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In many marriages in modern times, a couple will sign a prenuptial agreement that outlines what should happen if they (chas v'shalom) get divorced. Among the things commonly agreed upon in a prenuptial agreement is what should happen with the children in such a case.

If there is no prenuptial agreement, and a divorce is being litigated in a secular court, the judge uses some method to determine who should get custody of the children (I don't know what that method is. I don't think it's important for this question). Is there some kind of method that a beit din would follow in a similar situation to determine how custody of children should be assigned in a Jewish divorce?

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Best interest of child. Rule of thumb (all else being equal) in defining that is: age six and under, with mom. Seven and older: boys with dad, girls with mom.

But there are instances where best interests of child will mean all with mom; all with dad; or even neither parent and foster care.

(As heard from Rabbi Hershel Schachter on yutorah.org)

  • Boys aged six or under at the divorce go to their mother for the rest of their childhood, or until age seven? – msh210 Jun 20 '13 at 6:38
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    @msh210, huh I hadn't thought about that, thanks. I'd have to ask a contemporary dayan; my sense is in the past you'd hand the kid off to 1 parent and that parent was in charge from then on out. (Suppose mom stays in Israel with baby boy and dad moves to California and remarries; it would seem cruel that suddenly on his seventh birthday she has to ship him off to California for good.) In today's world of joint custody, visitation and whatnot, I don't know. But my inclination is "for the rest of childhood." – Shalom Jun 21 '13 at 9:50
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    @msh210 Rabbi Reiss has a yutorah mp3 on child custody. Basically it's unclear from Rambam's language whether they stay with mom or switch at age six, and there are opinions both ways; it appears we tend to pasken the latter -- the thinking is that the lad will then learn better from dad -- at least that's the overall rule of thumb, all else being equal. – Shalom Dec 1 '16 at 0:16
  • (re your comment) Interesting. Thanks for following up. Maybe you should edit the info into the answer post. – msh210 Dec 1 '16 at 0:19

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