Shabbat Parashat Shelach 5771

P'ninat Mishpat: Taking Money for Child Support When the Father Is Not Present

Case: A man (=def) left his wife (=pl) and child to go abroad without contact information. Originally, beit din ruled in his absence that support can be paid on def’s responsibility without his cooperation until the child is six. Now pl wants the support extended beyond that point.

Ruling: The Beit Shmuel rules that one cannot take a man’s property in his absence even to feed his children, even if he is a man of means. However, in present-day Israel, the situation may be different, as Bituach Leumi puts out the money. While they demand it from him upon his return, def can appeal then.

Another factor is that nowadays children are not allowed to earn money before the age of fourteen. Can they, therefore, be considered like very small children who have special rights? The gemara (Ketubot 65b) says that a father is forced to support his children until age six, and from then until they grow up, he is supposed to support them, but we may only scold him if he does not. The Rambam (Ishut 21:17) mentions the age of six clearly. However the Rashba (Shut II, 391) talks about various categories of children, concerning their ability to earn, without mentioning six as an absolute. When it is difficult for a child to support himself, his father is pressured to pay. When he is totally incapable of supporting  himself, the father is forced. According to this approach, when the gemara asks “Until what age?” it was to receive a picture, not to fix a set cut-off point. It is possible that even the Rambam did not mean the age of six as an absolute, but brought it as an assumption, as the gemara had. Rav Hai Gaon compares the status of children regarding receiving support to their status regarding the ability to perform basic commercial transactions. In that context, there is some flexibility in age according to the child’s intellect, and so too would the case be regarding support. The Avnei Miluim (71:2) uses this approach to exempt the father early if the child is particularly advanced even under the age of six, but the logic should work to obligate over six as well. There are also strong indications that it depends on the age of total reliance on his mother (based on Ketubot 65a; see Ohr Zarua, Eruvin 186; Avnei Miluim op. cit.).

If one takes the need-based approach as opposed to the approach that there is a set institution of when a child is to be supported, then logic dictates that if the child has funds through inheritance, he does not deserve to have his father forced to support him. The Rashba, indeed, says that this is the case. However, the Shulchan Aruch (Even Haezer 71:1) rules like the Rosh that there is an across-the-board institution that under the age of six, the lack of the child’s needs does not exempt the father. Still, though, it makes sense that when there is an absolute need, then even above the age of six, the father can be forced to pay.

Thus, in this case, def should be obligated in his absence to support his child, with the money being taken from Bituatch Leumi, and the father having to pay or appeal the ruling when he returns.

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