Shabbat Parashat Devarim| 5770

P’ninat Mishpat: Consequences of Refusing Visitation Rights

Case: A divorced couple has a six year-old daughter who is living with the now remarried mother. The mother refuses to allow the father to meet the child alone. She also has demanded an increase in child support, which the father refuses to consider until normal visitations are resumed.

Ruling: [Two positions were raised by the dayanim with three reasons. We will present some of the give and take format.]

Rav Yisraeli: The Shulchan Aruch (Even Haezer 82:7) says that if the mother does not conform with the rule that boys go over to their father’s custody at age six, then the father does not have to pay support. The same should be true when the mother rightly has custody of a daughter but wrongly withholds normal visitation rights, which are for the welfare of both the father and child. Therefore, the plea for increased child support payments need not be attended to until visitation resumes.

Rav Goldschmidt: The halacha of the father withholding support when his six-year-old son is not with him is a difficult one that the Acharonim struggle with. The Chelkat Mechokek (82:9) says that it is because he is not responsible as long as the son does not allow his father to fulfill his obligations of teaching him Torah and other things. This applies only when the question at hand is actual custody and when it is the child who refuses. In contrast, when the mother refuses to allow visitation between father and daughter, it is not justification to hold back child support from the child.

Rav Yisraeli: It is not considered holding back support from the child but rather having the obligation fall on the mother, as opposed to the father. That which bothered the Chelkat Mechokek (ibid.) was that the mother could prevent the father from taking custody of the child, and to that he answered that the child refused to leave his mother. Regarding the idea that the father could hold back support, which in fact is transferring it to the mother, was not difficult to understand and is not seen as a punishment to the child. This is all the more so when the mother’s actions are apparently an act of revenge and not a step for the child’s benefit.

Rav Yosef: Without taking sides on the fundamental disagreement of my colleagues, since the mother is remarried and is not known to have resources that are disconnected from her husband, the obligation of child support cannot be thrust upon her. Therefore, beit din should see if there is a need for increased support and, if so, obligate the child’s father.   

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