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A couple is living separately, with the husband initially demanding to be allowed to divorce his wife and the wife asking for support. In the meantime, their older son is living at an institution, and the younger one is living with his mother. The father demands to have them in his custody, saying that his older son in his an institution because his mother is not able to raise him. The matter has been sent to a social worker to determine what is in the children’s best interest, but that report has not yet become available. In the meantime, the father says that if he does not have custody of his sons, he should not have to support them.
Ruling: At first glance, the husband is correct. The Shulchan Aruch (Even Haezer 82:7) says that after the age of six, boys are to be with their father and if they are not, he has a right to withhold child support. Beit din still did not rule on where the children should be, apparently because there is consideration as to how he will be able to care for them properly when he is out of the house most of the day. However, ostensibly we should say that until there is a decision, the standard halacha should be the starting point.
However, further investigation raises the following conclusion. The obligation to support one’s children is not a direct result of their being in his home so that he can he teach them Torah. In fact, regarding girls, where they are to normally stay with the mother, the father has to support them anyway. Rather, the idea of withholding support when the boy does not come to his father is specifically a form of putting on pressure, so that the son will indeed come to where he can be more properly educated. Therefore, if under certain circumstances the son is not able to live by his father, the father does have to support him.
In this case, there has still not been a determination as to where the child should be, and a decision is in the process of being arrived at. Therefore, there is no place for pressure to conform to any custody arrangement. The father should continue paying the share that was already decided upon for the institution that takes care of his son. The mother is, effectively, not raising him and therefore cannot demand of the father to pay for her trips to visit or for treats she may decide to bring him. However, regarding the younger son, who is being raised in the meantime by his mother, the father must continue to pay support while the decision on custody of the child is pending [and if the decision is made to continue custody by the mother, for the welfare of the child].
P'ninat Mishpat (827)
Various Rabbis
122 - Support for Sons Not Living With Their Father
123 - Status of Child of Woman Who Had Civil Marriage
124 - The Status When the Marriage Proves Unviable
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