Rabbinic Court judge: Change to custody law reflects halacha

A more egalitarian view of custody reflects Jewish law, says a member of the High Rabbinical Court of Israel.

Father and child (photo credit: Courtesy)
Father and child
(photo credit: Courtesy)
More egalitarian child custody legislation that eliminates a mother's automatic right to keep the children after divorce reflects the stance of Jewish law, Rabbi Avraham Sherman, a member of the High Rabbinical Court of Israel, said Monday. Sherman was the rabbinic court representative on a special Justice Ministry committee which this week recommended a change in child custody legislation governing young children (up to six years old) that would strengthen the father's position vis-à-vis the mother. The committee was also made up of judges from the secular civil court system, lawyers, academics and medical staff. Current legislations, known as the Tender Years Presumption Law, automatically gives the mother custody of the children until they reach the age of six, barring cases in which the court is convinced that the mother is incapacitated. "True, since the Gaonic period [the 8th through 11th century in Babylonia] rabbis have expressed the opinion that while the children are young it is best that they be taken care of by the mother," said Sherman. "The Rambam [Rabbi Moses Ben Maimon, 1125-1204] also ruled that it is more appropriate for the mother to have custody of the children when they are at a very early age. "But neither the Gaonim nor the Rambam said that the mother's right to custody should be automatic. Rather, each case should be decided individually to determine the best interests of the children." Sherman said that under normal circumstances it was more appropriate that the mother maintain custody of very small children. "The needs of children at this age are primarily physiological and psychologically speaking the child is more dependent on the mother. This does not mean the father has no responsibilities. In addition to supporting his children economically, the presence of a father figure is central to the development of every child. "As judges our central concern must be to advance the interest of the children," he said. Sherman rebuffed critics, most of them women's rights advocates, who argued that the committee's recommendations would hurt women's bargaining position against the husband during divorce proceedings. "Women's right organizations are right when they say that it is common for the husband to bargain with the wife. He says he is willing to give up his rights to custody or visitation in exchange for the wife's acquiescing to lower child support payments," said Sherman. "But this type of tactic ignores the children's rights to material support and we as judges will not tolerate it."