PARENT AND CHILD
- STATUS OF THE CHILD In Jewish law, there is no discrimination against a child because of the mere fact that he is born out of lawful wedlock. While the said fact may complicate the question of establishing paternity, once the identity of the father is clearly known there is no distinction in law so far as the parent-child relationship is concerned, between such a child and one born in lawful wedlock. This is also the position with regard to a mamzer . On the status of a child with one non-Jewish parent, see below. For further details, see Yuḥasin . -PARENTAL RIGHTS Except as detailed below, the principle in Jewish law is that parents have no legal rights in respect of their children, neither as to their person nor their property (Ket. 46b–47a; Sh. Ar., ḤM 424:7). So far as male children are concerned, the father is entitled to the finds of his son even if the latter is a gadol (i.e., beyond the age until which his father is obliged by law to maintain him), provided that the son is dependent on him (lit. "seated at his table"); this is "for the reason of enmity," i.e., in order to avoid the enmity which might arise between father and son if the former, who supports his son without even being obliged to by law, was not even entitled to the finds that come to the son without any effort or investment on his part (BM 12a–b; Sh. Ar., ḤM 270:2 and commentaries). For the same reason the father is entitled to the income of his dependent son (Rema, ḤM 270:2). Hence a father who is obliged by law to maintain his son – for example, because he has so undertaken in a divorce agreement – has no claim to the finds or income of the son, and therefore he is entitled to set them off against his liability to maintain him (Taz, ḤM 270:2; PDR 3:329). As regards his daughter, the father is entitled to everything mentioned above, even if she is not dependent on him, until she becomes a major (bogeret), since until then she remains under his authority. For the same reason, until she reaches her majority, the father will be entitled to her handiwork and to give her in marriage (Ket. 46a–47a; Yad, Ishut 3:11; see also Avadim 4:2). The mother has none of these rights in respect of her children since in law she has no pecuniary obligations toward them (see below). -PARENTAL OBLIGATIONS The general rule is that the legal obligations toward their children are imposed on the father alone and not on the mother (Maggid Mishneh, Ishut, 21:18). Maintenance OBLIGATIONS OF THE FATHER The father's duty to maintain his son embraces the responsibility of providing for all the child's needs, including his daily care (Yad, Ishut 13:6; Sh. Ar., EH 73:6, 7). The rules concerning the duty of maintenance also apply with regard to the father's duty to educate his son and to teach him Torah, to see that he learns a trade or profession, and to bear all the necessary expenses connected with this (Kid. 29b, 30; Sh. Ar., YD 245:1, 4). Until the son reaches the age of six years (see below), these obligations must be borne by the father even if he has limited means and the son has independent means of his own, e.g., acquired by inheritance (Sh. Ar., EH 71:1). These obligations are imposed on the father by virtue of his paternity, whether or not he is married to the child's mother, and therefore notwithstanding termination of the marriage between the child's parents, by death or divorce, or the fact that the child was born out of wedlock (Resp. Ribash no. 41; Resp. Rosh 17:7; contrary to Ran, on Rif at end of Ket. ch. 5, who is of the opinion that the father's obligation to support his children is linked with his obligation to maintain his wife). OBLIGATION OF THE MOTHER The mother has no legal obligation to maintain her children, even if she is able to do so out of her own property or income (Ba'er Heitev, EH 71, n. 1). She may only be obliged to do so on the strength of the rules of ẓedakah ("charity") if, after providing in full for her own needs, she is able to satisfy the needs of her children when they have no property or income of their own, and the father, being poor, is unable to support them (Pitḥei Teshuvah, EH 82 n. 3; PDR 2:3). The position is different, however, if the mother has undertaken to maintain her children, for example in a divorce agreement. In this event, if the mother has the means to support her children at a time when the father is not legally obliged to do so (i.e., because they are above the specified age), she alone will have to maintain them as she is obliged to do by virtue of law (her undertaking); the father's duty in this case is based on the rules of ẓedakah only, and since the children have property of their own (the right to be maintained by the mother) they are no longer in need of ẓedakah (PDR 3:170; 4:3, 7). On the wife's duty to take care of her children as part of her marital duties toward her husband, see husband and Wife. If the child's mother is not entitled to maintenance from the father – e.g., because the parties are divorced – and the child is in need of her care, so that she can no longer continue to work and support herself, there will be legal grounds for obliging the father to maintain her to a certain extent, including payment of the rental for her dwelling. Because it is in the interests of the child to be with the mother, she must dwell with him, and because the expenses necessary for taking care of the child devolve on the father, he has to bear them within the limits of the remuneration he would otherwise be called upon to pay any other woman for taking care of the child. This would include the cost of the child's dwelling (with the mother) – notwithstanding the fact that the mother is in a position to defray all the said expenses out of her own means (PDR 1:118f.; 2:3, 5f.). After being divorced, the mother may also claim from the child's father any of the said expenses she incurred before she filed her claim for them, since, unlike the case of a married woman, there is no room for considering that she has waived this claim (PDR 1:230, 234; 2:164f.; Resp. Maharsham, pt. 2, no. 236). THE STANDARD OF MAINTENANCE Unlike maintenance for a wife (see husband and Wife), the standard of maintenance to which children are entitled is determined by their actual needs and not by the financial status of their father (Yad, Ishut 13:6; Sh. Ar., EH 73:6). For this purpose the needs of a child will not be limited to an essential minimum, but they may vary according to whether the child is from a rich or a poor family. Certainly, under the laws of ẓedakah, a wealthy father may be made liable to maintain his children as befits them and not merely as absolutely necessary, although in a case where a child has other sources of income, and thus is not in need of ẓedakah, he will not be entitled to maintenance (Sh. Ar. EH 82:7; PDR 2:3, 8; 4:3, 7). On the other hand, in determining the essential, minimum attention will be paid to what the father is capable of earning and not merely to his actual income. ADDITIONAL OBLIGATIONS TOWARD DAUGHTERS In addition to maintaining his daughter, the father has to see to her marriage to a worthy husband, and, if the need arises, to provide her with a dowry sufficient at least – if his means permit – to cover a year's raiment (Ḥelkat Meḥokek 58, n. 1). Although the father is not legally obliged to give a dowry in accordance with his means, it is a mitzvah for him and he should do so (Ket. 68a; Sh. Ar., EH 58:1 and 71:1, Rema, ad loc. n. 4). On the father's death, and in the absence of a testamentary disposition depriving his daughter of a dowry, his heirs are bound to give the daughter a dowry based on an assessment of what her father would have given her had he been alive; in the absence of data that might form the basis for such assessment, the heirs have to give her one-tenth of the estate for the purpose of her marriage (see succession ; Ket. 68a; Sh. Ar., EH 113:2, 10). CHILDREN ENTITLED TO MAINTENANCE UNTIL A CERTAIN AGE An opinion that a takkanah of the sanhedrin (i.e., the Takkanat Usha) laid down that the father must maintain his children as long as they are minors (sons until the age of 13 and daughters until 12) was not followed, and the halakhah was laid down to the effect that the father's legal obligation is only to maintain his children until they reach the age of six full years (Ket. 49b., 65b; Sh. Ar., EH 71:1); above this age the obligation flows merely from the laws of ẓedakah, and, insofar as they are applicable (see above), fulfillment of the obligation will be compulsory. Since it concerns a person's own children, the charitable duty is more stringent in this case than it is with ordinary ẓedakah, and therefore the father will be required to exert himself to the utmost in order to satisfy his children's needs (Ket. and Sh. Ar. loc. cit.; Yad, Ishut 12:14, 15:21:17, Maggid Mishneh; Sh. Ar., YD 251:4). In the course of time it became apparent that the legal position as described above did not adequately protect the interests of children above six years of age, as the father tried to evade his duty. Hence it was ordained in a takkanah of the Chief Rabbinate of Palestine (1944) that the father shall be bound to maintain his sons and daughters until they reach the age of 15 years, provided they have no independent means of support (see Freimann, bibl.). MAINTENANCE OUT OF THE DECEASED'S ESTATE The father's obligation to maintain his children is imposed on him as father and terminates upon his death without being transmitted to his heirs as a charge on the estate. Hence the minor heirs cannot demand from the others that they should be maintained out of the estate in addition to their normal share of the legacy; the estate will therefore be divided amongst all the heirs, each of them, regardless of age, being given his rightful share (BB 139a; Sh. Ar., ḤM 286:1). The position is different, however, with regard to the maintenance of the daughters of the deceased. Jewish law excludes daughters from succession to their father's estate when he is survived by sons or their descendants (see succession ), and instead, in such a case, entitles daughters to be maintained out of the estate until their majority or marriage – whichever comes first – to the same extent as they were entitled during their father's lifetime (i.e., in accordance with their needs; Ket. 52b, 53b; Sh. Ar., EH 112:16). This right of the daughter flows from the conditions of her mother's ketubbah as her independent right, and therefore she cannot be deprived of it without her own consent, neither by her father's testamentary disposition nor by her mother's waiver of the respective condition of the ketubbah in an agreement with the father, and it remains in force notwithstanding the divorce of her parents (Ket. loc. cit., Yad, Ishut 12:2; 19: 10; Rema, EH 112:1). If the assets of the estate are not sufficient to satisfy both the daughters' right of maintenance and the heirs' rights of succession (nekhasim mu'atim), the daughters' right takes preference (Ket. 108b; Sh. Ar., EH 112:11); even if the assets of the estate should suffice for both (nekhasim merubbim) but there is established reason to fear that the sons might squander them and thus endanger the daughters' maintenance, the court will have power to take any steps it may deem fit for the preservation of the daughters' right (Rema loc. cit.). Custody of Children The law deals here with the determination of a child's abode, taking into account the responsibility of the parents for his physical and spiritual welfare, his raising, and his education. The rule is that the child's own interest is always the paramount consideration and his custody is a matter of a parental duty rather than a right, it being a right of the child vis-à-vis his parents. DIFFERENT RULES FOR BOYS AND GIRLS In pursuance of this rule, the halakhic scholars laid down that children below the age of six years must be in the custody of their mother, since at this tender age they are mainly in need of physical care and attention. Above the age of six, boys must be with their father, since at this age they are in need of education and religious instruction, a task imposed by law upon the father, and girls with their mother ("the daughter must always be with her mother"), since they are in need of her instruction in the ways of modesty (Ket. 102b, 103a; Yad, Ishut, 21:17; Sh. Ar., EH 82:7). As these rules are directed at serving the welfare of the child, the court may diverge from them if in a proper case it considers it necessary in the interests of the child, and even order that he be removed from both his parents and be kept in a place where, in the court's opinion, his interests are better served (Rema, EH 82:7; Pitḥei Teshuvah ad loc., n. 6, in the name of Radbaz). The custody of the child is a matter not of the rights of the parents but of the rights of the child in respect of his parents. The principle of the matter is that the rule establishing the right that the daughter be always with her mother establishes the daughter's right and not the mother's; similarly in the case of the son until the age of six, it is the son's right which is established and not the father's (Resp. Maharashdam, EH 123; see also Resp. Radbaz, no. 123). As Ereẓ Israel is looked upon as the best possible place for bringing up and educating a Jewish child, his removal abroad will generally not be approved, but the court may nevertheless permit this to the mother or father if it is satisfied that in the circumstances it is necessary in the better interests of the child (PDR 1:103–7, 173–8). RELATION BETWEEN CUSTODY AND DUTY OF MAINTENANCE The rules concerning the custody of children have no influence on the parental obligation to maintain them. Hence the fact that the children are with their mother in accordance with these rules does not relieve the father from his obligation to maintain them – whether this is based on law or the rules of ẓedakah (Sh. Ar., EH 82:7). Moreover, the mother is not obliged to accept the children inasmuch as, on principle, the duty to take care of them is imposed on the father only; should she therefore refuse to take them, she may send them to him and he will not be entitled to reject them (Yad, Ishut 21:18; Sh. Ar., EH 82:8). However, if a boy above the age of six should be with his mother contrary to law, i.e., without the consent of the father or permission of the court, the father will be entitled to refuse to pay for the boy's maintenance for any period he is not with him (ibid). ACCESS OF THE NON-CUSTODIAN PARENT The custodian parent has no right to deprive the other of access to their child, nor the child of access to the other parent, since the child is entitled to derive education and care from both his parents and to maintain his natural tie with both of them, so as not to grow up as if orphaned of one of them. For the purpose of realization of this right of the child, it is incumbent on the parents to come to an understanding between themselves, failing which the court will decide the question of access on the basis of the child's interest rather than those of his parents. Since for each of the parents it is a matter of a duty (not of a right) toward their child, they will not be entitled to make performance of the one's obligation dependent upon performance of the other's. Thus the fact that the mother refuses to allow her son to visit his father, or the father to have access to him, in defiance of an agreement or order of the court to this effect, will not entitle the father to withhold the son's maintenance for as long as the mother persists in her attitude; nor will the mother be entitled to refuse the father access to the child because the father withholds the latter's maintenance (PDR 1:113, 118, 158, 176). CUSTODY IN CASE OF DEATH OF EITHER OR BOTH PARENTS In this case too the decisive question is the welfare of the child. On the death of either parent, it is presumed to be best served by leaving the child with the surviving parent, while in principle no special right of custody exists in favor of the parents of the deceased. Only when clearly indicated in the interests of the child, having the regard for all the circumstances including the care of teaching him Torah, will the court order otherwise (PDR 1:65–77). On the death of both parents, custody of the child will generally be given to the grandparents on the side of the parent who would have been entitled to custody had both been alive (Rema, EH 82:7 and Ḥelkat Meḥokek ad loc., n. 11; Resp. Radbaz no. 123). -AGREEMENTS BETWEEN PARENTS CONCERNING THEIR CHILDREN An agreement between parents as to maintenance or custody of their child will not avail to affect his rights unless proved to be in his best interest, nor will it preclude him, since he is represented by one parent, from claiming their enforcement against the other. The child is not party to an agreement between the parents, and the rule is that "no obligation can be imposed on a person in his absence" (BM 12a; PDR 2:3). Hence the father, in a claim against him by the child for maintenance, will not escape liability on a plea that he is free of such a liability by virtue of an agreement made with the mother in which she took this liability upon herself (PDR 2:171–7; 5:171, 173). The effect, if any, of such agreement is merely that it may possibly give the father the right to recover from the mother any amount he may have to expend on the child's maintenance, but toward the child it is of no effect (PDR 5:171). Similarly, a divorce agreement in which the mother waives the right to custody of her children below the age of six, or the father to custody of his sons above this age, will not preclude the children from claiming through the other parent that the court should disregard the terms of the agreement and decide the matter in their own best interest only, in the light of all the circumstances. For this purpose, the question of whether the change of his abode may detrimentally affect the child's mental well-being will be a weighty consideration (PDR 1:177) and, in a proper case, if the court considers it just to do so, it will also pay due regard to the child's own wishes (Ḥelkat Meḥokek 82, n. 10 and Ba'er Heitev ad loc., n. 6). The court's approval of such an agreement will not preclude a fresh approach to the court, owing to the fact that the circumstances have later changed, nor an application for the reconsideration of the case with regard to the child's best interests in the light of such a change (Resp. Radbaz no. 123; PDR 4:332–6). -CHILDREN OF PARENTS WHO ARE NOT BOTH JEWISH Unless both parents are Jewish, the father has no legal standing in relation to the children, neither as regards maintenance nor custody. If the father is Jewish and the mother not, the child will be considered a non-Jew while, halakhically speaking, the non-Jewish father will not be considered his father (see Yuḥasin ). Since the duty of maintenance, like all other paternal duties, is only imposed on the person halakhically recognized as the father – toward his halakhically recognized child – there is therefore no room for the imposition of any recognized legal obligation incumbent on the father of a child qua father, except if he and the mother are both Jewish. A different, and so far apparently unsupported, opinion was expressed by R. Ben Zion Ouziel (Mishpetei Uziel, EH no. 4). -IN THE STATE OF ISRAEL Matters of child maintenance by Jewish parents are governed by Jewish law (s. 3 of the Family Law Amendment (Maintenance) Law, 1959; see also no. 507/61 in PD 16 (1962), 925, 928; no. 426/65, PD 20, pt. 2 (1966), 21). Other matters, including custody – in the case of Jewish parents – are also governed by Jewish law, except as otherwise provided in the Capacity and Guardianship Law, 1962. For their greater part both the above-mentioned laws are based on principles of Jewish law (see Elon, bibl.), and they regulate the legal position of both parents as regards maintenance and custody of their children even where one parent is a non-Jew. For the social and ethical relationship between parent and child, see family ; parents , Honor of, on patrilineal descent, see reform judaism . (Ben-Zion (Benno) Schereschewsky) -FURTHER DEVELOPMENTS IN ISRAELI LAW Custody and Education – Rights and Obligations of Parents The Capacity and Guardianship Law, 5722 – 1962 (hereinafter – "the Capacity Law" or "the Law") establishes an Israeli civil arrangement which occasionally contradicts certain principles of Jewish law. While the legal principles of Section 25 of the law, dealing with child custody, do to a certain extent resemble the principles of Jewish law, the general principles underlying the arrangement are in fact different. In addition, Section 79 of the law states that a religious court, such as the rabbinical court, that has jurisdiction in matters pertaining to this law, should employ the principles of the Capacity Law. Section 15 of the Capacity Law provides, inter alia, that the biological parents, who are their child's natural guardians, have a right and duty to educate their child. The nature of this right and duty are analyzed by the Israel Supreme Court in the Nagar case (ST 1/81 Nagar v. Nagar 38(1) PD 365, 392–398, per Justice Menachem Elon). Child Maintenance According to Section 3 of the Family Law Amendment (Maintenance) Law, 5719 – 1959, (hereinafter – "Maintenance Law"), a person responsible for child maintenance is obligated to do so in accordance with the provisions of personal law applying to that individual; thus, in the case of a Jew the principles of Jewish law would apply. The interpretation given by the civil courts to the father's and mother's obligation to provide for their children under Section 3 of the Maintenance Law, in accordance with "the personal law applicable to them," created greater equality between the respective obligations of the father and the mother to provide for their children. While traditional Jewish law, until less than 300 years ago, placed no obligation on the mother to provide financial support for her children, the interpretation of Israel's Supreme Court, which is Israeli, judge-made law, wrought a change in this situation. A number of obligations included in the overall requirement to provide for the maintenance of Jewish children are governed by the laws of charity (ẓedakah), both in terms of their source and in terms of the criterion for obligating a parent or parents to pay them. With respect to these obligations, Justice Kister ruled that the father and mother are equally obligated to bear the cost (CA 166/66 Goldman v. Goldman, 20 (2) PD 533). In those instances, the mother and the father are obligated to bear the cost of their children's maintenance in light of their respective financial situations. Even if the father is wealthy, his obligation to pay for his children's maintenance does not exempt the mother from her obligation to share equally in the burden of payments for their children's maintenance, if she is wealthy. This interpretation of the principles of Jewish law reflects a modern innovation. Initially, the mother's obligation was broadened, but in a limited manner. Rabbi Meir Posner extended the mother's responsibility to bear the cost of maintenance for her children (see Beit Meir, EH 82.5). However, he held that the mother's responsibility to bear the cost of child maintenance if she is wealthy does not apply if the father or his relatives can bear the expense of such maintenance alone. In his opinion, the father and his relatives have a prior responsibility to bear the maintenance costs themselves. Only when the father and his relatives are unable to bear the full cost, or even part of maintenance, does the wealthy mother bear the responsibility in full or in part. Some years after Justice Kister delivered his innovative ruling that, in the aforementioned circumstances, the mother and father share an equal obligation to bear the cost of maintenance, Rabbi Yisraeli ruled in a similar vein in a decision in the Rabbinic Court of Appeals. In his view, child maintenance costs assessed according to the laws of ẓedakah are the responsibility of the father and the mother, to be shared equally (File 5733/39, PDR 9 251, p. 263). Another leading judgment in this context was delivered by Israel Supreme Court Justice Elisha Sheinbaum (CA 591/81 Portugez v Portugez, 36 (3) PD) 449). Relying inter alia on the novel formulations of Jewish law articulated by Justice Kister and Rav Yisraeli, Justice Sheinbaum ruled that the father and mother share an equal obligation for child maintenance payments determined in accordance with the laws of ẓedakah. With regard to the mother's obligation, he made no distinction between a case in which the father is poor and one in which the father is wealthy. In his opinion, both parents' obligations are established in light of their respective economic ability, and in accordance with the minor's needs. From that time on, that principle became the guiding principle in Supreme Court decisions regarding the obligations of Jewish parents for child maintenance costs based on the laws of ẓedakah. (See, e.g., CA 74/80 Notkovich v. Notkovich, 37(4) PD 197.) In one area – child maintenance for small children until the age of six – the obligation to pay a certain basic component of maintenance, called "essential needs," is imposed upon the father alone. In this area, Israeli civil courts have ruled in a manner that shows a trend toward reducing the scope of those "essential needs" to the lowest possible minimum, so as to assure greater equality between father and mother in their obligation to bear the costs of child maintenance. At an earlier stage Justice Sheinbaum defined "essential needs" as the basic needs necessary for the child's actual sustenance (see Portugez, ibid). Years later, Family Court Judge Yehoshua Gaiffman ruled that the definition of "essential needs" should be restricted so as to engender greater equality between father and mother with respect to child maintenance obligations. According to this approach, the "essential needs" are not the child's various vital needs. Rather, they consist of those basic needs, the satisfaction of which is necessary for his very existence. (FF (Tel Aviv) 31980/96 Anon. v. Anon.; FF (Tel Aviv) 82010/96 Sa'ar v. Hefer). Nevertheless, the sources of Jewish law do not provide any such definition of "essential needs." In full awareness and intentionally, Israeli civil rulings offer their own interpretation of child maintenance rules in Jewish law. Judge Gaiffman stated, "Jewish law's rules of fairness are a normative framework that must be filled with content, and not a framework incapable of change" (Sa'ar case, ibid). As a result of the limitation of the scope of "essential needs" which are imposed exclusively on the father, the remaining needs, excluded from the category of "essential needs," are governed by the principles of charity, thus creating an equal obligation for both parents. Israeli legislation also intervened to engender greater equality between Jewish fathers and mothers in the area of child maintenance in Israeli civil courts. In 1981, Section 3A was added to the Family Law Amendment (Maintenance) Law, 5719 – 1959. This section stated that: "(a) The father and mother of a minor are liable for his maintenance. Irrespective of who has charge of the minor, his maintenance is due from his parents in proportion to their respective incomes from any source." The application of this section was supposed to be independent of the rules of the personal law of the parent obliged to pay child maintenance. Where the parent is Jewish, even in cases where the principles of Jewish law stipulate an unequal division of the obligation to pay child maintenance, Section 3A of the law mandates a deviation from these principles so as to create greater equality between the father and mother in the obligation to provide child maintenance. Opinions of both scholars and Supreme Court justices were divided regarding the application of Section 3A to Jews who have their own personal law. There are those who argue that Section 3A does not apply to Jews and other segments of the population who are subject to a specific personal status law, while others disagree. (See the reference to this question in the Portugez ruling, ibid). The Best Interest of the Child The influence of the views of professional experts in behavioral sciences regarding the concept of "the best interest of the child" is now felt in Israeli rabbinical courts. When parents divorce and fail to reach agreement on child custody, Israeli rabbinical courts were directed by the Israeli Chief Rabbinate to decide custody by requesting expert opinions from psychologists or social workers. These opinions evaluate the best interest of the child in the specific circumstances of the case, making specific and practical recommendations concerning custody that give expression to that interest. (ST 1/60 Winter v. Be'eri, 15 PD 1457. This decision, delivered by Dayyan E. Goldsmith, was also printed in Resp. Ezer Mishpat (1994), 28, p. 339). These experts' recommendations are based on prevalent contemporary conceptions, which are the product of analysis of research findings in the behavioral sciences. In addition, the decisions of rabbinical courts reflect the importance ascribed by the rabbinic courts to the stance of the experts in their recommendations to the court (PDR 11, 153). As mentioned, the dayyanim operate in accordance with the guidelines issued by Israel's Chief Rabbinate, which instructed them to request an opinion from social welfare officials where divorcing parents have not reached an agreement regarding the custody of the children (see Winter case, above). Dayyan Goldschmidt explained that the halakhic basis for the Chief Rabbinate's directive is the obligation incumbent upon dayyanim who decide custody cases to determine what is in the best interest of the child in question – an obligation that stems from the court's role as "the father of orphans" (BK 37a; Winter case, ibid). The social worker's evaluation and recommendation is important because of the great weight assigned by Israel's rabbinic courts to the principle of the best interest of the child when deciding issues of custody. According to Dayyan Gold-schmidt, this is the overriding and exclusive principle (the Winter case, ibid; File 5714/226, PDR I, 145, 157; Appeal 5719/170, PDR 3, 353, 358; Appeal 5740/182, PDR 11, 366, 368–369). A similar view is found in the rulings of other dayyanim who ruled that the principle of the best interest of the child is the decisive consideration in matters of child custody. Among these are Rabbi E.Y. Waldenberg (Resp. Ẓiẓ Eliezer 17 §50) and dayyanim of the Rabbinic Court of Appeals in a panel that included Chief Rabbis Herzog and Ouziel, and Dayyan Shabbetai (Collection of Rulings of the Chief Rabbinate of Eretz Israel, Rabbinical Court of Appeals, vol. 2 (5745 – 1985). This stance also finds expression in a ruling of Supreme Court Justice Menachem Elon in the Nir case (LCA 458/79 Nir v. Nir, 35(1) PD 518, 523–524), where he wrote as follows: „ It seems to me that not only is there no substantive difference „ between the approaches of these two legal systems (i.e., the „ rabbinical courts and the civil courts), but in fact, I tend to „ believe that, even from the perspective of the burden of „ proof, there is no significant „ difference between them. In both systems, the principal and general „ rule is that in each and every case the court is obliged, at its own „ initiative, to examine the best interest of the child, and it may not „ rely upon any of the various assumptions, and rule on that basis alone „ without further examination. Corporal Punishment When a parent or teacher resorts to corporal punishment, and claims to have employed that method for educational purposes, a defense plea frequently raised in Israel in the past was that a parent or teacher does not bear either criminal responsibility or responsibility in torts for such an action, since parents and educators are authorized to punish children for the sake of their education and/or for imposing discipline and authority on them, including the imposition of corporal punishment, when such punishment is "reasonable" (Cr. A 7/53 Rassi v. Attorney General of the State of Israel, 7 PD, 790, 793–794). The Supreme Court ruling in the Anon. case (CA 4596/98 Anon. v. State of Israel, 54(1) PD 145, per Justice Dorit Beinish) reflects a new trend toward the protection of the child from injury at the hands of parents or educators who administer corporal punishment. This ruling displays the influence of studies by experts in the behavioral sciences indicating the unfortunate results of all forms of corporal punishment, even in its "mild" form. Those studies indicate that children who were subjected to "mild" corporal punishment subsequently suffered from psychological problems, whether in childhood or in their adult years. The use of any form of corporal punishment causes damage. Justice Beinish intentionally chose the path of judicial activism. The policy she laid down proscribed all use of corporal punishment for educational purposes. According to her ruling, even "mild" corporal punishment is generally forbidden, and only in exceptional and unusual circumstances is it permitted. The Supreme Court's ruling in this matter provoked public controversy over the extent to which, if at all, Justice Beinish's stance is at variance with the position of Jewish law on the question of corporal punishment for educational purposes. In this context, it was argued that the Supreme Court's position contradicts the general approach of Jewish law, as expressed in the verse, "He who spares the rod hates his son, but he who loves him disciplines him early" (Prov. 13:24). In fact, legislation was proposed, attempting to cancel the effect of the aforementioned ruling: ("He Who Spares the Rod Hates His Son" (Permission for Educational Punishment) Draft Bill 5760 – 2000, Knesset Proceedings 37 (5760), 10071–10072). However, there were also other views on this matter. Before Justice Beinish's ruling, when addressing the question of the punishment of an older child, Rabbi Jehiel Jakob Weinberg wrote that, under the circumstances, corporal punishment for educational purposes should be opposed, having consideration inter alia for the stance of "the modern pedagogues" (Resp. Seridei Esh, vol 3. no. 95). Furthermore, Rabbi Yitzhak Levi based his own negative view of the use of corporal punishment upon a number of considerations, among them the contemporary, negative view of corporal punishment for educational purposes taken by professional experts – an attitude that also finds expression in Israeli civil law. In view of all the relevant considerations, including his analysis of Jewish law sources, he concluded that such punishment produces results diametrically opposed to the intent of those administering it; it leads to rebellion and hatred, and is liable to cause damage to children. Thus, in his opinion, "we should totally avoid any kind of hitting" (see bibliography, Levi, p. 158). The same view also finds expression in the writings of scholars of Jewish law. Some of them stress that Jewish law's treatment of corporal punishment for educational purposes has established a ramified complex of limitations and restrictions that restrain it and even make it difficult to implement (see bibliography, Shmueli, 374). Similarly, there were those who argued that Justice Beinish's position is not far from the basic position of contemporary Jewish law regarding corporal punishment. Their claim is that the qualified permission granted for corporal punishment constituted isolated exceptions in Jewish law, which was in fact moving toward a clear preference for education by more peaceful and pleasant methods, while stressing the inherent dangers of corporal punishment. In their view, this trend has gained increasing acceptance, especially during the last few decades. Furthermore, it may be assumed that this tendency will become increasingly predominant, in view of the trend towards attributing cardinal importance to the best interest of the child in responsa literature and recent decisions of rabbinic judges. Another factor promoting and reinforcing this process is that many of the dayyanim and posekim interpret the best interest of the child in light of the opinions of social workers and psychologists who are influenced by the findings of research in the behavioral sciences. This research includes studies that demonstrate the psychological damage caused by corporal punishment for educational purposes (see bibliography, Kaplan, Ha-Megamah). (Yehiel Kaplan (2nd ed.) -BIBLIOGRAPHY: Gulak, Yesodei, 3 (1922), 66–70; A. Aptowitzer, in: Ha-Mishpat ha-Ivri, 2 (1926/27), 9–23; A.H. Freimann, in: Sinai, 14 (1943/44), 254–62; ET, 1 (19513), 5–7, 228; 2 (1949), 22f., 378; 4 (1952), 744f.; 6 (1954), 329–32; M. Elon, in: ILR, 3 (1968), 430–2; 4 (1969), 119–26; Elon, Mafte'aḥ, 8–11; B. Schereschewsky, Dinei Mishpaḥah (19672), 359–94. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988) I:273, 275, 306f, 364, 687f.; II. 994, 1069; idem, Jewish Law (1994), I:321, 323, 365f, 440; 2:846f.; 3:1202, 1289; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), 1 (1986), 88; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 59–61; H. Ḥavshush, "Mezonot Yeladim: Ḥiyyuvei Horim," in: Din 'Ivri (2005); Y.Z. Gilat, Dinei Mishpaḥa: Yaḥasei Horim vi-Yladim (2000); Y.S. Kaplan, "The Interpretation of the Concept 'The Best Interest of the Child,'" in: G. Douglas and L. Sebba (eds.), Children's Rights and Traditional Values, (1998), 47–85; idem, "Ha-Megamah ha-Ḥadashah be-Inyan Anishah Gufanit shel Yeladim le-Ẓorkhei Ḥinukh," in: Kiryat ha-Mishpat, 3 (2003), 447; Y. Levi, "Haka'at Yeladim (Teguvah)," in: Tehumin, 17 (1997), 157; B. Shmueli, "Anishah Gufanit shel Yeladim be-Veit Horeihem al pi ha-Mishpat ha-Ivri – Gishot Mesoratiyyot u-Zeramim Moderniyyim," in: Pelilim, 10 (2001/2), 365.
Encyclopedia Judaica. 1971.
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