Hashkafot on Gerushin, Child Custody, and Child Support

Note: The perils of divorce is an emotionally difficult subject for the most spiritually sensitive of people.

Anecdote

Ha-Rav Menashe Klein wrote the Mishneh Halakhos. He survived the Holocaust with Elie Wiesel. When Wiesel won the Nobel Prize, he donated a fair amount of his reward money to Ha-Rav Mesnashe Klein. However, unlike Wiesel, Klein retained his Yiddishkeit and became a Rav in Boro Park and later in Israel where he became more prominent.

While living in Boro Park, he was married. After the wife of R” Klein gave birth to their son, she became emotionally distraught and used the secular government to throw her husband out of his home, and make sure that he can never see his son again…Eventually, he remarried and decades later, became niftar. He is buried next to the Arizal in Tzfat.

Ironically, the son of R” Klein became a learned man and also a doctor who eventually married a woman and had a kid. He got his friends, in the medical industry, to claim that his wife was mentally deranged and not capable of raising a child, and she had never seen her son again…

Of course, this is horrific. Alienating children does not encourage an emotionally stable up-bringing, but most should be weary of what they do to others because it could be turned on them.

Hashkafot

Issues pertaining to Child Support and Child Custody are incredibly relevant issues when trying to understand the issues that pertain to divorce. You can’t learn about marriage or divorce without learning about what happens with the children involved.

When Rabbi Avigdor Miller was asked about whether or not its fair that a husband can give a Gett when a wife can not demand and and receive a Gett unilitarially, he said the following:

“Now I know that the ladies will rebel at this.  Even the good ones today.  The Orthodox girls of today will rebel at this because the ideas of the marketplace have permeated all levels of society.  But in the olden days, even among non-Jews, it was common sense there had to be one captain and there had to be obedience.

So therefore, if the little boy didn’t want to get up in the morning to go to work or to go to school in the later generations, there was no such thing as letting him have his way.  Today you have boys who don’t go to school at all!  Thirteen-year-old boys don’t go to school at all!  Do you know why?  Because there’s no father.  Why is there no father?  Because there’s divorce.  She goes to the courts.  She wants to be independent.  And he has to support her.  The husband supports her and she lives with her son separately. And so if the son doesn’t want to go to school, he doesn’t go to school. You have a lot of boys today who don’t go to school at all!  What do they do? I don’t want to tell you the wicked things that they do…And because she’s a mother, so everything goes…

I once saw an article – this was a long time ago – and it was describing which country in Europe is there the least juvenile delinquency. And it was explained that Italy was the place.  And the reason was because in Italy of all the countries in Europe, the father was the boss. The husband was the boss.  His word was law.  That’s a long time ago already.  And therefore, there was the least juvenile delinquency. You need a strong hand to lead the family.  Of course, sometimes, the father is the weak one.  Sometimes the mother is stronger, but by and large that’s the principle.  

And that’s why it’s paramount, it was important that the husband should have the final word.  “You want to remain my wife, then you’ll have to cooperate.”  

Now of course there was a certain amount of injustice too.  Every system has some unfairness to some people, but most of the women benefited by that more than they benefited after they gained the right to oppose their husband’s gett.  Why they made that takanah, you have to ask Rabbeinu Gershom.  I won’t go into that now, but it’s certainly true that in general it was not a benefit because there’s so much unhappiness that resulted from that uncertainty.

When a woman knows that this is it, so she makes up her mind to take it and to live this way and to enjoy it; and she can live to 120 years under husband’s hegemony.  But when she has ideas that maybe there’s hope of breaking out, maybe she can rebel, maybe she can make a revolution, so that causes her a lot of unrest, uneasiness and unhappiness.  People are happy when their minds are made up for them.  It’s a fact that in the stable homes where there’s an authority, there’s much more happiness than in the liberal homes when people can do as they wish and women can break away from their husbands more easily.  First of all, they compete with them in authority and sometimes they seek to gain the upper hand in authority and the end is separation and divorce and all the heartache and tragedies that follow and broken homes.

And today from every four couples that marry, three end up in divorce.  And so, it’s an epidemic today, which means an epidemic of unhappiness.

And therefore the modern system has nothing to say in its favor at all.  Nothing at all in its favor! It’s nothing but unhappiness. And the old system was a system that ensured the maximum happiness.

Now there’s no system that’s foolproof.  No system will guarantee happiness.  There’s no real happiness in this world anyhow.  You cannot have perfect happiness.  There will always be some complaints against any system but the Torah system will guarantee the least amount of unhappiness.”

TAPE # 287 (November 1979)

Child Custody in Halakha and its influence on Gittin

When people discuss the topic of child custody, they tend to use the ideas of the secular world. This is true even for religous Jews. Even in an town of Torah, like Lakewood, the values, the walls of holiness have been penetrated by the values of the Western world. This is true when it comes to topics pertaining to גירושין, and it is most certainly true when it comes to the sub-topic of Child Custody.

The questions people have yet to ask: Why is it hard for a father to have the rights to live with his children? Why should a father be obligated to pay money for children that he is not allowed to live with?

For those who have basic intuition, this does not make any sense. It’s not like he made the decision to avoid raising his own children. In most Western countries, these men are given almost no right to have a normal relationship with their own children. This is true for most American states including those that have many Jews (in large numbers). It is even more-so true in Canada and Israel where the policies are more heavily enforced by courts which are Left-Wing when it comes ot this issue.

Is is important to note that in order to have judgement that is fair, each case needs to be analyzed seperately. Therefor, a ruling that makes sense for one case might not work for another. We should be cautious about not doing anything to damage the children involved.

According to Jewish tradition, the father is the owner of the home and the leader of his children (add source). The father is the one who gets to decide whether or not the children should be with him, but there are exceptions to this…If a father is not fit to be a father, this could be a factor that decies the outcome, but the same is true for the mother. The idea that women are entitled to have the final say [in child custody and child support] is a concept that is foreign to Judaism. It was brought about by the trends of Western society. It has no place in Jewish thought, yet it has infilitarted the community succesfully.

Because Hashem wants us to keep His Torah (even in the present world), it is relevant to see how this plays out in the act of giving or receiving a Gett. We don’t live in a world where we merely use the secular system divorce to affect our traditions which have been passed down from generation to generation.

The act of witholding a גט allows a man to prevent these forms of theft from taking place. The גט is the only bargaining chip for the husband because it allows the husband to bypass the corrupt, secular system by preventing his wife (if she wants a גט) from being able to impose these unfair sanctions on him. This is something that the secular world does not have. This leverage is something that secular marriages lack. The male-initiated bill of divorce is one of the many things that allows Father’s Rights to exist within Traditional Jewish culture. Our G-d understood that there will be emotional differences between males and females (when he created them). He understood that women are more emotional at times…

Even though bitterness in marriage is wrong (regardless of which side feels this), a bitter wife is worse than a bitter husband because the vengeful tactics of a malevolent woman have dire consequences for those that are victims to her cruel behavior including the children caught between her and her husband. None of this justifies, in any way, cruel behavior from a husband, but unfairness has been tilting towards the father for many generations. And unfortunately, most rabbis are not trying to fight this gross misuse of justice that is plaguing Jewish communities world wide. You would think that they would have set up a system to stop women from doing these wicked acts of rebellion against Judaism, but they have done very little to stop this destruction from growing. Even the average Rabbi, with a black hats, has done little to prevent this.

Little is done to challenge the dangers of a spiteful wife while the mere existence of spiteful husbands is considered cruel and unusual to those raised in Western Jewish society. However, it seems that the Liberal side of Jewish culture (which includes some Orthodox communities) has all but given into these perceptions of reality that go against the sages.

Why do our sages say that judges have to be males? The Torah and our sages are not against men or women, but it is understood by the sages that there is a fundamental difference between men and women which affects the area of judgment. Since men are more logical and women are more emotional, the wrath of judgment should be in the hands of men because they are more likely to create an approach to a problem that is logical. Justice should not be in the hands of women as their judgements would lead to more harm than good as seen with all of the issues mentioned above.

Divorces with Children: How Tradition Dictates Child Custody and Child Support

The nature of divorce is already a [dirty] subject, but it becomes more complicated if the divorcing couple has children. The biggest issue in modern-day divorces is figuring out how to fix families where the parents have separated. Who will these children live with? How will these children be taken care of?

In comparison to the amount of Halachic commentaries that exist on the validity of a marriage or divorce, the rabbis of olden times had little to say about the nature of Child Custody and Child Support…

Historically, divorces did not involve the dissolution of the Jewish family unit (with kids). The general tradition was that children, from ages 0-6 live with their mother, but then things change. The father acquires sole custody of the sons, and the mother acquires full custody of the daughters. The obligation to financially support a child ends at the age of 6 (Ketubot 65b). These concepts have not been formally examined by contemporaries (dayanim, poskim, etc.).

The Mishnah (Sukkah 28a) says that a boy who “does not require his mother” must dwell in the Sukkah together with his father. They consider the end of the tender age to be 5 or 6 years old. (see Rambam, Laws of Sukkah 6:1; Shulkhan Arukh, Orakh Haim 640:1-2). Since men teach their sons Torah and Mitzvot, then it is imperative that they do so in the age where they are able to perform them. In the Gemara (Yevamot 102b), it states that girls have a preference to live with their mother.

The Rambam enforced that these rulings still apply (Ishuth 21:17). However, many disagree with him. Ravaad claims that a father can be teaching his son Mitzvot as early as four years old. Therefore, he would have custody from age four onward. Even though the Shulhan Arukh (Even Ha-Ezer 82:7) agrees with the Rambam, the poskim of later generations have claimed that it applies on a case-by-case basis. This is stated by the Rosh and Rabbi Meir Katzenellenbogen of Padua – Maharam of Padua (Responsa 53).

But what if it’s in their best interests for the child to live with their father? A variety of rabbanim have ruled that the children should live in the home where it’s in their best interest.. The Maharashdam and the Shot Mabit (Vol. 2, no. 62) say this too. Rabbi Eliezer Goldschmidt (Shut Ezer Mishpat no. 28) also rules this way including Shot Tzitz Eliezer (Vol. 17, no. 50).

The traditional amount for Child Support was fairly small and not overbearing to the average father. It was not automatically a third of his earnings, it was not something that was over-bearing for the father, and it was not something that one could be imprisoned for. Rather, Child Support was seen as a positive Mitzvah (akin to Tzedakah) (add source). He could also with-hold payments if his children did not want to interact with him as such behaviors are dishonoring to one’s parents (add source). The Ramba (Ishuth 21:17) did not state that a divorced mother, with a son, would receive child support if the son lives with her.

This was all done in the context of a government where remarriage was common, and women did not receive as much as half if not all of their husband’s property in the matters of alimony – payments given to a wife in matters of divorce. In the modern world, alimony/similar can range from nothing to everything a man has. Thus, the ability to properly pay child support is now hindered by the secular state.

In terms of child custody, there are various claims which can change the nature of what happens to the children based on various circumstances. In practice, the Rabbis historically encouraged the children to live in an environment which was in their best interest. It didn’t blindly prioritize either parent in this regard.

Radvaz (Vol. 1, no. 263) gave a case where a divorced woman was also the mother of a 7-year old girl. The mother was involved in immorality, and the Radvaz ruled that due to the mother’s illicit behavior, the custody of the girl belongs to her father. The Mabit said that child custody should be in what is best for the child. The Noda BiYeyudah (Tinyana, no. 89) claims that a father should have custody of his daughter if it’s of spiritual benefit for the daughter.

Most rabbis understand that if a parent is unfit or incapable of raising a child, then that parent will not do so, and the Tur states that if the mother is not interested in having custody of her children, then she is not obligated to take care of them. The children are then prioritized by the father, and if the father is not available, then they are raised by the community as orphans.

These days, any divorce, involving children has become spiritually unclean as it will be difficult for those children. All of these controversial matters involving child custody and child support were done within the framework of a society that understood if a divorce is kosher.

Western Society and The Dismantlement of The Family Unit

What kind of effect does Child Support have on a father? If he is forced to pay for children he doesn’t live with (from his own paycheck), then how will he be able to sponsor his future marriage with his future wife? If he was making the average salary before the penalty of child support, then he is coming home with less income because of the “tax” imposed on him because of the divorce settlement. The concern of child custody and child support is a justifiable reason for a man to withhold a גט from his wife.

Not only is it wrong for a woman to have complete control in regards to child custody, but it is theft for her to do so, and it is most certainly theft to demand child support. This is because money taken via secular courts is classified as theft (add source).In most American states and most Western countries, a man can be arrested for failing to pay child support. This demonstrates that the Child Support System is beyond corrupt. Men are put in jail merely because of a marital dispute that ended in a civil divorce. The Bail Reform Bill of New York specifically excludes bailing out men who can not pay for child support (add source).

The ex-husband would have an easier time taking care of his children if he had normal custody of his children. The Child Support system in most Western countries is rigged to harm the father. It is a broken, unfair system. No husband should be subject to such financial punishment.

If a wife sincerely wants to be separated from her husband, then a divorce has to be done in a manner that doesn’t harm the husband. Unfortunately, many divorces are ugly. It’s a form of warfare. A woman who hates someone can be vicious…This is even more true if a woman hates her husband.

These women are more likely to be perpetually single, due to not being desired by any men with common-sense, leaving their children without a father figure. This epidemic has been destroying the fabric of Western society for decades. The kids from these divorced couples have serious issues which society is not able to deal with. This includes being at a higher risk of commiting crimes.

What do you think that Child Custody practices have on children world wide? Not having a normal relationship with [both] a mother and a father has devastating consequences on children. And what about the grandparents of the separated child? The parents of a divorced father also lose out when it comes to policies that directly affect their grandchildren. The danger of divorce (with kids) deeply affects multiple generations of people. Some Jews have never seen their paternal relatives and those fathers and [paternal] grandparents might never have a normal relationship with their children or grandchildren because of these vicious Child Custody practices.