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.