ORA recently went public on a current agunah case, a sad situation involving a difficult custody battle. Many of the comments veered into discussing the history of the custody case, who was being the “bad parent,” and what role the get should or shouldn’t play with regard to custody. One argument comes up often enough that I want to address it here.

The argument goes like this: “I agree with you, get refusal is terrible! But I know this guy, and he’s really great, but his wife is really mean — she won’t even let him see the kids! And we all know that family court favors women. So he has to withhold a get because it’s the only way he’ll get a fair shake!  So what’s a guy to do?”

In order to answer this question, we have to bust a few myths:

  • Myth #1: Women Always Win in Family Court
  • I’ve found — to my shock — that many otherwise reasonable people believe that if you are a woman, all you have to do is walk into family court, start to cry and boom, custody, child support, and the house in Westchester are all handed to you on a silver platter. Now as a woman, this may not sound too bad, but unfortunately for my gender, it’s simply not true. Neither gender “automatically wins” in court, although everyone seems to think the other guy does. A quick Google search will show you just as many articles on “Why Mothers Are Losing Custody” as “Why Fathers Always Lose in Family Court.”

    Now, it is true that more mothers than fathers receive primary residential custody. Why? Because custody is determined not by “fairness,” but by what is in the best interests of the child. And what is best is usually what is consistent — divorce is already a huge change in the child’s life and the court is looking to minimize the disruption as much as possible. In our culture, mothers simply do more childcare than fathers for the most part. So if Mommy is usually the one picking up little Sammy from school, feeding him his dinner, and putting him in the bath, then Mommy is probably going to be getting primary residential custody.

    This is not a bias towards women; it’s simply a bias towards the primary caregiver doing the primary caregiving — and the same holds true for stay-at-home dads. And this still doesn’t mean that the primary caregiver gets control over all other aspects of the parenting and divorce. Which brings us to our next myth. . . .

    • Myth #2: A Mother Can Simply Refuse to Let the Father See the Kids

    Many moms are used to calling the shots in their kids’ lives. Unfortunately for them, that all disappears when you get a divorce.

    A parent cannot unilaterally cut off visits to the other parent. If they try, the other spouse can go to court and demand visits and it is presumed that he or she is entitled to them. The bar on getting visitation with your kids is actually pretty low: If you have a genetic relationship and a pulse, you are a good portion of the way there. Even parents who abuse their children can still be granted supervised visits.

    Usually when someone says, “she doesn’t let me see the kids!” they are not talking about actually not seeing their children. Rather, they are upset that the visitation schedule is not structured as they would like. In that case, there are many fair forums the couple can use to resolve their disagreement — court (which, as we said above, does not automatically give the mother what she wants), mediation, negotiation, beit din arbitration, collaborative law, and more.

    Turning the get into a tool for extortion is a terrible way to solve this problem.  Most importantly, it’s abusive, but additionally, it is unlikely to result in a parenting agreement that the family can live with peacefully for years to come.  In the rare situation where a true kidnapping has occurred, the get can be deposited with a responsible beit din who will then determine what is fair — ensuring that we are not allowing the victimized party to play judge and jury with regards to the get. And sometimes, of course, the real issue isn’t the children at all — but the children serve as an excuse for the parent to justify his or her abusive behavior.

    • Myth #3: Mothers Make Up Crazy Accusations

    As mentioned above, even crazy people generally get visitation with their kids. So if a husband is genuinely being cut off from seeing his children AT ALL, that is a major red flag for abuse. A court will only entirely restrict all contact with a parent if there are real concerns that the parent is abusing the child in some way.

    Now, I know what you’re thinking: “But these allegations are false! She made them up to keep the kids away from him! Women do this all the time!” And, there are some cases where the allegations really are false. But there are also cases where the allegations — horrifically — are true. And unfortunately for us, child molesters don’t walk around with T-shirts that read “Hello I am a Child Molester.” Ultimately, only the parent, the child, and G-d know what really happened. Absent that knowledge, we have to use the systems available to us to make the best guess at the truth — and while court is not perfect and will not always get it right, the evidentiary processes of the court system will do a much better job than pure extortion.

    I have seen get refusal cases over the years where convicted child molesters demanded unsupervised visits and even custody in exchange for a get, and that is not a road we as a society want to go down. If there are serious allegations being made, let a fair third-party determine them — there are children involved who need to be protected.

    • Myth #4: The Get Is a Fair Card to Play 

    I discussed this extensively in my previous article, but it warrants mentioning again here: The get is not a fair “tool” to get what you want. Doing so is abusive, and counts as extortion. The essence of extortion is a threat: “You had better do ____________ or I will punish you with _________.”  When the threat on the table is your ability to have a future (“Will I ever remarry? Will I have more children? Will I have that first child I’ve been dreaming of?”) it is incredibly debilitating and frightening. You think the court system is broken? Then go fix it. But don’t create a bigger problem by refusing to give your spouse a get.  Some people will say that they are generally opposed to get refusal, but there are exceptions — but it is incredibly dangerous to allow people embroiled in nasty divorces to decide for themselves whether or not they count as that “exception,” especially when get refusal and domestic abuse are so intertwined.

    So the next time you run into your really great friend, who “just wants to see his kids,” you can tell him this: “I’m really sorry for your pain. I hope you are able to move on with your life, and continue to have a strong relationship with your kids. But you need to leave the get out of this — extortion is not an acceptable outlet for your pain, and it won’t make things better.”

    Ultimately, using the get as a tool for extortion doesn’t level the playing field, it blows it up — and desecrates our holy Torah in the process.  Do the right thing, and be the kind of man (or woman) your children will look back on and admire.