The statements of the Talmud in Ketubot (102b), that a daughter lives with her mother, and in Eiruvin (82a-b) that a child of less than six is dependent upon his mother, have figured prominently in discussions of halakhic authorities concerning issues of child custody. While authorities emphasize that every case is unique and multifaceted, and requires independent analysis (note, for example, Resp. Ezrat Kohen, 57, as well as most of the Responsa cited below), broad principles are nonetheless argued in the abstract.

The Talmud’s statements are limited; we are told only that the daughter lives with the mother. That statement, however, is subject to a dispute, as noted by the Rosh, as to whether the mother in that case is a widow or a divorcee. Thus, even this source is questionable as to its application toward custody in the case of a divorce.

In reference to a son, there is additional discussion in the rishonim. The Rambam (Ishut 21:17) writes that a divorced woman who wishes her son, under the age of six, to live with her is listened to, and the father must support the child while he remains in his mother’s custody. The Ra’avad objects and argues for a father’s right to custody before the age of six, concerned that the father’s obligation to provide his son with a Torah education will be impossible without custody.

There is further dispute as to what the Rambam intended after the boy turns six. Some authorities understood that the Rambam felt that the father could demand custody (Mabit, I , 165; Maharshdam E.H. 123); others denied that right, and felt that the Rambam only meant the father can refuse to provide support under those circumstances (Maharival, I, 74; Maharam Alshikh,38) (Note also the Rambam’s formulation in his Peirush to the Mishnah in Ketubot).
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The Magid Mishnah defends the Rambam’s position, noting that the educational obligations at that age are minor and can be fulfilled in the mother’s home as well. Working off of this understanding, the Mabit (Resp., I, 165) maintains that the mother, despite maintaining custody, may not move the child to another region, where the father will be able to have no role in the education. This position is agreed to by several other authorities (see Resp. Maharshdam E.H. 123, and Be’er Heitev E.H. 82:5; Resp. Noda B’Yehudah, II, 89, and Pitchei Teshuvah E.H. 89:4) The K’nesset HaGedolah (E.H. 82), however, while citing another authority in agreement, also cites the Resp. Harashach that disagrees.

In terms of the Ra’avad’s objection concerning education, the Einayim LaMishpat (Bava Batra 21b) suggests that the Rambam simply was not dealing with that issue, and would acknowledge the father’s rights would he advance that claim. Somewhat differently, though, R. Natan Getstetner (Resp. L’Horot Natan, III, 87-89) observes that the Rambam did not address the issue of the father’s right to educate his son because of the overriding issue of the child’s needs.

The Talmud’s statement in Eiruvin makes it clear that a child younger than six is completely dependent on his mother. Thus, to remove him from her care, even were it to serve his educational needs, would cause him developmental and emotional harm. (A similar point is advanced and elucidated by R. Sholom Ber Cohen, in Har HaMelekh, III, p. 290). This point is so compelling, he feels, that the Ra’avad’s position needs to be explained.(See also Resp. Minchat Yitzchak, VII, 113, for an interpretation of the dispute centering on differing perceptions of the obligations of providing a Torah education at that age).

R. Gestetner notes that the Talmud’s statement about a child needing his mother until the age of six is qualified by the notation that this is only the case if his father is not nearby; if the father is nearby, the dependence on the mother is ascribed to age four or five, ages mentioned in the Ra’avad’s ruling. Thus, the Ra’avad’s position is based on that Talmudic statement. The Rambam, however, does not record that qualification (see Hil. Eiruvin 6:21, and Beit Yosef O.C. 414).

The Shulchan Arukh rules in accordance with the Rambam, without even citing the view of the Ra’avad, an omission considered surprising by later authorities. More surprising is the Tur’s similar omission, in that the Ra’avad’s view is apparently shared by the Tur’s father the Rosh (Resp. 82:2). However, in light of the fact that the Rosh in Eiruvin does record the distinction in the Talmud, the consistency between the Rosh and the Ra’avad might be more easily understood. (See, however, Resp. Shevet HaLevi, V, 208, who argues that significant distinctions exist between the positions of the Ra’avad and the Rosh.

In addition to the needs of the child, and the educational obligations of the parents, the emotional needs of the parents are addressed at length by the Maharshdam (Responsa, ibid) and by many after him. As noted above, these discussions pertain only to abstract principles; real cases are unique in nature and are always adjudicated individually. (See also R. Avraham Kahana Schapiro, Minchat Avraham, I, 5; R. Yisrael Yaakov Fisher, Resp. Even Yisrael, VII, 126; R. Yitzchak Shmuel Schechter, Resp. Yashiv Yitzchak, VIII, 62-63; R. Chagai Isirer, Techumin, vol. VIII, pp. 69-86;Piskei Din Rabani’im, I, 56-63; II, 299-303); Prof. Eliav Schochetman, Shnaton Hamishpat HaIvri, Vol. V, pp.285-320).