Custody laws: Does the daughter automatically go the mother as the Talmud seems to indicate?

In a recent discussion it was claimed that the mother always gets custody of the daughter and that Rav Sternbuch's statement that custody is determined by the best interest of the child is a "chidush". Here is a cogent discussion about the issue and clearly establishes that the principle of what is in the best interest of the child is an established principle by a number of major poskim.

The principle of to do what is best for the child - even though there is a general preference that the daughter goes to the mother -  is expressed by the Rashba (38) traditionally ascribed to Ramban.

שו"ת הרשב"א המיוחסות לרמב"ן סימן לח

שאלה: ראובן שמת והניח בנים, והאלמנה תובעת מן האפוטרופסים מזונות, מחמת היתומים בניה. והאפוטרופוסים אומרים: יבואו היתומים אצלנו, ונפרנס השנים מהם משלנו. והאחרים נקל עליהם מן ההוצאה. והאלמנה אומרת: איני רוצה שיהיו בני אצל אחרים, אלא אצלי. ואף על פי שהאפוטרופסים קרובים הם, ואינם ראויים לירש. הדין עם מי?

תשובה: הבת לעולם אצל האם, ואפילו נשאת האם, לא שנא גדולה או קטנה, כדאיתא פרק הנושא (דף קב:). והטעם: כדי שתרגיל האם לבת, ותלמדה דרך נשים, ושלא תרגיל עצמה בפריצות. אבל הבן, יותר ראוי להיות אצל האנשים הקרובים. שהם ירגילוהו וילמדוהו דרך הלמוד. ודרך אנשים יותר מן האם. שבני האלמנה דרכם דרך זר. ולא אמרו: שלא יהא הבן אצל קרוב, אלא בעודו קטן, ואצל מי שראוי ליורשו, ומשום מעשה שהיה. וכדתניא ריש פרק הנושא (שם /ק"ב/) מי שמת, והניח בן קטן לאמו, יורשי האב אומרים: יהא גדל אצלנו, ואמו אומרת: יהא גדל אצלי. אין מניחים אותו אצל מי שראוי ליורשו. מעשה היה ושחטוהו ע"פ =ערב פסח=. אלמא: דוקא קטן, ואצל מי שראוי ליורשו. הא כל שאין קטן, שאין בו חשש רציחה, וא"נ קטן אצל קרוב שאינו ראוי ליורשו, מניחים אותו אצל הקרובים, ולא אצל האם. ולעולם צריך לדקדק בכלל לדברים אלו, אחר מה שיראה בעיני ב"ד בכל מקום ומקום, שיש בו יותר תיקון ליתומים. שב"ד אביהם של יתומים, לחזור אחר תקונן /עיין ש"ע אה"ע סי' פ"ב סעיף ז

שולחן ערוך אבן העזר הלכות כתובות סימן פב

סעיף ז

י] שלמו חדשיו וגמלתו, אם רצתה המגורשת שיהיה בנה אצלה, ז (ח) אין מפרישין אותו ממנה {ד} עד שיהיה בן שש שנים גמורות, אלא כופין את אביו ונותן לו מזונות והוא אצל אמו; יא] ואחר ו' שנים ח יש לאב לומר: {ה} אם אינו אצלי (ט) לא אתן לו מזונות. ט והבת אצל אמה לעולם, יב] ואפילו לאחר ו'. כיצד, היה האב ראוי לצדקה, מוציאין ממנו הראוי לה בעל כרחו, וזנין אותה והיא אצל אמה; ואפילו נשאת האם לאחר, בתה אצלה ואביה זן אותה משום צדקה, עד שימות האב ותיזון אח"כ מנכסיו בתנאי כתובתה והיא אצל אמה. הגה: יג] ודוקא שנראה לב"ד שטוב לבת להיות עם אמה, אבל אם נראה להם שטוב לה יותר לישב עם בית אביה, י {ו} אין האם (י) יכולה לכוף שתהיה עמה (ר"מ פדוואה סימן צ"ג /נ"ג/). מתה האם, יא (יא) {ז} אין אם אמה יכולה לכוף שיהיו הבנים עמה (ב"י בשם הרשב"ץ).

JLaw    by Rabbi Michael J. Broyde

As explained below, two very different theories, one called "parental rights" and one called "best interest of the child" exist in Jewish law. These two theories are somewhat in tension, but also lead to similar results in many cases, as the best interests of the child often will coincide with granting parents rights. There is a basic dispute within Jewish law as to why and through what legal claim parents have custody of their children. Indeed this dispute is crucial to understanding why Jewish law accepts that a "fit" parent is entitled to child custody -- even if it can be shown that others can raise the child in a better manner. Rabbi Asher ben Yecheil (Rosh), in the course of discussing the obligation to support one's children, adopts what appears to be a naturalist theory of parental rights....R. Asher appears to adopt the theory that the father is the presumptive custodial parent of his children based on his obligations and rights as a natural parent, subject to the limitation that even a natural parent cannot have custody of his children if he is factually unfit to raise them. For the same reason, in situations where the Sages assigned custody to the mother rather than the father, that custody is based on a rabbinically ordered transfer of rights. While this understanding of the parent's rights is not quite the same as a property right, it is far more a right (and duty) related to possession than a rule about the "best interest" of the child. The position of R. Asher seems to have a substantial basis in the works of a number of authorities. There is a second theory of parental custody in Jewish law, the approach of Rabbi Solomon ben R. Aderet (Rashba). R. Aderet indicates that Jewish law always accepts -- as a matter of law -- that child custody matters (upon termination of the marriage) be determined according to the "best interests of the child"..... R. Aderet accepts that all child custody determinations involve a single legal standard: the best interest of the child, regardless of the specific facts involved. According to this approach, the "rules" that one encounters in the field of child custody are not really "rules of law" at all, but rather the presumptive assessment by the talmudic Sages as to what generally is in the best interest of children. An enormous theoretical difference exists between R. Asher and R. Aderet. According to R. Aderet, the law allows transfer of Custodial rights (even from their parents) in any situation where it can be shown that the children are not being raised in their best interests and another would raise them in a manner more in their best interest....

III. Determinations of Custody Between Parents The Talmud seems to embrace three rules that govern child custody disputes between parents:

1. Custody of all children under the age of six is to be given to the mother;

2. Custody of boys over the age of six is to be given to the father;

3. Custody of girls over the age of six is to be given to the mother.

.....The above talmudic rules, read in a vacuum, appear to provide no measure of flexibility at all and mandate the mechanical placement of children into the appropriate category. However, Jewish law, as has been demonstrated by others, never understood these rules as cast in stone; all decisors accepted that there are circumstances where the interest of the child overwhelmed the obligation to follow the rules in all circumstances. It is apparent, however, that this interpretation of the talmudic precepts, which turns these rules into mere presumptions -- and allows custody to be given contrary to the Talmudic rules -- is understood by the various authorities in different ways.....

However, an examination of the responsa literature and decisions of the Rabbinical Courts in Israel does indicate that two schools of thought exist on this issue. Many decisors rule that these presumptive rules are relatively strong ones and can only be reversed when it is obvious that the parent who would be granted custody (or already has custody) is unfit. Other decisors adopt a lower standard and permit granting custody contrary to the talmudic rules when these presumptions are not in the best interest of the specific child whose case is being adjudicated.....

Tamar Epstein Heter: Understanding the essential basis for resolving this unholy mess PART ii

Guest Post  Two birds of a feather: the "kidushei taos" and the "seruv"

Part 2. The Wolmark Otisville gang and their “seruv”

The trial in Federal District Court in Trenton of the Wolmark criminal gang shed light on the nature of the “seruv” against Aharon Friedman and the criminal enterprise that purported to issue it. The Department of Justice wanted Tamar Epstein’s to’ain / medical malpractice trial lawyer, Frederic Goldfein, to testify in the criminal trial of Mendel Epstein and several of his accomplices. However, Paul Fishman, U.S. Attorney for the District of New Jersey wrote the Court that Goldfein was likely to refuse to testify by invoking his Fifth Amendment privilege against self-incrimination regarding his criminal participation in the matter. With the approval of the Deputy Assistant Attorney General in charge of the Criminal Division of the Department of Justice, the U.S. Attorney asked United States Federal District Court Judge Freda Wolfson to force Goldfein to testify and give him immunity in order to override his ability to avoid testifying by invoking the Fifth Amendment. Judge Wolfson approved this request, giving Goldfein immunity, and therefore forcing him to testify.

As noted previously, the Baltimore Beis Din that actually had jurisdiction over the case and heard the case refused to rule that Aharon give a get. The Washington Beis Din ruled that it could not assert jurisdiction, and it appears, at least according to ORA and Jeremy Stern, that the Beis Din of America also refused to intercede. Who knows how many other batei din were asked by Goldfein, ORA, and the Kamenetskys to intercede but refused to do so? Eventually, according to the testimony of Frederic Goldfein, he turned to Martin Wolmark, a criminal gangster, to organize a “seruv” against Aharon from a criminal enterprise posing as a “beis din.”

Goldfein also acknowledged at the trial that as part of extensive correspondence between Goldfein and Wolmark, Wolmark had sent Goldfein an email offering to sign the "seruv" that Wolmark was organizing because Wolmark believed his involvement would scare Aharon and Rabbi Shragi. Pursuant to this plan, Wolmark was one of the signatories on the “seruv.” In other words, Wolmark and Goldfein believed that Wolmark was so infamous as a criminal gangster, that his involvement would scare Aharon and Rabbi Shragi.

Wolmark has pled guilty in connection with the case, and is currently scheduled to be sentenced in Federal District Court in New Jersey on December 14. The Wolmark gang was so thoroughly incompetent and corrupt that it ruled that force should be used to force a purported husband to give a get even though the man did not even exist, and even sent a whole gang of thugs to a warehouse to kidnap and beat up this non-existent man. The gang was so eager to collect their $60,000 that whether the man actually existed, never mind whether there was any actual halachic basis to kidnap and beat him, was not something that really concerned them.

It should also be noted that Rabbi Aryeh Ralbag, one of the other signatories on Wolmark’s “seruv” was, like Goldfein, given immunity in the case and forced to testify by Judge Wolfson at the trial at the request of the U.S. Attorney’s office with the approval of the Deputy Assistant Attorney General in charge of the Criminal Division of the Department -- because Rabbi Ralbag would otherwise have invoked his Fifth Amendment right against self-incrimination as to his criminal involvement in the gang. An FBI affidavit in the case stated that the FBI had probable cause to believe that both Rabbi Ralbag, and another of the signatories on the “seruv,” Rabbi Israel Belsky, had violated five different Federal criminal statutes, with regard to their participation in the case.

So --- the Beis Din with jurisdiction and that heard the case with the participation of both parties concluded that Aharon has no obligation to give a get. In addition, the Washington Beis Din sent Aharon several hazmanos, but concluded, as Aharon had argued to them, that they had no right to intercede in the case. And, at least according to Rabbi Jeremy Stern and ORA, the Beis Din of America also refused to intercede in the case against Aharon despite being requested to do so by the Epsteins. Eventually Goldfein found a thoroughly incompetent and corrupt criminal enterprise led by the criminal Martin Wolmark to purport to issue a “seruv” against Aharon with the participation of Rabbi Shmuel Kamenetsky. The criminal enterprise did not even bother to issue even a single hazmana [summons] against Aharon. And yet, other than Rabbis Eidensohn and Rabbi Gestetner, very few would publicly defend Aharon against these criminals, and their associates such as Rabbi Hershel Schacter and ORA who made a mockery of halacha, beis din, and the frum community. Is it any mystery why the Kamenetskys would believe that it would also be perfectly accepted if they were to organize a “kiddushei taos”?

===============

Direct examination of Frederic Goldfein by an assistant United States Attorney for the District of New Jersey in federal district court in Trenton on March 23, 2015.

Q. And at some point, you went to a man named Rabbi Wolmark, you said?

GOLDFEIN. Yes.

Q. That's Martin Wolmark?

Goldfein. Yes.

Q. Do you remember approximately when that was?

GOLDFEIN. The first time I met with Rabbi Wolmark was in approximately February of 2011.

Q. And at some time Rabbi Wolmark referred you to Mendel Epstein. Correct?

GOLDFEIN. Yes, he did.

Q. Do you remember approximately when that was?

GOLDFEIN. I think around February or March of 2012.

Q. Approximately a year after you met with Rabbi Wolmark?

GOLDFEIN. Yes.

Q. Why did Rabbi Wolmark refer you to Mendel Epstein?

GOLDFEIN. Because we had several attempts to make that deal, which originally they agreed to and backed out of, and we just felt we needed some help to get him to take the deal to take the money.

Q. Why specifically Mendel Epstein?

GOLDFEIN. Rabbi Wolmark -- I went to Rabbi Wolmark. Rabbi Wolmark referred me to Rabbi Epstein.

Q. What did Rabbi Wolmark say about Mendel Epstein?

GOLDFEIN. Rabbi Wolmark said that Rabbi Epstein could turn the heat up.

….

Cross examination by defense lawyer:

…

Q. -- I want to go to a couple of things you said, and I'm going to show you -- do you remember you met with the FBI about this matter? Correct?

GOLDFEIN. Yes, sir.

Q. And that was on January 6th of 2015?

GOLDFEIN. Yes, sir.

Q. You had an attorney with you. Correct?

GOLDFEIN. Yes, sir.

Q. I'm going to show you what's been marked for identification previously as JGF-01. Hold onto that for a moment, and I'll direct your attention, sir. Mr. Goldfein, I just want to direct your attention before we get into everything. You said, in response to Mr. Gribko's questions, that Rabbi Wolmark introduced you to Rabbi Mendel Epstein. Correct?

GOLDFEIN. Yes.

Q. And that your testimony on direct was that Rabbi Mendel Epstein said that, We needed to turn the heat up on Aharon Friedman. Do you remember that testimony?

GOLDFEIN. I did not say that. Rabbi Wolmark said that.

…

Q. And as the months went by, you stayed in regular contact with Rabbi Wolmark by email. Correct, sir?

GOLDFEIN. I was in contact with him, yes.

Q. In fact, you had dozens of emails with him. Correct?

GOLDFEIN. I didn't count them. I was in regular contact with him.

Q. It wouldn't surprise you, there were dozens, if we counted them up?

GOLDFEIN. No, it would not surprise me. I trust your counting.

Q. Do you remember around August of 2011 there was contact between you and Rabbi Wolmark about whether Rabbi Wolmark's name would go on the seruv to Mr. Friedman? GOLDFEIN. I don't remember. If you say it's there, I believe you.

Q. Let me show you what's been premarked for identification as ME-18. I'm just pointing to the first two emails on the top of ME-18. Does that refresh your recollection? GOLDFEIN. I said it's there. I believe you. Yes.

Q. And Rabbi Wolmark was saying if Wolmark's name was on the seruv, that it might scare Mr. Friedman into granting a get. Is that your take on that? GOLDFEIN. Rabbi Wolmark wrote, Either way is fine. My name might scare him and R. Shragai.

Q. Do you know who R. Shragai is?

GOLDFEIN. He is someone who lived in Baltimore. He was a rabbi, and maybe still is, of a school in Baltimore who was a friend and/or advisor of Aharon Friedman at one point.

…

Q. This was the document, the seruv, the contempt of court, that you had been working on through Rabbi Wolmark all those months to finally issue to Mr. Friedman.

Correct?

GOLDFEIN. Yes, sir.

Psak of rabbanut (including Rav Eliashiv): Can the mother take their daughter to live in a different city than the father?

  "J"  in a comment today noted that according to Rav Elyashiv, a mother is entitled to take her daughter to live in a different town, if it's only a few hours away. And even if it's further, the following applies:

כל דברי המהרשד"ם נאמרו רק לכתחילה, אבל אם כבר הוליכה האם את הבת עימה לעיר אחרת, אפילו הרשד"ם מודה שאין מחזירין אותה לעירה.
http://www.daat.ac.il/daat/psk/psk.asp?id=625

It would seem that it supports Tamar Epstein's abduction and resettlement of their daughter to live hours away from where Aharon Friedman lives. Does it?


Rav Landesman mentions this issue in footnote 26

כו ויש סמוכים להלכה לטענתו; דאף שהרמב"ם בפכ"א מהלכות אישות הי"ז והמחבר באבה"ע סי' פ"ב סע' ז' פסקו שהבת אצל האם לעולם, מכל מקום אם האם רוצה ללכת לעיר אחרת, הרי דעת המהרשד"ם בתשובה אבה"ע סי' קכ"ג והרדב"ז המובא בסוף תשובת מהרשד"ם שם, וכן בתשובת רדב"ז ח"א סי' ש"ס, דיכול לעכב עליה שלא תקח הבת עמה.

If you read it carefully - and considering the circumstances of Aharon Friedman's case, especially his work schedule - the psak din actually supports Aharon's argument against relocation.

פסקי דין רבניים חלק ד פס"ד בעמוד 93

[עמוד 93] ערעור תשיח /מאה חמשים ושבע/ בבית הדין הרבני הגדול בפני כבוד הדיינים: הרבנים, עבדיה הדאייא, יוסף שלו' אלישיב, בצלאל זולטי בענין: המערער: האב א' (ב"כ עו"ד הוכמן) נגד: המשיבה: האם ב. (ב"כ הרב אוירבך) ערעור על פסק - דין המתיר לאם שילדתה בהחזקתה, להוציאה מן העיר אשר אבי הילדה נמצא בה ולגור אתה בכל מקום שהיא רוצה.

מסקנות א. (א) יש מחלוקת בפוסקים בשאלה, האם מצד ההלכה של הבת אצל אמה לעולם רשאית האם להוציא את בתה מהעיר אשר אבי הילדה נמצא בו ולהוליכה לעיר אחרת, או לא. (ב) אך המחלוקת הנ"ל היא רק לגבי מרחק כזה שפירושו הפרדת הילדה מאביה לאורך ימים, אבל כשריחוק המקום אינו מונע את האב מלבקר את ילדתו כמה פעמים בשבוע, כולי - עלמא מודים שהיא רשאית לעשות זאת.

פסק דין זהו ערעור על פסק דין שניתן ע"י כבוד בית הדין הרבני האזורי בתל - אביב ביום כ"ט תמוז תשי"ח, תיק מס' /שבעת אלפים עשרים/ תשיז, לפיו הרשות בידי המשיבה לקחת עמה את בתה ולגור בכל מקום שהיא רוצה.

בפס"ד המעורער נאמר: מכיון שבזמנו פסק ביה"ד שגב' ב', אינה מחוייבת לשוב לבעלה א', ורצוי שהם יתגרשו והחלטה זו אושרה אף ע"י ביה"ד הגדול לערעורים, הרשות בידי הגב' ב' לגור בכל מקום שהיא רוצה, ובמקום שהיא תגור הרשות בידה וזכאית היא לקחת אתה את בתה ג' ובהתאם להלכה שהבת אצל אמה לעולם,,,

[

 עמוד 94] ב"כ המערער קובל על הפס"ד המעורער: בפס"ד כתוב שהיא יכולה לגור עם הילדה בכל מקום והבקשה של המשיבה היתה רק על ירושלים, אנחנו טוענים שאין לעקור את הילדה ממקום שהיא נולדה, זה לרעתה שהיא תהיה בירושלים וגם לא טוב בשבילה בכלל להיות אצל אמה.

אמנם בשאלה זו, אם מצד ההלכה שהבת אצל אמה לעולם, רשאית אם להוציא את בתה מן העיר אשר אבי הילדה נמצא בה וללכת לעיר אחרת, פליגי בה רבוותא, דעת הריב"ל בס"א כלל י"א סי' נ"ו הוא דמלתא פסיקתא קתני, והרשות בידה לקחת אתה את בתה להוליכה למקום שתרצה, והרשד"ם בחלק אה"ע סי' קכ"ג סובר דאינה יכולה להוליכה לעיר אחרת.

והנה תרי טעמי נקיט הרשד"ם ז"ל להוכיח דאין רשות לאם להוציא את בתה לעיר אחרת: א. וכן אני מוכיח זה היות אמת מ"ש למעלה מזה (הרמב"ם /בפכ"א/ בפה"א מה"א: שלמו חדשיו וגמלתו אם רצתה המגורשת שיהיה בנה אצלה אין מפרישין אותם עד שיהיה בן שש שנים,,, והבת אצל אמה לעולם), דין הבן ואח"כ כתב והבת אצל אמה לעולם ואפי' אחר שש משמע בפירוש שאין הבדל בין הבן להבת אלא שהבן שש שנים ותו לא והבת לעולם אמנם כמו שהבן אינו יכול להוציא מן העיר ולהעלים אותו מעיני אבא,,, דכי יעלה על הדעת שלא יהיה לאדם אלא אותו בן ויחיד ורך הוא אצלו ונפשו קשורה בנפשו והיה כראותו כי אין הנער ומת אביו מצרתו ותאמר שאפי"ה נתנו לו כח להוציא למקום רחוק זה אין הדעת סובל,,, כן הבת,,, והאמת כי דברים אלו ברורים הם בעיני כשמש אשר לדעתי אין מי שיוכל להכחישם.

ב. ומטעם אחר וגדול הוא בעיני אני אומר שמה שאמרו הבת אצל האם לעולם אינו ר"ל, שיש לה כח להוציאה ולהוליכה למקום שתרצה האם שהרי שנינו האב זכאי בבתו,,, וכל אלו הזכויות הם מהתורה לבד מציאתה שהיא תקנת רבנן,,, ואחר אשר הודיע לנו ה' את כל זאת פליאה דעת ממני מי הוא אשר יעלה על דעתו לומר שהתורה זכתה לאב בכל אלו הזכויות ואתה רוצה לבטלן,,, ולא אבין דעת הרוצה לתקן כ"ז בקש אשר ידפנו רוח שאומרי' שכבר יוכל לזכות בכ"ז אפילו תהיה היא במדה"י, והאב במקום רחוק ממנה ואני משיב להם הנה שראובן גרש את אשתו והיה לו בת ממנה וחביבה אצלו ואתה נותן רשות לאם שיוליכנה לעבר הים, ובאותו מקום שהאם הולכת אינו מקום שתוכל הבת להרויח דבר,,, גם הרדב"ז בתשו' סי' ש"ס פסק: [עמוד 95] הבו דלא לוסיף עלה שתוכל להוליכה למקום אחר שלא מדעת אביה זו מדה גדושה היא ואין מודדין בה.

אכן נראה, דהני טעמי שעליהם ביסס הרשד"ם ז"ל את דינו לא שייכי אלא בעובדה שנשאל עליה שהאם החליטה לחזור משאלוניקי - ששם היה מקום מגוריה עם בעלה למולדתה ולמשפחתה עיר בלארסו שלפי מ"ש הרשד"ם שם, המרחק ביניהם הוא מהלך ב' או ג' ימים וגם סכנת דרכים כרוכה בנסיעה זו, אשר לפי המצב של אותם הימים הרי מרחק כזה פירושו הפרדת הילדה מאביה לאורך ימים. ועל גופא דעובדה זו השיב הרדב"ז בתשו' הנ"ל. לא כן במקרה דנן שריחוק מקום זה לא מונע את האב מלבקר את בתו כמה פעמים בשבוע, עיין פרוטיקול תיק עד /תשיח/, /מאה חמשים ושבע/ ב"כ האשה: הבעל מבקר שלש פעמים בשבוע ולוקח הילדה ומשתעשע אתה,,, ב"כ הבעל:,,, הבעל צריך לבוא במיוחד לירושלים לבקר את הילדה,,, הבעל: אין לי שום הפרעות בבקורים מצד האשה.

ולכן מסתבר הדבר שבמרחק כזה אשר נסיעה של שעה - שעתיים מבדילה בין מקום של האב למקום מגורי האם לא ישתנה הדין מה שקבעו חז"ל בת אצל אמה, כמו שלא תשתנה הלכה הנז', כשהורי הילדה שניהם גרים בעיר אחת, אלא שדירת האב בקצה העיר מצד אחד, ודירת האם בקצהו השני ופשוט כי תקנה זו שקבעו חז"ל בת אצל אמה לא ניתנה לשיעורין כאלה.

ובעצם הפלוגתא שבין הריב"ל והרשד"ם, עיין בכנה"ג אה"ע סי' פ"ב הגב"י אות ו':,,, והוא (ר"ש ברוך), ז"ל כ' שכיון שדבר זה הוא מחלוקת בין הגדולים איזה ואיזה הוא יגזור להוציא הבת מאצל אמה.

ואף שהלכה פסוקה באה"ע סי' קי"ח סעי' ו' כל ספק שיש בתקנה מעמידין על דין תורה, אכן כתבו האחרונים, שזה רק בתקנה שהתקינו בתראי אחרי חתימת התלמוד, לא בתקנה שהתקינו חז"ל (עי' מחנ"א ה' גבי"ח ס"ב).

אמנם הרשד"ם איננו יחידי בהל' זו, ובכנה"ג סי' פ"ב בהגה"ט אות ל"א כתוב: אבל הרשד"ם חולק (על המריב"ל), וסובר דאינה יכולה להוליכה לעיר אחרת וכ"נ מדברי ספר המפה, ובשם הרדב"ז ז"ל כתב שם כהרשד"ם,,,.

גם בענין ספק בתקנה ע' נחל יצחק ח"א בקונטרס ביאור ספק תקנה אלא שאין לנו צורך לקבוע כעת מסמרות בנוגע לפלוגתא זו הואיל ובמקרה דנן הבקשה שהוגשה לפני ביה"ד האזורי ע"י המשיבה היתה רק להוציא את הילדה מתל - אביב לירושלים, ולפי האמור לעיל הרי בגוונא - דא כולי - עלמא מודו בזה, ועל כבוד ביה"ד האזורי להיעתר בהתאם להבקשה. לא להרשות לה שהיא זכאית לקחת אתה את הילדה לכל מקום אשר תרצה. דבר שלא בקשה כלל.

לפי כל האמור אנו פוסקים: [עמוד 96] א. דוחים את הערעור ומאשרים את פסה"ד עקרונית. ב. מבטלים את האמור בסעי' ב' בפסה"ד המעורער במה שנוגע לבת, וקובעים כי האם - המשיבה זכאית לקחת אתה את בתה ג' ולגור עמה בירושלים, בהתאם לעתירתה בפני ביה"ד האזורי. אין צו להוצאות. הודע בנוכחות עודד לומבריזו, בהעברה ממר הוכמן ב"כ המערער, ובהעדר המשיבה ביום י"ט אב תשי"ט..

Tamar Epstein Heter: Understanding the essential basis for resolving this unholy mess

Guest post[updated to include Citizens against Aharon]

Two birds of a feather: the "kidushei taos" and the "seruv"

The story of how Rabbi Kamenetsky went about searching for a rabbi to approve of the  kiddushei taos/annulment appears to resemble how the Epsteins went about finding a "beis din" to issue a purported "seruv" against Aharon. The kidushei taos and the "seruv" have similar levels of validity. Anyone questioning the kidushei taos, should also examine the circumstances of the purported "seruv."

Tamar and Aharon brought the matter to the Baltimore Beis Din, which held three hearings into the matter with the participation of both parties. Amongst the issues brought to the Beis Din for adjudication was whether there was any obligation on Aharon to give a get. Tamar was represented in Beis Din by Frederic Goldfein, an experienced toain and medical malpractice trial lawyer. In violation of both the parties’ mediation agreement, and shtar beirurin [binding arbitration agreement] to have the case decided by the Baltimore Beis Din, Tamar ultimately insisted on having the case decided in civil court. She violated the Baltimore Beis Din’s orders regarding dismissing the case from civil court both before and after the case went to trial in civil court. She successfully argued in court that her unilateral relocation of the child out-of-State should be treated as a fait accompli because Aharon had agreed to cancel an earlier civil court trial to being the matter to Beis Din.

The Baltimore Beis Din did not rule that Aharon had to give a get. To the contrary, the Baltimore Beis Din has noted that that there was no obligation on Aharon to give a get. Not liking the ruling of the Baltimore Beis Din, Tamar had the Washington Beis Din issue three hazmanos to Aharon. Aharon responded repeatedly that Tamar could not involve another beis din given that the parties had brought the case to the Baltimore Beis Din and violated that Beis Din’s orders to the severe detriment of Aharon and the child. The Washington Beis Din ruled, as Aharon had urged, that the Washington Beis Din had no right to insert itself into the case by claiming jurisdiction.

In addition, at least according to Jeremy Stern of the ORA organization of which Rabbi Hershel Schachter serves as posek, Tamar asked the Beis Din of America to intervene in the case. What is clear is that the Beis Din of America has never actually asserted jurisdiction over the case, apparently also concluding, like the Washington Beis Din, that they had no right to assert jurisdiction over the case. It is not known how many other batai din, Goldfein and possibly Rabbi Kamenetsky went to seeking their intervention in the case because they didn't like the decision of the Baltimore Beis Din.

It is outrageous that anyone would take seriously a purported "seruv" against Aharon issued by any other beis din in this case. Aharon had not refused to bring the matter to beis din. To the contrary, at great cost to himself, he had canceled a pendente lite trial in court in order to bring the matter to beis din. The parties signed a shtar beirurin at that beis din, but Tamar and the Kamenetskys disagreed with the refusal of that beis din to order that Aharon give a get. The Washington Beis Din and apparently the Beis Din of America (according to Jeremy Stern and ORA) recognized that another beis din had no authority to intervene and aasert jurisdiction. Aharon abided by halacha and brought the case to beis din, only for Tamar, with the help of the Kamenetskys, use that action, to have her abduction of the child treated as a fait accompli in court. Had there been even minimal pressure on Tamar to come to a reasonable custody arrangement, this entire matter would have been resolved many years ago. Instead, the Kamenetskys, with the help of Rabbi Schachter turned things completely upside down by starting a demonization campaign against Aharon, even before the purported "seruv."

That anyone would take seriously a purported "seruv" issued by yet another beis din, even if that beis din were a real beis din, makes a mockery of the very concept of beis din.

Note how Jeremy Stern baldly asserts that Tamar turned to a third beis din, after the first two batei din she went to refused to bow to her demands. It is as if a beis din, even one mutually chosen by the parties, can only be considered legitimate if the beis din does what Jeremy Stern (and apparently ORA's posek, Rabbi Schachter) demands. Similar reasoning underlines the kiddushei taos - it matters not how many rabbis were asked to rule that it is valid and refused to do so, so long as one rabbi eventually agreed to take Rabbi Kamenetsky's word that it was.

Anyone who wishes to resolve the current annulment crisis must start with the realization that the mockery of halacha, beis din, and the idea of communal norms, did not start with the kiddushei taos, but with public attacks on Aharon and his family even though he was the victim in this matter of unconscionable behavior led by Rabbis Kamenetsky and Schachter. The only way to start rectifying the annulment crisis is to start with the actions over the course of many years that led up to it.

A letter sent out from the Silver Springs Community in response to the above letter from the Beis Din - which baldy states that their "values" take precedence over the halacha as stated by their beis din.(omitted second page which just had signatures)

 

A letter written by ORA's Jeremy Stern in early January 2011

FROM ORA:
Unfortunately, the New York Times article did not accurately present the facts of the case. This is a very detailed case, but, from our perspective, it is no way a “complicated” case with regards to whether or not Aharon Friedman should issue an immediate and unconditional get. Rav Schachter and Rav Shmuel Kamenetsky remain firmly in support of ORA’s effort in advocating on behalf of Tamar. The RCA Resolution from 1991 on Agunot and Gittin (http://tinyurl.com/rca1991agunot) makes it very clear that a get should never be used as leverage. No
one will deny that that Aharon Friedman is using the get as leverage. In terms of the facts of the case, Tamar has done everything kedas ukedin. I would strongly encourage anyone to call Rav Belsky and/or Rav Breitowitz, who both issued letters a few weeks ago regarding this case which seemed to be to Tamar’s detriment, and ask them if a) Tamar has offered a reasonable proposal to resolve the issues of visitation, and b) has Aharon been reasonable in resolving this matter and withholding a get. Now that Rav Belsky and Rav Breitowitz have become more engaged in the case, they both feel very differently than they did a few weeks ago.

Here are some of the most important facts of the case, which correct the inaccuracies of the NYT article and fill in more of the details:

1) There has been an understanding between the parties from the very beginning that, despite the fact that the court order allows for Aharon’s visitation to begin at 6pm on Fridays, Aharon has been given access to their daughter with ample time before Shabbos. Aharon has never been impeded from having access to their daughter with ample time before Shabbos. Please see the attached letter from Tamar which was sent out to the Silver Spring community regarding this issue and others.

2) Tamar has offered a very reasonable modification to the visitation schedule which Aharon has rejected repeatedly. Every rabbi who has tried to mediate between the two of them has agreed that her offer is reasonable. Aharon and Tamar met with Rav Belsky this past Sunday and Rav Belsky agreed that her offer to modify the visitation schedule was very reasonable. This offer was once again rebuffed by Aharon.

3) Going back into the history of the case, Aharon was the plaintiff in the civil court matter which decided custody and visitation. The couple signed a shtar berurin with the Baltimore Beis Din (BBD), which insisted that Aharon remove the matter from the civil courts in order to enable the BBD to arbitrate the issues of custody and visitation (among others). Tamar filed a motion for continuance, which would have pushed off the civil court date in order to allow time for beis din arbitration. Aharon filed a motion to oppose Tamar’s motion for a continuance, insisting that the matter be adjudicated in civil court, and the trial went on as planned. The BBD stated that if the civil court would issue a ruling, then they would be dismayed by Aharon’s insistence on going to civil court and thereby committing a chillul Hashem, and they would wipe their hands clean from the case. (Why they wouldn’t issue a seruv against Aharon is beyond me.)

4) Aharon and Tamar have been civilly divorced since April 2010.

5) Since the BBD [Baltimore Beis Din] had wiped their hands clean of the case, Tamar turned to the Silver Spring Beis Din (SSBD) in order to summon Aharon to beis din so that she could receive a get. After the SSBD issued three hazmanos and was working on the language of the seruv against Aharon, the BBD suddenly “re-asserted” jurisdiction and the SSBD dropped the case.

6) Now that two batei din have failed to secure a get for Tamar (and Tamar rightfully questions the objectivity of the BBD considering how they mishandled the matter), Tamar has turned to the Beth Din of America (BDA) to deal with the case. (Tamar has currently held off from  having the BDA issue their first hazmana since the negotiations with Aharon facilitated by Rav Belsky this week have been ongoing.)

7) Rav Hershel Schachter and Rav Shmuel Kamenetsky are familiar with the intimate details of the case and have been updated regularly for months. As such, both have issued letters in support of ORA’s efforts to pressure Aharon to give a get. Attached, please find one of the letters of support issued by Rav Kamenetsky and Rav Schachter.

8) Additionally, Rav Schachter has issued a psak stating that public pressure can be placed on a recalcitrant husband even in the absence of a psak from beis din as long as a responsible posek (in this case Rav Shmuel Kamenetsky) has weighed in on the matter. Please see attached.

I hope these details and attachments help provide more background for the case.

Tamar Epstein heter: Five steps needed to bring about a resolution

It is clear at this point that Tamar Epstein is still married to Aharon Friedman - because the "heter" she received to remarry is a sad joke based on a clear corruption and misuse of halachic principles. Consequently her marriage to Adam Fleicher is invalid, she is committing adultery and future kids are mamzerim.

It is clear that Aharon Friedman has been severely mistreated and abused - not only by Tamar but a number of major rabbis - not limited to Rav Shmuel Kaminetsky, Rav Sholom Kaminetsky,  Rav Nota Greenblatt, Rav Herschel Schachter amd Rabbi Jeremy Stern.

It is clear that Aharon Friedman's daughter's abduction by Tamar was aided and abetted by a number of rabbis - some deliberately and some by incompetence.

It is clear that Aharon's rights as a father have been severely violated and that the normal relationship with his daughter has been damaged without any justification according to the Torah.

It is clear that Aharon Friedman received some singularly bad advice from a number of well meaning rabbis who were no match for Tamar's brain trust of gedolim and lawyers. These rabbis serious misjudged their ability to reason with Tamar's brain trust who treated these rabbis as country bumpkins and outmaneuvered them at every step. As one major posek told Aharon recently - he should have gone straight to the police when Tamar abducted their daughter. The reason that he didn't was that he trusted the assurance of various rabbis that they could handle the situation and their mistaken assertion that not relying totally on the beis din was a severe violation of Torah.

It is clear that the well meaning rabbis misgauged the degree to which Tamar and her family gamed the system - corrupting gedolim and halacha in the process.

It is clear that Tamar and family were guided by a strong feeling of entitlement that was encouraged by the Kaminetskys and Rav Herschel Schachter.

Aside from the public abuse and humiliation that Aharon has unjustly received over the years he has also been blocked from participating in the shul's in his neighborhood. Their rabbis claiming that he is a get refuser and needs to be punished. This in direct contradiction to the undeniable fact that the Baltimore Beis Din (the only one authorized by halacha) refused to issue a psak that he was required to give a Get. These shul rabbis relied on the invalid pronouncements and seruv issued by Rav Shmuel  Kaminetsky and Rav Herschel Schacter. Strangely enough even after Tamar announced she didn't need to give a Get they still excluded him since they claimed he was still a Get refuser. 

========================================

Given the above it is time to get beyond the focus on condemning Tamar for remarrying based on a phony heter. 

First step - there needs to be a clear demand from all the rabbis - that the unjust restrictions of the area Shuls need to be removed and Aharon needs to be welcomed back.

Once this overdue step is taken - it might be possible about taking additional steps. 

BUT WITHOUT THIS MINIMAL ACT OF DECENCY - THERE IS NO BASIS FOR AHARON TO BE INVOLVED IN ANY ADDITIONAL STEPS. 

Especially since a gadol has clearly stated that Aharon has no need to give Tamar a Get.

Step two -   the restoring of Aharon's access to his daughter by having her move back into the Baltimore-Washington area. This step needs to be fully guaranteed by halacha and law that this arrangement will not be changed against Aharon's wishes.

Step three -  Aharon needs to give Tamar a Get. It is important to note that Aharon should not be first depositing a Get with Beis Din. The obligation is on Tamar to do what is necessary and then Aharon will reciprocate.

Step  four - an internationally respected beis din needs to be formed to decide what Tamar should do next  In the meantime it is clear that she needs to separate from her new husband.

Step five - an internationally respected beis din should decide an appropriate response to  Rav Greenblatt and the Kaminetsky's regarding their responsibility in generating a false heter and corruption of the halacha and halachic process.

Vayeitzei; Can a Younger Sibling Marry First, or Was Lavan Correct?

Guest Post by Rabbi Shlomo Pollak

Lavan sanctimoniously proclaimed, AFTER Yaakov worked SEVEN years for Rochel, לא יעשה כן במקומינו לתת הצעירה לפני הבכירה- "It's improper to marry off a younger child, before the older one"...

Lavan is "quoted" by Rishonim, and Poskim....

So, do we agree, in principle, with Lavan, and if yes Why? and When?

For questions and comments please email salmahshleima@gmail.com.

Mendel Epstein Torture for Get: 3 more men sentenced

NJ.Com

Three more New York men who were involved in a bizarre plot to violently coerce an Orthodox husband to give his wife a religious divorce were sentenced in federal court Thursday. 

The three were nabbed along with seven others in an FBI sting two years ago during a torture-for-hire operation that crossed state lines from New York to a warehouse in Edison. http://www.nj.com/news/2013

Avrohom Goldstein, 36, was sentenced to 45 month in prison by U.S. District Judge Freda L. Wolfson in Trenton, U.S. Attorney Paul J. Fishman said.

The Brooklyn man also admitted to a similar plot in 2011 where he and others restrained and assaulted another recalcitrant husband and his roommate to extort a divorce, Fishman said in a release.

Ariel Potash, 42, of Monsey, N.Y., was given a 14-month prison sentence, while one of the other conspirators, Sholom Shuchat, of Brooklyn, was sentenced to time served, according to the release.

All three will also serve two years of probation. [...]

Hisachadus HaRabbonim (Satmar) protests against heter to Tamar Epstein to remarry without a Get

Vayetze 76 - Kids can help to ' make or break ' a marriage

Guest Post by Allan Katz

When we take a look at the lives of the Avot – the Forefathers and especially the life of Ya'akov- Jacob, we see lives that are full of challenges and very complicated, and yet in the end the light of the Torah is revealed. Proverbs 23:31 implies that only people who have their eyes on drink think that life runs smoothly without bumps in the road or complications. כִּי-יִתֵּן בכיס (בַּכּוֹס) עֵינוֹ; יִתְהַלֵּךְ, בְּמֵישָׁרִים.Leah as the older daughter, according to the local people was destined to be married off to Eisav- Esau. She cried and prayed to God .She became Jacob's wife in a most complicated way because Jacob wasn't able to perceive at that time, that his destiny to become Israel needed him to marry Leah. Jacob initially felt a touch of resentment to Leah because of her complicity with her father in deceiving and conning him into marrying her. Leah was extremely conscious of not being the 'favorite wife' and felt not loved and even ' hated.' Thing slowly began to improve when she began to have children. We see from the names she gave her sons how each son helped Jacob's love for her to grow even more. She called their first born son – Reuvein, from God seeing her affliction which was apparent and could be seen by all. Her second son was called Simon, from God hearing her that she was ' hated' = less loved, something that only she could notice from the tone of Jacob's voice in conversation with her .After she had her third son and thereby given birth to her share of the 12 tribes, there would be no difference in the love Jacob showed to his 2 wives and that from now ' my husband will become attached to me', implied by the name Levi. Their connection now had the commitment of a couple that find their happiness only in each other. In fact, Jacob gives expression to his love and commitment by him naming the child, Levi. ( R'SRH). The Chizkuni says that until this point Leah could cope alone in raising her children, one child in each hand, now that she had a third child, she needed Jacob's help. The obvious question is why could not Leah rely on the hands of her maid-servant Zilpah? When it comes to ' education', it is the parent and not the ' super-nanny' that is responsible and has to be active in the child's education.

And this introduction from the parasha reminds me of a woman who had a ' problematic marriage ' and was told , that we can see from Leah's experience that 'having more children ' would solve her problems and cause her husband to show affection, love and support. Unfortunately, things became much worse and she had to carry the burden of caring for even more children by herself. She continued to be 'emotionally abused' and with the added burden of the children, she had a physical and emotional breakdown. The husband tried to take the kids from her by having her certified by a psychiatrist as being mentally not there and unable to care for her kids. If he would have succeeded, a 'philipino 'and her friend would be looking after the kids.

It is pretty obvious that the cases are completely different. The woman already had a few children and that did not impact positively on the husband. The husband was a self-centered abusive personality and certainly not a Jacob. Leah was less-loved and not – not loved. The husband could be interested in ' having' children, but does not see them as a product of the love between his wife and himself and does not feel privileged and honored by God- Hashem , that they as a couple have been chosen by God to raise these children, however challenging they may be. Ya'akov – Jacob and Leah were partners in establishing the 12 tribes that would become the nation of Israel.

It is said that God gives people the challenges and difficulties that are within their potential and ability to deal with. One woman who was struggling and feeling totally helpless parenting her challenging kids remarked that ' she wished that God would not have such a high opinion of her. I feel we need to reframe the belief – that if we receive the proper support and guidance, in addition to God's help, we are able to cope with the challenges that life presents to us.

Raising challenging and high maintenance kids is very stressful even when couples are 'on the same page ' and attuned to the needs of their kids. Being on the same page and moving in the wrong direction does not help very much. Often the husband feels the wife is too soft and does not know how to set limits with kids. He believes the kids can behave if they want to, all it takes is to make them ' wanna behave ', using power, fear, threats, punishments, consequences, bribes and rewards. Using Plan A – imposing Adult will usually escalates conflict and causes more meltdowns. This causes even more stress between the parents, as the one party, usually the mother who is the primary care giver has made a paradigm shift. She believes and this is supported by at least 30years of brain research that ' children do well if they can ' and most problems have at their source in developmental delays and lagging skills particularly in the domains of flexibility, adaptability and frustration tolerance. The way to go is to improve the relationship and connection and reduce conflict by prioritizing problems and putting some of them on the shelf – this is called Plan C. The focus then is on Plan B, not dealing with behaviors, but rather trying to solve the underlying problems using collaborative problem solving. Here, we first focus on the kids concerns and perspectives and encourage him to open up and express his concerns. We then share our concerns and invite the kid to brainstorm with us solutions that are mutually satisfactory, realistic and durable. We agree to review how the solution is working. In this way the kid feels understood. We support his autonomy = feeling self –directed and connected to his inner core, competence = we promote many cognitive and life skills, enhance our relationship and moral development. Hillel taught that we should address not only our concerns, but also take into account the concerns and perspectives of others. The father, being concerned only for his need to control creates an atmosphere where it is ' my way or the high way ', so the home becomes more stressful and the developmental needs and needs for unconditional acceptance are not met. Unconditional acceptance is making it clear that certain actions are unacceptable while still providing ' a very deep kind of reassurance that we care about them and are not going to punish or desert them if they do something very bad. The father is also promoting the lowest level of moral behavior, promoting only thinking about the consequences for ourselves rather than reflecting on the consequences and the impact our behavior has on other people. If the father is not able to change his lenses and see that his concerns can be met using a ' working with ' approach , a mother most probably decide that being a single mom, would be easier and better for her kids and the family.

Raising kids is complicated and stressful , but if we become more aware of our relationship with our spouses and how we contribute to the family dynamic and the needs of our kids rather than our need for control, children can help ' make a marriage ' , if not they can help to break a marriage.

Mendel Epstein: Two more sentenced for role in Torture for Get gang

N.J. com    Two Brooklyn men were sentenced on Tuesday to more than three years in federal prison for their roles in the beating of Orthodox Jewish men to convince them to give their wives a divorce at the direction of a Lakewood rabbi.

For David Hellman, 33, and Simcha Bulmash, 32, one of those husbands was actually fictitious, a figure concocted by FBI agents who were investigating allegations of Orthodox Jewish men being beaten until they agreed to grant their wives a religious divorce, known as a "get."

U.S. District Judge Freda Wolfson sentenced Hellman to 44 months in prison and Bulmash to 48 months behind bars, said U.S. Attorney Paul Fishman. Wolfson also required that they be placed on two years of supervised parole after their release.

On Monday, another member of the beating squad, Moshe Goldstein, 32, also of Brooklyn, was sentenced to four years in prison.

All three men pleaded guilty to traveling in interstate commerce to commit extortion as part of a federal sting that ultimately nabbed a dozen people accused of arranging or carrying out the beatings of recalcitrant husbands.[...]

Mendel Epstein: Muscle man gets 4 years in jail in torture to give Get conspiracy

NJ.Com

The first of 10 men charged in a bizarre torture-for-hire plot aimed at convincing recalcitrant Orthodox husbands to grant their wives religious divorces was sentenced Monday to four years in federal prison. (Robert Sciarrino | NJ Advance Media for NJ.com) 

Moshe Goldstein was the muscle.

The 32 year old Brooklyn man had been part of a group recruited to force a reluctant Orthodox husband to grant his wife a religious divorce in a bizarre plot that involved beatings, handcuffs and an electric cattle prod. 

It was all an FBI sting centered on a prominent Lakewood rabbi who specialized in divorce proceedings, in an operation that stretched from Brooklyn to a warehouse in Middlesex County. There was no husband, no wife and no divorce.

And on Monday, Goldstein—the first of 10 to face sentencing in the case, was hit with a four-year term in federal prison, after pleading guilty to crossing state lines to commit extortion. [...]

During his plea hearing, Moshe Goldstein admitted he and others traveled from New York to a warehouse in Edison in October 2013, with the intent of forcing a Jewish husband to give his wife a "get." According to court filings, some showed up wearing Halloween masks and was one in a Metallica T-shirt, as they waited to grab a supposed victim. Once there, they met with an individual purported to be the husband's brother-in-law and discussed a plan to confine, restrain and threaten the victim. [...]

President Navon: Chazon Ish Predicted to Ben Gurion that Israel would become Shommer Shabbos during 1952 meeting

 Update: Recording of President Navon talking about the meeting

http://www.kikar.co.il/184900.html


Guest post by RaP

From Yated Ne'eman, November 13, 2015. Pages 31-32:

"PRESIDENT NAVON'S EYE-WITNESS ACCOUNT OF BEN GURION'S VISIT TO THE CHAZON ISH

The 5th president of Israel, Yitzchak Navon, passed away at the age of 94...Navon became Prime Minister David Ben Gurion's political secretary in 1951...he was present during Ben Gurion's famous visit to the Chazon Ish on October 22, 1952. Two years ago he spoke about the visit to the chareidi Kol Hatzibbur news outlet. Navon was the last living person present at the meeting.

Navon proceeded to tell Kol Hatzibbur about the visit...

'...He [the Chazon Ish] was short with shining wise eyes. He greeted Ben Gurion pleasantly...Ben Gurion began by saying': 'I have come to you to ask how we, religious and non-religious Jews, can live in the land without exploding from within. There are people with different hashkofos. How can we live together in this land?'

The Chazon Ish replied: 'There is a halachah that if two camels are walking in one path towards each other and there is only room for one of them. The camel with a load has right of way. The camel without a load must make way. We are like the camel with a load of mitzvos incumbent upon us and you must give way before us.'

Ben Gurion said, striking himself on the shoulder: 'Do you think this camel has no load? National security isn't a load and mitzvah? Settling the land and immigrant absorption isn't a load? These aren't mitzvos?'

[The Chazon Ish] said to him, 'In the zechus of this, that we study Torah, you have the capability of doing what you do.'

[Ben Gurion] said, 'But those who sit on the borders, who guard you, is this not a mitzvah?'

[The Chazon Ish] said to him, 'They survive in the zechus that we study Torah.'

Ben Gurion repeated, 'But if these army bochurim didn't get to you, the enemies would slaughter you.'

The Chazon Ish said, according to my notes: 'On the contrary. In the zechus that we study Torah, they are capable of living, working and holding guard.'

Ben Gurion said, 'I don't denigrate Torah, but if no people are alive, who will learn Torah?'

The Chazon Ish replied: 'The Torah itself is a tree of life, an elixir of life.'

Ben Gurion said, 'Protecting lives is also a mitzvah, for, The dead do not praise G-d. But nonetheless, I ask how can we live here together?'

The Chazon Ish said: 'I see chillul Shabbos, cars, journeys on Shabbos. People travel to the sea instead of davening, learning Torah and living Jewish lives. This is provocative and shocks the soul to see such chillul Shabbos in the land of our forefathers.'

Ben Gurion said: "...One cannot force them to keep Shabbos. And if they don't go to the sea, do you think that they will come to shull?'

The Chazon Ish said, 'I believe, that the day will come when everyone will observe Shabbos and daven.'

Ben Gurion said: 'If they want, I will not oppose it. Let them do it. But it cannot be forced upon them. There cannot be religious coercion or anti-religious coercion. Each person should live as he sees fit.'"

Navon related how the two gave up the discussion and parted ways.

'So the argument went on, more or less repeating the two positions without drawing nearer to each other regarding substance...In the end they rose, parted from each other in very friendly fashion with a handshake, and we went out...'"