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Published online by Cambridge University Press: 12 February 2016
The purpose of this essay is to give an aperçu of the varying approaches for the disposition of child custody cases developed by American law during the past thirty years and the Rabbinical Courts of Israel (hereinafter referred to as the Beth Din), a contemporary repository of the sources of Jewish law. The study that follows is not to be read as “a history of child custody” in the sense of tracing this legal topic as it might have developed over the course of time.
Though there will be occasion to allude to the relevant principles of American law and principles of Jewish law, it is the jurisprudential perspective rather than the substantive content which is the primary theme.
I. 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.
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.
1 This study is based upon the published decisions of the Rabbinical Courts of Israel (Piskei Din Rabbani—hereafter cited as PDR) Volumes 1 through 9.
2 For a comprehensive examination, see Foster, and Freed, , “Child Custody” (1964) 39 N.Y.U.L.R. 423Google Scholar; Foster, and Freed, , eds., Current Developments in Child Custody (Law Journal Seminars—Press, N.Y., 1978)Google Scholar. For a suggested bibliography of secondary sources, see Foster, , A Bill of Rights for Children (Illinois, 1974).Google Scholar
3 See Schereschewsky, , Dinei Mishpachah (Jerusalem, 1971, in Hebrew) 376–384Google Scholar; Shochetman, , “The Essence of the Principles Governing the Custory of Children in Jewish Law” in Elon, , ed., Sh'naton Ha-Mishpat Ha-Ivri vol. 5, pp. 285–320.Google Scholar
4 See Pound, , “Individual Interests Involved in Domestic Relations” (1916) 14 Mich. L.R. 177.CrossRefGoogle Scholar
5 For the historical antecedents of this doctrine in early common law, see Blackstone, , Commentaries on the Laws of England vol. 1, p. 453Google Scholar; Pollock, and Maitland, , History of English Law (2nd ed., 1899) 318Google Scholar; Hocheimer, , Custody of Infants (1899)Google Scholar. This doctrine has been frequently invoked during the 1940's and 1950's in the California Federal Courts. See e.g., In re Hampston'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 jurisdictions continued to invoke this doctrine despite bitter dissenting opinions. See e.g., Raymond v. Cotner 175 Neb. 158, 120 N.W. 2d 892 (1963); In the Mathers 371 Mich. 516, 124 N.W. 2d 878 (1963); In the matter of Jewish Child Care Assn. v. Sanders 5 N.Y. 2d 222, 156 N.E. 2d 200 (1959).
6 Stubblefield v. State 171 Tenn. 580, 106 S.W. 2d 558 (1937); Jones v. Darnall 103 Ind. 569, 2 N.E. 229 (1885).
7 Duffy v. Dixon 209 Ark. 964, 193 S.W. 2d 314 (1946); Everett v. Barry 127 Colo. 34, 251 P. 2d 826 (1953).
8 Yancey v. Watson 217 Ga. 215, 121 S.E. 2d 772 (1961); Pickett v. Farrow 340 S.W. 2d 462 (Ky., 1960).
9 Newby v. Newby 55 Cal. App. 114, 116, 202 Pac. 891, 892 (1921); Stout v. Stout 166 Kan. 459, 464, 201 2d 637, 641 (1949); Ross v. Pick 199 Md. 341, 86 A. 2d 463 (1952); Smith v. Jones 275 Ala. 148, 153 So. 2d 226 (1963) and see Comment, (1945) 33 Cal. L.R. 306, 310.
10 For an analysis of these factors, see Simpson, , “The Unfit Parent” (1962) 39 U. Detroit L.J. 347Google Scholar; Oster, , “Custody Proceedings: A Study of Vague and Indefinite Standards” (1965) 5 J. Family L. 21.Google Scholar
11 This doctrine is an old Equity concept by which the state exercised its sovereign power of guardianship over persons under physical or mental disability, including children. See discussion in Note, “A Fit Parent May be Deprived of Custody of his Child if the Best Interest and Welfare of the Child Would be Served by Allowing Another Person to Raise Him” (1966) 4 Houston L.R. 131, and Foster, A Bill of Rights for Children, supra n. 2.
12 See e.g., United States v. Green 26 Fed. Cas. 30 (No. 15256); Chapsky v. Wood 26 Kansas 650 (1881); Finlay v. Finlay 240 N.Y. 429, 148 N.E. 624 (1925).
13 See e.g., Lacher 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).
14 See e.g., Idaho Code, See. 16–1638 (Supp. 1975); Minnesota State Ann. 260, 191 (1971); Ohio Rev. Code Ann. Sec. 3107.06(b). See Foster, , “Adoption and Child Custody: Best Interest of the Child?” (1972) 22 Buffalo L.R. 1.Google Scholar
15 See e.g., Chapsky v. Wood, supra n. 12; Alston v. Thomas 161 Md. 617, 158 Atl. 24 (1932); In re Bistany 239 N.Y. 19, 145 N.E. 70 App. Div. (1924); In re White 54 Cal. App. 2d 637, 129 P 2d 706 (1942). Although the relative financial conditions of the contesting parties is not usually determinative of the right to custody, the father's inability to provide the minimum needs for the child's well-being could be a significant factor in awarding custody to a third party. See e.g., 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); Oster, supra n. 10 at 35–36.
16 See Johnstone, , “Child Custody” (1952) 1 Kansas L.R. 37, 42, 47Google Scholar; Clark, , Law of Domestic Relations (St. Paul, West, 1968) 592.Google Scholar
17 See Brown v. Dewitt 320 Mich. 156, 30 N.W. 2d 818 (1948); Ross v. Pick 199 Md. 341, 86 A. 2d 463 (1952); In re Custody of Hampton J. Adams Co. 84 Pa. Ct. C.P. (1963).
18 See Guardianship of Smith 42 Cal. 2d 91, 94, 265 P. 2d 888, 891 (1954); Application of Vallimont 182 Kansas 334, 321 P. 2d 190 (1958); Giacopelli v. Florence Cr. Herden Home 16 111. 2d 556, 158 N.E. 2d 613 (1959).
19 See supra n. 16. Also, see 42 Am. Jur. 2d, Infants, Sees. 53–54.
20 See Madden, , Person and Domestic Relations (St. Paul, West, 1931) 369–372Google Scholar; Clark, op. cit. supra n. 16, at 584–585. See e.g., Spratt v. S prati 151 Minn. 458, 464, 187 N.W. 227, 229 (1921); Boon v. Boon 80 U.S. App. D.C. 152, 150 F. 2d 153 (1945); Hild v. Hild 221 Md. 349, 157 A. 2d 442 (1960).
21 See Drinan, , “The Rights of Children in Modern American Family Law” (1962) 2 J. Family L. 101, 102.Google Scholar For a recent discussion, see Roth, , “The Tender Years Presumption in Child Custody Disputes” (1977) 15 J. Family L. 423.Google Scholar At 423–434, he collects cases from some 37 states adopting this presumption, often despite the existence of “equalization” acts passed by the various state legislatures.
22 See cases cited by Foster and Freed, “Child Custody”, cit., supra n. 2, at 423, 436 ff.
23 See, e.g., Spitz, , Hospitalism, an Inquiry into the Genesis of Psychiatric Conditions in Early Childhood: The Psychoanalytic Study of the Child (N.Y., 1945) Vol. 1Google Scholar; Erikson, , Childhood and Society (2nd ed., 1963)Google Scholar; Bradbrook, , “The Relevance of Psychological and Psychiatric Studies to the Future Development of the Laws Governing the Settlement of Interparental Child Custody Disputes” (1971) 11 J. Family L. 557.Google Scholar
24 See e.g., Yarrow, , “Material Deprivation: Toward an Empirical and Conceptual Reevaluation” (1961) 58 Psychological Bull. 459, 475–479CrossRefGoogle Scholar; Levine, , Who Will Raise the Children? New Options for Fathers (and Mothers) (1977).Google Scholar
25 See Bowlby, , Child Care and the Growth of Love (1973)Google Scholar; Patton, and Gardner, , Growth, Failure and Maternal Deprivation (1963) 81–84Google Scholar; Watson, , “The Children of Armageddon: Problem of Custody Following Divorce” (1969) 21 Syracuse L.R. 55.Google Scholar
26 See supra n. 17 and Foster and Freed, supra n. 22.
27 See e.g., Bonilla v. Bonilla 335 S.W. 2d 572 (Ky., 1960); Thompson v. Thompson 352 P 2d 179 (Wash. 1960); Halstead v. Halstead 144 N.W. 2d 861 (Iowa, 1966); In re Application of Carlson 181 Neb. 877, 152 N.W. 2d 98 (1969).
28 Foster, supra n. 2 at 16. For an earlier discussion, see Note, “Alternatives to ‘Parental Right’ in Child Custody Disputes Involving Third Parties” (1963) 73 Yale LJ. 151.
29 75 SD 127, 59 N.W. 2d 825 (1913). See also Re Estate and Guardianship of Turk 194 Cal. App. 2d 736, 15 Cal. Rptr. 256 (1961); Stafford v. Goode 193 Kan. 120, 392 P 2d 140 (1964); Pace v. Barrett 205 So. 2d 647 (Miss., 1968).
30 See e.g., In re Guardianship of Peterson 119 Neb. 511, 516, 229 N.W. 885, 887 (1930); Ridgeway v. Cels 214 N.E. 2d 31 (Mass., 1966); Kewish v. Brothers Alabama 181 So. 2d 900 (1966); People ex. rei. Scarpetta v. Spence-Chapin Adoption Serv. 28 N.Y. 2d 185, 269 N.E. 2d 787, 321, N.Y.S. 2d 65 (1971). Where both parents were deemed unfit and custody was awarded to grandparents, see Kees v. Fallen 207 So. 2d 92 (Miss., 1968); In re Craigo 266 N.E. 92, 145 S.E. 2d 376 (1965) and State ex. rel. Obrecht v. Obrecht 256 S.W. 2d 955 (Tex. Civ. App., 1953).
31 50 Ill. App. 3d 306; see also Clark v. Greening 197 Okla. 277, 170 P 2d 223 (1946); People ex rel. Hermann v. Jenkins 34 Ill. App. 255, 180 N.E. 2d 359 (1962); People ex rel. Pace v. Wood 50 Ill. App. 2d 63, 200 N.E. 2d 125 (1964).
32 Bishop, , Marriage and Divorce (6th ed., 1881) sec. 557Google Scholar; Schouler, , Marriage, Divorce and Separation and Domestic Relations (6th ed., 1921) sec. 752.Google Scholar
33 See cases cited in Note, (1928) 42 Harv. L.R. 112. Certain jurisdictions have only exempted the father from child support if the mother was a faulty spouse. Notwithstanding these cases, courts have affirmed children's rights and have properly distinguished between alimony where fault is a relevant factor and child support where fault is irrelevant. See Clark, op. cit., supra n. 16, at 490. In recent years, the duty of child support has been determined independently of any formula of reciprocity 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, loc. cit., n. 16, at 400, n. 26.
34 Though 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 Annual Survey of Law (N.Y.U., 1976) vol. 51, p. 378. Freed and Foster, (1977) 3 Fam. L. Rep. 4052; Weitzman, , “Recent Developments in Child Support Cases” (January, 1978) 179 N.Y.L.J. no. 1.Google Scholar
35 See Schereschewsky, op. cit. supra n. 3, at 363–367.
36 See Ashkenazi, R. Bezalel (16th cent.), Shittah Mekubbezet, Ketubboth 65bGoogle Scholar; R. Asher b. Yechiel (1250–1327), Rosh, Ketubboth, chapter 4; R. Meir b. Baruch (1220–1281), Maharam of Rothenburg, Responsum No. 244 (Berlin); R. Solomon b. Yechiel Luria (1510–1574), Maharshal, Yam Shel Shelomo, Ketubboth, chapter 4; R. Ben Zion Uzzi'el (20th cent.), Mishpetei Uzzi'el, Even ha-Ezer, section 4; for additional sources see Schereschewsky, op. cit.; see PDR 5: 292, 304, 305; PDR 7: 136, 152. A different opinion, and apparently supported by some authorities, was expressed by the Ran, who is of the opinion that the father's obligation to maintain his child stems from his obligation to maintain his wife. See R. Nissim b. Reuben (14th cent.), Ran on Alfas Ketubboth, chapter 5; Melechet Shelomo Ketubboth 4:6; R. Moshe Feinstein (20th cent.), Igroth Moshe, Even ha-Ezer, Responsum No. 106; for additional sources see Schereschewsky, op. cit., supra n. 3 at 366, n. 19; PDR 7: 136, 143, 145. Nevertheless, certain authorities maintain that the Ran did not present his approach as a guide for arriving at practical decisions. See R. Judah Rozannes (17th cent.), Mishneh le-Melekh, Mishneh Torah (hereafter cited as M.T.) Ishut 12:14; R. Meir b. Gedaliah (16th cent.), Maharam of Lublin, Responsum No. 79; R. Aryeh Leib HaKohen (18th cent.), Avnei Millu'im, Even ha-Ezer, Responsum No. 61. For varying interpretations to reconcile the seemingly conflicting statements of Maimonides (1135–1204), (see M.T. Ishut 12:14, 19:12, 19:14, 21:17), regarding this issue, see R. Shimeon b. Zemach (15th cent.), Tashbez 2:138; Avnei Millu'im, op. cit.; Mishpetei Uzzi'el 83:2; PDR 7:136, 144, 145. For a third approach towards defining the paternal obligation of child support, see PDR 2:65, 90, 91, 92.
37 See R. Joseph Caro (1488–1575), Shulhan Arukh, Even ha-Ezer 82:7 and commentaries, lac. cit., Shulkhan Arukh, Even ha-Ezer 61:1, 4; R. Solomon b. Shimeon (15th cent.), Rashbash, Responsum No. 168; PDR 2:65, 91. Adopting the approach of the Ran, supra n. 36, the father's obligation to support his child ceases to exist upon the death or divorce of his wife. Compare PDR 5:333, 335 with PDR 7:136, 145, 146.
38 See PDR 1:145, 154; PDR 7:136, 144, 146, 152; For additional sources, see Freiman (1943/44) 14 Sinai 254. For a differing rationale for this rule, see Igroth Moshe, op. cit., supra n. 36.
39 PDR 1:55, 61, 62; 161, 163; PDR 7:10, 34.
40 See PDR 1:55, 61; 147, 159.
41 See PDR 2:298, 303; PDR 7:10, 21, 22.
42 There is however one situation where the principle of custody is the determining factor upon the parental obligation of child support. In numerous decisions, the Beth Din authoritatively cites Maimonides’ view (see M.T. Ishut 21:18) that if a 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. Nevertheless, the Beth Din had concluded that if the best interests of the son dictate that he remain with his mother, under such circumstances, the father will remain obligated to support his son. See PDR 1:55, 61, 62; 161, 163; PDR 7:10, 34. Second, conversely, the ability to maintain the child can affect the custody of the child. The inability to provide the minimum support for the child's well-being can be a determining factor in transferring the child to another person despite the fact that the rule of custody dictates that the child remain with the present custodian. See Ozar ha-Geonim, Ketubboth 102B, pp. 359–360 and ensuing discussion in PDR 7:10, 19.
43 The recognition of the operation of the principle of reciprocity in this rule was provided by Rabbi Yochanan, a Talmudic sage, and post-Talmudic authorities ascribed to his position. See Talmud Bauli, Bava Metzia 12 A-B; Talmud Yerushalmi, Ketubboth 6:1; Tosafot, (12th and 13th cent, novellae on the Babylonian Talmud) Bava Metzia 12B; Shulhan Arukh, Hoshen Mishpat 270:2. For another explanation, see Samuel's view in Talmud Bavli, Bava Metzia, op. cit.
44 Whereas the finds of a daughter belong to the father even if the daughter is not dependent on him. See sources cited in supra n. 43 and Talmud Bavli, Ketubboth 46B. For the various interpretations of this rule, see R. Solomon b. Isaac (1040–1105), Rashi, Ketubboth 47A; Rashi, Bava Metzia 12A; Tosafot, Ketubboth 47B; Tosafot Bava Kama 87B and others.
45 Mishneh Ma'aser Sheni 4:4, Mishneh Eruvin 7:6.
46 See Tosafot, Eruvin 79B; Tosafot, Gittin 64B; Tosafot, Bava Metzia 12B. For a contrasting view, see Shittah Mekubbezet, Bava Metzia 12B. For a discussion of both views, see Shulhan Arukh, Orah Hayyim 366:10 and commentaries, loc. cit.; Shulhan Arukh, Hoshen Mishpat 270:2 and commentaries, loc. cit.
47 See PDR 3:329, 331, 332.
48 See Tosefta, Bava Kamma 9:8–10 and ensuing discussion in Talmud Bauli, Bava Kamma 87A–B. Though a father, in Jewish law, possessed no right to sell his son (see R. Moshe Sofer (1762–1839) Chatam Sofer, Hoshen Muhpat, Responsum No. Ill), a poverty-stricken father could deliver his daughter into bondage. Whereas a slave is the personal property of its master, the daughter as a bondswoman was a legal person capable of rights and obligations bound by law to render service to another. See Horowitz-Rabin, , ed., Mekhilta de-R. Yishmael 247Google Scholar; Sijra on VaYikra 25:43; Talmud Bavli, Kiddushin 20A. Moreover, the father could only sell her to a person with whom or with whose son a marriage could be consummated. Though according to certain authorities, this union did not require the daughter's consent, the master or son did not own her; on the contrary, the standards of a monogamous relationship were applicable, and legally speaking, she was entitled to all the rights of every married woman. See Maimonides, , M.T. Avadim 4:8Google Scholar; R. Joseph Caro (1488–1575), Kesef Mishneh, loc. cit.; Tosafot, Kiddushin 5A; Horowitz-Rabin, , ed., Mekhilta de-R. Yishmael, 258Google Scholar; Talmud Bavli, Kiddushin 18A. This institution did not exist after 70 G.E. and possibly was suspended as early as the Second Commonwealth. For a legal and historical discussion, see Cohen, , Roman and Jewish Law (1966) 159–278, 772–777Google Scholar; Elon, , Herut ha-Perat be-Darkhei Geviyat Hov ba-Mishpat ha-Ivri (1964) 1–17Google Scholar; Urbach, , “The Laws Regarding Slavery as a Source for the Social History of the Period of the Second Temple, the Mishnah and Talmud” (1960) 25 Zion 141.Google Scholar
49 A father's right to give his daughter (until she attains the age of 12½ years) in marriage does not reflect the notion of patria potestas. A primary consideration, uppermost in the minds of authorities which dictated the legal sanction of child marriages was the protection of the young against child abuse, particularly the desire to protect the chastity of young girls. See sources discussed in: Freimann, , Seder Kiddushin ve-Nissuim (1945) 12–14, 138–139, 214–215Google Scholar; Agus, , The Heroic Age of Franco-German Jewry (1969) 281–284Google Scholar; Katz, , “Marriage and Sexual Life among Jews at the Close of the Middle Ages” (1945) 10 Zion 21, 24.Google Scholar Consequently, many authorities maintain that in cases where the father is away in a distant place, the mother and brother of the daughter are empowered to give her away in marriage. Yet some scholars opposed such a position in principle or on the grounds that there is the possibility that the father may give her in marriage to some other man in the place where he resides. See Ozar ha-Geonim Kiddushin 46A, p. 123; Tosafot, Kiddushin 45B–46A; Caro, R. Joseph, Beit Yosef, on Tur, Even ha-Ezer 37.Google Scholar
50 See Elon, supra n. 48. For further discussion of parental duties and rights in Jewish law, see Kister, “Zechut Horim BeYeladim BeMishpat Ivri” in Barth Memorial Volume (Tel Aviv). For a general discussion of the legal and historical sources regarding the unlimited authority of the father in Roman law, see Westerman, , The Slave Systems of Greek and Roman Antiquity, Memoirs of the American Philosophical Society, (Philadelphia, 1955) vol. 40Google Scholar; Rabello, , “Patria Potestas in Roman and Jewish Law” (1974) 5 Linei Israel 85.Google Scholar
51 Maharashdam, Even ha-Ezer, Responsum No. 123; PDR 1:65, 75; 145, 157; PDR 3:353, 358.
52 See PDR 1:145, 147 and cases cited supra n. 51.
53 See e.g., Elon, , Ha-Mishpat Ivri (1973) 171–180Google Scholar; Silberg, , Kakh Darko shel Talmud (1961) 66–96Google Scholar; Urbach, , Hazal: Pirkei Emunot ve-Deot (1969) 254–347.Google Scholar Whether Jewish law recognizes a legal category of rights is an interesting question and is beyond the scope of this essay.
54 See Herzog, , The Main Institutions of Jewish Law (1936) vol. 1, p. 46.Google Scholar Nevertheless, according to Jewish law, certain duties may not be correlated with a corresponding right. The duty of tsedaka (charity) for example, may require one to give to one or a large number of recipients (based on a system of priorities laid down by Jewish law) not one of whom can claim the contribution as his right. See PDR 1:145, 154, 155.
55 See Dworkin, , Taking Rights Seriously (Cambridge, 1977) 171.Google Scholar
56 Cautioning jurists to retain the proper perspective in right-based systems, the late Justice Holmes writes: “The duty to keep a contract at common law means a prediction that you must pay damages, if you do not keep it … But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can…” (Holmes, “The Path of the Law” (1897) 10 Harv. L.R. 457). For further discussion of Holmes’ view see White, , Social Thought in America (Beacon Press, 1957) 65–75Google Scholar and Hart, , “Holmes’ Positivism: An Addendum” (1951) 64 Harv. L.R. 929.CrossRefGoogle Scholar
57 A similar idea was expressed by Prof. Elon and the late Prof. Silberg who wrote that since “peria'th bal hov mitzva” (i.e., to pay one's personal debt is a religious duty), the creditor receives his money almost “incidentally” or as a “secondary result” of the performance of the debtor's duty. See Silberg, op. cit., supra n. 53, at pp. 72–73; Elon, supra n. 48, at p. 20, n. 44.
58 The treatment of codes of conduct as instrumental is most plainly exemplified in America's right-based system which traces its ideological origins to the classical liberal utilitarian morality of John Stuart Mill and the possessive individualism of Thomas Hobbes and receives its classical legal expression in Austinian jurisprudence. See Tocqueville, Alexis de, Democracy in America (N.Y., 1945) vol. 1, p. 254Google Scholar; Mill, , On Liberty (N.Y., 1956) 99–100Google Scholar; Mill, , Utilitarianism (N.Y., 1910) 55Google Scholar; Macpherson, , The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, England, 1962)Google Scholar; Austin, , Lectures on Jurisprudence (1879).Google Scholar Since the essence of a right-based system is the maintenance of a balance of social interests, it is held together by a pervasive bond of reciprocity. In other words, in a right-based system there exists a concept of duty, but totally different from the concept of duty in a duty-based system. Insofar as one generally benefits from the fact that others refrain from undermining the system on the expectation that your fellow-citizen will also refrain, there exists a duty to obey the law, i.e., reciprocal duty. See Austin, , The Province of Jurisprudence Determined (N.Y., 1954) 186Google Scholar; Kelsen, , General Theory of Law and State (Russell and Russell, N.Y., 1961) 3.Google Scholar For a critique of this traditional positivist account of the nature of law and for a presentation of law in a right-based system in terms of its intrinsic value, see for example, the writings of Lon Fuller: The Law in Quest of Itself (1940); The Morality of Law (rev. ed., 1969). Also Fried, An Anatomy of Values (Cambridge, Mass., 1970). This distinction has its implications for the contemporary philosophical issue regarding “the enforcement of morals” in modern liberal society. Among the key sources on this topic are: Hart, , Law, Liberty and Morality (Stanford, Calif., 1963)Google Scholar; Devlin, , The Enforcement of Morals (London, Oxford U. R, 1965).Google Scholar
59 PDR 1:145, 158. Though according to Jewish law, a son below the age of six and a daughter regardless of her age, are to remain with their mother; nevertheless, since the parental duty of care is imposed upon the father, a mother may decline to accept custody of her child. See Schereschewsky, op. cit., supra n. 3, at 380, n. 17; PDR 1:145, 158. Though Jewish law plainly exemplifies a legal system characterized by a “morality of aspiration” (see Fuller, , The Morality of Law (New Haven, 1969) 19 ff.)Google Scholar; nevertheless, it lays down prescriptive rules for social living. Jewish law is an example of a legal system which begins at the bottom with prescriptive rules and extends upwards towards the loftiest strivings of human excellence. See e.g., Lichtenstein, , “Does Jewish Tradition Recognize an Ethic Independent of Halakha” in Fox., , ed., Modern Jewish Ethics: Theory and Practice (Ohio State U. P., 1975).Google Scholar Nevertheless, in contrast to a right-based positivist system, Jewish law views these prescriptive rules in terms of their intrinsic value rather than their instrumental value.
60 The father on the grounds of his legal standing as a natural guardian and the mother by virtue of appointment by the Beth Din or by virtue of living with her child. See Rosh, Responsa 82:2, 87:4, 96:2; R. Solomon b. Abraham Adret (1235–1310) Rashba, Responsa, vol. 2, no. 49; Shulhan Arukh, Hoshen Mishpat 285:8, 290:1.
61 See Schereschewsky op. cit. at 377, n. 4.
62 See Maimonides, , M.T., Ishut 21:17Google Scholar; Vidal, R. Yom Tov (14th cent.), Maggia Mishneh, ad. loc; Shulhan Arukh, Even ha-Ezer 82:7Google Scholar; Volk, R. JoshuaKatz, b. Alexander (16th cent.), Derishah, Tur, Even ha-Ezer 82:2.Google Scholar
63 See Schereschewsky, op. cit. at p. 377, n. 5.
64 See Maharashdam, Even ha-Ezer 123; R. Moshe, Joseph, b., Mabit 1:165Google Scholar; PDR 2:298, 301, 302. For a dissenting view, see Chaim, R.Benevistes, b. Israel (17th cent.), Knesset ha-Gedolah, Tur, Even ha-Ezer 82:33.Google Scholar
65 See Schereschewsky, op. cit., at 377–378. This rule applies even if the mother is caring for other children or is earning a living and consequently, she will be unable to remain at home during the daytime. See R. Samuel b. Moshe (16th cent.), Mishpetei Shmu'el, Responsum No. 80; PDR 1:113, 118.
66 Whereas in a right-based system, the individual is asserting his right, in Jewish law the plaintiff is actually asserting the right of God by coercing the other individual to fulfil his religious duty.
67 See PDR 4:93, 95. For earlier discussions, see R. Solomon b. Abraham Adret (1235–1310), Teshuvot ha-Rashba ha-Meyuhasot le ha-Rambam 38; Mishpetei Shmu'el, op. cit.
68 See Maharashdam, Even ha-Ezer 308.
69 Based upon R. Judah b. Asher (14th cent.) Zikhron Yehudah, Responsum No. 33 and R. Yom Tov b. Abraham (14th cent.), Ritba cited by Beit Yosef, Tur, Hoshen Mishpat 290, the rabbinical courts have found authoritative basis for removing a child from his father's home. See PDR 2:162, 170, 171; PDR 4:97, 108. Though both responsa establish the validity of a Beth Din's intervention on behalf of a child whose father is found to be incapable of administering the property of minors, an explicit statement of the court's role in custody cases can be found in the Rosh, Responsum 82:2. According to a minority opinion (see Maharashdam, Hoshen Mishpat 308), a Talmudic dictum (see Talmud Bauli, Bava Kamma 87b) and a legal responsum (Rosh 87:1) invalidate a Beth Din's intervention on behalf of minors in their father's presence. For another interpretation of these sources and a critique of the Maharashdam's view, see Mishpetei Shmu'el, op. cit., and R. Mordechai b. Judah Halevi (17th cent.), Darkhei No'am, Responsum No. 26. For a resolution of the seemingly contradictory decisions of the Rosh (82:2 and 87:1), see Maharashdam, ad loc.
70 See PDR 4:93, 95; PDR 7:3, 8.
71 This method, characteristic of Talmudic logic, rests on two assumptions: (1) every authoritative text is written with care and precision; and (2) the thought of the authoritative writer is internally consistent.
72 See Wolfson, , Crescas’ Critique of Aristotle (Cambridge, Mass., 1929), 24–25.Google Scholar
73 See e.g., PDR 1:55; 1:145; PDR 2:298; PDR 7:3; 7:10.
74 See PDR 3:353, 360.
75 See e.g., PDR 1:55, 61; 1:145, 157.
76 The terms, rules and principles in jurisprudential thought tend to be used in different ways and consequently the distinction between them has to be drawn at different places. I shall make use of the terms in such a way that principles are more general and pervasive than rules. The distinction between rules and principles is, on analysis, one of degree, since there is no hard and fast line between acts which are specific and those which are unspecific. Consequently, there will be borderline cases where it will be difficult to classify an act either as a rule or a principle. The usage of these terms has respectable precedents in American jurisprudential thought. See Pound, , An Introduction to the Philosophy of Law (New Haven, 1922) 116Google Scholar; Dickinson, , Administrative Justice and the Supremacy of Law (Cambridge, 1927) 128ff.Google Scholar; Dworkin, op. cit., supra n. 55, at 14–80.
77 To prevent an otherwise likely misunderstanding, let me note from the outset that the model of decision-making process which is offered here is to be understood as an attempt to reflect the custody decisions of the Israeli Rabbinical Courts. Whether this model is applicable to custody cases adjudicated by other post-Talmudic authorities or reflects the normative structure of other branches of Jewish law where the dayyan acts in a legislative capacity is beyond the scope of this essay.
78 PDR 1:55, 61; 65, 75; 173, 178; PDR 2:3, 8; PDR 3:353, 358; PDR 4:66, 74; 4:332, 334.
79 Though the principle is operative in the responsa of the Gaonic period (see Ozar HaGeonim, Ketubboth 102b, pp. 359–360), its precise formulation is given a few hundred years later. See Teshuvoth HaRashba HaMeyuhasot le HaRamban 38. Also, the Talmudic statements that “a child of the age of six may go out by the eruv of his mother” (see Talmud Bavli, Eruvin 82a) and the legislative enactment that children should enter school at the age of six or seven (see Talmud Bauli, Bava Batra 21a) were interpreted by post-Talmudic authorities as providing legal rules for custody of boys. Similarly, the Talmudic statement that “a daughter must be always with her mother” (see Talmud Bavli, Ketubboth 102b) was interpreted by post-Talmudic authorities as suggesting a legal rule for custody of girls. See Shochetman, op. cit. supra n. 3 at 289–311.
80 For the subsequent discussion, I am indebted to the following individuals for insights: Singer, , “Moral, Rules and Principles” in Maiden, , ed., Essays in Moral Philosophy (1958)Google Scholar; Raz, , “Legal Principles and the Limits of Law” (1972) 81 Yale L.J. 823CrossRefGoogle Scholar; Dworkin, op. cit., at 14–80.
81 See PDR 1:55, 61.
82 Since rules are “infractuous” they are not agencies of legal development, the legal principle is a means to meet new situations and thus widen the application of the rules.
83 Open-texture is Waismann's term: “It is not possible to define a concept with absolute precision, i.e., in such a way that every nook and cranny is blocked against entry of doubt”. See Waismann, , “Verifiability” in Flew, , ed., Logic and Language (N.Y., 1965) 122–151.Google Scholar In this context, note Hart's discussion in The Concept of Law (Oxford) 121ff.; Gottlieb, , The Logic of Choice (N.Y., 1958) 33–47Google Scholar; Hacker, & Raz, , eds., Law, Morality and Society (Oxford, 1977) 26–57, 99–118.Google Scholar
84 PDR 1:65,75; PDR 2:298,303; PDR 4:66,74.
85 This was the position reflected in numerous decisions handed down by the regional Batei Din in Israel. See PDR 4:66,74.
86 See Schereschewsky, op. cit., at 383.
87 PDR 1:55,61; PDR 2:298,300,301; PDR 4:332,333.
88 PDR 1:65,76.
89 PDR 1:55,63. In determining the interests of the child, the Beth Din is careful not to treat moral impropriety such as adultery as a conclusive presumption of unfitness to care for the child. The fact that a divorced mother “stepped out” with another man will not warrant loss of custody unless her activities will jeopardize the child's interests. See PDR 1:146; PDR 4:332. Only recently have American jurisdictions looked more carefully at parental conduct from the perspective of the child. See e.g., Hills, , “The Effect of Adultery on Custody Awards” (1959) 16 Wash.Google Scholar & Lee L.R. 287.
90 See PDR 1:173,176. The dissenting opinion in this case accepted the principle of the majority decision but argued that a psychological relationship, with the father had never developed. See PDR 1:173,177,178.
91 Talmud Bauli, Ketubboth 110b.
92 PDR 7:3,8.
93 PDR 1:103.
94 See above discussion of PDR 4:66, 74.
95 See above discussion of PDR 1:173.
96 Compare PDR 1:103 with PDR 7:3. See also PDR 4:66,74.
97 371 Mich. 516, 124, N.W. 2d 878 (1963). See also, Raymond v. Cotner 175 Neb. 158, 120 N.W. 2d 892 (1963); State ex rel. Paul v. Deniston 235 La. 579, 591, 105 So. 2d 228, 232 (1958).
98 257 Iowa 525, 133 N.W. 2d 692 (1965). See also Giacopelli v. Florence Critten-don Home 16 111. 556, 158 N.E. 2d 613 (1959); Lincoln v. Lincoln 24 N.Y. 2d 270, 299, N.Y.S. 2d 842, 247, N.E. 2d 659 (1969).
99 26 F. Cas 30, 31 (DR I 1824), No. 15, 256.
100 144 N.W. 2d 134, Iowa (1966).
101 144 N.W. 2d 861, Iowa (1966). See also Noble v. Noble 292 Ky. 433, 166 S.W. 2d 991 (1942); Cases which invoke the principle in contests between natural parents: Watts v. Watts 77 Misc. 2d 178, 350 N.Y.S. 285 (1973); Erwin v. Erwin 505 S.W. 2d 370 (Tex. Civ. App. 1974); Winter v. Winter 223 N.W. 2d 165 (Iowa, 1974); In re Marriage of Urbana 137 Cal. Rptr. 433, 68 Cal. 3d 796 (1977). For other cases invoking the principle, see Foster and Freed, “Life with Father: 1978” (1978) 11 Family L.Q. 321.
102 See Painter v. Bannister 258 Iowa 1390, 140 N.W. 2d 152 (1966), cert, denied 385 U.S. 949 (1966). For a critique of this decision see Foster, , “Adoption and Child Custody: Best Interests of the Child?” (1972) 22 Buffalo L.R.I.Google Scholar
103 See Arenas v. Arenas 30 Utah 2d 328, 517 P. 2d 1019 (1974); Funkhouser v. Funkhouser 216 S.E. 2d 570 (W. Va., 1975). See Kurtz, , “The State Equal Rights Amendments and their Impact on Domestic Relations Law” (1977) 11 Fam. L.Q. 101, 135–143.Google Scholar
104 See Kurtz, ibid.
105 See Kouris v. Lunn 257 Iowa 1267 (1965); Herrera v. Herrera Tex. 409 S.W. 2d 395 (1966). See Foster, and Freed, , “Child Custody” (1964) 39 N.Y. U.L.R. 423Google Scholar; Foster, , “Family Law” in Annual Survey of American Law (1960) 415, 421.Google Scholar
106 See Foster and Freed, ibid.; also, “Alternatives to ‘Parental Right’ in Child Custody Disputes Involving Third Parties” (1963) 73 Yale L.J. 151.
107 Character and Opinion in the United States (N.Y.) 166.
