After my recent article about the difficult trials divorcing couples face within the court system (Family Issues 1-13-2012), especially when there are children involved, I received a heartfelt e-mail from a grandfather in tremendous pain over the demise of his son’s marriage and the subsequent custody battle over his beloved grandchild. He was concerned that his son would be portrayed to the court as incapable of caring for his young child due to recent debilitating health issues his son has unfortunately suffered. The grandfather felt conflicted over the fact that a beit din would not hear the custody concerns but instead a judge would hear the matter during a family court hearing. As an observant Jew he felt that going to a secular or civil court was not an acceptable option for his family. His daughter-in-law, who was seeking the divorce, felt differently and requested that the beit din only take responsibility for securing the get, the Jewish divorce decree, and subsequently appealed to the secular court system to deal with matters of custody, visitation and child support.
Unfortunately divorce is on the rise in the Jewish world. Sadly, each new day brings additional broken families. In fact, the average couple divorcing is no longer a shocking occurrence. I recall that when my marriage fell apart over sixteen years ago, due to what would now be considered “typical” circumstances, it bordered on scandalous in my small community. At that time I could count on one hand the number of divorcees I had ever come in contact with. Sadly, today that is not the case.
Shalom bayit, a peaceful and joyous home with a happy harmonious family is the dream of every new couple starting out. Sometimes that dream gets sidelined to such a degree that there is simply no other option except to divorce. There are even circumstances where a divorce is warranted according to halacha. When a relationship has broken down it can become toxic to the point that the individuals transgress the Torah laws that govern how one should treat his fellow Jew. Hashem’s precious Torah is all good, and allows for the possibility of the dissolution of a marriage – it even provides the necessary guidelines for divorce. There are appropriate steps that must be taken, laws that govern the proper way to give and to receive a get in order to retain the dignity, sanctity and holiness of the process and the respect for the parties involved.
Living in galut, as we all do these days, where we are governed by laws other than just halacha, there is often no choice but to utilize the family court system, in addition to beit din, to some degree in matters of divorce. Enforcing child support, parental rights and parenting time are but a few of the standard functions of the court system. In Israel the system is a bit different as the beit din is considered part and parcel of the legal apparatus and therefore the decision of a recognized beit din can be (but is not always) enforceable by law. In most places the results of beit din arbitrations are considered a form of mediation between the parties and are accepted in civil court; but judgments in child-custody cases are not necessarily binding until they are filed with the civil court system. Each court system, the beit din as well as the family court, is honest about their directive; they each claim to be to be looking out for the best interest of the child/children, yet their interpretations of what “the best interest” is may differ. The rabbinical court will often put greater emphasis on the spiritual well being of the child while the civil courts may see the religious upbringing as secondary to other concerns.
Entering into a civil court situation to decide on the “best interest of your child” is a scary reality that so many parents face today; you are to a certain degree handing over your right to make decisions for your family. Allowing others – people who may or may not understand your personal ideals, priorities and standard of religious beliefs – to make certain decisions that can radically change the course of your life. Taking that chance is essentially a roll of the dice; you never know the outcome until it is too late.
Parents who once shared hopes and dreams for their children now become the prosecution and the defense in family court. Each side fights for control in an attempt to protect what they feel are their “rights.” As difficult as it is for divorcing couples to agree on certain issues, if the opponents take a step back and honestly weigh their options, it would be hard for me to accept that they would choose to surrender control to a third party, and allow strangers to take the reins when deciding on the daily lives of our precious children. Understandably there will be conflict and compromises – and most certainly sacrifices – that would inevitably have to be made on both sides in order to provide the children with the continuity they deserve in order to grow up in a stable home environment, but isn’t it worth it?