The Volokh Conspiracy
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From Weichman v. Weichman, decided in November by the N.Y. Appellate Division (in an opinion by Judges Mark C. Dillon, Sylvia O. Hinds–Radix, Linda Christopher, and Joseph A. Zayas):
The parties were married in 2005. There is one child of the marriage, born in 2006. The child was raised in accordance with the parties' Orthodox Jewish Chasidic faith and attended an Orthodox Chasidic yeshiva from the age of two. In March 2015, the plaintiff commenced this action for a divorce ….
The plaintiff identifies as a member of the LGBTQ community, and considers herself an Orthodox Jew. Following a trial on the issues of custody and parental access, the Supreme Court issued a decision awarding the defendant sole custody of the child, with the plaintiff to have specified periods of parental access. The court imposed certain restrictions on the plaintiff's periods of parental access, including a requirement that: "The [plaintiff] shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child's Orthodox Jewish Chasidic Faith. Thus, the [plaintiff] shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square." …
Ordinarily, absent an agreement, the custodial parent has the right to make educational decisions for a child. Nevertheless, "it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent." Here, there was a sound and substantial basis for the Supreme Court's determination to award the defendant decision-making authority on the issue of the child's education. The child had been enrolled in the same yeshiva since he was two years old, where he was doing well socially and academically, and the plaintiff failed to establish that her desired plan of enrolling the child in a different type of yeshiva or a public school would be in the child's best.
However, we agree with the plaintiff that the Supreme Court's direction that, during her periods of parental access, she "shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child's Orthodox Jewish Chasidic Faith" must be vacated.
In the absence of a written agreement, the custodial parent may determine the religious training of a child. Consistent with the children's best interests, courts may properly direct noncustodial parents, during periods of parental access, to respect the children's religious beliefs and practices and make reasonable efforts to ensure the children's compliance with their religious requirements. However, … a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle.
"To the contrary, '[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.'" A religious upbringing provision "should not, and cannot, be enforced to the extent that it violates a parent's legitimate due process right to express oneself and live freely." Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken.
Here, the challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child's Orthodox Jewish Chasidic faith during periods of parental access. Nonetheless, we agree with the plaintiff that the breadth of the provision in forbidding her to "expose" the child to any activities which violate the child's Orthodox Jewish Chasidic faith has the same effect as the provisions this Court struck down in [two prior cases]. The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child's faith during her periods of parental access, lest she "expose" the child to activities not in keeping with those religious requirements.
The defendant's testimony at the trial supports this conclusion and demonstrates that he expected the plaintiff to "conduct herself in [the child's] presence according to the rules" of the child's faith. The defendant was especially concerned that the child would be exposed to people involved in a "gay lifestyle" and testified that, if the plaintiff became involved in a relationship with or married a woman, he would request that the partner not be present during periods of parental access because same-sex relationships are inconsistent with Chasidic religious principles. Such restrictions on a parent's ability to "express oneself and live freely" go beyond requiring a noncustodial parent to support and enable the child's religious practices, and impermissibly infringe on the noncustodial parent's rights.
The plaintiff does not challenge the Supreme Court's direction that, during periods of parental access, she "shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square." That provision effectively addresses the plaintiff's obligation to ensure the child's compliance with his religious requirements during her periods of parental access….
For much more on this, see Parent-Child Speech and Child Custody Speech Restrictions.