ABSTRACT
A common charge hurled against the rules governing custody of children in Jewish law is that they are rigid and inflexible, unlike the principle of the “welfare of the child” which is applied by the secular courts in this context. Professor Shifman nevertheless goes on to make the following observation: In historical terms, it is clear that originally, the halakhah expressed itself in the form of specific rules, and only at a later date did the principle of the xwelfare of the child emerge as a meta-rule in this area. The assumption that in dogmatic terms, it is the later and not the earlier stages of halakhic development which are binding, is quite correct. The question of the custody of a suckling child is not treated as an independent issue in the Talmud, and Maimonides’ ruling is derived from the passage dealing with the obligation to nurse.
