Thursday, May 26, 2022

Within the Jewish community, which includes numerous levels and nuances of observance, children are sometimes raised with the tacit understanding that their parents may eventually leave not only the marriage, but also their level of religious observance or even the religion. This creates difficult-to-navigate issues regarding the influence that the parent who has elected a new lifestyle will have on impressionable-age children.

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. This time, which often translates to primary decision-making, is one of the reasons why parents often fight so hard for the majority of the child’s time.

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.

There is case law that 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:

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 had 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 a recent 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 Chasidism in front of the children; allowed them to wear non-Chasidic clothing and violate the Sabbath and kosher dietary laws; and referred to them by names not used in the Chasidic community. 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.

My Conclusions

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 control 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 childrearing.

It is abundantly clear that fact patterns in religious cases can be extremely complicated, as they mirror real-life complicated relationships in a family when it comes to religious decisions in their own lives and on behalf of their children. There is no “cookie-cutter” analysis for every family, as each family and their dynamics must be 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 understand the difficulties in navigating between the often-conflicting demands of the religious and secular worlds. Sometimes beit dins and secular courts need to be brought in to assist for the same clients, and sometimes it is only one or the other. Sometimes I am asked to mediate for a couple and sometimes to arbitrate. At the end of the day, we can search together for resolutions that best meet your needs and those of your children for financial and custodial resolution of your matrimonial issues.

Kornitzer Family Law, LLC is devoted exclusively to the practice of family law, with offices in Paramus and Totowa. Robert B. Kornitzer, Esq., is certified by New Jersey as a matrimonial attorney and recognized in Best Lawyers for his skills as a family law attorney, mediator and arbitrator. Kornitzer can be reached at [email protected] or at 201-292-8444.

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