condemned the assault, calling for the officer’s attackers to be brought to justice.

“This is outrageous. The offenders who raised their hands against an IDF officer must be dealt with to the fullest extent of the law. IDF service is a source of pride. The IDF is the people’s army and protects everyone. All population groups in Israeli society serve in its ranks; this is how it has been and how it will continue,” the PM said.

Arye Deri, leader of the ultra-Orthodox Shas party, called the attack “an act of terror” by “Jewish extremists.”  He also called on the police to bring the perpetrators to justice.[...]

Congregants Challenge Sale of Bulwark of Judaism on Lower East Side

NY Times

[....] As the neighborhood shifted from Yiddish to Spanish, artistic to artisanal, the Home of the Sages became home to fewer and fewer sages. With not much need for its four-story religious and nursing home, the board recently decided to sell the 76-year-old institution, which first opened as a synagogue on Henry Street, to a developer for $13 million.

But congregants of the Home of the Sages are charging in court that the deal is motivated not by self-preservation but self-enrichment: that the proceeds would largely flow to the president of the board, Samuel Aschkenazi, along with a Hasidic sect with no affiliation to the organization or the Lower East Side.

 The state attorney general’s office gave the sale its blessing in March but it has since withdrawn its approval and is reviewing the allegations. [...]

Mr. Aschkenazi has been running Home for the Sages for four decades, taking over from his father. With the number of its Orthodox residents declining, the nursing home business was sold in 1996 to an operator from New Jersey. Court filings claim the new operator was a business partner of Mr. Aschkenazi’s son, now deceased. [...]

Only after the sale was before the court did congregants file their challenge. They maintain that in 2014 Mr. Aschkenazi had in 2014 systematically replaced the largely inactive board with several new members coming from the Gur sect who had no connections to the synagogue or the neighborhood. [...]

Mr. Aschkenazi has not answered the allegations that he is using the sale for personal gain, other than to say that they are “without merit.” He has also not addressed why the bulk of the proceeds from the sale would go to the Gur sect. [...]

After services last week, many congregants said they would have no objection to the sale if it benefited Jews on the Lower East Side. “We need all the help we can get,” Nussin Fogel said as he took off his tefillin. [...]

Why Almost Everything Dean Ornish Says about Nutrition Is Wrong

Scientific American   Last month, an op–ed in The New York Times argued that high-protein and high-fat diets are to blame for America’s ever-growing waistline and incidence of chronic disease. The author, Dean Ornish, founder of the nonprofit Preventive Medicine Research Institute, is no newcomer to these nutrition debates. For 37 years he has been touting the benefits of very low-fat, high-carbohydrate, vegetarian diets for preventing and reversing heart disease. But the research he cites to back up his op–ed claims is tenuous at best. Nutrition is complex but there is little evidence our country’s worsening metabolic ills are the fault of protein or fat. If anything, our attempts to eat less fat in recent decades have made things worse.

Ornish begins his piece with a misleading statistic. Despite being told to eat less fat, he says, Americans have been doing the opposite: They have “actually consumed 67 percent more added fat, 39 percent more sugar and 41 percent more meat in 2000 than they had in 1950 and 24.5 percent more calories than they had in 1970.” Yes, Americans have been eating more fat, sugar and meat, but we have also been eating more vegetables and fruits (pdf)—because we have been eating more of everything.

What’s more relevant to the discussion is this fact: During the time in which the prevalence of obesity in the U.S. nearly tripled, the percentage of calories Americans consumed from protein and fat actually dropped whereas the percentage of calories Americans ingested from carbohydrates—one of the nutrient groups Ornish says we should eat more of—increased. Could it be that our attempts to reduce fat have in fact been part of the problem? Some scientists think so. “I believe the low-fat message promoted the obesity epidemic,” says Lyn Steffen, a nutritional epidemiologist at the University of Minnesota School of Public Health. That’s in part because when we cut out fat, we began eating foods that were worse for us.[...]

The point here is not that Ornish’s diet—a low-fat, whole food, plant-based approach—is necessarily bad. It’s almost certainly healthier than the highly processed, refined-carbohydrate-rich diet most Americans consume today. But Ornish’s arguments against protein and fat are weak, simplistic and, in a way, irrelevant. A food or nutrient can be healthy without requiring that all other foods or nutrients be unhealthy. And categorizing entire nutrient groups as “good” or “bad” is facile. “It’s hard to move the science forward when there are so many stakeholders who say ‘this is the right diet and no other one could possibly be right,’” Bazzano says. Plus, discouraging the intake of entire macronutrient groups can backfire. When people dutifully cut down on fat in the 1980s and 1990s, they replaced much of it with high-sugar and high-calorie processed foods (think: Snackwell’s). If we start fearing protein, too, what will we fill our plates with instead? History tells us it’s not going to be spinach.

Prof Moshe Koppel: Understanding the difference between Charedim and Modern Orthodox - it is not ideology

Dr. Koppel published an article in Tradition 36:2 in 2002. Yiddishkeit without ideology: a letter to my son. ;The entire article can be downloaded from Tradition Archives. While I cited this article in 2008 - it is obviously still relevant and current as seen by various allegations made recently by Eddie about the topic.

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[...] In order to clarify the problem, let me recap some personal history so that you can appreciate the context in which these problems first arose for me. (For you the context is a bit different but the parallels will be obvious enough.) As a child in New York in the 1960's I attended school in what would now be called a Haredi institution. What distinguished this school from other, non-Haredi, schools was not so much the stricter standard of halakha to which we were held, but rather the pervasive sense of alienation from everything outside our narrow circle.

We were cynical about law and order, about high~sounding ideas, about goyim, about Jews, you name it.

Such an attitude is perhaps easily dismissed as the inevitable consequence of being the children of Holocaust .survivors. But in fact. it was merely a slightly exaggerated form of an attitude of wary subversiveness that serves as the backdrop for everything Jewish. "Avadai hem"- Jews are slaves of Hashem, but, more to the point, of nobody else. In any case that's what all the real Jews I knew were like; if there were any wild-eyed and bushy-tailed ones, they were somewhere else. To this day I think of alienation and its social corollary, subversiveness, as inseparable from Yiddishkeit, This attitude is deep in my bones (and, of course, I regard it with suspicion).

You won't be surprised to hear that my classmates and I quickly applied this same critical point of view to everything that we were taught. This attitude was bolstered by the fact that, although our parents' sense of identity as Jews was utterly beyond question or even reflection, they themselves were quite cynical about the kind of ideology that our rebbes felt compelled to push. Gedolim don't make mistakes? Tsaddikim find jewels in fish? Once upon a time. At some point, we ourselves couldn't help but notice that there were plenty of things that goyim did a lot better than we did. In fact, as we got older we began to suspect that some of our role models might have been a bit more clever than they were wise and that, in a few cases, cynicism about rules and regulations had led to just plain crookedness. Not that I thought then, or I think now, that the rest of the world is any better, but suffice it to say that unpleasant moral dilemmas that pitted loyalty against rectitude arose more frequently than they should have. Beyond all that, for an adolescent kid looking to find himself and develop his own particular interests and talents, the atmosphere was just a bit stifling. Ultimately, we had to decide between buying into the whole system despite misgivings or leaving. I left.

I didn't go far. In the Modern Orthodox institution to which I eventually migrated, the underlying principle was openness. Openness to art and music, to science and literature. Not to mention sports and movies and television. My new friends really were more articulate, more knowledgeable in most areas and often more naturally ethical than many of my friends in the yeshiva world. Of course, I had to get used to the idea of guys with names like Jerry and Stuie who wore jeans and had girlfriends.&

Apparently, I was hopelessly square but at least I had found what I took to be a healthy rebellious spirit that held the promise of a more thoughtful Yiddishkeit and I identified with it.

There were some problems. The version of Yiddishkeit that was upheld there as an ideal was different in disturbing ways from that to which I had been accustomed. The place suffered from a Litvish cold­ness that had adapted neatly to the American technocratic mindset to produce a somewhat formal and not very heimish version of cookbook Yiddishkeit. You asked somebody there if it was okay to daven in your gatkes, they started pulling books off the shelf. Lacking a sense of the heimish and hankering above all for middle-class American respectability, they tended to undervalue the little hard-to-pin-down gestures and manners that give substance to Jewish distinctiveness.

Moreover, the yeshivish rule that "if it's not Jewish, we don't like it" was flipped in the modern Orthodox world to read "if we like it, it's Jewish."These two formulations are equivalent in logic books but not on the ground. It turned out that my casually-clad new friends had few rebellious thoughts after all; they were simply practicing Yiddishkeit ­often with rather quaint earnestness as it had been taught to them. It was the chinyoks in the yeshiva world, who managed to maintain some emotional distance from the trappings of middle-class respectability, who were actually the subversives. I wasn't quite home yet.

Let me be absolutely clear: where the demands of halakha are unambiguous, you must submit to them. But how does one navigate between much less well-defined traditional attitudes and strong personal inclinations? When I was your age I didn't know the answer I still don't but one proposition that seemed self-evident to me at the time was that it was essential to be consistent. In other words, I felt that I had to somehow make sure that the way 1 defined Yiddishkeit and the way I defined my commitments even my own inclinations would be perfectly aligned. [...]

The ideologues who ran the yeshivish institutions I knew tried to inculcate a set of ideological commitments so comprehensive and intense as to suffocate an individual's personality. One result of this was a kind of cynicism that sometimes amounted to the complete annihilation of any moral and aesthetic compass. The good news is that this mostly worked on the feeble; the normal people's cynicism extended also to their own education: Most of us lived rather comfortably with, for instance, the idea that in principle great rabbanim have da’as Torah whatever that might mean, but that in fact some of the rabbanim we actually knew were, how should I put it, not necessarily especially sharp.

Conversely, in some Modern Orthodox institutions that I know: many of the subtle attitudes that form the core of Yiddishkeit have been diluted out of existence. What remains is a bare-bones even if scrupulously observed-halakha that constitutes a kind of obstacle course that needs to be negotiated in the pursuit of self-fulfillment. But what is worse is that this pursuit of self-fulfillment doesn't consist merely of individuals unselfconsciously pulling received attitudes in directions suited to their own personalities; rather its acceptable forms are defined for one and all in accordance with prevailing cultural tradewinds-nationalism feminism, humanism, whatever. This can lead to an eviscerated Torah forever subordinated to passing intellectual fads. The encouraging fact is that, in general, fads pass-or else they're not fads after all.

Overall, institutional Yiddishkeit is superficial and inauthentic-in institutions, homogenized ideology trumps common sense every time. In the absence of checks and balances, of healthy tension, a sense of proportion and limits is lost and Yiddishkeit itself is diminished and distorted. You probably don't fully appreciate this point yet because you are at that stage in life where things are black and white and it seems important to nail them just right. What I cal tension, you cal hypocrisy. Time will broaden your perspective.[...]

You can-and, under current conditions, you must-learn Shas and posekim in an institution. But Jewish attitudes must be learned through immersion in family or community, internalized, and lived instinctively. Internalized values lived instinctively don't ever form a neat consistent package. On the contrary, they are always full of tension between conflicting poles: between loyalty to Jews and loyalty to the values they embody, between the letter of halaka and its spirit, between conformity and individuality, and so on. This tension is a wonderful, healthy thing - it is the source of a person's intellectual vitality and creativity. Living a life of Torah means living with tension: Yiddishkeit is not
meant to consist of instant solutions to personal problems, canned shallow theology, shlock aesthetics or narrow-minded provincialism. It is meant to encourage the kind of depth and tension that-forgive me for this odd example but I know you'll know what I mean- distinguishes Carlebach from Boro Park rock.

It is precisely this creative tension that distinguishes Yiddishkeit from other cultures and which has allowed it to survive under impossible circumstances. What is required is a terrific loyalty to tradition down to the most trivial detail, and humility in the face of the accumulated weight of this tradition. This loyalty and humility must be balanced by a creative restlessness that forever challenges spiritual complacency by testing tradition against the very values with which it imbues those who are truly loyal to it.

The enemy of this creative tension is ideology. Ideologues of the "right" fear the fluidity of Torah Shebe'al Peh (or are deaf and blind to it) and would reduce it all to Torah Shebikhta1J. In doing so, they reduce a living tradition to ideology. Ideologues of the "left" fear an "outdated" halaka and would round its edges to render it palatable. In doing so, they too reduce a living tradition to ideology.

You should recognize the rhetoric of ideology since it is all around you, insidiously trying to pry you from your own tradition. One type is peddled by those people who will tell you that there is only one true derekh. Whatever that derekh turns out to be, it won't be yours. Any claim that the Jews have always had it all wrong is simply incoherent by definition. If your rebbe tells you that a centuries-old minhag is wrong because a contemporary halakhic cookbook says so, he is not only clueless but also dangerous. If he tres to teach you some strange new topic called "emuna" or "hashkafa," he's probably proselytizing to some questionable ideology of recent vintage, usually radical Zionism or radical anti-Zionism. Steer clear. If you feel an urge to learn machshova, take out a Sfas Emes on Friday night. Remember that Gemara wasn't invented in Brisk, Bretz Yisrael wasn't discovered by Rav Kook, and hasidus isn't the private property of Chabad.

Another type of dangerous ideological rhetoric is peddled by those who will remind you that "there are many true paths in Judaism." They are probably not on any of them. Their apparent open-mindedness is usually a cover for the doctrinaire and arrogant conviction that Yiddishkeit as we know it is primitive, unenlightened, and provincial and desperately in need of the civilizing influence of whatever intellectual fashion is sweeping college campuses (which, they will try to persuade you, is what Yiddishkeit really was supposed to be all along). Given the choice between those who understand Yiddishkeit but have drifted, or even bolted, away and those who bastardize Yiddishkeit, always choose the company of the former. Ultimately, it's the location of the anchor that matters. [...]

Finally, continue to be a stubborn and clever critic of received wisdom just as your ancestors were. But always be sure to do so in a way that honors those ancestors and doesn't belittle them. [...]

New book by Dr. Marc Shapiro: Changing the Immutable: How Orthodox Judaism Rewrites Its History

Seforim Blog

Dr. Shapiro writes:

I am happy to announce that my new book is now with the printer and should be at the distributor by May 4. Amazon and book stores will have the book not long after that. Changing the Immutable has taken quite a long time and I hope readers find that it was worth the wait. One of the main reasons it has taken so long is that some of my time in recent years has been devoted to my posts on the Seforim Blog. When I first started posting here I saw it merely as a pleasant diversion. However, I now see my Seforim Blog posts as an important part of my scholarly writing. Throughout Changing the Immutable I reference not only my posts but many others that appeared on the Seforim Blog.

I am making this announcement now rather than after the book appears because Amazon is offering a pre-order discount (link). For those who want to wait, I know that Biegeleisen will be selling it at a very good price.

Mendel Epstein, Goldstein and Stimler convicted of conspiracy/attempted kidnapping to obtain a Get

CBS news  [See also Asbury Park Press   NJ.Com      NY Daily News]

   Three rabbis were convicted in federal court Tuesday of conspiring to kidnap Jewish men in order to force them to grant their wives divorces.

Rabbi Mendel Epstein, 69, of Lakewood, New Jersey; Rabbi Jay Goldstein, 60, of Brooklyn; and Rabbi Binyamin Stimler, 39, also of Brooklyn, were all convicted of conspiracy to commit kidnapping, according to New Jersey U.S. Attorney Paul Fishman. Goldstein and Stimler were also convicted of attempted kidnapping.

Epstein’s son, David, was acquitted at trial.

Jurors deliberated for three days after an eight-week trial before Trenton U.S. District Judge Freda L. Wolfson, prosecutors said.

Epstein and his colleagues were accused of employing a kidnap team to force unwilling Jewish husbands to grant a get, or a religious divorce, to their wives.

Teaching respect for authority by Allan Katz

Guest post by Allan Katz

The parasha – portion of Kedoshim teaches how we can become Holy like God, involved but separate from the physical world and people who are giving and make a contribution. The Parasha begins with 2 Mitzvoth -commandments. In the same sentence we are told to show (1) a special respect and reverence for parents and comply with their wishes, and (2) keep and observe the Sabbath. The juxtaposition of these 2 mitzvoth means that they inform each other. A special respect for parents will contribute to keeping the Sabbath and other mitzvoth as the purpose of the mitzvoth of honoring and respecting parents is to acknowledge their role and support their efforts in transmitting the ' tradition- masoret ' to their children. The Sabbath promotes respect and honor for parents as it provides the time and opportunity for parents to endear themselves to their children by providing for physical, emotional and spiritual needs as parents, teachers and guides. In fact, the verse can be read not only as –you shall keep the Sabbath, but also the Sabbath shall keep you. The juxtaposition of the 2 commandments also teaches the limitation and condition placed on the mitzvah to revere parents. Children do not have to obey the wishes of parents –in a respectful way -when it negates the Torah. But it is more than that – it means that with the power that comes with the authority given by the Torah, comes great responsibility – to attend to the physical, emotional and spiritual needs of their children and pass on to them the heritage of the Torah.

Parents and teachers should also be respectful towards their children and students. We are supposed to love others as ourselves and thus show respect. And more important being respectful says more about us than the other person as being people who have the characteristic trait of respect - who is a man of honor and respect, he who honors and respects the dignity of others. Likewise if parents and teachers fail and neglect their responsibilities, their children and students should act respectfully as they would to any other person and in this way, protect and honor their own dignity as well.

Our success as parents and teachers and our relationship with our children and students depends on how we and our children and students perceive our authority. Our stance can be ' authoritarian', meaning that the source of our authority is from our ' status' or position as parents or teachers and the power we have over others. It can be expressed simply as being assertive and insistent in imposing our will, because we are the authority figure or using extrinsic motivation such a punishment, consequences and rewards to get compliance.

Our stance can be ' authoritative ', meaning that our authority is derived not from our status, title or power, but the respect we command because of our wisdom, stature, personalities, quality of leadership and deep concern for our children's and students' well-being. Instead of relying on our position of authority and compel others, we try to convince them of our cause and inspire them with our intellectual power and authenticity of our values. We also have a sense of humility which allows us to focus on our great responsibility, the dignity of our children and students and what they need from us, rather than focus on our need for control and authority. A lack of humility leads to the 'might is right' attitude and abuse of power. It is our humility which allows us to expose our humanity and vulnerability, see the children or students' world through their own eyes , give them a voice , ask for their input and perspectives and ' work with ' them. It allows us to relinquish control and support their autonomy, competence and relationship. In this way kids become intrinsically motivated and self – determined endorsing their actions and commitments on the highest level of reflection. Humility means we can see the difference between of the obligation of children to respect revere and honor parents and as the Steipler put it, my duty not to impose myself on others. Instead of giving orders, we would rather ask for help, which respects the dignity of others and makes them feel valuable and worthwhile. Because we address our children's needs especially the need for respect, acceptance and love and focus on our mentoring relationship with them rather than compliance, children will more readily respect our wishes. They have learned to trust and rely on us, acknowledge our wisdom and caring attitude. This is what the word סמכות = sam'chut which is authority in Hebrew, conveys. The authority is derived from the fact that kids rely = סומך on the parent and teacher and that they are ba'al sam'cha – the authority on whose knowledge, wisdom, caring and experience kids can rely. Kids should address their parents - my father /mother, my teacher and try to find qualities in their personalities that they can admire. This is because the source of respect for parents and teachers is their teaching, and their personal qualities. The question is not whether parents and teachers have authority – it is which type of authority we want ourselves and children to respect.

KosherSwitch - nothing new to report - old issues are still the problem

I was recently asked to write a post about KosherSwitch. This  is a topic I raised 4 years ago - and nothing has changed except that they are now actually selling them. Good review articles have been written by Rabbi Yair Hoffman and   Rabbi Gil Student   

The previous posts that I have presented dealing with false claims of approval can be accessed through these links

http://daattorah.blogspot.co.il/2011/09/kosher-switch-requests-correction-of.html

http://daattorah.blogspot.co.il/2011/09/kosher-switch-attacks-its-critics.html

http://daattorah.blogspot.co.il/2011/09/kosherswitchfalsely-indicating-that-rav.html

http://daattorah.blogspot.co.il/2011/09/kosher-switchrabbi-rabinowitz.html

http://daattorah.blogspot.co.il/2011/09/hirhurim-responds-to-kosher-switchs.html

http://daattorah.blogspot.co.il/2011/09/kosherswitch-removed-false-assertion.html

Schlesinger Twins: Rabbi Dov Kaplan objects to Austrian courts inexplicable ruling of extremely restricted visitation rights for Beth

Elite FBI forensic unit gave flawed testimony in 268 cases including 12 men who have been executed

CBS News

The FBI is notifying hundreds of defendants in 46 states that their convictions involved flawed expert testimony. It now admits that nearly every examiner in an elite forensic unit overstated hair matches that favored prosecutors. 

This is one of the country's largest-ever forensic scandals and includes dozens of death row convictions, reports CBS News correspondent Julianna Goldman.

Cleveland Wright spent 28 years -- almost half his life behind bars -- serving time for a 1978 murder.

His conviction, it now turns out, was based on a false FBI hair analysis.

Daas Torah - Chazon Ish's concern for an unbiased answer

Guest post

Hi R’ Eidensohn,

I enjoy your blog very much. I wanted to send this to you re: your recent posts about Daas Torah, especially since the Chazon Ish was used as an example…

I attached the relevant positions of Chazon Ish Emunah U’Bitachon for your convenience.

The Chazon Ish defines a Talmid Chacha as someone who is an expert in most of Shas to the point of Halacha Lema'aseh (see 3:23). This already precludes your average shul Rav or Rosh Yeshiva from the mix of Da’as Torah.

Further, the Chazon Ish writes (3:30) that the logic behind Emunas Chachomim is that a Talmid Chochom greatest concern is his own spiritual well-being, and therefore he will not alter the truth for money or for what people think.

He further differentiates between negius - partiality and shochad – bribery. Why is it that a Rov is allowed to rule on his own question of chometz sheovar alav haPesach no matter how valuable the merchandise is, while when judging, even one penny’s worth of bribery disqualifies him?

He explains that this is a gezeiras hakasuv - a chok that we do not understand.

My understanding of this is that when one is seeking advice, his worst enemy is his own bias. Finding someone to seek advice form who is above the bias would be wise and worthwhile. However, someone who is not educated or experienced enough to fully understand the matter at hand will be of no help no matter how little bias he has.

There is a story with R’ Chaim Brisker where his community was seeking a new chazon. They asked R’ Chaim to choose between on who had a good voice but not all the ma’alos listed in Shulchan Aruch and another who didn’t have such a melodious voice but had all the other ma’alos. R’ Chaim selected the one with the good voice because a good voice is essence of a chazzan where the ma’alos are just side benefits. So to, with an advisor. Knowledge and understanding of the matter at hand are the essence of someone who can give good advice.

Of course, hafoch ba vehafoch ba dekulah ba! Those on the level of having knowledge of worldly matters through Torah study can make fine advisors too.

Unfortunately, I have not encountered many people who are completely above being influenced by money. I heard from a Grandson of R’ Avigdor Miller who was close with Reb Moshe z”l who said that R’ Moshe praised R’ Miller as having this quality since he was not beholden to anyone. Any Rabbi who needs to fundraise etc. is beholden to many. Hence, their opinions may not be true da’as Torah.

   Chazon Ish Shochad

Daas Torah and gedolim - the stereotypic Chareidi view.

Guest post by A. Prager -This guest post was written as a response to  Gavriel Cohen's request for information about gedolim and Daas Torah. It represents a sincere - though mistaken - attempt to show the ancient roots of Daas Torah as well as the superiority of gedolim in all areas of knowledge. I originally thought of not publishing it - but then I realized that it in fact is representative of how many Chareidim actually view the matter. So showing the problematic proofs and citations will in fact help clarify the matter.

Basically I think this is a typical chareidi apologetic on the subject - but it is inaccurate. It cherry picks quotes and examples - as if they are representative of the set of all gedolim. It fails to note the common practice of gedolim to recommend the best secular authority - rather than give personal advice. In fact Rav Moshe Feinstein was adamant that when one goes to a doctor to use the best. 

Rav Shlomo Zalman Auerbach did not learn about electricity from the gemora, Rav Moshe Feinstein learned about medical and technical issues from secular experts, The Chazon Ish allegedly learned his medical knowledge from secular medical books. Rav (Sanhedrin 5b) noted, "I spent eighteen months with a shepherd in order to learn which was a permanent and which a passing blemish ?" Pesachim (94b) notes an instance where the scientific view of secular scholars is said to be superior to that of Chazal. There are many other examples.

Even the assertion he brings that all wisdom can be learned from Torah is not relevant. Rabbi Freifeld told me that while the statement is true - it is not known how to obtain the answers. This is similar to the Rambam noting that while Chazal had books of science - they have been lost and that therefore we learn science from secular sources.

update: A Prager responded:

Thanks for your response.

In my defense, I wasn't attempting to provide Gavriel with a balanced approach to the sugyah; I left out most of the relevant material that I have on the subject (8 pages of Mekoros).

All I was trying to prove was that the position that holds that gedolei hador are to be asked on issues other than halacha is most certainly  a valid one, with precedent in Rishonim and Achronim. I made that quite clear to him; he was asking if todays "gedolim culture" was an invention of a tradition that is not our own, an imaginary reality. I proved to him that that is not the case. The dissenting opinion was not of concern in that response.

 ==========================

Dear Gavriel,

The issue is fundamentally important. I have heard many people (choshuve ones too) referring to a lack of cogent and authoritative material that discusses the concept of Daas Torah.

The so-called paucity of sources on the subject has led some to reject the entire concept, as a modern innovation – just about as old as its terminology. I have heard this opinion voiced on a number of occasions and, as I hope you will see, this statement is far from accurate, and fallacy due to lack of knowledge, and also (I sadly suspect) a desire to be liberated from the confines of an imposing Rabbinic authority. It is indeed true that the term daas Torah is a contemporary coinage, but its idea spans back much further:

Let’s start at the beginning. I am presenting you with an argument which I do not feel is enough advanced because there is a lack of awareness of its potency and authenticity. 

Is there such a thing as Gedolim?

Well, the answer is obviously yes. The Gemara is replete with references to Gedolim and Gedolei Olam. Your question pertains more to who they are, and what they can and are expected to know.

If you’re looking for sources though, there are many but see: Pesachim 70b and Kesubos 10b.

What can a Gadol b’Torah Know? Is it Accessible for us?

In three places the Gemara refers to the all-encompassing knowledge of Talmidei Chachomim, and ascribes the sources of their wisdom to Yiras Shomayim: regarding the knowedge of the shiur of time it takes to perform biah (Sotah 4b); a specific knowledge of the pain suffered from a certain ailment (Sotah 10a) and the ability to distinguish between pure and impure blood through the sense of smell (Niddah 20b). See also Berachos 58b that Shmuel knew the patterns and paths of the stars like he knew the streets of Nahardea.

The Chasam Sofer (Bava Basra 21a) writes explicitly that there is no need to study any other discipline other than Torah, since everything can be found in its words. Now, its significant that he wrote that; he’s writing that l’maase just over 150 years ago: that means he held that such knowledge (to the extent that it is required) is discernable and available:

חתם סופר מסכת בבא בתרא דף כא עמוד א

ושארי חכמות שצריך לרקחות ולטבחות לשמש אשת חיל תורת ה' לא יספיקו בילדי נכרי' כי הכל ימצא בתורה ההוגה בה לשמה זוכה לדברי' הרבה וכמ"ש רמב"ן בהקדמה לתורה

You will be familiar, I am sure, with the Mishna in Avos (5,22) “turn it over and over, for all is in it”, how do you understand this? Rabenu Yona there writes that all wisdom that is in the world can be found in the words of the Torah. Read his words in context, he’s explaining the Mishna’s injunction to turn it over (mull it through), in other words, we can get there: 

פירוש רבינו יונה על אבות ה,כב

הפוך בה וכו' – חזור על דברי תורה שכל חכמת העולם כלולה בה

The Mirkeves Hamishneh there has a similar approach:

מרכבת המשנה לר"י אלאשקר על אבות ה,כב

ועל כן אמר הפוך [בה] והפך בה. ואם לכאורה נראה שאין בה כל כך ענינים, אין זה כי אם מצד קוצר המשיג ועומק המושג, וכאמרו כי לא דבר רק הוא מכם (דברים לב, מז), ואם רק הוא מכם הוא (ירושלמי פאה א, א)...וג"כ רמז שאין צריך לאדם לאבד זמנו בשום חכמה חיצונית לפי שכל החכמות הם נכללים בתורה.

Again, the comments made are especially significant because they are made on this Mishnah which implies that we should delve into the Torah, because “all is in it”.

The Paas Hashulchan has a slightly different approach, which is that anything that one could ever need “for Torah” is found in it:

פאת השלחן בהקדמתו בשם רבנו הגר"א ז"ל

"כל החכמות נצרכים לתורתינו הק' וכלולים בה"

You are familiar, no doubt, with the account of the Chazon Ish who provided advice on how to perform a complex brain operation which was completed successfully. Significantly, the Chazon Ish demonstrated erudite knowledge of the anatomical structure of the brain and how to perform an operation thereon. The surgeon at first rejected the Rabbis advice, but reticently followed the patients wishes to perform the operation according to the instruction of the Chazon Ish, which was successfully completed. The procedure is known today in Israel as “the Karelitz procedure”. I enclose the diagram drawn by the Chazon Ish:

What I am trying to demonstrate, is that there is a strong basis to argue that the Gedolei Yisrael, have an ability to know and rule – even in our generation – on matters much wider than halacha. I have not tried to explain why this is the case.

The very same Chazon Ish in Igros writes that the distinction between kodesh and profane in the perception of the gedolim’s abilities was the hallmark difference between the pre-war reform and those that rejected reform. To say that the gedolim only have a right to make statements in the area of halacha is against the entire ethos of Yiddishkeit, he argues. A similar approach is taken by Rav Hutner in a fascinating essay first printed in the Jewish Observer, November 1977.

So is the approach new? No, it’s heavily based in Gemara, Rishonim, Achronim and Poskim. The term “daas Torah”, as you allude to, is new. I don’t know how familiar you are with between-the-wars Continental Jewish politics? I would suggest that it was due to the political tensions that emerged in pre-war Europe between the religious parties and their secular counterpart that was responsible for the coinage of the term. The novel term is the formalisation of a well-established concept, symptomatic of a political struggle, necessary to demonstrate the authenticity of a Politics guided by Gedolei Yisrael; a model we see practiced today in Israel. It became common usage, I think, for political reasons, but it was always there, just was more relevant to the world of philosophical theory than practice.