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Published online by Cambridge University Press: 24 April 2015
The understanding of Jewish law of the legal rationale of the relationship between parent and child developed gradually. In the first stage, in ancient Jewish law, the dominant tendency was to affirm the authority of the Jewish father over the members of his family. During this period, the idea that parents have a natural responsibility to love their children, care for them and provide for their welfare was less transparent. The main purpose of the rules concerning the relationship between parents and children at this stage was the assertion of the rights and needs of the father of the family.1 Consequently, some of the regulations of ancient Jewish law regarding the relationship between parents and children were not necessarily focused on the best interest of the child and the ideological basis for the legal policy in the sphere of custody in the ancient period was somewhat vague.
By contrast, during the second, medieval stage of development of Jewish law on the relationship between parents and children, the ancient supreme principle, of the father's authority over members of his family in all spheres including the sphere of custody of children, was largely replaced by an explicit rule in Jewish law: the best interest of the child is a paramount consideration. Indeed, we could say that the explicit implementation of the principle of best interest of the child in Jewish custody cases is a medieval invention, introduced by Jewish scholars at this period in their child custody verdicts. By contrast to the ancient period, the rules of custody, which had become fully defined at this stage, utilizing this principle, usually favored the mother.
1. Several scholars have focused upon Jewish law regarding the relationship between parents and children in the first stage of development: ancient Jewish law. See Neubauer, Jacob, Toldot dine ha-nisuin ba-Mikra uba-Talmud (The History of Marriage Laws in Bible and Talmud) 28, 114 (The Magnes Press, Hebrew U. 1994) (Hebrew)Google Scholar; Rabello, Alfredo M., Patria Potestas in Roman and Jewish Law, 5 Dine Israel 85, 113–145 (1974)Google Scholar [hereinafter Rabello, Patria Potestas]; Fleishman, Joseph, Horim vi-yeladim be-mishpete ha-Mizrah ha-kadum ube-mishpat ha-Mikra (Parent and Child in the Ancient Near East and the Bible) 57–109 (Magnes Press, Hebrew U. 1999) (Hebrew)Google Scholar; Gilat, Israel Z., The Relations Between Parents and Children in Israeli and Jewish Law 57–154 (Choshen Lamishpat 2000) (Hebrew)Google Scholar, [hereinafter Gilat, The Relations); Schremer, Adiel, Jewish Marriage in Talmudic Babylonia 41–91 (unpublished Ph.D. thesis, Hebrew U. Jerusalem 1996) (Hebrew)Google Scholar [hereinafter Schremer, Jewish Marriage]; Schremer, Adiel, Zakhar u-nekevah beraam: ha-nisuim be-shilhe yeme ha-Bayit ha-Sheni ubi-tekufat ha-Mishnah veha-Talmud (Male and Female He Created Them: Jewish Marriage in the Late Second Temple, Mishnah and Talmud Periods) 73–125Google Scholar (Zalman Shazar Ctr. 2003) (Hebrew) [hereinafter Schremer, Male and Female].
2. Some scholars have presented the Jewish law of custody of children in light of the medieval and especially modern perspectives. However, they have not stressed that this legal perspective was a result of a gradual process. See Shochetman, Eliav, The Essence of the Principles Governing the Custody of Children in Jewish Law, 5 Shenaton Hamishpat Ha-Ivri 285, 320 (1978)Google Scholar [hereinafter Shochetman, The Essence].
3. See Fleishman, supra n. 1, at 57-109. See also Daube, David, Sons and Strangers 1, 15, 18 (Boston U. Sch. L. 1984)Google Scholar (publication of author's Presidential Address delivered at the Second International Conference of the Jewish Law Association, 1983).
4. See Blidstein, Gerald, Honor Thy Father and Mother—Filial Responsibility in Jewish Law and Ethics 25 (Ktav 1975)Google Scholar (noting that the “Bible assumes throughout that men naturally revere and honor their fathers”). See also Gilat, The Relations supra n. 1, at 441-448 (concerning the interpretation of Biblical rules in the Talmud).
5. See Fleishman, supra n. 1, at 200-293.
6. Modern Jewish law would not grant the father these powerful rights in the best interest of the child. See Schereschewsky, Benzion, Apotropos, in Principles of Jewish Law 219 (Keter Publg. House 1975)Google Scholar. See also Fleishman, supra n. 1, at 263-265; Rabello, Patria Potestas, supra n. 1, at 113-149.
7. See Gen 22:2-10 (all Biblical citations are taken from the Jewish Publication Society version).
8. See Schwartz, Matthew B. & Kaplan, Kalman J., D. Commandments, Oaths, Parables, and Temptations, J. Psych. & Judaism 201–204 (09 1998)Google Scholar. Concerning typical examples of the patriarchal authority over matters of “life and death” in the Bible, see also Biblica, Encyclopedia, Law, Biblical Law, Tomus Quintus 614, 617 (Macmillan Co. 1899)Google Scholar
9. See Gen 38:24.
10. See Gen 42:37. When Yiftach wanted to launch a war against the nation of Amon, his vow to G-od led to an unfortunate result: He was obligated to sacrifice his daughter. See Judg 11:39. See also Babylonian Talmud, Taanit, 4b.
11. See I Sam 14:24-45. When King Saul held his son Jonathan was rebellious, he threw the sword at him. See id. at 20:30-31.
12. See the act of Lot, mentioned in Gen 19: 8.
13. The father could “sell” his daughter, and as a result she could become a maidservant. See Exod 21:7: “And if a man sells his daughter to be a maidservant.” The daughter is sold due to no personal blame and not by her own choice. Her father can “sell” her in an attempt to improve his financial situation. However, the Bible is concerned with the well-being of this daughter-maidservant. See id. at 21:8. Her master is urged to give his maidservant to his son in an attempt to place her in a home of a man that will maintain her and provide other needs of this female. See id at 21:9-10.
14. Gerald Blidstein, Honor Thy Father and Mother—Filial Responsibility in Jewish Law and Ethics, supra n. 4, at Intro. XI-XII (Ktav 1975).
15. Rabello, Patria Potestas, supra n. 1 at 145.
16. See Mishnah, Ketubot 5, 5.
17. See Babylonian Talmud, Ketubot 59b.
18. See Commentary of Rabbi Solomon Yitzhaki (Rashi), id., s.v. Im Haya Makirah.
19. In this period, children continued to nurse until they were twenty-four months old.
20. See Babylonian Talmud, Ketubot 59b. In medieval codifications of Jewish law Jewish scholars explained that during this period the mother must be paid for her nursing services. See Mishneh Torah, Ishut 21, 16; Shulchan Arukh, Even Haezer 82, 5.
21. Babylonian Talmud, Shabbat 66b.
22. Mishnah, Ketubot 12, 1.
23. Babylonian Talmud, Ketubot 102b, 103a. Concerning the relationship between parents and children in this period, see also Babylonian Talmud, Ketubot 46b.
24. Babylonian Talmud, Ketubot 102b.
25. In the commentary of Kehati to the Mishnah, supra n. 22, he explains: “for the wife, in respect of the death of her husband, in order to permit her to marry.” When we do not know if the husband is deceased or alive, his wife is an Agunah and can not marry a new husband. The testimony that he is dead enables her to remarry.
26. Mishnah, Yebamot 15, 4.
27. See Babylonian Talmud, Yebamot 117a.
28. Deut 28:32.
29. Babylonian Talmud, Yebamot 63b.
30. See supra n. 23.
31. Mishnah, Ketubot 5, 9. For this rule in medieval codifications of Jewish law, see also Mishneh Torah, Ishut 21, 11; Shulchan Arukh, Even Haezer 80, 11.
32. See Shulchan Arukh, Even Haezer 80, 11. In the medieval codification of Jewish law this regulation is presented as follows: “As long as a woman is nursing a child, her husband must add wine and other things to her maintenance that are beneficial for her milk.” Mishneh Torah, Ishut 21, 11.
33. See Babylonian Talmud, Ketubot 65b.
34. Id.
35. Id.
36. See Mishnah, Ketubot 4, 6.
37. Usha is one of the ten sites where the Sanhedrin—the ancient Jewish Supreme Court and legislative organ-relocated after the destruction of the Second Temple. On the Sanhedrin in Usha see Mantel, Hugo, Mechkarim be-toldot ha-Sanhedrin (Studies in The History of The Sanhedrin) 162-197, 365–369 (Dvir 1969)Google Scholar (Hebrew) (discussing the Sanhedrin in Usha). For an English edition of the book, see Mantel, Hugo, Studies in the History of the Sanhedrin 140–174 (Harv. U. Press 1961)CrossRefGoogle Scholar.
38. See Babylonian Talmud, Ketubot 49b.
39. Id.
40. See id. See also the rules in the medieval codification of Jewish law: Mishneh Torah, Ishut 12, 14-15:
Just as a man is obligated to provide for his wife's maintenance, so too is he obligated to provide for his sons' and daughters', until they are six years old. Henceforth, he must provide for them until they grow up, as ruled by the Sages. If he refuses, he is to be rebuked, shamed, and urged. If he still declines, it is announced in public that “So-and-so is cruel, and refuses to maintain his children, wherefore he is lower than an unclean bird, which maintains it's young.” But he is not compelled to maintain them after the age of six. To whom does this refer? To a person who is not wealthy, and it is doubtful whether he is capable of giving charity or not. But if he is wealthy, and has sufficient funds for charity to cover their maintenance, he is forced to provide as an act of charity, and to maintain them until they grow.
41. See Babylonian Talmud, Bava Batra 21a.
42. See id.
43. See Shochetman, The Essence, supra n. 2, at 297; Gilat, The Relations, supra n. 1, at 48 n.12.
44. The period of the Rishonim ended in the sixteenth century, when the Sephardi codification of Jewish law, Shulchan Arukh, and the Ashkenazi amendment to this codification, the Mapa (also known as Hagahot Harema), were compiled. On the transition from the period of the Geonim to the period of the Rishonim and from the period of the Rishonim to the period of the Acharonim, see Lewittes, Mendell, Principles and Development of Jewish Law 111–149 (Bloch Pubig. Co. 1987)Google Scholar. See also id. at 150-161, on the Shulchan Arukh.
45. See supra nn. 23-24 and accompanying text.
46. Responsa of the Geonim, Shaarey Tzedek Pt. 4, Gate 4, # 46 (Saloniki 1792). Compare to the legal policy in literature from this period mentioned in the writings of Rabbi Asher ben Yechiel. In his writings this Rabbi states that Rabbi Meir Halevi Abulafia wrote that the legal policy in a source from the Geonic period was that the mother is the preferred custodian of daughters when she is a widow—because relatives of the father, who are heirs, may cause harm to the child—and also when she is a divorcee. The Mishnah, Ketubot 12, 1, states that the father should grant maintenance payments to his daughter, when the divorcee is the custodian. See Piskey Harosh, Ketubot, ch. 12, 4.
47. See supra n. 36 and accompanying text.
48. See Responsa of the Geonim, Shaarey Tzedek Pt. 4, Gate 4, # 46 (Saloniki 1792). For a shorter version of this responsum, see Responsa of the Geonim—Zichron Larishonim Vegam Laacharonim # 427 (Berlin 1887)Google Scholar. See a similar policy, attributed to Gaon, Rabbi Sherira and the author of Halakhot Gedolot, in Responsa of Rabbi Joseph Iben Migash # 71 (Jerusalem 1974)Google Scholar.
49. See Babylonian Talmud, Ketubot 101b-102a.
50. For the medieval interpretation of the legal rationale in the responsum of Rabbi Sherira Gaon, see also Responsa of Rabbi Joseph Iben Migash #71, supra n. 48.
51. See Responsa of the Geonim—Zikhron Larishonim Vegam Laacharonim 99, # 212 (Berlin 1887)Google Scholar = Otzar Hageonim, Ketubot 60a, # 434 (Jerusalem 1939)Google Scholar. In this responsum the rights of the father in the area of custody are limited. See Responsa of the Geonim, supra n. 48, at # 553 (Berlin 1887). Concerning the rationale of the law in the geonic period, see also Mishpetey Uziel # 83, 5 (Jerusalem 1964). The same policy is the dominant legal doctrine concerning custody in the responsum literature of the vast majority of subsequent medieval Jewish scholars in the period of the Rishonim. See infra nn. 63, 101-107.
52. The editor of this responsum in Ginze Kedem, Professor Marx, held this responsum is attributed to Rabbi Joseph, the Gaon of Mata Mechasya. See Ginze Kedem 3, p. 57 (Haifa 1925)Google Scholar. The editor of Responsa of Maimonides 2, # 367 (Jerusalem 1960)Google Scholar, Professor Blau, held this responsum should be attributed to Rabbi Joseph Iben Avitor.
53. See Babylonian Talmud, Yebamot 117a, 63b, supra nn. 27, 29.
54. See Babylonian Talmud, Ketubot 102b, supra nn. 23-24.
55. The editor of this responsum, in the collection Ginze Kedem, infra n. 56, holds that the Rabbinic leaders cited in this responsum, who held that the mother should be the custodian of daughters when she did not remarry, are Rabbi Amram Gaon and Rabbi Tzemach Gaon.
56. See Ginze Kedem 3, p. 62, § 6 (Haifa 1925)Google Scholar.
57. See the significance of this factor in the responsum of Rabbi Sherira Gaon, supra n. 48.
58. See the interpretation of the Geonic literature in the writings of Rabbi Meir Halevi Abulafia, quoted in Tur, Even Haezer 82.
59. See Responsa of the Geonim—Zikhron Larishonim Vegam Laacharonim supra n. 48, at # 553 (Berlin 1887) = Otzar Hageonim, Ketubot 60a, # 435 (Jerusalem 1939)Google Scholar.
60. See supra nn. 38-39.
61. See Responsa of the Geonim—Zikhron Larishonim Vegam Laacharonim, supra n. 48, at # 553 (Berlin 1887). See also Otzar Hageonim, Ketubot 60a, # 435 (Jerusalem 1939)Google Scholar.
62. See id. concerning the rationale of the law in the geonic period. See also Mishpetey Uziel # 83, 5 (Jerusalem 1964)Google Scholar. The same policy is the dominant legal doctrine concerning custody in the responsa literature of the vast majority of subsequent medieval Jewish scholars during the period of the Rishonim. See infra nn. 103-108 and accompanying text.
63. See Responsa of Rabbi Joseph Iben Migash # 71, supra n. 48. See also for a similar theory concerning the rationale of the rule in the medieval responsa literature: Responsa of Rabbi Solomon ben Aderet (Rashba), Attributed to Nachmanides # 38 (Jerusalem 2001)Google Scholar, infra n. 103; Responsa of Rabbi Asher ben Yechiel (Rosh) # 82, 2, first case & second case (Jerusalem 1994).
64. See Haturim, Sefer, Even Haezer 82Google Scholar.
65. See Arukh, Shulchan, Even Haezer 82, 1-5Google Scholar.
66. See Mishneh Torah, Ishut 21, 16. See also a similar point of view in Mishnah with the Commentary of Maimonides, Ketubot 12, 1 (Mossad HaRav Kook 1965)Google Scholar. Maimonides explains in his commentary to the Mishnah, id., that a daughter-before and after the age of six-should be in the custody of her mother. A son in his tender years should also be in her custody. If the mother does not wish to be the custodian of her daughter or son during this period, she will not be compelled to raise them and the father should take care of them once they have passed the necessary period of nursing or if they do not recognize their mother. If, at this stage, the child does recognize the mother she should be compelled to nurse him/her until the end of the period of nursing (the first twenty-four months).
67. See Mishneh Torah, Ishut 21, 16. Concerning the obligation of the married and unmarried mother to nurse her child, see also Shulchan Arukh, Even Haezer 82, 5; Schereschewsky, Benzion. Family Law 185-186, 372–375 (Rubin Mass 1992)Google Scholar.
Maimonides, in Mishneh Torah, Ishut 21, 17, goes on to adjudicate the rights between the father and mother:
A divorcee is not entitled to maintenance, even if she nurses her child. Her husband, however, must give her, in addition to a fee, such things as the child may need, in the way of clothing, food, beverage, ointment, and the like. A pregnant woman, however, has no claim to anything. However, Maimonides, in Mishneh Torah, Ishut 21, 18, also states:
If the mother is unwilling to have her children, whether male or female, remain with her after she has weaned them, she may affirm her refusal and either turn them over to their father or, if they have no father, cast them upon the community, and the community must attend to their needs.
68. See Mishneh Torah, Ishut 21, 17.
69. Id.
70. Id. at 18. The Ketubah is the document signed by the husband and given to the bride at the Jewish wedding ceremony stipulating the obligations of the husband. See Schereschewsky, Benzion, Ketubah, in Principles of Jewish Law 387–390 (Keter Publg. House 1975)Google Scholar. On the Ketubah in the medieval period, see Lacave, José Luis, Medieval Ketubot From Sefarad (Magnes Press, Hebrew U. 2002)Google Scholar.
71. Mishneh Torah, Ishut 23, 17. Maimonides goes on to say:
If he divorces his wife within the period of years that he had obligated himself to maintain her daughter, and if the wife then marries another man, and makes a similar agreement with the new husband that he is to maintain her daughter for a specified number of years, the first husband may not say: “If she comes to reside in my house I will maintain her”; rather, he must convey her maintenance to the place where her mother is residing. Nor may the husband say: “We will maintain her jointly”; rather, one must provide maintenance for her, while the other must pay her the monetary equivalent of her maintenance.
72. See Mishneh Torah, Ishut 21, 11.
73. See Mishneh Torah, Ishut 21, 16.
74. See Mishneh Torah, Ishut 21, 18.
75. See Mishneh Torah, Ishut 21, 17-18. The approach of Maimonides could be that some aspects of the authority of the father remained in the medieval period, but the best interest of the child is the more important consideration in custody cases. Some medieval Jewish scholars took into consideration the rights of the father in custody cases. See Responsa of Rabbi Asher ben Yechiel, (Rosh) # 82, 2, first case (Jerusalem 1994), and Responsa of Simon Ben Tzemach (Tashbetz) # 40 (Jerusalem 1998)Google Scholar. Some medieval scholars held that the mother is the preferred custodian of daughters only when she is a widow, but if she is divorced, the father is the preferred custodian. See Mesharim, Path 32, Pt. 9, 11 (Venice 1653). Professor Daube held that the outlook of Maimonides, in Mishneh Torah, Ishut 21, 17, is that “a child belongs to the mother.” Daube, David, Dividing a Child in Antiquity, 54 Cal. L. Rev. 1630, 1632 (1966)CrossRefGoogle Scholar. However, Maimonides does not mention, implicitly or explicitly, this “ownership” of the mother. The best interest of the child is the main implicit consideration in custody rules in Mishneh Torah. Rabbi Benzion Hai Uziel explains that the assumption of some medieval scholars that the daughter should be in the custody of her mother only when she is a widow and not when she is divorced is based upon the ancient rule that the father has rights of custody in these circumstances. If the father is deceased, the mother is granted these rights. If she is divorced, the mother has no right that is superior to the right of the father in the area of custody. Rabbi Uziel held the medieval major trend in favor of the mother in custody cases is an outcome of an enactment of medieval Jewish scholars in the best interest of the child. See Mishpetey Uziel # 83, 6 (Jerusalem 1964)Google Scholar. However, with all due respect, this enactment is not mentioned in medieval Jewish sources. Most medieval scholars emphasize that the special circumstances at home and the personal qualities of the mother enabled her to care for her child and satisfy his or her emotional needs more adequately than the father in certain situations. Therefore, in medieval Jewish legal sources she was often the preferred custodian because Jewish scholars in this period held that this legal policy was in the best interest of the child. See supra nn. 63-108 and accompanying text. They hold that the main consideration is the best interest of the child. The father should be the custodian when this verdict in favor of the father enhances the welfare of his child.
76. See Mishneh Torah, Ishut 21, 17.
77. The scholar Gilat held that the ancient principle of the authority of the father was also relevant in Jewish law concerning custody in the medieval period of the Rishonim. See Gilat, The Relations, supra n. 1, at 377-378 (claiming that the medieval scholars, especially Maimonides, maintained the ancient idea that the father has exclusive rights concerning his sons and daughters in all spheres, including custody). He claims this point of view is apparent in the codification of Maimonides in Mishneh Torah, Ishut 21, 17-18. See Gilat, The Relations, supra a. 1, at 49, 202-204, 422-423; Gilat, Israel Z., Is “The Benefit of the Child” a Major Criterion according to Jewish Law in Parental Conflict on Custody of the Child?, 8 Bar-Ilan L. Stud. 297, 299 (1990)Google Scholar [hereinafter Gilat, Is the Benefit]; Gilat, Israel Z., Divergences in Halakhic Laws concerning a Father's Obligation to Support his Children-A Proposed Model, 13 Bar-Ilan L. Stud. 507–546 (1996)Google Scholar; Gilat, Israel Z., Parent-Child Relationships in Jewish Law and Their Integration Into the Israeli Legal System, 1 Netanya Academic College L. Rev. 297, 359–362 (2000)Google Scholar. However, the legal doctrines of custody in the codification of Maimonides are not presented as an outcome of the doctrine of authority of the father. Sometimes the rules in the codification of Maimonides in this sphere are in the best interest of the child. This casts doubt on Gilat's claim that in custody cases, Maimonides applied the ancient Jewish law, focusing upon authority of the father. See also infra nn. 78-79.
78. Maimonides did not attempt to deviate from the major trend in the medieval period, mentioned in the responsum of his Rabbi, Joseph Iben Migash # 71 (Jerusalem 1974). The rights granted to a mother or father in the sphere of custody are an attempt to enhance the best interests of the child. The mother's right of custody of daughters was recognized by the Geonim even when she was divorced, in an attempt to enhance the welfare of the child. See supra nn. 48-61 and accompanying text. In addition, doubts about the opinion of Israel Gilat concerning the legal rationale of the rales of Maimonides are strengthened by the fact that the policy attributed to Maimonides by the scholar Gilat does not coincide with the major trend in the responsa literature of other scholars in the medieval period, before and after Maimonides, that accorded significant weight to the best interest of the child in custody verdicts. This outlook is evident in Responsa of Rabbi Solomon ben Aderet (Rashba). Attributed to Nachmanides # 38 (Jerusalem 2001)Google Scholar. For the point of view of other prominent Jewish medieval scholars, see also infra nn. 104-108 and accompanying text.
79. Maimonides cites the laws of custody for each age. He does not state explicitly, in this context, that the best interest of the child is a major consideration. However, he takes into consideration the welfare of the child, in his responsum, Responsa of Maimonides 2, # 367 (Jerusalem 1960Google Scholar).
80. See Responsa of Rabbi Joseph Migash # 71 (Jerusalem 1974)Google Scholar.
81. See supra nn. 66-68, 70-71 and accompanying text.
82. See the ancient sources: Tosefta, Ketubot 5, 5; Tosefta, Nidah 2, 5; Jerusalem Talmud, Ketubot 5, 6 (30, 1 [36b]); Babylonian Talmud, Ketubot 59b. The medieval interpretation of these sources can be found in the codification of Maimonides, Mishneh Torah, Ishut 21, 16, discussed in the text accompanying supra nn. 66-67; and other major medieval codifications of Jewish law—Tur, Even Haezer 82; Shulchan Arukh, Even Haezer 82, 5. See also sources in the medieval responsa literature, such as Responsa of Rabbi Solomon ben Aderet (Rashba) 7, # 492 (Jerusalem 2001)Google Scholar.
83. See the medieval commentary to the rule in Babylonian Talmud, Ketubot 65b: Commentary of Rabbi Solomon Yitzhaki (Rashi), Ketubot 65b, s.v. Yotzeh beeruv imo; Commentary of Rabbi Yeshayahu di Trani (Tosafot Rid), Ketubot 65b, s.v. Yotzeh beeruv imo; Shitah Mekubetzet, Ketubot 65b, s.v. Lav Mishum.
84. See the laws concerning custody in the medieval Jewish codification of Maimonides: Mishneh Torah, Ishut 21, 17, discussed in the text accompanying supra n. 68. See also the policy of other prominent medieval scholars: Responsa of Rabbi Joseph Iben Migash # 71 (Jerusalem 1974)Google Scholar; Responsa of Rabbi Solomon ben Aderet (Rashba), Attributed to Nachmanides # 38 (Jerusalem 2001)Google Scholar; Responsa of Rabbi Asher ben Yechiel (Rosh) # 82, 2 (Jerusalem 1994)Google Scholar.
85. See Mishneh Torah, Ishut 21, 17. See also other medieval sources concerning the relationship between custody rules and the obligation of the father to educate his children: Otzar Hageonim, Ketubot, Responsa # 435 (Jerusalem 1939)Google Scholar; Responsa of Rabbi Asher Ben Yechiel (Rosh) # 82, 2 (Jerusalem 1994)Google Scholar. See also sources from the period of the Acharonim: Responsa of Rabbi Moses of Trani (Mabit) I, # 165 (Lemberg 1861)Google Scholar. This policy is especially evident in Jewish law literature of recent generations. See Responsa Yaskil Avdi 2, Even, Haezer # 9 (Jerusalem 1940)Google Scholar; 6, Even Haezer # 34 (Jerusalem 1966)Google Scholar; Responsa Tzitz Eliezer 15, # 50, # 51 (Jerusalem 1983)Google Scholar; PDR 1:55, 60; 2:298, 301; 7:10, 34.
86. The rationale of this law and of the rule of Rabbi Abraham ben David of Posquires, in his commentary to Mishneh Torah, Ishut 21, 17, is the enhancement of the spiritual best interest of the child. See also n. 105.
87. See the interpretation of the ancient rule—in Babylonian Talmud, Ketubot 102b-103a, supra n. 23-in medieval codifications of Jewish law: Mishneh Torah, Ishut 21, 17; Tur, Even Haezer 82; Shulchan Arukh, Even Haezer 82, 7.
88. See interpretation of the ancient rule—in Babylonian Talmud, Ketubot 102b-103a, in medieval codifications of Jewish law, id. See also the rationale of this rule in Responsa of Rabbi Joseph Iben Migash, supra n. 63; Responsa of Rabbi Solomon Ben Aderet, infra n. 103; Responsa of Rabbi Asher Ben Yehiel (Rosh), infra n. 104. See also the continuation of this medieval trend, of custody verdicts in the best interest of the child, in the responsa literature of the Acharonim: Responsa of Rabbi Samuel of Modena (Maharashdam), Choshen Mishpat # 308; Even Haezer # 123 (Lemberg 1862)Google Scholar; Responsa of Rabbi Moses of Trani (Mabit) 1, # 164Google Scholar; 2, # 62; (Lemberg 1861); Responsa of Rabbi Meir of Buton # 24 (Jerusalem 1983)Google Scholar; Responsa of Rabbi Moses Alsheikh # 38 (Bene Berak 1982)Google Scholar; Responsa Darkhey Noam, Even Haezer # 26, # 38, # 40 (Jerusalem 1970)Google Scholar; Responsa Yaskil Avdi 2, Even Haezer # 6 (Jerusalem 1940)Google Scholar; 6, Even Haezer # 30; # 32; # 33; # 34; # 35; # 39; # 75 (Jerusalem 1982); Responsa Tzitz Eliezer 15, # 50 (Jerusalem 1983)Google Scholar; Responsa Tzitz Eliezer 17, # 50 (Jerusalem 1990)Google Scholar; Responsa Teshuvot Vehanhabot # 783 (Jerusalem 1986)Google Scholar.
89. See in Responsa of Rabbi Joseph Iben Migash, supra n. 63; Responsa of Maimonides 2 # 367 (Jerusalem 1960)Google Scholar. See also a similar rationale in the responsa literature of Jewish scholars after the medieval period: Responsa of Rabbi Samuel of Modena (Maharashdam) Choshen Mishpat # 308 (Lemberg 1862)Google Scholar; Mishpetey Uziel, Even Haezer # 83, 6 (Jerusalem 1964)Google Scholar.
90. See Responsa of Rabbi Simon Ben Tzemach (Tashbetz) # 40 (Jerusalem 1998)Google Scholar. See also Hagahot Haremah, Even Haezer 82, 7; Beit Yosef, Even Haezer 82.
91. See Responsa of Maimonides 2, # 367 (Jerusalem 1960)Google Scholar.
92. See id.
93. Babylonian Talmud, Ketubot 65b, supra n.33-35, cites the statement of Rabbi Ulla the Great that the father must maintain his children when they are “very young.” According to the interpretation in the Babylonian Talmud, id., “very young” is a child before his or her seventh birthday.
94. This was the mother's interpretation of the enactment of the Sanhedrin, in Usha, mentioned in Babylonian Talmud, Ketubot 49b. See supra nn. 37-38.
95. See Babylonian Talmud, Ketubot 102b, supra nn. 23-24 and accompanying text. See also Geonic interpretation, supra nn. 48-59; medieval interpretation, supra nn. 78-88.
96. See supra nn. 19-20.
97. Maimonides followed the Geonic interpretation of the ruling of Rav Chisda in Babylonian Talmud, Ketubot 102b. See Responsa of Maimonides 2, # 367 (Jerusalem 1960), version A and version B. Compare to his responsa, id. at # 191.
98. See Responsa of Maimonides 2 # 367 (Jerusalem 1960)Google Scholar.
99. Id.
100. Id.
101. See Responsa of Rabbi Meir Halevi Abulafia #289 (Warsaw 1902).
102. Id.
103. See Responsa of Rabbi Solomon ben Aderet (Rashba), Attributed to Nachmanides # 38 (Jerusalem 2001)Google Scholar.
104. See Responsa of Rabbi Asher ben Yechiel (Rosh) # 82, 2 (Jerusalem 1994)Google Scholar, first case. See also a similar point of view, in the writings of this Rabbi, concerning custody of daughters at the home of their mother, Piskey Harosh, Ketubot ch. 12, 4.
105. See a similar policy concerning the custody of sons at the same tender age in the writings of Rabbi Abraham ben David of Posquires, supra n. 86.
106. See Responsa of Rabbi Asher ben Yechiel (Rosh) # 82, 2 (Jerusalem 1994)Google Scholar, second case.
107. See Responsa of Rabbi Meir of Padua # 53 (Krakow 1882)Google Scholar.
108. See Darkhey Mosheh, on Tur, Choshen Mishpat 82, [2]; Hagahot Harema, Even Haezer, 82, 7. See also the continuation of this clear statement of policy, in these sources, at the end of the period of the Rishonim, in the responsa literature of the Acharonim, after the medieval period. See Responsa of Rabbi David Ben Zimra (Radbaz) 1, # 123 (Jerusalem 1971)Google Scholar; Responsa of Rabbi Moses of Trani (Mabit) 2, # 62 (Lemberg 1621)Google Scholar; Hertzog, Rabbi I., Pesakim Uktavim, Even Haezer 7, # 91 (Jerusalem 1996)Google Scholar; Responsa Minchat Yitzhak 7, # 113 (Jerusalem 1980)Google Scholar; Responsa Tzitz Eliezer 15, # 51 (Jerusalem 1983)Google Scholar. See also this principle in the decisions of Rabbinical courts in Israel: PDR 1: 55, 59-60; 65, 75-76; 145-147; 11: 366-370; 13: 335-337.
109. See Babylonian Talmud, Ketubot 40b, and the medieval Commentary of Rabbi Solomon Yitzchaki, Ketubot 40b, s.v. Baey Masar Lah; Limnuval Umukeh Shechin.
110. See supra nn. 48-108 and accompanying text.
111. See Responsa of Rabbi Samuel of Modena (Maharashdam), Chosen Mishpat # 308 (Lemberg 1622)Google Scholar. In his legal conclusion in this responsum, Rabbi Samuel of Modena held that the major consideration regarding custody was the best interest of the child. Compare to the rationale in another responsum of this Jewish scholar: Responsa of Rabbi Samuel of Modena (Maharashdam), Even Haezer # 123 (Lemberg 1622)Google Scholar.
Rabbi Mordekhay Halevi held that Rabbi Samuel of Modena did not grant due weight to the general principle of the best interest of the child in custody cases. See Responsa Darkhey Noam, Even Haezer # 26 (Jerusalem 1970)Google Scholar. He accepted the basic point of view of Rabbi Samuel of Modena, that the ancient authority of the father concerning his children accords the father an advantage in certain custody cases. However, he stressed that this ruling is evaluated in each custody case in light of the paramount consideration: the best interest of the child. See id., at # 38, # 40. Halevi, Rabbi Mordekhay, Responsa Darkhey Noam, Even Haezer # 38Google Scholar, explained that the Biblical law granted authority to the father concerning his children. However, the sages in the era of the Talmud enacted laws, such as the rule that the mother should be the custodian of her daughters, in their best interest.
112. Israel Gilat, The Relations, supra n. 1, at 395, 399, 406-408, 427, 459, 471, 511, 522, 533 (granting significant weight to the point of view of one Jewish scholar in this period: Rabbi Samuel of Modena). However, this rabbi himself wrote in the legal conclusion of responsum 308 that the best interest of the child is an important consideration in custody cases. In addition, the point of view that grants due weight to the authority of the father in custody cases is not common in the period of the Acharonim.
113. See supra n. 108, and accompanying text.
114. See Beit Yosef, Even Haezer 82.
115. See Responsa of Rabbi Joseph Iben Lev 2, # 28 (Bene Berak 1988)Google Scholar.
116. See Responsa of Rabbi David ben Zimra (Radbaz) 1, # 123 (Jerusalem 1971)Google Scholar. See also id. at # 429 (noting the basic principle: that “all [cases of custody] are evaluated by the court, which is ‘the father of orphans.’”) Rabbi David ben Zimra, id., held that a daughter or son should be in the custody of their mother in appropriate circumstances, in their best interest, since they benefit from her care and love of the mother. Therefore, a daughter and a son of tender years benefit from the care and love of their mother and should be in her custody.
117. See Responsa of Rabbi Moses of Trani (Mabit) 2, # 62 (Lemberg 1621)Google Scholar.
118. See Responsa Divrey Rivot # 123; # 441 (Jerusalem 1970).
119. See Responsa of Rabbi David ben Zimra (Radbaz) 1, # 429 (Jerusalem 1971)Google Scholar.
120. See the outlook of Rabbi Abraham ben David of Posquires, supra n. 86.
121. In addition, due weight was accorded to the spiritual best interest of the child. See Responsa of Rabbi David Ben Zimra 1, # 263 (Jerusalem 1971)Google Scholar. In this case, the mother's inappropriate behavior was the basis of the verdict in favor of the father of a seven-year old daughter of a divorced couple. Especially in the period of the Acharonim, the spiritual best interest of the child became an important, and many times dominant, consideration in custody verdicts in Jewish law. Rabbi Yechezkel Segal Landa held that, due to his response to educational needs of his sons who are under six years of age, the father is their natural custodian, in their best interest. Only in these circumstances is he granted the right to be the custodian. See Responsa Noda Biyehudah, Tenyana # 89 (Jerusalem 1998)Google Scholar. In verdicts of the Dayanim in Rabbinical courts in Israel, these Jewish scholars stressed that the child should be raised by the parent who would provide the best education, in the child's best interest. They accorded due weight to the religious best interest of the child. Rabbi Meron explained that the Dayanim held that the child should be raised by the parent who would furnish the child with the best spiritual education, in his/her best interest. See Meron, S., Education as a Factor in Decisions of Rabbinical Courts in Custody Cases, 23 Torah Shebeal Peh 98 (5742-1981) (Hebrew)Google Scholar [hereinafter Meron, Education]. Concerning the spiritual best interest of the child in the medieval period, see also supra nn. 86, 105.
122. See PDR 1:61-62; Meron, Education, supra n. 121, at 95, 97-98; Schochetman, The Essence, supra n. 2, at 298. Rabbi Ovadya Hadayah, an influential Dayan during part of the twentieth century, stated clearly that a father cannot force his daughter, who should be in the custody of her mother in her best interest, to visit him by stopping maintenance payments. See Responsa Yaskil Avdi 6, Even Haezer # 31 (Jerusalem 1982).
123. See Osef Piskey Din Shel Harabanut Harashit Le'eretz Yisrael I, 8, 12–13Google Scholar; 28, 32, II, 6, 78 (Jerusalem 1985).
124. Rabbi Uziel also stated his policy concerning the best interest of the child in custody cases in his responsa, supra n. 51. Rabbi Hertzog also wrote that the best interest of the child is the “main consideration.” See Hertzog, I., Pesakim Uketavim, Even Haezer 7 # 91 (Jerusalem 1996)Google Scholar. See also the policy of Rabbi Hertzog in another responsum: id. # 99. Some Dayanim in Rabbinical Courts also have stated that the best interest of the child is the main consideration in custody cases. See PDR 13: 335, 338.
125. See Responsa Tzitz Eliezer 17 # 50 (Jerusalem 1990)Google Scholar.
126. Id.
127. Id.
128. Id.
129. See Winter v. Beeri, 15 P.D. 1457, 1485 = Responsa Ezer Mishpat # 28, p. 342 (Jerusalem 1994)Google Scholar. See also PDR 1: 145, 157.
130. Winter v. Beeri, 15 P.D. 1457, 1485 = Responsa Ezer Mishpat # 28, p. 342 (Jerusalem 1994)Google Scholar. Concerning the best interest of the child as a paramount consideration in custody cases, see also PDR 1:55, 59-60; 65; 75-76; 145-147; PDR 3: 353, 358; PDR 11: 366, 368-369; PDR 13:335-337; Steiner v. Atty. Gen., 9 P.D. 241, 251-252; Deri v. Head of Execution by Ct. Officer, Jerusalem, 9 P.D. 1938, 1943-1944. In addition, some scholars have also held that parents have only obligations and no rights concerning their children. See Kister, Y., Rights of Parents Concerning Their Children in Jewish Law and Law of Other Nations 6–7 (Ramat Gan 1944) (Hebrew)Google Scholar. However, see the contrary point of view of the Dayan Joseph Kapach, in Nagar v. Nagar, 38(1) P.D. 365, 412 (concerning the relationship between obligations and rights of parents and the significance of the principle of the best interest of the child in Jewish law).
131. See PDR 2: 298-303; PDR 4: 66, 74.
132. See Nir v. Nir, 35(1) P.D. 518, 523.
133. See id. at 523.
134. In recent generations, religious education and the religious lifestyle at home are very important considerations in custody verdicts of Jewish legal scholars and Rabbinical courts in Israel. The role of each parent in education of the children is an important factor in custody verdicts of Rabbinical courts. See Meron, Education, supra n. 121, at 100-101. However, there is also a new trend in Rabbinical courts in Israel, which takes into consideration the new role of the mother and the school system in the education of sons. See Responsa Yaskil Avdi 6, Even Haezer # 30, # 32 (Jerusalem 1982); Responsa Tzitz Eliezer 15, # 50 (Jerusalem 1983)Google Scholar; Responsa Teshuvot Vehanhagot # 783 (Jerusalem 1986)Google Scholar; Osef Piskey Din Shel Harabanut Harashit Le'eretz Yisrael I, 8, 12Google Scholar; PDR 7: 10, 17, 34; 13: 335-336.
135. See PDR 11: 153, 156, 157, 161, 171; Shochetman, The Essence, supra n. 2, at 319-320. The Rabbinical Courts in Israel implement the policy of the Israeli Chief Rabbinate, which directed these courts to rule in light of the opinion of professional experts in custody cases. See Winter v. Beeri, supra n. 129, at 1457, 1459 = Responsa Ezer Mishpat # 28, p. 342 (Jerusalem 1994)Google Scholar. The Dayan Goldschmidt explained in the Winter case, id., that the legal basis of this procedure in custody disputes is the legal obligation of a Jewish court to find out what is the best interest of the child since the court is “the father of orphans.” However, the scholar Broyde held: “there are two implicit basic theories used in Jewish law to analyze child custody matters.” Broyde, Michael J., Child Custody in Jewish Law: A Pure Law Analysis, in Jewish Law Association Studies VII: The Paris Conference vol. 1, 20 (1994)Google Scholar. One of these theories grants parents certain “rights” regarding their children while also considering the interests of the child, while the other theory focuses nearly exclusively on the best interests of the child. However, with all due respect, in the modern period the best interest of the child is the paramount consideration in the vast majority of custody cases.
136. See Naiman v. Chairman, Elections Comm. 39 (2) P.D. 225. In this case, the Supreme Court of Israel ruled concerning the decision of The Central Elections Committee in Israel. It had disqualified two parties-“Progressive List for Peace” and “Kach”-from competing in the elections in Israel. The second was disqualified on the grounds that its platform advocated the undermining of the democratic system of the country. Under the law as it was then, the court and a fortiori the Elections Committee could not disqualify a political party from competing in an election on such grounds. The Supreme Court suggested that the Israeli legislatore should enact legislation explicitly granting such power, clearly specifying the conditions for such disqualification. The principles that such legislation should seek to protect include respect for human dignity and equality, and freedom from governmental discrimination against ethnic and religious minorities. The "Kach" party claimed it attempted to promote Jewish traditional values in the State of Israel. However, its leaders' interpretation of these values was controversial: it suggested that members of minority groups in Israel would not be treated in the spirit of equality and human dignity of Western democratic countries. Supreme Court Justice Menachem Elon used the writings of Rabbi Abraham ha-Kohen Kook as one of the significant Jewish sources of inspiration in his verdict in this case.
137. In the Naiman Case, Justice Elon also focused on the vision of the prophets:
The prophets of Israel and their prophecies have been and still are the prototype for sharp and uncompromising criticism of governments that abuse their power, and of individuals or communities that act corruptly. The prophets raised a cry against injustice towards the poor, oppression of widows, deprivation of individual and social rights, and deviations from both the letter and the spirit of the Torah and the Halakhah [principles of Jewish law]. The steadfastness of the prophets of Israel in the face of fierce and angry opposition is a source of never-failing inspiration for the present-day. Id. at 296.
138. Abraham Isaac ha-Kohen Kook, Middot ha-Ra’iyah, Ahavah, sees. 5, 10, in Musar Avikha u-Middot ha-Ra’iyah 94, 96 (Jerusalem 1971)Google Scholar [hereinafter Kook, Ahavah].
139. Id. This approach reflects the integration of the Jewish heritage with “natural ethics.” See Elon, Menachem, Jewish Law-History, Sources, Principles vol. 4, 1853 (Jerusalem Jewish Publication Socy. 1994)Google Scholar.
140. Rabbi Kook stressed that “inner love from the depth of one's heart and soul-love for each individual separately” is essential. Kook, Ahavah, supra n. 138, at 94. See also Naiman v. Chairman, Elections Comm., supra n. 136, at 315, 318, 324.
141. See Nir v. Nir, 35(1) P.D. 518, 523.