Bein Adam LeChaveiro: Child support
The first words God speaks to humanity are composed of a blessing and statement: “God blessed them and God said to them: Be fruitful and multiply and fill the earth and conquer it, and dominate the fish of the sea and the fowl of the sky and all the beasts that crawl on the earth.”[1] The sages explain this verse is a commandment to bring children into the world, one that only men are obligated to fulfill.[2]
But who is responsible for these children after they are born?
In his commentary on the verse, Radak states: “‘Be fruitful’ refers to having children, ‘multiply’ refers to raising them.” Accordingly, the person obligated to bring children into this world is also obligated to raise them.
Last week we discussed the mishna’s list of things a father is halakhically obligated to do for his son – mitzvot he fulfills on his son’s behalf (circumcision and redeeming the firstborn) and the ways he prepares his son for life (teaching him Torah, a craft to earn a livelihood, and arranging his marriage).[3] Strangely absent is an obligation to fulfill a child’s more basic needs – food, clothing, and shelter.
Who is responsible for supporting the child? The answer to this question is complicated.
Child support in the mishna and gemara
To answer this question we must understand the relationship between two seemingly contradictory mishnayot that mention a parent’s obligation to feed and financially support their children.
Among the things a woman is obligated to do for her husband, listed in the mishna in Ketubot is: “she nurses her child.”[4] Apparently, it is the fathers who are obligated to provide their children with sustenance, not the mothers. But within the partnership of their marriage the wife agrees to breastfeed her children on his behalf. This is somewhat comparable to their roles in the fulfillment of the mitzvah to be fruitful. Only men are obligated to have children, but they can’t do so without a woman, so they rely on their wife’s cooperation.[5]
Based on this mishna, the gemara concludes that fathers are obligated to support their children when they are “very small.” “Very small” is understood to refer to the period when children are highly dependent on their mothers, which the sages determine to be up to age six.[6]
While the wife’s obligations are unwritten, a husband’s are generally listed in the ketuba contract he gives her when they get married. The mishna teaches that some stipulations are valid even if they are not explicitly written in the ketuba, since they are court mandated.
One stipulation is referred to as “ketubat banim dikhrin,” the ketuba of male children. In the event a man who has children with other women outlives his wife, this clause ensures that the assets a mother brought into the marriage are left to her sons and not others.[7] Additionally, the husband commits that his property should be used to support his orphaned daughters after he dies, until they reach majority or are married.[8]
In the first mishna we saw, it seemed that fathers are the ones who are obligated to provide for their children, and when a woman gets married she commits to fulfill her husband’s obligation by breastfeeding their children on his behalf. These stipulations make it seem like the opposite is true and the only source of a father’s obligation to support his daughters (or sons) are the commitments he makes to his wife in the rabbinically mandated ketuba.
Indeed, the mishna adds Rabbi Elazar ben Azaria’s opinion that this commitment only applies after the husband’s death. Accordingly, further reinforcing the notion that fathers have no formal obligation – halakhic or contractual – to support their children while they are alive.[9]
Taken together, these mishnayot teach us that fathers have a formal obligation to support their children when they are young (up to age six), and not when they are older. It seems the sages felt it was necessary to make up for the lack of responsibility. When the rabbinic center of authority was in Usha they made a takana (enactment) so men would support their children beyond age six.[10]
The gemara questions the authority of this enactment and determines that it is not enforced by the beit din (rabbinic court), but by societal pressure. Fathers who refuse to support their older children are accused of acting more cruelly than animals, who care for their young. The beit din can use their authority to force wealthy people to give charity. In this case if the father is a man of means they can force him to give charity that will be used to support his older children.[11]
Child support in halakhic sources
Later halakhic authorities debated the reason fathers are obligated to support their young children, and how this impacts child support nowadays. It seems from Ran that the father’s obligation stems from his obligation to his wife – “they follow her, so she can’t stop herself from feeding them.”[12]
Rav Moshe Feinstein explains that the father is obligated to feed his children because his wife can’t stand to see her children go hungry. Therefore, as long as the children are dependent on their mother, their father is obligated to support them. This is part of a husband’s obligation to support his wife, much like he is obligated to provide the means to host guests and give charity.[13]
According to Rav Moshe Feinstein, mothers feel the need to support their children, and fathers are responsible for fulfilling this need.[14] Since women today feel the need to support children above age six, a husband is obligated to support their older children as well. This continued support is an inherent condition of marriage, part of the spousal support he is obligated to provide to her.
Other Rishonim believe that fathers are directly responsible for supporting their children, therefore they’re also obligated to support children born outside of wedlock.[15] The source of this obligation is unclear. It’s possible it’s part of the mitzvah to “be fruitful and multiply,” like Radak indicated; or it could be related to laws of damages – the father is financially responsible for the consequences of his actions.[16]
In line with our explanation of the enactment in Usha, Rav Ovadia Yosef ruled that fathers are only formally obligated to support their children until the age of six. From that point, they are not formally obligated, but should do so out of something akin to tzedaka (charity).[17] The Torah holds people responsible for the welfare of others, and instructs us to prioritize those closest to us, our family.[18]
Why isn’t there a formal obligation?
Maybe the Torah did not explicitly command child support because it assumed that a person should feel both a desire and a responsibility to provide for their children. If someone doesn’t feel this way, the community will try to sway them through education or societal pressures.[19] In any event, Rav Ovadia Yosef maintains that supporting older children is a type of charity, and charity outside the home is on top of that.
Rav Moshe Feinstein believes that a mother has a natural need to support her children, and since her husband has committed to fulfill her needs, that means he is obligated to support their children.[20] He doesn’t get a pat on the back for supporting his older children, it’s not charity – it’s a part of his marital duties. To fulfill his mitzvah to give charity he has to look outside the home (or to his adult children who should be self-sufficient).
In a way, this can be seen as a dispute about one’s sense of self. The Torah doesn’t explicitly command a person to feed, clothe, and house themselves. God created humans with instincts for self-preservation, and the Torah assumes a person will take care of their individual needs. The mitzvah to give tzedaka instructs us to look outside ourselves, beyond our individual needs, and care for others. When someone sees their children, the fruit of their loins, as part of themselves, they don’t need to be commanded to support them. But even people who don’t recognize this connection are commanded to care for others, and are obligated to start with those closest to themselves.
[1] Bereishit 1:28; Ibn Ezra ad loc.
[2] Chazal explain that the verse juxtaposes “be fruitful and multiply” to “conquer” to teach that only men are obligated to have children, just as conquering is typically a man’s job. Mishna Yevamot 6:6; TB Yevamot 65b. While Rabbi Yochanan ben Broka maintained God commanded both men and women, the halakha is in accordance with the sages. Shuchan Arukh Even Ha’Ezer1:13.
[3] In the past we discussed whether the father is commanded to perform these mitzvot through his son, or the son is commanded and the father helps him.
[4] Mishna Ketubot 5:5; TB Ketubot 59b.
[5] Responsa Ran 32. The sages maintained that a husband’s obligation to have relations with his wife is explicitly stated in the Torah. (TB Ketubot 48a) Still, it seems that the foundation of a marriage is based on a mutual sexual relationship, so if one spouse refuses to have relations with the other it is grounds for divorce. (TB 61b; 71b.) Nevertheless, men are obligated to have children and women are exempt, their fulfillment of the mitzvah is voluntary. This gives women more leeway when it comes to birth control. (See Shulchan Arukh Even Ha’Ezer 5:12)
[6] TB Ketubot 65b; Mishneh Torah Hilkhot Ishut 12:14; Shulkhan Arukh Even HaEzer 71:1.
[7] Mishna Ketubot 4:10; TB Ketubot 52b.
[8] Mishna Ketubot 4:11; TB Ketubot 53b; Mishneh Torah Hilkhot Ishut 19:10; Shulchan Arukh Even HaEzer 119:1.
[9] Mishna Ketubot 4:6; TB Ketubot 49a.
[10] TB Ketubot 49b
[11] This is the halakha in Mishneh Torah Hilkhot Ishut 12:14; Shulkhan Arukh Even HaEzer 71:1.
[12] Ran on Rif 28b, s.v. “yafeh lekhalav”; Iggrot Moshe YD 1:143.
[13] TB Ketubot 64b.
[14] Rambam’s language makes it seem like there’s a connection between child support and the mother’s ketuba. Mishneh Torah Hilkhot Ishut 12:14, but see the next note.
[15] Rosh Teshuva Klal 17:1; Rivash 41 (cited in Beit Yosef Even HaEzer, end of siman 71); Mishneh Torah Hilkhot Ishut 19:14. See Avnei Miluim Even HaEzer 71:1.
[16] Rav Moshe Feinstein suggested this in his teshuva, to explain the approaches.
[17] Responsa Yechaveh Da’at 3:76.
[18] Like the rule “the poor of your city take precedence. Bava Metzia 71a; Shulkhan Arukh Choshen Mishpat 97:1.
[19] Ramban Shemot 21:3 assumes that a father will support his children. Based on Sifra Behar 5:7:3.
[20] Ramban, in the previous source, similarly explained that a father’s natural desire to sustain his children becomes a contractual obligation for a master to feed the children of his Hebrew slave.
