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DY: TY for your last comment. Avram: TY for that retraction. I take this discussion exclusively in the realm of Torah, halachic, ethical, moral, fairness, justice and the absolutely proper way to conduct life in a heavenly manner. As I’ve stressed multiple times.
“1) You are equating her being wrong with him being right. It doesn’t work that way.”
I am not making that equation. But you’re correct that it doesn’t work that way.
“2) Not being cruel and vindictive is very much a Torah value, not merely a modern fabrication.”
Correct. And neither myself nor anyone else said otherwise. The hypothetical situation I described did not include any cruelty or vindictiveness. It was governed by love, as I stressed.
“3) ???? ????? are the precise words I heard from a dayan regarding a case where al pi din he is not obligated to divorce her, but he should for Gan Eden purposes. I am not knowledgeable enough to go through all of the relevant halachos with you; as I said, it’s a guess.”
Attributing it to an unidentified dayan isn’t helpful without halachic reasoning. The halachic qualifications of ???? ????? includes what I quoted from Rambam but not the scenario you described, according to the sources.
“5) There is no question that there are cases where the marriage is unsalvagable.”
Indeed, and I haven’t said otherwise. That being said, the stress in our generation must be on the salvageable not the unsalvageable. Most contemporary divorces (including r’l in our own communities), as I’ve stated, were avoidable and unnecessary I dare say. And we should strive to avoid in the future.
“6) Although I’m no expert, from the little I’ve read, you misunderstand the purpose of the cherem d’Rabeinu Gershom regarding a forced get. It is not so that she can prolong the marriage indefinitely; it’s to prevent him from easily divorcing her at whim. In no way, shape or form does this indicate that there isn’t a point in time at which it’s clear that she should accept the get.”
You are contradicting the plain meaning of R”G’s stated cherem. If the husband has no valid cause for giving his wife a divorce and on that basis the wife is insistent to continue the marriage, she has that right indefinitely per R”G.
“Your assumption that a woman wanting a divorce is acting capriciously”
I made no such assumption. I described a hypothetical scenario that constitutes that fact.
“unless she can provide you with clear-cut evidence of abuse, is fundamentally misogynistic.”
1) You’re disagreeing with halacha. Shulchan Aruch insist she must present solid evidence of such to beis din. So much in fact that S”A rules that if she can’t provide it then beis din can only accept the claim by placing a witness in their residence to determine the truth. 2) I never even mentioned or discussed a claim of abuse in the scenarios I described. In fact I overtly described a scenario that there was no abuse.
“There may also be other valid reasons not involving abuse, such as an irreparable loss of trust.”
What reason is or is not valid in suing for divorce is a halachic matter that halacha stipulates and isn’t determined by gut feeling. Do you have any halachic source giving an ambiguous irreparable loss of trust as a valid reason for divorce? I didn’t see that in S”A’s list of given valid reasons so perhaps I overlooked it.
“One spouse acting badly does not validate the other spouse acting badly.”
Agreed. Declining to divorce for valid reasons and continuing to be ready and available to live in an ongoing marriage is not acting badly. It is acting goodly. The badly acting is refusing to accept living in an existing marriage if there’s no valid reason to refuse to.
“If a couple is going to beis din for divorce proceedings, the home is R”L already broken”
That’s an incorrect assumption and an assumption that disagrees with clear cut halacha that a beis din is deputized to refuse to grant a requested divorce.
“and it would take both of them to rebuild it.”
Agreed.
“This cannot be forced on one of them.”
According to halacha it can be forced on one of them.
“Your attempts but failures to make statements like this gender-neutral”
No such attempt was intended (I try to follow The Economist’s Style Guide’s use of terms such as “he” in a general non-gender specific sense – old fashioned, I know). Hilchos Gittin is *not* gender-neutral. There are large differences in the rights and responsibilities between the genders. We ought to accept this Torah truth even if it causes indigestion to a contemporary 21st century society mind.
“In a marriage, do you think it is only the husband who puts his life into building it?”
No. Both must.
Please accept my apologies if my tone came across stronger than intended.
TLIK: I don’t agree this discussion should be limited to the Beis Medrash. If you could explain why you feel so I’d be happy to reconsider your point. Otherwise I do agree with you that given an individual situation it is possible that the obstinacy of one spouse may make it impossible for the marriage to continue though I don’t necessarily agree that the absolute insistence of one party means the other party should necessarily agree to divorce. And if you posit that the ????? want something other than the stipulation of halacha you’ll need to point to their statement as such rather than postulate. But I don’t think such obstinacy always must necessarily destroy a marriage. But an individual case may necessitate a divorce depending on the various factors if the net result is it isn’t viable to continue. And if so that has to be a factor in giving a divorce.
Does no one else find it terrifying that Lior is saying that if someone’s wife wants a divorce (due to general unhappiness) that he honestly thinks the right thing to do is to never give her a Get because he is offering her the chance to come back forever?
edited
Lior,
The hypothetical situation I described did not include any cruelty or vindictiveness. It was governed by love, as I stressed.
I love my bicycle, and I love my wife. I am using the same word, but the meanings are extremely different.
I “love” my bicycle because it feels good to ride it, I get exercise, and I save money on my commute. In other words, I love my bicycle because of what it does for me. My bike has no feelings, desires, or goals of its own. It is mine, and I can do with it what I please.
I love my wife because I chose and continue to choose to spend my life with her. I want to gladden her and build a home with her. In other words, I love my wife because of who she is. She is mine because she also chooses me to be hers, and I must appreciate that every day.
I cannot possibly imagine the pain that a divorce R”L would cause, but if, after three years, the husband cannot see past himself to consider his wife’s wishes, even if he disagrees with her reasons, even if he thinks her reasons are stupid, perhaps this hypothetical “love” he has is more suited for a bicycle than for marriage.
That being said, the stress in our generation must be on the salvageable not the unsalvageable.
No, the stress in our generation should be on how to be a good spouse to another, so that more marriages don’t reach the point where a decision needs to be made on whether it is salvageable or not. The problem is not that we are becoming increasingly lenient on allowing divorces, it is that the dominant culture does not foster proper marriage skills, and marriage is becoming increasingly devalued.
I made no such assumption. I described a hypothetical scenario that constitutes that fact.
It’s the hypothetical situation that I am objecting to. A hypothetical situation used in an argument is not really helpful if it’s taken from an extreme, rare case. Perhaps you intended it as a rare example from the outset, but your posts leave open the interpretation that you think it is common.
Declining to divorce for valid reasons and continuing to be ready and available to live in an ongoing marriage is not acting badly.
I think the problem I have with this statement is that you are casting a much larger net with “valid reasons” than I think is valid. And that validity shrinks even more with time. For example, should a man neglect the mitzvah to procreate because he refuses to divorce a spouse who will never return to him?
When all is said and done, I think we would both agree that if the beis din presiding over the situation does not say the man should give a get, he is certainly not obliged to give it. And if the wife cries havoc over this and lets slip the dogs of war rather than working with the beis din, she and her cohorts are in the wrong and potentially committing severe aveiros. I also think we’d agree that in a case where abuse is not alleged and one spouse wants to continue the marriage, time should be given for counseling, discussions, etc.
However, what it seems to me (and please correct me if I’m wrong) is that you are arguing that if a beis din rules ???? ????? and the husband disagrees because he really wants to stay married, he doesn’t have to listen to the beis din, because who is the beis din to tell him to divorce when the halacha doesn’t explicitly… It’s hard for me to define this behavior as acting in the interests of Torah and not personal interests or spite. If we were talking about any issue other than divorce (e.g., kashrus, tznius), I think you’d agree with me.
The American court system is extremely biased in favor of women when it comes to divorce. I know of and have heard of cases where the wife’s family use that to their advantage and try to extort money out of the husband and take away his right to see his child/children. In those cases, yes, the husband has a right to withhold the <i>get</i> as a last resort.
Sam2: I find this thread to be the most disturbing thread I have ever seen on YWN. The disconnect from reality, complete lack of empathy, sense of entitlement and control, is just evil. Not love. Evil.
DY: That was just to throw everyone into a loop to throw at me their biggest bombshell all at once so I could get past that stage. Seems to have worked with Sam. 😉
Avram: “However, what it seems to me (and please correct me if I’m wrong) is that you are arguing that if a beis din rules ???? ????? and the husband disagrees because he really wants to stay married, he doesn’t have to listen to the beis din, because who is the beis din to tell him to divorce when the halacha doesn’t explicitly…”
I’m pleased to correct your mistaken impression. If beis din halachicly determines and rules ???? ?????, I 100% advocate the husband give a Get even in the absence of a ???? ?????. No qualifications. Regardless of why it is ???? ?????, such as the previously quoted Rambam ??? ??? ??????? ?????? ????? ????? ????? ?????? ???? ?????. I, too, hope you just as strongly advocate a husband give a Get in a ???? ????? situation such as that aforementioned Rambam where the husband and the wife are not seeking a Get as you do in other ???? ????? situations where the wife is seeking a Get. My advocacy for a Get in both such types of situations are equal. (But we still must ackowledge that there is a difference between a ???? ????? and a ???? ?????. And I think you and DY may be overestimating the times there is a ???? ?????.)
“If we were talking about any issue other than divorce (e.g., kashrus, tznius), I think you’d agree with me.”
Hmm, Rav Moshe in his heter for drinking cholov stam says that someone who cares about his neshama would refrain from using it. That may be analogous to a ???? ????? vs. a ???? ?????. Would we agree that someone who would follow a ???? ????? where it isn’t a ???? ????? is someone who should refrain from cholov stam? (I’m just hashing this point of yours out; I’m not yet taking a firm position on this comparison.)
Regarding your point about love. Loving someone does not equate with always granting her desire. And in situations where a request isn’t granted, that does not detract from such love; indeed it may enhance it. This point is obvious in parent/child situations but is not an attribute limited to that kind of relationship.
I agree with your point about stressing points that enhance and preserve marriages by being a good spouse and fostering proper marriage skills.
“I think the problem I have with this statement is that you are casting a much larger net with “valid reasons” than I think is valid.”
I have repeatedly stated that what is or isn’t “valid reasons” is strictly a halachic/legal matter. I haven’t even specified what is or isn’t valid reasons; I simply left it to be determined by beis din per relevant halacha. How can that possibly be disagreeable?
Now if I may be excused for letting off some irritation here. I’ve constantly said we need to follow halacha. We need to use Shulchan Aruch as our guide. I’ve justified my positions based on halacha. And in their own words quite a few posters here seemed to have expressed general or in large part agreement with the sourced positions I’ve expressed. A quick glance back and some of those expressing similar positions as myself on various points have been Lebidik Yankel, Ben Levi, aymdock, catch yourself, MyTurnAtBat, 2scents, 147, Gamanit, etc. But yet a smaller in number, but perhaps more vocal, have been yelling back ‘terrifying’, ‘evil’, on points that halacha makes. They can’t halachicly sources these boich svaras because halacha says that a Get is only given if the husband “wants” to give it. So then they say, yeah halacha says that but really halacha didn’t mean that – but rather that people shouldn’t strictly rely on said halacha but rather do what the other party is demanding of them even if it is without halachic basis because really that’s what the Chachomim want them to do. So where do we find these supposed Chazals they speak of? Only silence. Halacha does not say he has to give it if he doesn’t want to give it because halacha says he only has to give it if he wants to. (Again speaking in the absence of abuse.) Yet the disagreers here are yelling he has to want to give it if his wife wants him to give it. That is an open contradiction to what Halacha 101 of Hilchos Gittin says. Yes, it’s true that the Torah gives a husband more leeway to give a divorce almost whenever he wants to (and R”G took away many of those rights from Ashkenazic husbands and gave wives the ability to refuse to accept a Get) while the Torah grants few such rights to a wife to be able to demand a Get. Otherwise why is the Shulchan Aruch replete with definitions when a divorce is required and when it is not required (despite it being requested) and when a Jewish court should grant or when it should refuse a request for a divorce. For centuries before the 1960s revolution I don’t think too many folks questioned or argued against these halachas. But that revolution poisoned society’s outlook on traditional family relationships and in general the different roles, rights and responsibilities of the two genders. And that change in societal values to some extent rubbed off in our own communities even when such views conflicted with halacha. The Torah truth is that there are different and unequal roles, rights and responsibilities between husbands and wives. We should not only accept and respect that but embrace it. It has successfully governed our nation throughout our long exile long before contemporary gentile values seeped into our conscience.
The halacha is a man can give a get for whatever he wants, for any reason. I think we all agree on that.
A man who has the capability to not torture, abuse, and control a woman should use that capability. I think we all agree on that too.
I think our fundamental disagreement is whether the behavior we are discussing is torture abuse and control.
Imagine you are a woman who can’t stand the person you are married to. You made a big mistake. You regret it. You are utterly miserable. The marriage is absolutely over. There is no chance of you be able to hack another day of it. You tell your husband that it’s not him it’s you, and you are willing to make equitable arrangements for the best interests of the children. He says no. We are staying married. Because I’m in charge. Your input here is irrelevant. How you feel about the marriage is meaningless. Is that considerate? Is that decent? Is that not the epitome of emotional abuse?
If your response mentions her responsibilities again, I’m going to throw the phone I’m typing on at you.
If your response mentions halacha, it should be the halacha that says that he MUST do the evil above. If there is no such halacha (hint: there isn’t) then it is irrelevant.
You keep hiding behind halacha to pretend that the abhorrent behavior you are defending is somehow moral.
If a woman seriously and permanently wants a get, and the man does not choose to give it, he is evil.
Lior: You can yell all you want but you’re not responding to the point. Sure, a no-cause divorce is awful. But once the woman’s mind is made up that the marriage is over, it is nothing short of pure evil to force her to remain in it. That’s the point you consistently ignore.
And you can call it “love”, but abuse by love is still abuse. You are advocating that torture is okay because “love” is behind it. Jeffrey Daumer killed and ate people because he “loved” them so much that he could never stand to be away from them, so his only choice was to keep them with him forever. That’s not love, no matter what he thought it was.
Far for me to question a Dayan. But if a Dayan really said that a woman who is unhappy in the marriage situation and is not going back under any circumstances must say with her husband even if its beyond repair and wont go back. The Dayan likely did not hear all the facts or was unwilling to hear all the facts. You should seek another Dayan in that case.
There certainly is room according to many for appeals in Halacha. The Beis Din in Israel accepted it when the British mandated it in order to accept Beis Din decisions and the RCA also allows appeals so there is certainly more than enough room to allow it.
Sam,
I would tend to agree to an extent that if all issues are settled and the husband refuses to give a get simply out of spite or in some deluded attemptto save a marrigae that is over becuase he thinks the marriage is salvagable, then he is wrong.
However if the wife is the one who decided to end the marriage for no valid reason and the custody agreement put forth is not something the husband is happy with, then I really see no reason why he cannot tell the wife.
You want to end the marriage? Fine.
However you cannot force me to give up my right’s to my children. I’ll give a get as soon as there is a custody agreement to my satisfaction.
I don’t think that’s abusive. I think thats dealing with a spouse that has shown a callous disregard for other’s in the only way possible.
Ben Levi – so well stated!
There is always a reason someone decides to end a marriage. While you might think is “no reason” it is a reason to someone else. Mental Abuse can be quite a broad category.
Zdad – that is very true. even if it is not mental abuse, there are certain behaviors that will be manageable for some and intolerable for others. I remember a friend telling me about certain things her husband did that she just couldn’t tolerate anymore. It was causing a lot of problems between them. inside I cringed because some of them were things I/my husband did all the time but in the context of our house it wasn’t an issue. (for a mild example; bringing home company for shabbos unannounced)
SL
That is exactly a perfect example
The husband brings home unannounced guests constantly and the wife is tired and doesnt want to serve all these extra people all the time and maybe the food budget is tight and maybe she just wants family time once in a while and thinks when the husband brings home the guests he is ignoring her in favor of the guests, Or just brings home guests to irk the wife because he knows she hates it (All possible scenrios , I dont know specifics) and it irks her.
She decides she wants a divorce as the husband is not listening to her and goes to the Dayan, The Dayan says that is no reason for a divorce and in fact they are doing a Mitzvah and she should stay with such a Tzadik that he loves Hachnasat Orchim. The Dayan Probably just didnt get it that its more than Hachnasat Orchim going on here
ZD,
To me t sounds like you are describing a woman with mental health issues. And perhaps the husband is tolerant of it.
It is impossible to make a blanket statement whether it is appropriate to ever withhold a get.
However, the posuk says “sefer krisus” and the gemara learns that it must be a dover hakores and it needs to be a complete krisus.
If there are matters such as child custody or the recovery of assets or other issues (such as lifting restraining orders) then there are still issues which still bind the two. You would not be able to say that there is a krisus.
I am not suggesting that there would be a psul in the get, but I think it is also to simple to say that there are not legitimate reasons to withhold a get.
Lior, you and DY may be overestimating the times there is a ???? ?????
Regardless of whether it’s technically worthy of a psak of mitzvah l’garshah (and you are unfairly harping on a technicality which I admitted I was guessing about), it would still be the right thing in terms of Gan Eden, propriety, etc.
ZD, what are you referring to regarding a dayan?
I think it was Lior who said he knew of cases where a couple went to a Dayan and the Dayan said the husband should not give a get. I was referring to such a dayan
The only two mentions of an actual dayan were mine and Ben-Levi’s. In my case, the dayan said if it were up to him, he would want the husband to give it, but couldn’t absolutely force him.
In Ben-Levi’s case, the dayan said there is no halachic requirement, but according to the way Ben-Levi said it, nor was there a recommendation against it.
Maybe this was theoritical
from Lior
DY, so lets address the situations where that’s not realistically going to happen.
You’re a dayan. A woman petitions the beis din for a Get. She says that she and her husband disagree on too many things in life so therefore they’re not compatible. That’s her basis. You and the other two dayanim determine that objectively her concerns, even if provable and true, do not fit into any halachic category that requires a husband to give a Get if he does not wish to. The husband, in the evaluation of the beis din you’re sitting on, earnestly and sincerely wishes to continue the marriage. He states he is ready and willing to fulfill all his marital obligations to her, as he had until she left. You and the dayanim agree there is no halachic basis to order a Get. What do you do at that stage (soon after she first walked out); order her to stop being a moredes and return to her husband? Is that what halacha requires?
Okay, that was when the case first came to court soon after the breakup. Now it is two or three years later. Literally nothing changed. She still didn’t return and wants the Get – and he sincerely still wants the marriage. They come back to beis din. At this point you’re sure there’s no realistic chance she’ll ever change her mind or go back. But you also see he is sincere in his stated desire to continue the marriage. You think he is being completely unrealistic and perhaps even delusional in thinking that might happen but you acknowledge his sincerity. You and the other dayanim strongly advise him that you highly recommend he give it since you believe there is no realistic chance she’ll change her mind. He politely declines following the suggestion. I maintain halacha doesn’t obligate he give it and he gets no aveira for not giving it (and she is continually sinning by having walked out), and doesn’t even allow beis din to advise him that he is halachicly required to give it or to demand or pressure that he do so.
Do you disagree and maintain that he, at this stage, is halachicly required to give it? Do you as dayan order him to give it? I maintain that if the beis din does order or pressure it, even if he says even though I don’t want to give it but if beis din orders I am obligated to give it, then I will give it on that basis, it constitutes a Get Me’usa.
Yes, it was theoretical, and the question wasn’t about forcing a woman to stay, it was about forcing the man to give the get (it was a given that the theoretical dayanim were strongly advising him to give it).
Dayanim by advising a man not to give a get are basically forcing a woman to stay unless , she is willing to be an Agunah or decides to go OTD and disregard the Halacha
But that wasn’t what was being discussed; not actual, not theoretical.
Lior,
I’m pleased to correct your mistaken impression. If beis din halachicly determines and rules ???? ?????, I 100% advocate the husband give a Get even in the absence of a ???? ?????. No qualifications.
Fine. Good. What about a case where the beis din recommends it? Would you support the husband in declaring, essentially, that he knows G-d’s will better than those rabbis?
Would we agree that someone who would follow a ???? ????? where it isn’t a ???? ????? is someone who should refrain from cholov stam? (I’m just hashing this point of yours out; I’m not yet taking a firm position on this comparison.)
I agree, a G-d fearing Jew who cares about his neshama would rather cause himself a loss than another person pain.
They can’t halachicly sources these boich svaras because halacha says that a Get is only given if the husband “wants” to give it.
I think that the people you are referencing are not having a problem with the halacha, but rather with the husband not wanting to give it.
Ben Levi, Syag- The thing about “getting” the kids is not about a narcissistic entitlement of seeing and enjoying them – it is about the parental responsibility to raise them as healthily as possible, physically emotionally and spiritually. As such, the initiator of a no – fault divorce shouldn’t automatically be disfavored – custody is about the kids after all, is it not?
“What about a case where the beis din recommends it? Would you support the husband in declaring, essentially, that he knows G-d’s will better than those rabbis?”
Avram: Time is a bit short and I hope to iy”H get to your other questions. But, directly, please respond this:
What about a case where a wife petitions beis din for a Get. The beis din initiates a trial, hears the wife’s demand for a divorce along with her reason for so requesting, followed by the husband’s response requesting the marriage be maintained and continued. The trial concludes, the dayanim deliberate the facts and relevant halachas and reach a verdict advising the couple that the request for a Get is denied as being unnecessary and the facts of the case not in line for a halachic requirement that a divorce be ordered.
Therefore, say the dayanim, the wife al pi Torah must forthwith move back into her husband’s home, as her having left it had been unjustified and constituted being a moredes, and she should be a good wife.
Would you support the wife in declaring, essentially, that she knows G-d’s will better than those rabbis? Or would you wholeheartedly advocate to the wife to return to her marriage?
frumnotyeshivish: Suppose it was determined that the children would do equally well with either parent as residential custodian and both parents were equally capable and able to take residential custody. Would you then not agree that the initiator of a no-fault divorce with no objectively good justification should be disfavored for residential/primary custody?
Lior: If the child’s best interest wasn’t impacted one way or another, perhaps. I have a hard time envisioning a hypothetical scenario in which that were the case.
I agree with fny, but furthermore, the formula for shared visitation which seems most common to me (every other weekend, plus once during the week to the father, and split Yomim Tovim) already seems to me to taking into consideration the needs of the parents rather than just of the kids, so I think it would be detrimental to start making parental fault in the divorce another factor in custody arrangements.
Lior,
1) Yes
2) Why don’t you first answer his question?
DY: Do you agree that custody determinations and arrangements should strictly be determined by beis din in accordance with halacha (which obviously includes consideration of the children’s well-being) rather than by a non-Jewish court (which using it for this purpose is itself a violation of halacha) which uses non-Jewish law (which inevitably differs from Jewish law.) Once the beis din reaches a determination it should be given to the secular court as the parental agreed upon arrangement.
I’d also be interested in your response to the question I asked Avram above in my most recent comment to him.
fny/DY: Why do you have a hard time conceiving of a scenario where both the father or the mother would be equally able to care for the child as primary custodian? Are you working on the assumption that the mother should by default be granted custody and/or do you not see it possible the father may be equally or better capable?
With normal parents where both the father and the mother are capable parents is there any reason you’re assuming, by default in a hypothetical scenario, that one is better than the other?
Especially if both parents are working and it isn’t a matter where one is home more than the other.
it is always horrible of anyone tpo dare have an opinion when they don’t have a smidgen of brains in between their eyes v’hamaivin yavin
DY: How are you answering my question before I asked it?
Ruach hakodesh.
Avram: “What about a case where the beis din recommends it? Would you support the husband in declaring, essentially, that he knows G-d’s will better than those rabbis?”
Your question is if beis din rules there is certainly no ???? ????? and there is not even a ???? ????? but it “recommends” it. In this hypothetical case, without case-specific information, does the ambiguous term “recommends” mean that their personal opinion is that it would be a good idea but they are not asserting that it is G-d’s will? (In which case they themselves are not asserting he must do it.) If they recommend it because they assert that it is “G-d’s will” then of course I would fully encourage him to give it.
“I think that the people you are referencing are not having a problem with the halacha, but rather with the husband not wanting to give it.”
In my opinion they do have a problem that the halacha is that a husband doesn’t have to give it if he doesn’t want to (unless there’s special circumstances that require he do so) simply because one is asked of him.
Now please respond to the question of the beis din case I presented above on Erev Shabbos. (DY too.)
frumnotyeshivish,
actually I think that who is the initiator of a no-fault divorce has a alot of bearing in arranging child custody.
You see children are way better off on so many levels and in so many ways growing up in a home with both biological parents.
If a woman initiates the destruction of that home for selfish reasons and in spite of the husbands obvious willingness to work on things and keep things together so theat their children will not have to grow up in two homes and in two worlds.
Well I would think thats the first sign that perhaps the mother is not really the best person to be raising those kids.
Lior, in theory, yes, but AFAIK, it doesn’t happen.
Ben-Levi: I’m glad you now agree with me that the best interest of the child is the criterion by which to decide custody. I have never said that the behavior of a parent doesn’t go into that decision. The question is whether the initiator is automatically disfavored. The answer is only as much as it affects the best FUTURE interest of the child. People have a hard time being pragmatic and get stuck on the blame game. Such fallacies have even less a place, and are even more destructive, when dealing with the kids.
frumnotyeshivish (and DY if I correctly understand your stated agreement with fny): Why (per earlier comment) do you have a “hard time envisioning a hypothetical scenario” where both the father or the mother would be equally able to care for the child as primary custodian? Are you working on the assumption that the mother should by default be granted custody and/or do you have a “hard time envisioning a hypothetical scenario” where the father may be equally or better capable?
With normal parents where both the father and the mother are capable parents is there any reason you’re assuming, by default, that one is better than the other? Especially if both parents are working and it isn’t a matter where one is home more than the other.
It so happens that in our generation, we do assume that a child is better off in the mother’s care, but that wasn’t why I agreed with fny. I just think it’s unlikely that the situation is equal, and rather than decide it by flipping a coin, we’ll decide according to who was at greater fault in the divorce.
DY: fny said it is difficult to envision both parents equally capable; is that an opinion you share? Regarding your comment about “our generation”, who are the “we” in that – secular society or Torah society? Why would you say this ‘fact’ has changed from previous generations? And do you share the assumption that a child is better off in the mother’s care?
There are times the father is more capable, it’s just not the majority.
“We” is referring to Torah society.
I do share that assumption.
I could guess what changed, but it’s not relevant.
On what basis do you make your admittedly assumption?
Observation and discussion.
Particularly *what facts and points* from your observation and discussion have led you to believe in this as a default “assumption” as opposed to waiting for a case by case evaluation rather than making an “assumption”?
I’d also be interested in hearing your guess as to what changed from previous generations.
Lior: I never favored either gender for custody. Look back at my post. Don’t misquote me. I don’t believe in stereotyping. Best interest, one way or another. What I was trying to say is that the interest of the child is almost certainly going to be affected by any custody agreement, and therefore any such agreement should be focused exclusively on that. Should there be a range of possibilities which don’t impact the child one way or another then you can move on to “tiebreaker” type scenarios. I just don’t think a “tie” is likely.
Lior,
If they recommend it because they assert that it is “G-d’s will” then of course I would fully encourage him to give it.
This is not the question that I asked. If the rabbis stated that it is G-d’s will, then there would be a ???? or ???? and we’ve already covered that. I asked about a case where the rabbis recommend a get be given based on their “personal experience” informed by their Torah knowledge and experience as dayanim. So assume that there isn’t a provable ???? ????? or ???? ?????, but the rabbis tell the man, “even so, we recommend that you give a get.” What should the man do?
Therefore, say the dayanim, the wife al pi Torah must forthwith move back into her husband’s home, as her having left it had been unjustified and constituted being a moredes, and she should be a good wife.
Would you support the wife in declaring, essentially, that she knows G-d’s will better than those rabbis? Or would you wholeheartedly advocate to the wife to return to her marriage?
In this hypothetical scenario you made, not only would I wholeheartedly advocate that they wife return to the marriage work towards reconciliation, I believe there is a mitzvah for her to return, and if she did not do so there would be grounds for excommunication from the community. Direct enough answer? 🙂
The problem with hypothetical situations is that some of them may never occur in real life.
Particularly *what facts and points* from your observation and discussion have led you to believe in this as a default “assumption” as opposed to waiting for a case by case evaluation rather than making an “assumption”?
Kids do best with both parents, but in the unfortunate situations where that’s not possible, they do better with the mother than with the father.
This wasn’t really my point, though, because I can definitely envision (and have seen) cases where they’re better off with the father. My point was the same as fny’s, that there’s practically no such thing as a tie.
I’d also be interested in hearing your guess as to what changed from previous generations.
You’ll have to use your imagination. Last time I hazarded a guess, you treated it as if I claimed it was Torah miSinai.
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