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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?
New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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