Child Custody: A Comparative Analysis
The purpose of this presentation is to give an apercu of the varying approaches for the disposition of child custody cases developed by American law during this past thirty years and the Rabbinical Courts of Israel (hereafter: the Beit Din),1This study is based upon the published decisions of the Rabbinical Courts of Israel (Piskei Din – hereafter: PDR), volumes 1 through 22 as well as the decisions which appear on the website of the Israeli Rabbinical Courts through March 2017. All these battei din operate under the aegis of Israel’s Chief Rabbinate. a contemporary repository of the sources of Halakhah.
Though there will be occasion to allude to the substantive content of American law,2See H. Foster and D. Freed, “Child custody,” 39 N.Y.U.L.R. 423 (1964); H. Foster and D. Freed, eds., Current Developments in Child Custody, Law Journal Seminars-Press, N.Y., 1978; D. Chambers, “Rethinking the substantive rules for child-custody disputes in divorce,” 83 Michigan L. Rev. 8 (1984); J. Atkinson, “Criteria for deciding child custody in the trial and the appellate courts,” 18 Family Law Q. 1 (1984); M. Grossberg, A Judgment of Solomon: The D’Hauteville Case And Legal Experience in Antebellum America, Cambridge, 1996. and the norms of Halakhah,3For an overview, see B.Z. Schereschewsky, Dinei Mishpahah (Hebrew), Jeruslem, 1993, 397–409; E. Shochetman, “The essence of the principles governing the custody of children in Halakhah,” (Hebrew) in M. Elon, ed. 5 Shenaton ha-Mishpat ha-Ivri 285 (5738); Y. Gilat, “Is the best interest of the child the determining factor in a parental conflict regarding custody of their child?,” (Hebrew), 8 Mehkarei Mishpat 297 (1980); idem, “The role of religio-halakhic factors in custody and rearing disputes,” (Hebrew), 16 Dinei Yisrael 133 (1991–1992); M. Katz, “Warburg’s view of the approach of the Israeli rabbinical courts to child custody and support,” Yale Law School, Honor’s Thesis (1992). it is the jurisprudential perspective rather the substantive content which is the primary theme.
1. American law
A parent’s relationship to his child may be viewed as a status carrying with it certain responsibilities and duties owed to the child with reference to care, education and support. When a family breaks up through death, divorce, separation, child neglect or abandonment, the individual who performs most of the parental functions, who lives and cares for the child is said to have custody of the child, even though someone else may exercise some other parental rights and obligations.4R. Pound, “Individual interests involved in domestic relations,” 14 Michigan L. Rev. 177 (1916).
In determining a custody dispute between natural parents and proceedings involving a natural parent and a third party, American courts have frequently based their decisions on two doctrines. The first of these doctrines, which may be called “the parental right” theory,5For the historical antecedents of this doctrine in early common law, see W. Blackstone, Commentaries on the Laws of England, vol. 1, 453; F. Pollock and F. Maitland, History of English Law, 2nd ed. 1899. This doctrine was frequently invoked during the 1940’s in the California courts. See, e.g. In re Hampton’s Estate, 55 Cal. App. 2d 543, 131 P. 2d 564 (1942); Roche v. Roche, 25 Cal. 2d 141,152 P. 2d 999 (1944); Shea v. Shea, 100 Cal. App. 2d 60, 223 P. 2d 32, 34 (1950). During the 1960’s, other courts continued to employ this doctrine despite trenchant dissenting opinions. See e.g., Raymond v. Cotner, 175 Neb. 158, 120 N.W. 2d 892 (1963); In re Mathers, 371 Mich. 516, 124 N.W. 2d 678 (1963). establishes that natural parents unless declared unfit have a right to custody of their children upon the severing of marital ties.6Jones v. Darnall, 103 Ind. 569, 2 N.E. 229 (1885); Everett v. Barry 127 Colo. 34, 251 P. 2d 826 (1953); Pickett v. Farrow, 340 S.W. 2d 462 (Ky. 1960). The parental doctrine is justified based upon the assumption that a natural parent will most adequately fulfill the child’s needs.7Ross v. Pick, 199 Md. 341, 86 A. 2d 463 (1952); Smith v. Jones, 275 Ala. 148, 153 So. 2d 226 (1963).
Other American courts recognize that the question is not one of the rights of parents or others to custody but the right of the child8For a review of arguments in favor of rights for children, see M. Roberts, “Parent and child conflict: between liberty and responsibility,” 10 N.D. J.L. Ethics and Pub. Policy, 485 (1996); L. Teitelbaum. “Foreword: The meaning of rights of Children,” 10 N.M.L. Rev. 235 (1980); B. Woodhouse, “Children’s Rights,” University of Pa. Law School, Public Law and Legal Theory Research Paper series, March 2000. and of the state to place the child in an environment most conductive to its welfare.9Chapsky v. Wood, 26 Kansas 650 (1881); Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624 (1925). While it is generally proper and fitting that a parent should have custody of a child, this is only true to the extent that it will be conducive to the child’s welfare. Consequently, custody may be taken away from either or both parents if the welfare of the child demands such action.
This does not mean however, that a child may be taken away from the warmth and security of the place he knows as home merely because the child will be given better economic, social and educational conditions elsewhere. An extreme interpretation of this doctrine known as “the best interests of the child” doctrine could eventually lead to a redistribution of the entire minor population among “the fitter” members of the community, a policy the courts have declined to implement.10Lacher v. Venus, 177 Wis. 558,571, 188 N.W. 613, 618 (1922); Baumann v. Baumann, 169 Nebraska 805, 101 N.W. 2d 192, 195 (1960).
Before “the best interests of the child” doctrine comes into play, some event or behavior must have terminated the parental right to custody. The natural parents possess a prior right only to be forfeited by separation from their child over a long period of time, by abandonment, neglect or gross unfitness as parents.11H. Foster, “Adoption and child custody: Best interest of the child?” 22 Buffalo L. Rev. 1 (1972). Consequently, poverty of the parent is itself no sign of unfitness, and the fact that another party may be financially more qualified to assume custody of the child is irrelevant.12Chapsky v. Wood, supra n. 9; In re White, 54 Cal. App. 2d 637, 129 P. 2d. 617 (1950). Although the relative financial conditions of the contesting parties are not usually determinative of the right to custody, the father’s inability to provide the minimum needs for the child’s well-being may be a significant factor in awarding custody to a third party. See Lancey v. Shelley, 232 Iowa 178, 2 N.W. 2d 781 (1942); Comm. Ex. Rel. Lucchette v. Lucchette, 166 Pa. Super 530, 72 A. 2d 617 (1950).
Seemingly, the conflict between these two basic doctrines (parental rights v. best interests of the child) is more an issue of semantics than substance, more apparent than real,13Q. Johnstone, “Child custody,” 1 Kansas L. Rev. 37, 42, 47 (1952); H. Clark, Law of Domestic Relations, St. Paul, West, 1968, 592. since even those courts which apply “the best interests of the child” doctrine firmly support the thesis that one of the most significant determining factors as to what constitutes the child’s welfare is custody by his natural parents.14Brown v. Dewitt, 320 Mich. 156, 30 N.W. 2d 818 (1948); Ross v. Pick, supra n. 7; In re custody of Hampton J. Adams Co. 84 Pa. Ct. C.P. (1963). Since both doctrines seek the same basic objective from two different perspectives, it seems to make little difference whether the termination of parental rights is rationalized in terms of the child’s best interests or parental unfitness. Consequently, some courts and legal commentators equate the two doctrines.15Application of Vallimont, 182 Kansas 334, 321 P. 2d 190 (1958); Giacopelli v. Florence Cr. Herden Home, 16 Ill. 2d 556, 158 N.E. 2d 613 (1959); See supra n. 13; 42 American Jurisprudence, 2d, Infants, sections 53–54.
Of course, the two approaches are not necessarily at variance with each other. Certainly, no court likes to think that its decision undermines the child’s best interests; but the rationalization should be distinguished from the rule of the case. The fact that the courts themselves frequently go to great lengths to show that in a given case the affirmation of a parental right to the child does not undermine the child’s best interests, in effect implies that these two approaches may lead to different outcomes.
To focus best upon the practical differences between these two doctrines, one must distinguish between custody proceedings involving natural parents and custody contests between a natural parent and a third party.
The last century saw the demise of the common law notion that a father had a right to custody of his child, and now statutes have been enacted in state legislatures that the place the mother and the father on an equal footing.16J. Madden, Person and Domestic Relations, St. Paul, West, 1931, 369–372. Nevertheless, a paradoxical situation developed. The legal rights of the father to custody of the child which were abrogated by the various legislatures were only replaced by a judicial recognition of the rights of the mother to custody. Despite the equalization statutes, if everything is equal and in the absence of compelling reasons of maternal unfitness, until approximately 35 to 40 years ago, the courts have usually awarded custody to the mother, particularly children of tender years.17R. Drinan, “The rights of children in modern American family law,” 2 Journal of Family L. 101,102 (1962). See also, A. Roth, “The tender years presumption in child custody disputes,” 15 Journal of Family L. 423–434 (1977) who collects cases from some 37 states which adopt this presumption, often despite the existence of “equalization statutes” passed by various state legislatures.
Whereas a former strict application of the parental right approach would result in an automatic preference for the father assuming he is fit, until the late 1970’s and early 1980’s preference was accorded to the mother assuming she is fit. Though few would disagree that there is psychological data to legitimate the preference, commonly known as the tender years presumption to operate in favor of the mother,18J. Madden, “Persons and domestic relations studies to the future development of the laws governing the settlement of interparental child custody disputes,” 11 Journal of Family L. 557 (1971). the blind acceptance of this shibboleth ignores the empirical data demonstrating that “mothering” may be a function independent of the gender of the individual performing it.19L. Yarrow, “Maternal deprivation: toward an empirical and conceptual reevaluation,” 58 Psychological Bulletin 459, 475–479 (1961); J. Levine, Who will raise the children? New options for fathers (and mothers), 1976.
Adopting the perspective of the best interests approach would require the courts to make a full scale inquiry into the relevant data concerning the child’s actual welfare. In fact, with the rejection of the tender years presumption by the courts and state legislatures in favor of either awarding physical custody to the father or by incorporating what is called joint custody or shared parenting,20J. Paradise, “The disparity between men and women in custody disputes: Is joint custody the answer to everyone’s problems?” 72 St. John’s Law Rev. 517, 528–529 (2012). By 2013, thirty-six states authorized shared parenting, either by presumption, preference or by adopting it via statute. See “Chart 2: Custody criteria,” 46 Family Law Q., 524–527 (2013). the child best interests doctrine was employed to make an in-depth inquiry to arrive at the best parenting arrangements.
Undoubtedly, custody proceedings involving a natural parent and a third party offer the greatest opportunity for separation of parent-oriented factors from child-oriented factors in custody dispositions. The importance of the nuclear family and the traumatic effect on children separated from their parents, particularly their mother, is supported not only by common experience but by a vast literature in the area of child psychology and psychiatry.21R. Patton and L. Gardner, Growth, failure and maternal deprivation, 81–84, 1963; J. Bowlby, Child care and the growth of love (1973). Consequently, many courts who adopt the best interests of the child approach conclude that in a contest between a natural parent and a third party, the child’s welfare requires an award to a parent.22Brown v. Dewitt, 320 Mich. 156, 30 N.W. 2d 818 (1946); Ross v. Pick, supra n. 7; In re Custody of Hampton J. Adams Co., 84 Pa. Ct. C.P. (1963); Foster and Freed, supra n. 2.
2. Halakhah
In order to present the approaches of the Rabbinical Courts of Israel to child custody proceedings, it is necessary to compare the position of American law and Halakhah concerning the relationship of child custody to child support.
When a family breaks up, due to death, divorce, separation or child abandonment, the various elements of the custody relationship have to be dealt with separately by the courts. Thus, one parent may exercise certain rights and have certain obligations vis-à-vis the child despite the fact that custody of the child has been awarded to the other party or a third party.
If a parent did not have custody of his child would this be tantamount to absolving the parent from his legal duty of child support? Is the legal duty of support given in reciprocation (i.e. in exchange) for the parental right to custody? Consequently, if in a divorce decree, custody is awarded to the mother, is the father who is obligated to support his child, exempt from his duty?
Invoking the principle of reciprocity, common law23J. Bishop, Marriage and Divorce, section 557 6th ed., 1881; F. Schouler, Marriage, divorce and separation and domestic relations, section 752, 6th ed., 1921. and early twentieth century American law24See cases cited in Note, 42 Harvard L. Rev. 112 (1928). By the 1960’s, the duty of child support has been determined independently and consequently American courts have ordered fathers to pay child support regardless of the fact that custody may have been awarded to the mother. See Clark, supra n. 13, at 400, n. 26. exempt the father from child support,25Though in the past, the father has been held liable for child support it should, however, be noted that recent cases and statute law have placed parents on parity with regard to support. See 51 Annual Survey of Law, N.Y.U. 378 (1976); L. Weitzman, “Recent developments in child support cases,” 179 NY Law J. 1, 1978. upon awarding custody to the mother. The prerequisite for invoking this principle of reciprocity is the recognition of a parental right to custody, i.e. the parental right doctrine. The best interests approach which imparts recognition to the child’s right logically excludes the invoking of this principle of reciprocity.
Whereas common law and early twentieth century American law argue that the parental duty of support is in exchange for the parental right to custody, generally speaking Halakhah contends that mezonot yeladim, child support, is determined independently of any formula of reciprocity.26Schereschewsky, supra n. 3, at 375–379. According to the majority authorities, a father is primarily liable for child support by virtue of his paternity,27Shitah Mekubetzet, Ketuvot 65b; Piskei ha-Rosh, Ketuvot 4; Teshuvot Maharam of Rothenburg, Berlin ed., 244; Yam shel Shlomo, Ketuvot 4; Teshuvot Mishpetei Uziel, EH 4; PDR 5:292, 304, 305; 7:136, 152.
A contrasting approach and supported by some authorities was expressed by Rabbi Nissim ben Reuven who is of the opinion that a father’s support obligation stems from his duty to support his wife. Ran on Alfasi, Ketuvot 5; Melekhet Shlomo, Ketuvot 4:6; Iggerot Moshe, EH 106.
Though a plain reading of MT, Ishut 12:14 would seem to show that Rambam espouses Ran’s view (see Mishneh le-Melekh, MT Ishut 12:14), yet, in this author’s consultation with Rabbi Yosef B. Soloveitchik, he disagreed with such an interpretation. For understanding Rambam’s position, see Teshuvot Tashbetz 2:138; Avnei Miluim EH 61; PDR 7:136, 144–145.
However, there are decisors who maintain that Ran did not view his posture as a guide for arriving at practical decisions. See Mishneh le-Melekh, op. cit.; Avnei Miluim, op. cit.; Teshuvot Maharam of Lublin 79.
For a third approach towards defining the father’s obligation of child support, see PDR 2:65, 90–91. irrespective of whether the marriage has been terminated by death28SA EH 82:7 and commentaries ad. locum, SA EH 61:1, 4; Teshuvot ha-Rashbash 168; PDR 2:65, 91. or divorce, or whether the child was born as a mamzer, due to an incestuous relationship.29PDR 1:145, 154; 7:136, 144, 146, 152. Acknowledging that the father’s duty to support his child is by virtue of his paternity, the Beit Din, in numerous decisions rules that the child is entitled to paternal support even if in a given situation custody has been awarded to the mother.30PDR 1:55, 61–62, 161, 163; 7:10, 21–22. Furthermore, even if a wife is found guilty of conduct which justifies divorce, the husband remains obligated to support his child.31PDR 1:55, 61, 147, 159. Similarly, the fact that the mother has custody of his child will not entitle the father to refuse to pay for his son’s education.32PDR 2:298, 303; 7:10, 21, 22. Thus, in resolving matters dealing with the parental duty of support of a child and child custody, the Beit Din is more concerned with the resolution of a human problem than with spinning out a symmetrical pattern of duties and rights based upon the principle of reciprocity.
Since the doctrine of reciprocity, as we discussed earlier, is based upon a parental right approach to custody, does the Beit Din’s rejection of this doctrine imply a rejection of the parental right approach? Without addressing all the aspects governing the parent-child relationship, one example will suffice to illustrate that the reciprocity principle acknowledging a parental right perspective is operative in other realms.
According to Halakhah, the finds of a son belongs to the father in consideration for the support given to the child.33Bava Metzia 12a–b; Yerushalmi, Ketuvot 6:1; Tosafot Bava Metzia 12b; SA HM 270:2. The father is entitled to the finds though the child is of age (i.e. beyond the age he is obligated to maintain him) provided that the child is his dependent. But if the child is not supported by him, the finds belong to the child, even though the child is not of age.34Whereas the finds of a daughter belong to the father even if the daughter is financially independent. See supra n. 33. See also, Rashi, Ketuvot 47a, Bava Metzia 12a; Tosafot Ketuvot 47b. Invoking the halakhic rule “for their hand (i.e. the minors’ – AYW) is like his hand (the father’s – AYW),”35Mishnah Ma’aser Sheni 4:4; Mishnah Eruvin 7:6. certain decisors maintain that a son’s earnings equally belong to the father.36Tosafot Eruvin 79b; Tosafot Gittin 64b; Tosafot Bava Metzia 12b. For a contrasting opinion, see Shitah Mekubetzet Bava Metzia 12b. For an examination of both opinions, see SA OH 366:10 and HM 270:2 and commentaries ad. locum. In other words, the formula of reciprocity is applicable both with regard to a son’s earnings as well as to his finds. Though the Beit Din has not rendered a ruling regarding a son’s earnings, the Beit Din invokes the reciprocity principle regarding a son’s finds,37PDR 3:329, 331–332. acknowledging in effect a parental right perspective.
As such, the Beit Din recognizes the rule that a father’s entitlement to his son’s finds was given in consideration of the father’s duty of child support while simultaneously rejecting the notion that the parental right of custody was given in consideration of the father’s duty of child support. Why is the reciprocity formula invoked in one matter and rejected in another?
Despite the fact that we have not conducted a comprehensive and systematic examination into all the aspects governing the parent-child relationship, we can offer the following rationale for understanding the Beit Din’s posture and ultimately for defining the majority approach being adopted in resolving custody contests.
Though a child’s finds and earnings belong to the father, torts committed by a parent vis-à-vis his minor child are actionable.38Tosefta Bava Kama 9:8–11; Bava Metzia 87a–b. Though a father possesses no right to sell his son (see Teshuvot Hatam Sofer HM 111; Teshuvot Mishpetei Uziel EH 91; Even ha-Azel, Avadim 8:19; Hashukei Hemed Bava Kama 100a in the name of Rabbi Elyashiv; PDR 1:145, 157 (Rabbi Goldschmidt’s opinion); S. Daichovsky, “Ownership of Fertilized Eggs,” (Hebrew), 22 Tehumin 404, 406), a poverty-stricken father may deliver his daughter into bondage. Nonetheless, whereas a slave is the personal property of its master, the daughter as a bondswoman is a legal person endowed with rights and duties bound by Halakhah to render service to a third party. See Mekhilta de-R. Yishmael, Horowitz-Rabin ed., 247; Sifra, va-Yikra 25:43; Kiddushin 20a.
Moreover, a father could only sell her to a person with whom or with whose son a marriage could be consummated. Though according to certain Poskim this union does not require a daughter’s consent, the master or son did not own her. On the contrary, the standards of a monogamous relationship were applicable and halakhically speaking she is entitled to all the rights of a married woman. See MT, Avadim 4:8; Kesef Mishneh, ad. locum.; Tosafot Kiddushin 5a. This institution did not exist after 70 C.E. and possibly was suspended as early as the Second Commonwealth. See B. Cohen, Roman and Jewish Law, N. Y., 1961, 159–278, 772–777; M. Elon, Herut ha-Perat be-Darkhei Geviyah hov be-Mishpat ha-Ivri, (Hebrew) 1–17, 1964; E. Urbach, “The laws regarding slavery as a source for the social history of the period of the Second Temple, the Mishnah and the Talmud,” (Hebrew), 23 Tzion 141, (1960).
For the proscription for a beit din to sell a slave to a non-Jew due the fact that a beit din does not own the slave, see MT Avadim 1:3; Hiddushei Maharit, Kiddushin 14b; M. Amiel, le-Heker Midot ha-Halakhah, 2, Midah 17.49. See also, MT, Avadim 4:10; Beit ha-Behirah, Kiddushin 16a. To allow even parents halakhic rights over children beyond paternalistic motivations,39A father’s right to give his minor daughter in marriage does not reflect the notion of patria potestas (lit. the power of a father). A primary consideration uppermost in the minds of the authorities which dictated the sanction of child marriages was the protection of the young against child abuse, particularly the desire to protect the chastity of young girls. See A. Freimann, Seder Kiddushin ve-Nissu’in, Jerusalem, 1945; I. Agus, The Heroic Age of Franco-German Jewry, N.Y., 1969; J. Katz, “Marriage and sexual life among Jews at the close of the Middle Ages” (Hebrew), 10 Tzion 21, 24 (1945); E. Kanarfogel, “Rabbinic Conceptions of Marriage and Matchmaking in Christian Europe,” ed. E. Baumgarten, et al. Entangled Historians: Knowledge, Authority and Jewish Culture in the 13th Century, Philadelphia 2017, 27–31. would imply a sanction to a relationship of possessive rights vis-à-vis another individual; a relationship though enforced by Roman law that is alien to Halakhah.40A. Rabello, “Patria potestas in Roman and Jewish Law” (Hebrew), 5 Dinei Yisrael 85 (1974).
A review of some of the Beit Din decisions will demonstrate that a father has a right, albeit not a proprietary one, in his children, both sons and daughters.41PDR 1:65, 76; 4:93, 94–95; 12:139, 141–143; 13:17, 21, 26–27, 335, 338. Following in a well-trodden mesorah, albeit a minority view, a mother has a zekhut, a right vis-à-vis the father to have custody of her children if their best interests dictate such an arrangement.42Teshuvot Geonim, Harkavy ed. 553; Halakhot Gedolot 2:250; Teshuvot Ri Megas 71; Rabbeinu Yeruham, Sefer Toldot Adam ve-Havah, 23:3; Helkat Mehokeik, SA EH 82:10; Teshuvot ha-Mabit 1:165; Teshuvot Darkhei Noam EH 26, 38, 40; Teshuvot Minhat Yitzhak 7:113; Teshuvot le-Horot Natan, 3, EH 87–89; Teshuvot Tzitz Eliezer 16:44; Gilat, supra n. 3; Katz, supra n. 3.
Though a master can neither sell nor give a Jewish maidservant, for the purposes of establishing a family, her father is permitted to sell her. See MT Avadim 4:10, 13. However, a mother is not obligated to employ the right and therefore she does not have to accept custody of her children. She may send them to their father and he may not refuse to accept them and should he file against her in a beit din he will not succeed in his claim to transfer custody to the mother.43Rambam, Perush ha-Mishnayot on Ketuvot, 12:1; MT, Ishut 21:18; Magid Mishneh, ad. locum.; Teshuvot Tashbetz 3:144; Tur EH 82; SA EH 82:8; Helkat Mehokeik, SA EH 82:12.
Compare Rabbi Tzvi Gartner’s view that the mother as well as the father have equal rights of custody in their children. See T. Gartner, “In the matter of the authority of beit din to judge child custody,” (Hebrew), 7 Yeshurun, 499, 508 (5760). A review of the sources cited supra in notes 42–43 contradict his position. Notwithstanding the situation where both parents are irreligious where each parent has an equal right to mold the moral character of their child (see PDR 13:335, 338), in other cases his view requires deliberation.
The ramification of a father’s right to custody is found in a series of the Beit Din’s decisions. For example, the Beit Din authoritatively cites Rambam’s view44MT, Ishut 21:18. that if the boy above the age of six should desire to remain with his mother without his father’s consent; the father is entitled to refuse to pay his maintenance.45PDR 2:298, 303, 13:17. As Rabbi Yosef Kapah states:46Beit Din Me’yuhad 1/81, Nagar v. Nagar, PD 38 (1), 412. See also PDR 9:251, 262 (Rabbi Kapah’s opinion).
Parents are not inanimate objects. Also, parents are composed by a body and soul and have feelings. And a mother has a natural right to find emotional satisfaction to caress her children. Parents have the right to receive emotional satisfaction to see their children grow and develop properly . . . And in Shulhan Arukh EH 82:7 it states that after attaining six years a father can say if he does not live with me I will not support him and recently the Beit Din ha-Gadol exempted a father from maintaining his daughter who declared that she does not want to see her father and does not tolerate him. . . .
A Haifa Regional Beit Din rules that a father was entitled to withhold support from a daughter who refused to allow her father visitation privileges.47PDR 13:3. The decision was appealed to the Beit Din ha-Rabbani ha-Gadol which agrees with the lower beit din’s decision and, implicitly following Rabbi Dovid ben Zimra’s view,48Teshuvot ha-Radvaz 3:851. states a different rationale:49PDR 13:17, 20.
According to Halakhah, the genealogy of children is traced to the father, as it is written “To their families to their male ancestors,” and the father’s family is called a family and not the mother’s family. Therefore, he (the father – AYW) is obligated in supporting them and raising them. As such he has the full right to demand that they be raised by him and benefit from all of what is involved. . . . However, the rabbis were concerned with the children’s best interests and found it proper to annul the father’s custodial right . . . and establish that a son be with his mother until the age of six and the daughter would always remain with her mother. . . . However, in doing this the father was not deprived of his basic rights regarding his children which encompass continuing ties between him (the father – AYW) and them (the children – AYW) during the time they were in their mother’s custody. . . .
To state it differently, implicitly following an earlier ruling of the Beit Din,50PDR 12:129, 141. even if custody has been awarded to the mother, implicitly following earlier rulings,51PDR 9:251, 259; 12:129, 141. the Beit Din ha-Rabbani ha-Gadol argues that a father has the basic right to be granted visitation privileges.52For viewing these privileges as a quasi-custody right see Katz, supra n. 3, at 12, 18. Consequently, the mother is proscribed from moving away to another place which preempts the father from visiting his child.53PDR 4:93, 94–95. Therefore, it is unsurprising that a mother is proscribed from taking her son below the age of six to another country since the father is unable to perform certain basic Torah educational rearing responsibilities with him. See Teshuvot Noda be-Yehudah, Mahadura Tinyana EH 89.
Finally, it is unsurprising where a father questions the actual paternity of the child that the Beit Din refuses to direct a daughter to visit her father.54PDR 1:145, 157.
In sum, there are Beit Din judgments which espouse the parental right to custody.
On the other hand, there is no question of parental rights in custody proceedings, the majority view of the Beit Din explains.55Teshuvot Ateret Devorah EH 1:42. Lest one misconstrues the Talmudic rule that “the daughter remains with her mother regardless of her age” or that “the son is with his father after the age of six” as connoting the sanction of possessive rights, the Beit Din reaffirms the words of a sixteenth century legist, Rabbi Shmuel de Medina who opines that custody situations focus upon “the rights of the child” rather than the rights of the parents.56Teshuvot Maharashdam EH 123. PDR 1:65, 75, 145, 157; 3:353, 358, 4:66, 332; 11:366, 368; 13:338. File no. 0849-23-1, Haifa Regional Beit Din, November 10, 2004; File 586034/4, Haifa Regional Beit Din, January 16,2011; File no. 293094/5, Netanya Regional Beit Din, February 2, 2011; File no. 842473/1, Tel Aviv-Yaffo Regional Beit Din, September 6, 2011; File no. 586034-4, Haifa Regional Beit Din, November 23,2011; File no. 1037916/3, Be’air Sheva Regional Beit Din, December 2, 2015; File no. 1073383/1, Beit Din ha-Rabbani ha-Gadol, June 28, 2016; File no. 1086472/1, Beit Din ha-Rabbani ha-Gadol, December 20, 2016; File no. 1089963/8, Netanya Regional Beit Din, August 17,2017.
In fact, by focusing upon the child’s right, in effect the Beit Din is dealing with the parental duty to provide proper care to his child rather than a parental right. Halakhah, similar to other religious legal systems, is primarily a system of duties owed, rather than rights possessed.57See this writer’s, “May one destroy a neighbor’s property in order to save one’s life?” in ed. M. Shmidman, Turim: Studies in Jewish history and Literature: Presented to Dr. Bernard Lander, N.Y., 2007, 331–332. Consequently, the primary legal category in custody proceedings is the “hiyuv,” i.e. the individual’s duty rather than his prerogative. If the doctrine of the logical correlativity of rights and duties assert that every duty entails the existence of a correlative right,58I. Herzog, The Main Institutions of Jewish Law, London, 1946, vol. 1, 46. then in custody cases, corresponding to the parental duty of child care is the right of the child to be provided with proper care. Therefore, lest one focus exclusively on parental rights, the Beit Din focuses upon the child’s right.59See supra n. 56.
Though the majority of the battei din reject the parental right doctrine, one could seemingly argue that the Beit Din accepts the best interests of the child approach, developed by American law which recognizes the child’s right to proper care. And yet, though in both American law (a right-based system60M. Glendon, Rights-Talk: The impoverishment of political discourse, N.Y., 1991.) and Halakhah (a duty-based system), corresponding to the parental duty of child care there exists a child’s right to be provided with proper care, it is important to distinguish which is derivative from which.61R. Dworkin, Taking rights seriously, Cambridge, 1977, 171.
There is a difference between the idea that a parent has a duty to provide a proper home because the child has a right to receive proper care and the notion that the child has a right to be provided with a proper home because the father is duty-bound to provide proper care. In the first instance where one is dealing with a right-based theory, one justifies the duty by pointing to the right; if one requires justification, it is the right that one must justify. Consequently, the best interests of the child doctrine, a by-product of a right-based system, the focus is on the child’s right, whereas in Halakhah, the focus is on the parental duty of care.62It is somewhat strange that the Beit Din (see supra n. 56) focuses upon the child’s right rather than the parental duty. However, clearly the validation of the child’s right is grounded in the parent’s duty to provide proper care for his children. In fact, Beit Din will sometimes stress both the right of a child along with the parental duty. See PDR 1:145, 158.
Furthermore, there is a difference in emphasis between the neglect of duty and the interference with a right. To focus upon duties and their breach is to concentrate necessarily upon the person who has the duty; it is to invoke criteria by which to make moral assessments of his conduct. Rights, on the other hand, call attention to the injury inflicted; to the fact that the possessor of the right is adversely affected by the action.63Focusing upon “the harm principle” traces itself back to the liberal morality of John Stuart Mill and the possessive individualism of Thomas Hobbes and receives its classical legal expression in Austinian jurisprudence. See J. Mill, On Liberty, N.Y., 1956, 99–100.; Macpherson, The political theory of possessive individualism: Hobbes to Locke, Oxford: England, 1962; J. Austin, Lectures on jurisprudence, London, 1879. See also, J. Feinberg, Harm to others, Oxford, N.Y., 1984, idem, Offense to others, Oxford, N.Y., 1985. Here, adopting the perspective of the child’s best interests approach propounded by American courts, the individual at the center is the child who benefits from the parent’s compliance. In Halakhah, the individual at the center is the parent who is complying with the will of Hashem. As stated by the Beit Din:64PDR 1:145, 158.
Here we have only duties from one side, the father who is obligated to support his child and is obligated to supervise and care for him.
Though both parents may assume the duty for the care and welfare of their children which would result in joint custody or what is called shared parenting,65Physical and legal custody would be shared by both parents. For its halakhic recognition, see File no. 995674/8, Haifa Regional Beit Din, November 23, 2016. however frequently the involved parties fail to be mutually agreeable to such an arrangement. Consequently, adopting the mesorah of those Poskim who espouse “tovat ha-yeled” (the child’s best interests), the beneficiary of the parental duty as the guideline to resolve custody battles,66Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 38; Teshuvot ha-Rosh 82:3; Teshuvot Maharam me-Padua 53; Teshuvot ha-Mabit 2:62; Rema, SA EH 82:7; Teshuvot ha-Radvaz 1:127, 156 (Cf. Radvaz, supra n. 48); Beit Shmuel, SA EH 82:10; Helkat Mehokeik, SA EH 82:10; Teshuvot Darkhei Noam EH 26; Teshuvot Mishpetei Shmuel 90; Pithei Teshuvah, SA EH 82:7. the Beit Din employs rules which result in either child placement, usually with the father who is the natural guardian of his children67Teshuvot ha-Rosh 87:1, 96:2; Rema, SA HM 285:5; Sma, SA HM 285:33. or the mother who is the appointed guardian of her children.68See supra text accompanying notes 42–43. See also, SA HM 290:1–2.
In the case of a son below the age of six, the rule of thumb adopted by the majority of authorities is that the welfare of the child of tender years is normally best served by placing him with his mother with the understanding that the father is entitled to visit his son to fulfill his educational responsibilities vis-à-vis his child.69MT, Ishut 21:17; Magid Mishneh, ad. locum.; Derishah Tur EH 82:2; SA EH 82:7. Cf. Toldot Adom ve-Havah, Sefer Havah, Netiv 23, vol. 3; Ra’avad, MT Ishut 21:17. Above the age of six, the son must live with his father, since at this age the child requires intensive Torah educational guidance. Assuming the father is non-observant, there would be still grounds for child placement with his father who can teach him secular education.70PDR 13:3, 12. On the other hand, if the father acts immorally, there would be grounds to place the child with his mother. See PDR 4:332, 335–336, 8:354, 362. Placing a child with a nonobservant parent raises issues of the minor child eating nonkosher food and transgressing the Shabbat. See Tosafot Shabbat 121a; Yam shel Shlomo, Yevamot 14:7; Teshuvot Re’em 79–80; Teshuvot ha-Radvaz 5:1432; Teshuvot Hatam Sofer OH 83; Teshuvot Ahiezer 3:81; Teshuvot Pri Yitzhak 1:12 Following in the footsteps of Rabbi Yitzhak of Vilna,71For the manuscript of his ruling which is found in Zera Anashim, see Avraham Dovid, 49 Kiryat Sefer 557 (5729). in the event that the father delegates his educational responsibility to a yeshiva to teach his son, then Beit Din rules that the son may be placed with the mother assuming it is in the child’s best interests.72PDR 7:10, 17. Since today a father’s educational responsibility is delegated to educational institutions, consequently the practice is that Israeli rabbinical courts is to give custody of a boy to his mother provided she is a fit parent. See PDR 21:260, 263. Notwithstanding certain Poskim who give custody to the father,73Rashi, Ketuvot 102b, s.v. zot omeret; Piskei ha-Rosh Ketuvot 12:4 in the name of “yesh omrim”; Teshuvot Ri Megas 71. the Beit Din rule is that regardless of her age, the daughter remains with the mother to be instructed in the ways of moral propriety.74File no. 0849-23-1, Haifa Regional Beit Din, November 10, 2004; File no. 293094/5, Netanya Regional Beit Din, February 2, 2011; File no. 842473/1, Tel Aviv-Yaffo Regional Beit Din, September 6, 2011; File no. 586034-4, Haifa Regional Beit Din, November 23,2011; File no. 1037916/3, Be’air Sheva Regional Beit Din, December 2, 2015; File no. 1086472/1, Beit Din ha-Rabbani ha-Gadol, December 20, 2016.
Precedent for this position can be found in MT, Ishut 21:16–18; Teshuvot ha-Rashbash 202; Tur EH 82:7. In other words, despite the fact that a father has a duty to educate his daughter,75See Rashi, Pesahim 88a; Tosafot Yeshanim Yoma 82a; Magen Avraham, SA OH 343:1; Mahatzit ha-Shekel, ad. locum. nonetheless the mother’s ability to inculcate certain values trumps the father’s obligation and the daughter remains with the mother. Even if the mother moves away to another city and in effect the move preempts the daughter’s (as well as the son’s) accessibility, such a move is recognized provided it is in the child’s best interests.76Teshuvot Maharbil 1:58; Beit Din ha-Rabbani ha-Gadol, supra n. 56. Seemingly, Maharshdam, supra n. 56 disagrees with this view, however see Teshuvot Nofet Tzufim EH 91 and Teshuvot Darkhei Noam EH 38.
Whereas in other areas of man’s activities, Halakhah enforces duties by a system of civil law and a plaintiff asserts rights against individuals who fail to comply with their halakhic duties, in resolving conflicting parental claims, the Beit Din as “the father of the orphans” intervenes on behalf of the child. Whether one assumes that the Beit Din’s intervention is legitimated by the general authority entrusted to them to engage in enacting takanot (legislation),77Rashba, supra n. 66; Mishpetei Shmuel, supra n. 66; Maharashdam, supra n. 56; PDR 2:162, 170–171; 4:93, 95, 97, 108; Y. Goldberg, 9 Shurat ha-Din 94, (5745). or whether one assumes it is based upon the binding force of minhag (custom),78Teshuvot Maharashdam EH 308. the implication is that the dayan does not merely apply the existing rules of child custody to cases in doubt but in situations lacking any clear precedent, the dayan acts in a legislative capacity or based upon custom. Does this mean that a dayan is free to arrive at decisions uncontrolled by authoritative standards?
Presumably such a conclusion is forthcoming. For example, if it is proven that the father of a seven year old son is not carrying out the duties of fatherhood properly, the Beit Din is empowered to entrust the child to his mother.79See supra n.70. Furthermore, in other Israeli decisions, the Beit Din would have permitted a daughter to reside in the United States, despite the inaccessibility of the father who resides in Eretz Yisrael.80PDR 7:3, 8; Beit Din ha-Rabbani ha-Gadol, supra n. 56. Cf. PDR 4:93, 95. His inaccessibility may preclude him from exercising his rights vis-à-vis his child. Seemingly, the Beit Din is acting arbitrarily.
The crucial question is what happens when the Beit Din determines that no rule is applicable in a particular case and the dayan wishes to overrule a rule? There is no doubt that the rules established by the Poskim find authoritative support in the Beit Din’s decisions.81PDR 1:55, 61, 145, 157; supra n. 74–75, 78. For example, psychiatric findings will be considered by the Beit Din in order to arrive at a reasonable assessment of the physical, mental and moral well-being of the child whose custody is at issue. However, whereas a Beit Din will accept the testimony of a psychologist who testifies that “in light of the particular circumstances, the seven year old boy should remain with his mother”; it will reject a testimony that states “the natural needs of a seven year old son are to be with his mother.”82PDR 3:353, 360. Moreover, in contradistinction to whether a sick person ought to fast on Yom Kippur becomes a question which is resolved by a physician, in a matter of child custody, it is the beit din rather than the prognosis of a health care professional which will determine the disposition of the child. In other words, a beit din may seek the advice of the professional but in the final analysis the final arbiter will be the rabbinic authority. See PDR 11:153,161; File no. 0849-23-1, Haifa Regional Beit Din, November 10, 2004. Whereas, the former testimony is valid testimony and conveys to the Beit Din that the rule that a son above the age of six is to be with his father is rebuttable in the particular case, the latter testimony conveys the establishment of a new rule.
The fact that a rule may be rebuttable given the particular circumstances of the case indicates that the dayan’s decision does not merely entail the mechanical application of a rule. Resolving custody cases in Halakhah involves more that the formal application of rules.83Ibid. In fact, the Beit Din points out these rules are hazakot, presumptions.84PDR 1:55, 61, 145, 157. Moreover, the application of these rules is controlled by a principle. Whereas a rule attaches a definite consequence to a detailed state of facts, a principle prescribes highly unspecific actions.85For the usage of these two terms in American law, see Dworkin, supra n. 61, at 14–80; J. Raz, “Legal principles and the limits of the law,” 81 Yale L. J. 81 (1972). It is in accordance with this usage of the terms, that we can speak of a principle underlying a certain rule, determining its scope and justifying exceptions to it.
It is indeed a principle which is most energetically at work here, carrying weight in resolving custody cases by the Beit Din. On numerous instances, the Beit Din states that the operative principle here is the consideration of the material, social, spiritual and educational interests of the child.86PDR 1:55, 61, 65, 75, 173, 178; 2:3, 8; 3:353, 358; 4:66, 74, 332, 334; 11:172, 173, 366, 368, 369; 18:103, 106. File no. 1-23-2950, Beit Din ha-Rabbani ha-Gadol, June 17, 2004; File no. 0849-23-1, supra n. 82; File 586034/4, Haifa Regional Beit Din, January 16,2011; File no. 842473/1, Tel Aviv-Yaffo Regional Beit Din, September 6, 2011; File no. 586034-4, Haifa Regional Beit Din, November 23, 2011; File no. 586034/4, Haifa Regional Beit Din, July 25, 2012; File 1073383/1, Beit Din ha-Rabbani ha-Gadol, June 28, 2016; File no. 995674/8, Haifa Regional Beit Din, November 23, 2016; Beit Din ha-Rabbani ha-Gadol, supra n. 74; File no. 868053/4, Be’air Sheva Regional Beit Din, February 22, 2017; File no. 970523/9, Yerushalayim Regional Beit Din, February 26,2017; File no. 1089963/8, Netanya Regional Beit Din, August 17,2017. The principle stands behind every rule.87Though the principle is operative in a teshuvah of Gaonim (see Otzar ha-Geonim, Ketuvot 102b, 359–360), its precise formulation is given a few hundred years later. See Rashba, supra n.66.
The extent to which the principle of “tovat ha-yeled” is utilized for different purposes can be seen by a brief review of some of the decisions of the Beit Din. Perhaps the most extensive and conservative function of a principle is to interpret rules. Consequently, in one situation the Beit Din contends that the child’s welfare is the underlying rationale which lies at the base of the rules of custody disposition.88PDR 1:55, 61. As an efficient principle, it imparts coherence of a purpose to a realm of Halakhah, namely custody arrangements by explaining the rules in accordance with one principle and thus demonstrating that we are not dealing with a mere collection of rules.
Secondly, through the medium of the application of the principle, the scope of the rules may be widened. No rule can be formulated in such a way that no situations can arise in which its application is open to question. Therefore, “non-standard cases” will emerge requiring the exercise of judicial discretion via the invoking the principle of tovat ha-yeled.
For example, if in a given situation, the father’s psychological instability prevents him from fulfilling his educational responsibilities towards his son, the Beit Din states it is incumbent upon a third party or an educational institution to receive custody of the child.89PDR 1:65, 75; 2:298, 303; 4:66, 74. However other battei din have refused to authorize an educational institution to assume the father’s duties.90PDR 4:66, 74. Given these circumstances, the son remained with his mother. To state it differently, here the Beit Din acknowledges the operation of tovat ha-yeled as a vehicle to interpret the rule but felt that the principle does not encompass extending the rule that a father has custody of his son who is above the age of six to an institution becoming locus parentis, assuming certain parental responsibilities.
What happens where there is a conflict of rules? On one hand, there is a rule that every son above the age of six is placed with his father; and on the other hand, there is a rule that the child’s wishes are a relevant factor in his own placement. If the child is old enough to form an intelligent judgment about his custody and his judgment has not been tainted by the provocation and instigation of a parent, his wishes will be respected by the Beit Din.91PDR 1:55, 61; 2:298, 300–301; 4:332, 333. This position is based upon Helkat Mehokeik, SA EH 82:9; Teshuvot Mahari ibn Lev 1:74 in the name of Rambam; Teshuvot Maharam Alsheikh 38 in the name of Rambam. His wishes will be respected both with regard to visitation arrangements92PDR 1:145, 158. as well as the choice of the institution for Yeshiva schooling.93PDR 7:10, 15–16. These series of ruling regarding the child’s wishes are based upon tovat ha-yeled.94PDR 1:145, 158. Just as we found that psychological testimony is admissible regarding custody disposition (see supra text accompanying n. 80), similarly, in the ascertaining of the child’s wishes, the Beit Din utilizes the services of third parties such as health care professionals. See A. Shaki, “Aspects of the laws of child custody – with emphasis in applying the principle of the child’s best interests” (Hebrew), 10 Iyunei Mishpat 5, 9, n. 25, 22–23 (5744).
Since the principle of tovat ha-yeled is more general than the rules, in cases where the Beit Din ascertains that the application of the existing rule would undermine the principle, the Beit Din arrives at a decision without recourse to the rule. For example, although the rule of custody dictates that a boy above the age of six ought to remain with his father; considerations of tovat ha-yeled will be the determining factor. Consequently, a son above the age of six will remain with his mother who is providing a Torah education rather than be placed with a father who is exhibiting schizophrenic tendencies.95PDR 1:65, 76. In another case the Beit Din awarded custody to an adulterous mother since the father’s behavior manifested an unwillingness to raise and educate his older son.96PDR 1:55, 63. In another situation, the Beit Din recognizes that a father may develop a psychological-affectionate relationship equivalent to that of the mother and consequently, the father retains custody of the young child.97PDR 1:173, 176. The dissenting opinion in this case accepted the grounds for the majority decision but argued that a psychological relationship with the father had never developed. See PDR 1:173, 177–178. Finally, as we mentioned that according to Rambam should a boy above the age of six desire to remain with his mother, his father is entitled to refuse to pay his support,98Supra n. 44. the Beit Din concludes that if the child’s best interests dictate that he remain with his mother, under such circumstances, the father will remain obligated to maintain his son.99PDR 1:55, 61–62, 161, 163; 7:10, 34. Cf. PDR 2:298, 303; 13:17. In the aforementioned cases, the principle of tovat ha-yeled serves as the grounds for the Beit Din’s decisions.
Though tovat ha-yeled may provide the basis for resolving cases without application of the rules, serve as a vehicle to interpret rules, be employed as grounds for exceptions to the rules and serve as a means to reconcile conflicts between rules of custody, nevertheless, on certain occasions, the Beit Din observes that this principle may be overridden by a principle from another sphere of Halakhah. For example, what happens if a father desires that his seven year old daughter settle with him in Eretz Yisrael? On one hand, there is a rule that “a man may compel his entire household to settle in the land of Eretz Yisrael”100Ketuvot 110b. which reflects the divine commandment incumbent upon each individual Jew to settle in Eretz Yisrael. On the other hand, the child’s welfare dictates that the daughter remains with her mother. By placing the daughter in her father’s custody we advance the mitzvah of settling in Eretz Yisrael and by placing the daughter with the mother we serve the child’s best interests. One Beit Din decides that fulfilling the mitzvah was paramount and the other rules that the child’s welfare overrides the mitzvah.101PDR 7:3, 8; 1:103.
The position that the Beit Din is free to act arbitrarily in custody cases is vigorously challenged by the above cases. To argue that a beit din is free to reach a decision uncontrolled by authoritative standards is to fail to attend to the interplay of rules and principles operating in these cases. Certainly, our presentation suggests that there is more than one solution to a problem and different battei din may arrive at different conclusions. There will be instances where one panel will widen the scope of a rule whereas another panel will argue for a strict reading of the rule.102PDR 4:66, 74. Secondly, tovat ha-yeled may be subject to varying interpretations.103PDR 1:173.
In conclusion, the interplay between a rule and a principle in custody cases reflects how a panel will attempt to resolve a case based upon the child’s best interests perspective. On the other hand, for those battei din who espouse the approach of the parental right to custody, in the final analysis their determination may at times reflect the child’s best interests such as proscribing a mother’s right to move to another country lest the father’s visitation privileges will be extinguished.104PDR 13:17, 20. Moreover, assuming a father’s visitation privileges is a paternal right;105See infra n. 102; PDR 4:93, 95. he must be accorded the exercise of his right in the case of a son below the age of six and a daughter regardless of her age.106PDR 9:251, 259; 12:129, 141. In effect, said conclusion comports with the child’s best interests to see and develop a relationship with both his parents. As Rabbi Uriel Lavi, av beit din (presiding dayan) of Yerushalayim Beit Din aptly notes, the difference between the two approaches is only in theory. Except for a situation where a son above the age of six refuses to live with his father,107In such a situation, in accordance with the parental right doctrine, the father will be exempt from paying support. On the other hand, in pursuance to tovat ha-yeled approach, under such circumstances, the father will have to continue to pay child support. in practice the child’s best interests will always override paternal rights.108Ateret Devorah, supra n. 55, at 283.
We can sharpen our comparison of the dynamics of the child custody decision making process as propounded by Halakhah and American law by introducing the framework suggested by a contemporary scholar of American family law. He distinguishes between a judge’s discretion and the application of rules.
The history of the law considers many antinomies and therefore must reckon with the opposing values emerging from these antinomies. One of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law.109Carl Schneider, “The tension between rules and discretion in family law: A report and reflection,” 27 Family Law Quarterly, 229 (1993).
As we have shown in American law, rules which embodied paternal and maternal presumptions regarding child placement have been replaced by a judicial determination of who is the fit custodial parent by invoking a child best interest standard which is composed of various factors. In effect, broad discretion is placed in the hands of the judge.110Academic criticism has emerged which argues that the standard is too vague and therefore indeterminate to serve as a guideline for the judge. See R. Mnookin, “Child custody adjudication: judicial functions in the face of indeterminacy,” 39 Law & Contemporary Problems, Summer 1975,226,227; D. Chambers, “Rethinking the substantive rules for custody disputes in divorce,” 83 Mich. L. Rev. 477, 487–489 (1984); A. Charlow, “Awarding custody: The best interests of the child and other fictions,” 5 Yale L. & Policy Rev. 267, 269–73, 281–83 (1987); J. Elster, “ Solomonic judgments: against the best interest of the child, “53 U. Chi. L. Rev. 1 (1987); M. Garrison, “How do judges decide divorce cases? An empirical analysis of discretionary decisionmaking,” 74 N.C.L. Rev. 401, 411–412 (1996). Some authorities have contended that rules should supplement the child best interest standard. See R. Uviller, “Fathers’ rights and feminism: The maternal presumption revisited,” 1 Harv. Women’s L.J., 130 (1978); M. Minow, “Consider the consequences,” 84 Michigan L. Rev. 900, 908 (1986); C. Schneider, “Discretion, rules and law: Child custody and the UMDA’s best-interest standard,” 89 Mich. L. Rev. 2215, 2219–25 (1991); E. Scott, “Pluralism, parental preference, and child custody,” 80 California L. Rev. 615 (1992); M. Brinig, “Substantive parenting arrangements in the USA: Unpacking the policy choices,” 27 Child & Family Law Q. 3 (2015). The history of American custody law reflects a paradigmatic shift from rules to discretion.
On the other hand, in the halakhah of child custody we are not confronted with the stark choice: discretion or rules. Our study has demonstrated that we are encountering the dayan’s search for the right mix of rules and discretion as embodied in the principle of “tovat ha-yeled”.
After having analyzed the varying perspectives underlying the treatment of child custody cases by Halakhah and American law, we hope to have avoided Santayana’s reproach that comparison “is the expedient of those who cannot reach the heart of the things compared.”111G. Santayana, Character and Opinion in the United States, N.Y., 1921, 166.