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Child Custody and Religion
When parents of different faiths separate, how do courts decide whose religion the children will follow?

In today's world, there are more interfaith marriages than ever before. New Jersey is becoming more multi-cultural each and every generation. As a consequence, our citizens often fall in love and get married to people from different religions. In many interfaith couples if they should separate and divorce, they often have very nasty and difficult issues regarding custody and religion. When parents of different faiths separate, they don't always agree on whose religion the children will follow. With the increasing numbers of interfaith marriages and the high divorce rates, this topic is frequently argued in family courtrooms all across the Garden State.

The choice of the child's religion is a "major" decision. New Jersey courts have consistently held that if there is a dispute over the religion under which a child will be raised, then the primary caretaker has the final say. New Jersey case law is clear that the primary caretaker has the sole "authority to decide the religious upbringing of his or her children. The courts will not interfere with the primary custodian's section of any religious training or upbringing. The primary caretaker has this "authority even where the parties share joint custody. However, the non-custodial parent may take the children to religious services of his or her choice during parenting time.

In summary, New Jersey case law consistently provides the primary caretaker the sole "authority to determine the religious upbringing of the children. The rationale is that the courts don't want to create any additional conflicts and pressures for the children to choose between separate religions. Unfortunately, the case law often conflicts with the parties' PSA. Most PSA's grant both spouses joint custody of the children, and also provide that both parties will jointly make the major decisions regarding the upbringing of the children. Most litigants reasonably believe that joint custody means that both parents have equal responsibilities and duties to choose the religious upbringing of the children. Therefore, in many family law disputes over the children's religious upbringing, the parties' PSA agreement often conflicts with the holdings of New Jersey case law.

I am a Catholic and my wife is of the Muslim faith…

Before we got married, my wife agreed to raise our children in the Catholic faith. We are now getting divorced. My wife will not honor our oral agreement, and she now wants to raise the children in the Muslim faith. In our divorce case can I request that the court enforce our oral agreement and require that our children be raised in the Catholic faith?

When deciding a dispute about a religious upbringing, courts might consider any oral or written parenting agreements that the couple previously made about how to handle the children's religious upbringing. However, if you haven't been able to adhere to the agreement yourselves, then a court won't necessarily enforce it for you. In fact, most courts reject agreements about which religion the children will follow when their parents separate. Here are the reasons they commonly use.

The agreement is vague.

Often, couples make such agreements informally, prior to getting married, without considering a future divorce. As a result, these agreements are often very vague. For example, many agreements fail to specify the degree of religious training (how often the child will attend services or whether the child will attend additional classes, Bible studies, and other church-affiliated programs) or whether the children will be permitted to attend the other parent's place of worship during special events.

This agreement is oral.

Most marital agreements have absolutely no value unless they are in writing. In most oral marital agreements the spouses have different versions of the agreement, and they may disagree about the terms of the original agreement. A court will not enforce an agreement if it cannot determine what the parents originally agreed to.

The agreement is too old.

Courts often hesitate to bind either parent to an agreement that was made many years in the past.

In summary, if you enter into an agreement about the religious upbringing of your children, then it stands the best chance of being enforced by a court if it is in writing, very detailed, and no more than a couple of years old. The family courts don't want to interfere with First Amendment and parenting rights. Therefore, in most custody disputes with religious issues the court will refer the case for a best interests evaluation to be conducted by Probation. Thereafter, the court will schedule a plenary hearing.

I am Catholic and my wife is Jewish…

We are now getting divorced. What are some good sample clauses that we can incorporate into our PSA that pertains to the issues of child custody and religion?

Sample Clause A

Children to Be Raised According to Specific Religious Faith

The parties acknowledge and agree that their children shall be raised [specific religious faith]. The parties agree to encourage the children to attend [church/temple or other religious center] and to actively promote a healthy awareness and appreciation for this religious faith.

Sample Clause B

Children to Be Raised According to Specific Religious Faith Despite One Parent's Different Faith

The parties represent and acknowledge that their children have been christened [religion A] and raised pursuant to the tenets and faith of the [religion A] religion. Notwithstanding husband/wife's representation that [he/she] intends to convert to [religion B], the parties agree that the children shall continue to be raised [religion A] and each agrees to actively foster, encourage and cooperate with the children in this regard.

Sample Clause C

Children to Be Raised According to Specific Religious Faith With Specific Restrictions

The parties represent and acknowledge that the children have been and shall continue to be raised in accordance with the Jewish faith. Both parties agree to actively encourage and support the children's religious upbringing in this regard. The parties shall c"se the children to attend and the children shall attend religious school at [temple] in [city], [state], or such temple as the parties may otherwise agree. With the exception of temple dues, the parties further agree that all costs related to the children's attendance at and membership in their temple including, without limitation, religious school tuition and costs, shall be shared equally.

Notwithstanding the foregoing, the children will be permitted to participate with [wife/husband] and [her/his] family at Christmas and Easter holidays in a cultural but non-religious fashion and in the same manner as such participation was carried on during the parties' marriage. In no event shall the preceding sentence be construed so as to impede or interfere with the children's upbringing in the Jewish faith. The parties agree that the children may be brought to a church or religious service of any nature outside the Jewish faith only as guests in a non-participatory capacity so as to permit them to be guests at events such as weddings, communions, confirmations, christenings and funerals involving family and friends.

Sample Clause D

One Party Responsible for Religious Costs

[Husband/Wife] agrees to be responsible for all costs and expenses related to the children's religious upbringing including, without limitation, bar and bat mitzvahs, confirmations, temple dues, religious school, etc. [Husband/Wife] further agrees to be responsible for making appropriate arrangements for the children's transportation to and from religious school and events. [Wife/Husband] agrees to make the children available so that they may participate in religious school and any agreed upon religious events. The parties agree to discuss [wife/husband's participation at the children's bar and/or bat mitzvah and confirmation celebrations, in light of any financial contributions that may be made by [her/him] toward same, at or about the time these events may occur.

Sample Clause E

Percentage Cost Allocation of Bar/Bat Mitzvah

The parties acknowledge their understanding that their child, [name], will have [his/her] bar/bat mitzvah in the next _ years. The parties agree to each be responsible for all costs of the bar/bat mitzvah, including, without limitation, temple and reception costs, invitations, band, etc., [by husband, by wife].

What is a summary of major New Jersey case law with regard to custody and religion?
  1. Asch v. Asch, 164 N.J. Super. 499 (App. Div. 1978).

    In this post-judgment action, the father made an application to the court to compel his former wife to enroll the young daughter into a public school. The father and daughter were Jewish, and the mother converted to Judaism prior to getting married. The father sought to prevent the mother's from enrolling the daughter into a Catholic school.

    The trial court ordered that the child could attend the parochial school. However, the court ruled that the child could not receive any religious instruction while attending the Catholic school. The father contended that despite the provision in the trial court order that the child "shall not receive religious instruction," her attendance at a Catholic parochial school would nevertheless expose her to environmental influences inconsistent with the Jewish religion that he maintained was chosen for her by her parents.

    The mother disputed this contention. The mother contended that the benefits of Catholic School far outweighed any benefits of attending public school. These benefits included that; 1) The Catholic school was closer to the child's home; 2) The child's new siblings also attended the Catholic school; 3) A significant percentage of the pupils were non-Catholic; and 4) Most of the teachers were regular teachers, and they were not nuns.

    The Appellate Division reversed the trial court. The case was then remanded then matter to the trial court for further proceedings. The Appellate Division held that while it could not choose between religions or prevent the exposure to competing religious ideas and rituals, a court should seek to minimize, if possible, any conflicting pressures placed upon a child. Moreover, the Asch court further held that it would enforce the terms of the PSA that provided that the child would be raised in the Jewish faith. Finally, the court held that it was not in the best interests of the child to be raised in two different faiths bec"se it would create too much pressure for her.

  2. Brown v. Szakal, 212 N.J. Super. 136 (Ch. Div. 1986).

    Here, two children were born of the marriage between the plaintiff-mother and the defendant-father. The plaintiff, was born to Catholic parents and she was also reared as a Catholic. However, prior to marrying the defendant she converted to the Jewish religion. Nevertheless, the plaintiff participated in a Catholic marriage ceremony. The children were baptized and they attended Catholic church services both during the marriage and after the divorce.

    The parties eventually divorced. According to the PSA the mother was to have custody of the children and was to have "primary responsibility for their religious upbringing." Some time after the divorce, the plaintiff got remarried to an Orthodox Jew. The plaintiff then began rearing the children according to Orthodox Jewish tradition. Thereafter, the children attended temple services, received Jewish religious instruction, and they observed of Jewish dietary laws.

    Thereafter, the mother sought to restrain the father from having the children violate any Jewish dietary or any Sabbath constraints during his visitation. The trial court ordered that the father had to have his daughter's comply with Jewish dietary laws during his visitation time. The father opposed the family court's imposition of such restrictions as a violation of his First Amendment constitutional rights.

    The case was then appealed. On appeal, the Appellate Division overturned the trial court's decision. The Appellate Division acknowledged that the mother, both by the PSA and as her role as custodial parent, had the right to select the religious training and upbringing of the child. Moreover, the Appellate Division noted that it would be reluctant to interfere with the mother's role as the primary caretaker. Nonetheless, the court concluded that this policy had to be balanced with the goal of promoting a strong, loving relationship between children and the non-custodial parent through an appropriate unrestricted visitation schedule.

    Therefore, the Appellate Division concluded that absent such proofs, that the father would not be required to observe the Jewish Sabbath and dietary laws during his visitation with the children. The Appellate Division further held that it would not impose an affirmative obligation on the father to observe the Jewish religious laws. The court found that there was no evidence presented that the children's nonobservance of the Jewish law during their visitation would endanger their physical or mental well being.

  3. McCown v. McCown, 277 N.J. Super. 213 (App. Div. 1994).

    Here, the parties were divorced in 1991 after a twelve-year marriage. There were two children born of the marriage, and the judgment of divorce provided for joint-legal custody with physical custody to the defendant/mother.

    Prior to the divorce, the parties had been Protestants and had also raised their children in the same religion. Before the parties separated, the mother had become interested in Judaism. Before the divorce, she converted to Orthodox Judaism, and then several months later, over the objections of the plaintiff/father, she also converted the children to Judaism. After the defendant the defendant/mother got remarried to an observant Orthodox Jew.

    The defendant filed a post-judgment motion that sought a modification of the terms of the PSA with regard to the plaintiff's visitation schedule. The defendant sought to change any visitation on the Sabbath and on other Jewish religious holidays. The defendant sought to obtain assurances that the plaintiff would ensure that the children complied with Jewish dietary law during his parenting time. The defendant sought to restrain the plaintiff from taking the children to church. Finally, the defendant sought permission to enroll the children into a Hebrew day school.

    The trial court granted the defendant a plenary hearing. The trial court issued an order; (1) permitting the defendant to continue to raise her children in her home according to the Orthodox Jewish religion; (2) allowing the children to follow the cultural household routine and the religious practices of the plaintiff when they are with him provided that they are not enrolled in any Christian Sunday school or any other formal religious educational program; (3) directing that the children continue to attend public or private nonreligious school; and (4) modifying the visitation so as to permit the children to spend major Jewish religious holidays with their mother and to have major Christian holidays with their father.

    The case was then appealed. The Appellate Division upheld the case. The Appellate Division held that it was satisfied that the trial judge's findings, and that they were supported by sufficient credible evidence in the record. The Appellate Division held that the defendant had the right to raise children according to the Orthodox Jewish religion. However, the court did emphasize that it was neither approving nor disapproving of the religious conversion. Instead, the court emphasized that it was simply trying to establish secular rules to minimize the conflicting pressures that were placed on the children. The Appellate Court finally held that the trial court's orders did not endorse either religion or the culture of either parent.

  4. Hoefers v. Jones, 288 N.J. Super. 590 (Ch. Div. 1994), aff'd, 288 N.J. Super. 478 (App. Div. 1996).

    In this case, the father filed a motion to terminate his legal obligation to pay a portion of the children's Catholic school tuition. Pursuant to the PSA he was required to pay for his children's Catholic school tuition for his two children. The parties were divorced in 1991. Pursuant to the PSA the plaintiff/mother was designated the primary residential parent.

    The parties' PSA further provided for the defendant's payment of weekly child support as well as for his payment of the children's private school tuition for the 1991-92 school year. The defendant made those tuition payments. However, he objected to making any further payments for the Catholic school tuition. The father contended that he was a firm believer in the benefits of receiving public school education. Moreover, the father objected to the mixing of religion in everyday schooling. The father acknowledged that he did not have any discussions with his former wife about the subject of receiving a Catholic school education. Moreover, the court noted that while the couple was married, he took no steps to enroll the children in public school.

    The father argued that by forcing him to pay for Catholic school this violated his First Amendment right to freedom of religion, and it also constituted an involuntary support of religion. The Appellate Court did not "buy" this argument. The court held that the children's best interest was that they should continue attending Catholic school.

  5. Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005).

    Here, the parties were involved in a divorce, and they both had different accounts as to how they agreed to raise their children religiously. One parent wanted to raise the children of the Catholic faith, but that they would expose the children to the Jewish religion and holidays. Meanwhile, the other parent wanted to raise the children in the Jewish religion especially since he had physical custody, and he was the primary caretaker. One of the parties' children was baptized in the Catholic Church and was given a Hebrew name in a Jewish naming ceremony. The second child was baptized in the Catholic Church and only given a Hebrew name after the parties were divorced. The parties' third child was both baptized in the Catholic Church and circumcised in a bris, a Jewish ceremony. The parties' PSA had not provisions as to the religious upbringing of the children. The PSA did provide that the parties would have custody of their children on their respective religious holidays. Moreover, the PSA provided that when a Jewish and a Catholic holiday conflicted, such as Christmas and Chanukah, then priority was given to the Catholic holiday.

    The Appellate Division held that the secondary caretaker could not enroll the children in training and educational classes or programs in a different religion over the primary caretaker's objections when exercising parenting time. Here, the father was Jewish and he was also the primary caretaker. The mother was Catholic and she tried to enroll the children into CCD classes as well. The Appellate Division held that the non-custodial parent could not formally educate the children in a second religion, through CCD classes.

    The court held that the decision to enroll the children in CCD classes runs contrary to the right to that the primary caretaker has to educate the children in the religion of his choice.

    The Appellate Division did emphasize that the mother was not prohibited from taking the children to church services during her visitation time. In summary, the Feldman court held that the parent of primary residence has the final say in the religious upbringing of his or her children. However, the parent of the alternate residence is not barred from taking the children to religious services that he or she chooses when exercising parenting time. The reasoning behind the court's decision to give the primary caretaker the sole "authority when choosing his or her children's religion is that it is in the children's best interests. Moreover, the court emphasized that it wanted to reduce the pressure on the children from having to choose between two different religions.


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