Divorce and Custody/Rabbi Reuven Bulka

Posted on October 27, 2010

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Insofar as the issue of rights in the matter of custody is concerned, it should be noted that within the Judaic ethical sphere, rights do not come into question. We speak in Jewish ethics of responsibilities that one has to one’s self, to others within society, and to G‑d.

The fundamental principles of Judaic ethics involve our responsibility for the welfare of others. Even the recipients of our concern do not have a right to them. The poor person, for example, does not have the right to take money out of the rich person’s pocket. However, the rich person does have an obligation to give charity to the poor.

Aside from the legal parameters of ethical responsibilities as spelled out in Jewish law, there are extralegal categories, such as: our behavior should emulate the way of the pious (Talmud, Shabbat, 120a); we should be governed by a higher ethic, namely to please G‑d with our behavior (ibid.); we should do that which is upright and correct (Deuteronomy, 6:18); and we should go in the way of good people (Proverbs, 2:20). These are ethical formulations which should govern the way we behave under all circumstances.

The Primary Concern
With special regard to the parent-child dialectic, the parents do not have rights over their children. They have responsibilities towards their children, even as the children, as they enter into the age of responsibleness, then become obligated in fulfilling their duties towards their parents.

The governing principle in deciding the custody of the children is not what is the right of the parent, or parents, but what is right for the child.

Civil courts in general do gravitate towards the welfare of the child as being a primary concern, if not the primary concern. But the rights of the parents, specifically the non-custodial parents, are at least somewhat taken into account. Within Jewish law, the question of rights does not enter into the picture. The focus is exclusively on the good of the child. Whatever is good for the child then becomes incorporated as the general guideline for how the divorcing parents will have their responsibilities apportioned.

Impact on Children
It is important for divorcing parents to realize that their divorce can have a devastating effect on their children, potentially even more serious than the death of a parent. The children can be caught up in the continuing conflict with the parents, and may even become pawns in this dragged-out battle. The effects of this on the child can be nothing short of disastrous. They will see themselves as locked into a trauma with no exit. This may cause them to become frustrated, depressed, and even permanently melancholic.

Parents can help lighten the children’s burden by resolving not to allow whatever animosity that may exist between them to spill over to the children. Indeed this is difficult, but if the resolve is there, and the parents, instead of imposing this ethic on the other, each imposes it on him or herself, a relatively peaceful environment is more likely to unfold.

Part of the devastation associated with a divorce is the illogical but nevertheless real feeling children have, that they may be at fault, or even the cause of the separation. It is important for the parents to be wise enough, and mature enough, to disabuse the children of this. They must also assure them that no matter what difficulties they may be having together as spouses, they still love the children, and that love will be unaffected by the divorce. This message is best conveyed by the parents together sitting down with all the children.

Joint Custody
No matter what custody arrangement is finalized, the only way it will work, with minimal long lasting damage to the child or children, is with the full cooperation of the parents. Parents may go into the custody component of their divorce with each one wanting to be the winner of the custody battle, but this can never work. There can be no situation when both of them will be the winners.

Even a joint custody arrangement does not necessarily make both of them winners, by virtue of the fact that neither of them has lost entirely, or gained an advantage over the other. Even though joint custody seems to have become more popular in the present day, it is still not abundantly clear that this is the best way for child care following divorce to be finalized. Joint custody works only with children who can cope with the arrangement, when there is enough money for the support of two households, when the two homes are not too far apart, and when there is a firm commitment to the arrangement by both the parents, with the attendant flexibility if there are unforeseen circumstances which demand adjustment.

The major argument against joint custody is that when the child oscillates between two homes, it really has no home. This is a crucial matter. It is crucial because having a strong home is basic to the child’s development. When there is a separation, it may be in the best interests of the child to have one solid home, and another place which the child visits occasionally, but which is not home, much as the child would go to another relative or friend for an overnight or two.

Jewish Perspective
As with financial matters, when the divorce takes place outside Israel, the issue of custody is unfortunately not usually settled within the parameters of Judaic law. The ultimate jurisdiction for custody resides with the civil courts. These courts obviously go along with whatever arrangement has been made between the husband and wife, and finalized through their lawyers, provided that this agreement is not of obvious detriment to the child or children involved.

In Israel, once a couple approaches the Bet Din for divorce, the custody arrangements will be incorporated in the finalization of the get.

From a Judaic perspective, it is obviously preferable that the issue of custody, like the issue of finances, is handled within the parameters of Jewish law. Even outside Israel, this is achievable if the couple resorts to the more amicable process of working things out between themselves, with the help of Rabbis whom they trust, and with the couple’s legal representatives, provided that these lawyers are themselves more interested in resolution than in protracted conflict.

Crucial Matter
Every child needs maternal nurturing and paternal guidance. In the general population, only one-fifth of children from a divorced parental set maintain good relations with both parents. About three-fifths have a good relationship with the mother, and one-third have a good relationship with the father. One-third never see one of the parents.

Not surprisingly, half of all divorcing couples fight over parental sharing. The children are caught in the middle, and denied the stability and parenting that they deserve. The stakes are high, and the responsibility great. The parents must agree to agree.

General Rule
The general principle by which the Rabbinical Court operates is that for children up to age six, whether boys or girls, custody is given to the mother.

For children over the age of six, the sons would generally be placed in the custody of the father, since he has the primary obligation to educate the child and to raise the child as a Jew. The daughters are generally placed with their mothers, since the daughters will become better educated in the ways in life that are indigenous to them through the more intimate relationship they would have with their mothers.

As an aside, it is interesting to note that the general societal pattern with regard to children of divorced parents is that girls do best with their mothers after divorce, and boys do equally well with their mothers or fathers. The considerations which govern this general Judaic rule are uncannily consistent with psychological wisdom. However, even if psychological wisdom did not generally correlate with the Judaic principles of custody, these principles would still be operative.

Psychological Considerations
Still, Rabbinical Courts do take into account the views of psychologists concerning specific situations. However, they will be very careful about the nature of the advice that is given. If psychologists will argue for a different custody arrangement than is the normal practice, because they feel that in general this is preferable, the Rabbis will likely reject such advice. Thus, for example, if the psychologist suggests that in general it is better for a boy of the age of nine to be with his mother, the Rabbinical Court will discount this advice.

However, if the psychologist comes with a recommendation based on a particular understanding of this unique situation, and that recommendation runs contrary to the normal practice, this is a different matter. If a psychologist argues that in this particular situation, the nine year old boy is better off with the mother because he has an estranged relationship with his father, or because the father is not psychologically equipped to care for the child on his own, the court would take this opinion very seriously. It is the welfare of the child that is of paramount importance, within the context of the general framework as it has been spelled out in Jewish law.

Different Circumstances
These general guidelines, of the child until six going to the mother, and after six going to the same-sex parent, are all subject to change based on circumstance. Thus, an obviously unfit mother who beats the child, or who is habitually drunk, or is mentally unstable, could not claim legal right to custody. The court may in such instances decide against leaving the child with the mother, even if it is below the age of six.

Additionally, when even casual, intermittent contact with either of the parents is considered to be deleterious to the child’s welfare, the Rabbinical Court may in fact prohibit such visitation by the abusing or unfit parent. Visitation of the children comes under the same rubric as custody itself; it is looked upon as the child’s right, not the parent’s right. When it is deemed to be in the best interests of the child, then it is a part of the long range agreement. When it is detrimental to the child, then visitation is curtailed.

Because visitation is a right of the child, the fact that the parent who is obligated to pay support, the father, is derelict in such support payments, would not be cause to deny the father the visitation to the child. Were this a right that were granted to the father, then one could speak of the father forfeiting that right for failure to live up to his responsibilities.

However, since this is the child’s right, the father’s dereliction with regard to support cannot be employed as just cause for denying the child that which the child needs; i.e., contact with the father.

The Child’s Welfare
The Rabbinical Court will look upon all components of the children’s welfare in making its custody decision, if in Israel, or its custody recommendation, if outside Israel. This will include the mental stability of the parents, and the importance of all the children remaining together under one roof.

Also included in the concern for the children’s welfare will be the children’s spiritual growth. Thus, if one of the parents will refuse to raise the children in a Jewish environment, and will refuse to give the children a Jewish education, this will weigh heavily in the court’s decision.

This can lead to the very unlikely scenario of a court deciding that both parents may be unfit. For example, if both parents, for whatever reason, decided to leave the Jewish fold, and entrusting the children to either of the parents will almost guarantee that the children’s Jewish identity will be lost, the court can recommend that the children be given over to a third party.

This third party could be an orphanage which raises children responsibly. Or, in situations when this is possible, it could be grandparents who are ready, willing, and able to assume full responsibility for the children’s welfare. These are options that may be entertained by the Rabbinical Court when the situation is of such gravity that radical custody arrangements are the only options beneficial to the child.

Not only spiritual matters may lead to such decisions of the Rabbinical Court. If the Rabbinical Court becomes aware that both parents are child abusers, and beat the children, they will likely deny custody to any abusing parent. Custody would be awarded to a third party.

Parental Agreements
The parents may ideally decide on a custody arrangement for their children, which as mentioned before would be looked upon favorably by the court. However, if in its opinion the joint arrangement made by the parents is not in the children’s best interests, the Rabbinical Court may decide against endorsing such an agreement. If, for example, the arrangement includes the mother’s agreement that the daughter will stay with the father, the court may reject this. It is not the mother’s right which she can then give up to the father; it is the right of the child to be raised with her mother, over which the mother has no right. She may legitimately claim incompetence, or lack of strength to do her duty, but she cannot arbitrarily give her daughter away.

Custody matters can never be a barter in the combat between husband and wife. Thus, the woman who buys off her husband’s recalcitrance by promising to allow him custody of a child over whom she would normally have been given custody, will not be disadvantaged by such actions. The get may then be given by the husband, but the Rabbinical Court will reject out of hand any prior agreement which was the basis for the granting of the divorce. It will award custody based on what is in the best interests of the child, the prior parental agreement notwithstanding.

Child’s Preference
The child is consulted, if the child is mature enough to have authentic feelings, not planted ones. With obvious exception, the mature assertion of a child that it desires to be with a certain parent would be given overriding importance. Thus, a boy aged eleven or twelve who states unequivocally that he wants to be with his mother, and not with his father, would be granted this wish, even though this is contrary to the general principle that boys go with the father.

The Rabbinical Court operates under the general principle that the notion of the best interests of the child can hardly be carried out if the child expressly states that he does not want a certain arrangement. And, in a more positive vein, the child’s expressed desire to live with a certain parent is more likely to correlate with the child’s best interests, unless there is clear evidence to the contrary. The child does not make the decision, but the child’s choice weighs very heavily in the ultimate decision.

Visitation Responsibilities
Once that decision is made, and custody is awarded to one of the parents, the other parent is usually accorded “visitation responsibilities.” We are normally accustomed to call these visitation rights; but they are not rights, they are responsibilities.

The fact that a couple divorces does not mean that their responsibilities to their children have been diminished. They are both obligated to assure that their children grow up to be upright, respectful, well-balanced individuals. Heretofore, it was a collective effort under one roof. Now, it is a joint effort under separate roofs, but nevertheless an endeavor to which they must both be uncompromisingly committed.

There are ongoing horror stories, or at the very least complaints, that one hears from the non-custodial parent. These are that the visitation always involves hassles, that the custodial parent does not cooperate in making the visitation as amicable and tranquil as it could be and should be. This is unfortunate, truly most unfortunate for the child or children.

Whoever it is that is granted custody should not see him or herself as the victor, but rather as the one who has primary responsibility. The custodial parent, through the order of the Rabbinical Court, has the primary responsibility to raise the child. This primary responsibility also includes the sacred obligation to maintain a pleasant atmosphere under all circumstances, including the time for the non-custodial parent’s visitation. That the non-custodial parent comes to visit is the right of the child, and no parent has a right to compromise on what belongs to the child by rights.

The visitation itself should be a meaningful endeavor. The visiting parent must resist the temptation to do so much in so little time. Particularly should the visiting parent avoid the all too inviting opportunity to spoil the child with good times and lavish treats. This is only a temporary pacifier. It does not build relationships. It also creates unfair comparisons in the child’s mind, between the disciplining but concerned custodial parent, and the wildly generous but frivolous visiting parent.

Keeping the Peace
It is the height of irresponsibility for any parent to incite a child against the other parent. The obligation of children to honor their parents is an imperative which is best realized through the parents creating the environment which would lead to the children respecting them. The greatest challenge in this regard comes when the parents are divorced. They are now separated, but they share collectively the responsibility to encourage the children’s respecting them. Either of the parents who incites the children against the other parent is in breach of this most serious parental responsibility, and thereby places an enormous stumbling block in front of the children.

It would be also wise for any embittered and vindictive parent to realize that by setting the child against the other parent, he or she may temporarily win the battle, but down the road will lose the war. The child may go along with parental machinations, but only because the child is captive to the custodial parent.

Any normal child will harbor a strong resentment against a parent who places him or her in the uncomfortable position of having to reject the other parent. Because, under normal circumstances, a child wants to have both a father and a mother. It was only by parental decision to divorce that the father and the mother are not together, but divorce is not legitimate reason for either of the parents to deny the child access to the other parent.

The Real Winners
A parent who wants to be a winner in the custody battle can best achieve this by placing any personal vendetta aside, and doing the best to encourage the child’s ongoing, positive relationship with the non-custodial parent. No words of a negative nature about the other parent should ever be uttered by the custodial parent.

Obviously, the same is true of the visiting parent, who should likewise refrain from any negative comments about the custodial parent. Each of the parents should assume that the other will try to do the best in their role. If they do not, then it is something that is to be worked out between them. The child should not be brought into the picture as a combatant in the conflict.

Child Support
Whilst the matter of who gains custody of the child is to be determined by the court, based on general principles, and the exceptional circumstances that may prevail in specific situations, the matter of child support is much more straightforward. As a general rule, it is the obligation of the father to support the children.

This obligation of the father to support the children is independent of any custody arrangements. Thus, even if the court decides that it is in the best interests of the children to remain with the mother, the obligation of the father to maintain the children remains unchanged and unabated. He must support the children even if he is not the custodial parent.

Withholding Support
The father does have the right to withhold maintenance payments for the children, if their not being with him goes against the expressed wishes of the Rabbinical Court. Thus, a son, who under normal circumstances would after the age of six go to the father, may refuse to leave the mother. In this instance the father can withhold payment until the child joins him. The same is true of a daughter who should, according to the decision of the court, go to her father for whatever reason. If she refuses, the father can withhold maintenance.

This is not to suggest that the father should withhold maintenance; it is only to state that the father cannot be forced into a maintenance obligation when the custodial arrangement is inconsistent with the expressed wishes of the Bet Din. The father may say that unless and until the child joins him, as per the court’s custodial decision, he will not assume maintenance responsibilities. He is not obliged to support a reality which is inconsistent with the decision of the Bet Din.

The Child’s Right
Barring that circumstance, the father’s obligation for the maintenance of the children is clear-cut. Generally, that obligation is basic until the age of six. After six, it is, as previously pointed out, in the category of charity that the father is obligated to provide for the children. Generally, this “charity” is expected of the father at least until the children have reached the age of fifteen, but ideally until the children are self-sufficient.

The parents would be well advised to work out the financial arrangements between themselves. This is the best case scenario for all components of the divorce settlement, including maintenance. However, maintenance agreements are always subject to the overriding question of whether it is in the best interests of the children. No waiver of responsibility that is given by the mother, for whatever consideration, can be implemented if it is harmful to the child or children.

Any agreement the mother may have made with the father that, in tradeoff for his agreement to grant the get, she will not demand child support, is irrelevant insofar as the children are concerned. The father’s obligation to maintain the children is not a back door obligation that is channeled through the mother. It is a direct obligation of the father to his children, and therefore the mother has no right to compromise the children’s interests. A Rabbinical Court to whom it is obvious that the divorcing parents’ agreement will create severe economic hardships for the children, will reject such agreement, and will assure that the children are given the proper resources necessary for their growth and development.

No Fault Maintenance
As with the custody matter itself, maintenance arrangements are contemplated irrespective of the responsibility that the wife may have for the breakup of the marriage. It may be that she is directly responsible, through her dereliction, for the marriage disintegrating. It may even be that the responsibility is so great that she is denied the ketubah settlement. This, however, does not by definition lead to her not having custody, or being denied maintenance. The question of custody is based on what is in the best interests of the child. It is quite possible that in spite of all that had transpired, it is in the best interests of the child to be with the mother.

Once that is the decision, indeed whatever the decision, the child is entitled to full maintenance. The exact amount given for maintenance takes into account various factors. These include the needs of the children, both for food, shelter, and clothing, and as well for education. It also includes the attention that the children need. This attention given by the mother to the children is of the type which entitles her to some compensation.

The court will weigh quite seriously the fact that the mother has decided to forego any work which would compromise the time she has for her children, and instead intends to devote full time and attention to the children. This too falls under the rubric of maintenance. Depending on the specific needs and costs involved, this would be incorporated in whatever maintenance charges are to be assumed by the father.

Later Changes
Whatever arrangements have been finalized through the Rabbinical Court can be changed later on, if it becomes obvious that the situation has changed dramatically, and the best interests of the children are at stake. For example, if the custody of the son had been awarded to the father, but the father then proceeds to marry out of the faith, this would be reason enough for the Rabbinical Court to reexamine its initial decision, and place the child in the care of the mother.

This is not a punishment to the intermarrying parent. It is an affirmation of the Bet Din’s concern for the long range spiritual welfare of the child, who deserves to grow up in a Jewish environment.

It is helpful in the long run for the parties who divorce to appreciate that whatever decision was made and implemented can be undone if the parents do not live up to their responsibilities. This is certainly the case if the custodial parent is obviously derelict. The realization that misbehavior, or parental delinquency, can result in the Rabbinical Court reexamining its decision, will hopefully serve as a prod to exercise responsibility with utmost seriousness and care, such that reexamination of the original decision will not be necessary.

Making Best of New Reality
For the parents who must now live with the decision of the Rabbinical Court, their obligation is to make the best of the circumstances. They may have misgivings, even continual complaints about the court decision, which did not conform with their desires. But they must at all costs set this aside, and concentrate on doing the best, within the constraints placed upon them, to enhance the welfare of their children.

The visiting parent should assume that the custodial parent will try to do the best possible under the circumstances.

The custodial parent should realize that the visiting parent will be significantly pained by the complications involved in having to now go out of the way to experience what previously came naturally. It is not natural for a parent to continually come knocking on a door, to pick up the child, take the child away, and then bring the child back.

This is likewise also difficult for the child. But all difficulties can be made much more manageable with the cooperation of all involved. It helps for the custodial parent to realize that the visitation of the other parent is a right of the child. No parent would want to be accused of standing in the way of denying the child that which belongs to the child.

Even though there is no husband/wife connection, the parents do have a common interest in the welfare of the children. They should therefore have a reciprocal appreciation for what is done by the other in the children’s best interest. The Judaic obligation to acknowledge the good that is done by others (hakarat hatov), applies even when one may have grievances against that party.

Moving Away
At no point in time should the custodial parent contemplate a move away from the present locale, for the express purpose of distancing the child from the visiting parent. Using personal animus as a basis for depriving the child of the parent which it already sees only on a limited basis, is not the proper way to behave.

Rabbi Dr. Reuven Bulka is a pulpit rabbi, author and lecturer. He has written extensively on the issue of Jewish divorce.

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