Free Speech

Noncustodial Parent Must Make Sure That Children Comply with Custodial Parent's Religion

|The Volokh Conspiracy |

From Cohen v. Cohen, decided Wednesday by a New York appellate court:

The parties were married on November 17, 2009. There are two children of the marriage, born in 2011 and 2013, respectively.

During the early years of the marriage, the parties practiced Satmar Hasidic Judaism. At a certain point, the defendant (hereinafter the father) became non-religious, although he continued to appear religious in his dress and customs. The parties separated [and divorced]…. [The trial court] awarded the mother sole physical and legal custody of the children, with parental access to the father.

The father was directed to provide the children with exclusively kosher food and to make "all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic' religious requirements of the [mother] and of the children's schools as they were raised while the children are in [his] physical custody." The court emphasized, however, that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access….

The father contends that this provision is unconstitutional and not in the children's best interests, relying primarily on this Court's decision in Weisberger v. Weisberger. We disagree. In Weisberger, the [trial court] enforced a religious upbringing clause in the parties' separation agreement by ordering that, during any period of parental access or during any appearance at the children's schools, the mother "must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy," or be relegated to supervised therapeutic visitation. On appeal, this Court determined that it was "wholly inappropriate to use supervised [parental access] as a tool to compel theplaintiff to comport herself in a particular religious manner." This Court held that the [trial court] had run afoul of constitutional limitations by compelling the mother to herself practice a religion, rather than merely directing her to provide the children with a religious upbringing (citing Lee v Weisman (1992)).

Here, by contrast, the father was directed to make reasonable efforts to ensure the children's compliance with their religious requirements. The [trial court] expressly stated that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.

New York courts will enforce clauses in custody agreements that provide for a specific religious upbringing for the children where the agreement is in the best interests of the children. In the absence of a written agreement, the custodial parent may determine the religious training of the children. Here, since the mother is the custodial parent entitled to determine the children's religious training, and since the children have consistently adhered to Hasidic practices throughout their lives, the Supreme Court providently exercised its discretion in directing the father to provide the children with exclusively kosher food and to make all reasonable efforts to ensure the children's compliance with their religious requirements while they are in his physical custody (see Matter of Ervin R. v Phina R., 186 Misc 2d 384, 393 [Fam Ct, Kings County]).

We emphasize, as did the Supreme Court, that the defendant is not required, at any time, to himself comply with any religious practices. We further emphasize that the standard is one of reasonable efforts, not perfection, and we urge the parties to work together in the children's best interests to address any issues which may arise prior to seeking judicial intervention.

I'm skeptical of this analysis. First, it requires courts to police disputed questions of religious observance (e.g., what really are "'Hasidic' religious requirements," and what is a "reasonable effort[]" to comply with those requirements?).

Second, it does compel the father to enforce religious rules, including ones that he has renounced. Say, for instance, that the mother insist that one of the children not express religious views or even raise religious questions that Hasids perceive as blasphemous; the father would presumably have to enforce those prohibitions, even if he opposes them. Likewise, say that one of the children is a daughter (the record is unclear on that), and the mother insists that she follow Hasidic modesty rules, which the father now views as sexist and improper; he again would have to enforce those rules.

In an intact family, each parent is entitled to choose how strictly to enforce (or even whether to enforce) the other parent's religious principles while the children are in his or her care; of course, this might itself lead to a divorce, but not to governmental enforcement of one parent's will on the other parent. I don't think that a divorce should change that, at least with regard to what rules a parent enforces when the children are with that parent. (The matter might be different for permanent changes, such as medical care decisions, and I realize that some religious parents might feel that even a decision about what to eat or how to address may itself leave a permanent spiritual mark, but I don't think that civil courts should take cognizance of that.)

If the parties had expressly made an agreement about such matters, and the agreement didn't require a court to make religious decisions (for instance, if it provided for arbitration of what constitutes Hasidic observance by a Hasidic religious tribunal), then I think that agreement should be enforceable, like other contracts are enforceable.

But absent such an agreement, I don't think a court should step in, at least in the absence of serious evidence of real and likely harm to the children. And I don't think that simply raising children in a religion during a marriage should count as such an agreement; it's widely known that people often do change their minds about religions and about degree of religious observance—and about how to raise their children—so it should take an express contract to waive that right.

In any event, though, I think many of our readers will find the case interesting, whether they agree with the court or with me (or with neither) on this.

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  1. The case says the mother sought the divorce. Did she have to cite any reasons?

    This may not be legally relevant, but my sympathy for the husband might depend on whether the divorce was for (say) adultery or substance abuse, or whether it was simply the mother’s preference.

    1. Which category would you place “blasphemy” or “apostasy” into? Is it more like adultery or the “mother’s preference?”

      [I find the dichotomy you’ve set up rather odd. I’d consider divorce due to adultery or substance abuse as “preference” either way. What’s the socially acceptable way to address the occasional beer, for example, when the faith prohibits all alcohol? Is that “abuse?” Where’s the threshold where we shift “blame” for the divorce from one partner to the other?]

      1. It might make a difference to some if their marriage ended because A) she wanted to be with someone else, B) he wanted to be with someone else, C) they both wanted to be with someone else, or D) they never really wanted to be with each other.

  2. IANAL and have no legal opinions, but the court opinion seems wrong to me for the same reasons, plus, once the parents divorce, one of the consequences is breaking that husband-wife bond; this decision requires the husband to still obey the wife without any feedback, in effect making that wife-husband bond now much more one-sided, enforced by courts and police. Seems to be setting a precedent that any spouse who can’t use moral persuasion to get the other spouse to agree can now get a divorce and sic the government on the uncooperative spouse.

    1. You’ve accidentally stumbled upon what an idea that is called in the manosphere “Marriage 2.0”. Marital power now resides with the spouse least committed to the relationship, as they can end it at any time and outsource enforcement to the state. Spouses are now bargaining in the shadow of the law as the enforcer, even within the marriage.

      1. This whining is unmanly. You shouldn’t have been allowed into the manosphere in the first place. Please vacate.

        1. …can’t tell if satire…..

          Still, I’m but an occasional tourist to the manosphere. It stumbled upon some deep truths that were already well known and documented in writing elsewhere, and thought them new, like Renaissance thinkers unaware of Ancient Greek philosophers. It’s great for pick-up artists though and discussion of said truths in modern context though.

          1. We agree that your association with anything related to being a man must be accidental.

      2. “Marriage 2.0” sounds like clever branding for the old practice of deciding you’re the victim and thus absolving yourself of any responsibility (or balls.)

        1. So, you’re saying everyone should just “man up”?

      3. You can do what your wife says, or you can spend $50,000 and have a judge tell you to do what your wife says.

    2. ” Seems to be setting a precedent that any spouse who can’t use moral persuasion to get the other spouse to agree can now get a divorce and sic the government on the uncooperative spouse.”

      Except that you can get the divorce and not the kid(s).
      In my dad’s generation, mom got the kids unless she was dead, missing, or in jail. Now that we’re in mine, mom doesn’t automatically win custody if dad puts on a reasonable case that he should have custody. If you are the unreasonable one, you probably will wind up having your relationship to your kids determined by someone else, if not several someones else.

  3. I’d like a little more background on the process.

    As I understand it in Jewish tradition a husband must give the wife permission for a divorce. Often there are religious consultations before a civil divorce.

    Did the court order merely confirm something that the father had already agreed to?

    1. rsteinmetz: The opinion says nothing about whether there was any controversy about the Jewish religious divorce. Perhaps there was no controversy, because the husband was fine giving the wife the divorce. (As I understand it, most husbands are fine with that, either because they themselves want to be divorced or because refusing to give the religious divorce is generally seen as a schmucky thing to do, to use the technical legal term.)

      In any case, the presence or absence of a religious divorce would generally not affect the parents’ obligations with regard to their children.

      1. One often hears and sees ‘schmuck.’ But I’m not sure if I’ve seen “schmucky” before. I doubt it will make its way into written legal decisions (alas!). But you using it here was perfect . . . not sure I can think of another word–in any language–that would have been more accurate.

      2. IANAL, but I play one on the Internet sometimes.

        Since this was an appellate case wasn’t the decision based on the record below – which as I imagine it would have included the original divorce proceeding and whatever caused the father to take exception to the courts order?

    2. “As I understand it in Jewish tradition a husband must give the wife permission for a divorce.”

      You’re confusing religious divorce and legal divorce. Legal divorce requires the state’s permission, not the husband’s.

      1. No I’m not. But if the wife is a Hasidic jew she would presumably have taken Jewish Law very seriously. The fact that her religion was mentioned in the original order suggests that some pre-agreement took place, possibly in a religious context.

        What I’m suggesting is that there was a previous or simultaneous religious divorce and the court order reflects and confirms the results of that process.

  4. I hope these children overcome the described circumstances and, when no longer under the mother’s court-enhanced thumb, choose reason.

    (The father should have an interesting discussion with them — in English, one imagines — when no longer governed by the mother’s preferences or the court’s orders.)

    Good luck, young ladies. You’ll be free to think as you like and build your lives as you wish soon enough.

    1. And if they choose to think the wrong way, not to worry, they’ll soon be replaced by their betters. They’re probably white, anyway, so no great loss, right?

      1. Interesting question, but Rev Cuckland is antisemitic, so does he consider Jews to be white?

    2. Boy this one is new….a Reverend who is an anti-religion bigot. Only in America.

      Reverend Arthur I. Kuckland is soooo much better than you.

      1. Choose wisely, young people, or you could become someone like these clingers.

  5. “Parental access” sounds like they’re just hanging out for parts of the day sometimes. I’m all for enforcing the contract but enforcing the practices on the father at the same time if they aren’t actually staying with him for substantial periods of time rather than just a single activity or outing seems heavy-handed and wrong. I’m not sure how to feel about it if the parents each spent substantial time with the kids, though I’m absolutely sure the dad knew what was expected here and just figured he could get out of it later. Parents who agree to such contracts should really specify the practices that need to be adhered to, although for Hasidic Jews there’s not a ton of variation, unlike the “Roman Catholic” case from before. The problem is that it’s not the court’s place to decide the ground to cover.

    Of course, if he originally agreed to comply with the practices himself while with the children then screw him for trying to get out of it.

  6. I think the professor’s reference to how married couples might having diverging practices is instructive. But an intact marriage is effectively joint custody, while here, Mom was awarded sole custody. Does that make a difference?

    Also, what if we take out the religion part–Mom has sole custody and chooses to raise the kids as vegans. Can she force Dad to feed them vegan meals during his visits? (And, yes, I know some people might say veganism is a religion, but I think that’s not really true.)

  7. It is natural for people to want to protect children. This is why family courts allow for intrusion into religion in a way that would not be allowed in other areas of the law. After all, the courts are convinced they are acting “in the best interests of the child.”

    The reality is that judges, like all people, see things through the prism of their own experiences. There is no reason to think when dealing with two parents, one who wants to raise a child as a Hasidic Jew, and another who wants to raise the child secular, no judge can make a meaningful and objective decision as to what is the best interests of the child. Unfortunately, family court judges think that they are smarter and more knowledgeable than they are.

  8. The court seems to be attempting to require the father to provide a religious environment that meets with the mother’s approval. It might have been a better option to just say that rather than interposing itself in the middle of an argument it is not permitted to participate in.

  9. The outcome of the case sounds correct to me. There are several possible outcomes for custody of children:

    1. parent A
    2. parent B
    3. both parents A and B, working together
    4. Neither parent A nor B.

    If the court is forced to choose between parents, it is because they can’t or won’t work together for the benefit of the child(ren). So the court picks one and that one gets to make the important decisions. If you want a role in important decisions regarding your children, either convince the court (or your spouse) that you can and will work together, or convince the court (or your spouse) that your decision-making with regard to the children is in their best interests. If you can’t achieve any of those outcomes, then your preferences with regard to the children are moot. Be happy you haven’t been pushed out of their lives completely.

    1. Yes, I was involved in a long, drawn-out custody fight. I also convinced the court that it was better for my child if I were the one making decisions regarding her upbringing.

    2. That is what happened in this case based on parts of the opinion not quoted by Prof. Volokh. The Supreme Court, which was also affirmed by the Appellate Division, awarded the Husband certain control over mental health treatment. The courts did not look too kindly on the mother firing a therapist right before trial and hiring one that would have deprived the husband of any meaningful contact. The Courts recognized that having one member of the Hasidic community and one not aren’t likely going to agree with much, but deferred to the fact that the children had always been raised by the mother in the Hasidic community. That being said, with the references to parental alienation, the Court is advising the mother to tread lightly and don’t try to prevent father from access unless it is something obvious like serving the children cheeseburgers.

  10. One thing that lawyers who practice family law quickly learn is the Constitution has no place in family court.

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