The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

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


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.