The Jewish community is diverse. There are many levels and nuances of observance. Typically, parents raise their children with a certain level of observance (or “haskafah”), but when the parents separate, many times one parent may adopt a different level of religious observance, or may sometimes even leave religious life altogether. The question then often arises about how this change impacts the best interests of a child. One parent may argue that the parent who left observance is creating confusion for young, impressionable children of the marriage. The other parent may argue that they are still Jewish, and there is no confusion created, just a slight modification in lifestyle.
Custody and custodial decision-making in New Jersey are addressed by statute (N.J.S.A. 9:2-4), with a great deal of case law supplementing the statute. Religious decision-making is one of the subjects that case law addresses. One important concept is the distinction between the parent designated as Parent of Primary Residence (“PPR”), often simply referred to as the “custodial parent” and the parent designated as Parent of Alternate Residence (“PAR”), often referred to as the “noncustodial parent.” The bulk of a child’s time is generally shared with the PPR.
Parental decision-making agreements can specifically name one parent as the religion decision-maker. This may occur even when neither parent is designated at PPR or PAR and each shares all other custodial functions equally. It is, therefore, important when analyzing decision-making to not solely focus on custodial titles, but also on the designation of specific responsibilities.
The case law discusses the upbringing of children of divorce when parents have differing religious beliefs or practices. The general principle is that the PPR has decision-making authority as to religious education of the children that cannot be thwarted by the PAR; however, the PAR has the constitutional right to expose the children to his/her religion (or level of observance in the same religion) during that parent’s physical custodial time.
Some notable decisions on religious decision-making offer insight into how courts view this subject, not all of which are 100% consistent. Here are examples of New Jersey Court findings:
1. Courts do not choose between competing religions. Nor does the law prevent exposing children to competing religious ideas and rituals.
2. Children should have the opportunity to participate in the cultural household routine and religious practices of both parents.
3. A parent has the right to raise his children in an Orthodox home, but the children could follow the religious practices of the Christian parent when with him, provided the children were not enrolled in formal Christian education.
4. The non-custodial parent cannot formally educate the parties’ children in a second religion; however, it would violate constitutional rights to prohibit that parent from taking the children to religious services of his own choice during visitation.
In an interesting New York case, the court held it unconstitutional to force the non-custodial parent to practice or observe a certain religion (or here, level of religious practice). The father in that case alleged that after the parties had entered into settlement, the mother had come out publicly as a lesbian, disparaged the basic tenets of Hasidism in front of the children, allowed them to wear non-Hasidic clothing, violated the Sabbath and kosher dietary laws, and referred to them by names not used in the Hasidic community. The father claimed that the mother dressed immodestly, dyed her hair, and had a transgender man residing in her home with the children.
The appellate court determined that a religious upbringing clause cannot be enforced to the extent that it violates a parent’s legitimate due process rights to express oneself and live freely.
There are a few key takeaways as themes from most of the case law that stand out to me. First, that the focus appears to be the rights of parents to teach their children their personal religious beliefs at the time, even if inconsistent with the marital practice. Second, that the standard the Courts have generally addressed is whether subjecting the children to the second religion is harmful to the children, not whether subjecting the children to the second religion is in the child’s best interests. This standard remains, despite the contemporaneous view that it is in the best interests of the children that the custodial parent controls their religious upbringing. Third, that even a written agreement between the parties as to how to raise the children in their religion may not be determinative of future permissibility of religious child rearing.
It is abundantly clear that fact patterns in religious cases can be extremely complicated, as they mirror complicated, real-life family relationships and dynamics. There is no one “cookie-cutter” analysis for every family, and each family is analyzed on a case-by-case basis.
My practice is devoted exclusively to family law. I have offices in Bergen and Passaic Counties, but appear regularly throughout northern New Jersey. As a yeshiva graduate who is also a Certified Matrimonial Attorney, I fully understand the difficulties in navigating between the demands of the religious and secular worlds. It may be useful to involve a beit din to assist with one aspect of a case in secular court. I resolve these issues for my clients also when I mediate, or arbitrate for a couple. My preference is always to search for solutions with my client that can meet the needs of the family and the children.
Robert Kornitzer is certified by the Supreme Court of New Jersey as a matrimonial law attorney. He has been ranked by Best Lawyers as one of New Jersey’s top family and divorce attorneys for the past five years. As a dual law and MBA degree holder from Boston University, with extensive business experience, Kornitzer brings unique expertise in both the legal and financial aspects of all issues related to divorce. Contact: [email protected]
