Thursday, May 10, 2012

Jonathan D. Gordon, Ph.D., J.D.

Copyright © Jonathan D. Gordon, Esq. 2012

            Perhaps surprisingly, spirituality and religious issues arise often in Family Court, especially when there are children involved.  There are different aspects of the spiritual/religious issues that we see manifested during the court proceedings, despite the fact that there is a Constitutional separation of Church and State.  When people who are litigants in Family Court practice their faith to the extent that it affects their daily life, it will come up and will often become a factor in the settlement or adjudication of a final judgment of divorce, or of a custody and parenting time dispute.  In contrast to this, many litigants use their religious faith to get themselves through the ordeals that they may be experiencing.  Those are two different things, but we will touch upon it to the extent possible.

Can the Courts Enforce Religious Observance?

            The Courts, depending on the particular State, will usually not get involved in matters related to religious observance.  The most common dispute that we see, especially in divorce, is that one spouse has one level of observance, and the other spouse has something different.  This is made more contentious when during the marriage, both raised the child in one way, and now that they are separated, one spouse may have changed the rules, or has no desire to take the child to Church, Synagogue or Mosque, or perhaps may have converted (or reverted) to another or previous religion or level of practice.  Most Courts will not force one parent to continue that type or level of religious observance in their home during their parenting time with the child.  To give a specific example, when married, a couple was (or one parent was) taking the child to Church every Sunday morning.  Maybe the child was going to CCD classes there.  Now that the couple is separated, one parent says they are not interested in spending their Sunday morning taking the child to Church, but would rather take the child on day trips, or other activities.  Unless there is a pre-existing written agreement between the parties, a Court will most likely not order that uncooperative parent to take the child to Church on Sundays.   This scenario can move across religious lines as one parent refuses for example, to keep kosher in their home, refuses to observe the Jewish Sabbath, or perhaps a Muslim parent decides to no longer partake in the traditional dietary laws, prayer schedules, or other aspects of religious observance.  The Court will not usually get involved unless it can be shown that failure to continue the previous level or type of observance will cause psychological harm to the child (for example, forcing a child to violate some religious rule just for spite, to the child’s extreme emotional detriment).  Proving that would be very difficult, however.

Don’t Wait Until You Divorce to Figure Out How To Raise Your Children:

            One way to prevent this kind of problem is to plan for it before marriage.  In this age of pre-nups, it is not unusual for a couple to enter into their marriage with a contract already in place.  It is not unreasonable to come to some sort of understanding before a couple marries and has children, that they will raise their future children in a particular way, in a particular faith, etc.  The couple does not need to have the children to know how they would prefer to raise them.  And if they have no idea when they get married, perhaps they should talk about it, get counseling, see a clergy-person, etc. before they tie the knot.  This issue (among others) is a crucial one and will haunt the couple during their marriage, and during and after their estrangement and divorce, if they don’t figure it out early.  Even if the couple has no assets and it is their first marriage, it would be good for them to discuss children and how they are to be raised, before they marry, rather than to fight about it later.

            Once a spouse files a Complaint or Petition for Divorce, or if there is a custody and parenting time dispute arising after two married or unmarried parents separate, negotiations should begin early to ensure that the child’s emotional and religious needs get met along with the other issues that are bound to come up.  Under no circumstances should a property settlement agreement or other settlement be put into place with no provisions for religious upbringing and religious schooling, if that is part of this family’s lifestyle.  Obviously if the couple is not a religiously observant couple, and they have no desire to raise their child in anything other than a secular home, then this is not necessary.  But for parents who are religiously observant, it is a good idea to plan this out.  Otherwise, after the divorce, there will be conflicts that could have been avoided if there was a written contractual provision covering this area.

            Here are some areas and issues to consider regarding pre-nups and divorce settlement agreements with regard to religion and children:

Under What Structure?

• What is the basic structure under which the child(ren) will be raised (e.g. Orthodox, Conservative or Reform Jewish, observant/Church-going Catholic, Episcopal, Lutheran, etc., observant Muslim, Buddhist, Hindu, Sikh, etc.)?  Will, for example, a particular religious Code be the family’s structure for daily living and for settling disputes?  This can include (for example) Jewish Halacha, Muslim Sharia and Catholic Canon Law.  There are others, but these are frequently seen in Family Courts. 

• Any dietary laws, restrictions, etc., related to religious tenets that must be maintained?  How will the parents continue to provide this kind of food to the child post-divorce?  What is the level of dietary stringency (e.g. Halal meats, Ramadan fasting, Glatt Kosher meats, two sets of dishes for dairy and meat meals, Lent restrictions, etc.).

Religious Education Issuses and Related Costs:

• Requirements for religious education.  This can be any full time parochial     school, part-time after-school programs, bar mitzvah instruction, confirmation classes, etc.  What about the cost of a year abroad for religious instruction (gap year seminary) or other post-high school religious experience and related transportation costs?  What if one of the parents no longer agrees that a parochial or day school education is a good idea?  Who decides?  The Court will not force parents to continue private school education and certainly not if the costs are killing the primary-paying-parent financially.  But here, the age of the child and the usual practice of the family will be taken into consideration for the child’s best interests.  For example, a court will not allow a parent to take a child out of a private parochial school in the seventh grade, or in eleventh grade since that child has been with the same group of friends for so many years and would likely be emotionally devastated by being taken away from those friends.  The grades I mention are arbitrary examples, and the court will look at the totality of all of the circumstances that contribute to the child’s best interests.

• Who will pay and how will the bills for religious education be paid?  Will the bills be paid proportional to the parents’ respective incomes just like for college? What are the provisions for changed economic circumstances (such as retirement or disability or unemployment) of one or both of the parties (it becomes unaffordable for one of the parents)?   What about the extra costs of religious education such as building funds, registration fees, trips, books, etc?  When do religious education requirements end:  8th grade, 12th grade, end of college? 

Parenting Time Issues:

• Sometimes one part of a holiday is more important to one parent than to another for purposes of setting up post-divorce or separation parenting time.  For example, one spouse may always want the child on Christmas Eve while the other parent prefers Christmas Day.  In this scenario, there is no problem.  Otherwise, in this scenario, portions of Christmas, or the entire Christmas will have to be alternated by year.  Same is true with other religious holidays such as Passover and Easter.  If the parents celebrating Passover live within walking distance to each other, it may be preferable for one parent to have the child for one Seder, and the other parent gets the child for the other Seder.  Otherwise the first and second halves of this 8-day holiday is flipped by alternate years. There are many different ways to set the holiday visitation up, and it is sometimes complicated, but the best policy is to memorialize it in writing to avoid conflict later. 

• What will be the mechanism for resolving religious and other disputes?   Sometimes a couple will prefer (as set forth in their pre-nup or later in their Property Settlement Agreement for their Divorce) to settle all future disputes through their religious Court, such as an Orthodox Jewish Bet Din or an Islamic Sharia Court.  If a couple agrees to submit their disputes to a religious Court, it becomes akin to submitting a dispute to binding arbitration through that organization. Family Courts will generally uphold an agreement to arbitrate economic disputes through a religious court since the agreement itself is a civil contract between two people who agree to proceed religiously.  That contract is likely to be legally enforceable.  With children, however, the Courts will likely want to ensure that the child’s best interests are being met and may review an application to have a particular issue severed from the arbitration of the religious court, depending on the circumstances.    If a couple has not already agreed to submit their religious issues to their religious court, then the State Court will be unlikely to enforce any religious practice or observance due to the separation of Church and State that is guaranteed by the Constitution.  In that case, the Court will usually tell the parents that when the child is at the father’s residence then the father’s rules, religious observance, etc. shall apply.  When the child is with the mother, then the mother’s rules shall apply.  Regardless of the individual parent’s anguish over the differing observance of the estranged ex spouse or partner, the child will have to get used to the disparity unless it can be shown to be psychologically damaging to the child.  The standard will not be the psychological damage to the parent.  Rather, the resolution of the particular issue will be driven by the Constitutional guarantee of freedom of religious practice for the individual parents, as long as the child is not placed at risk.  The best interests of the child is always a major factor in the Court’s determinations.

•  An Orthodox Jewish couple, upon their divorce, will require a Jewish document of divorce, called a Get.  The Get can only be given by a man to a woman and she is not permitted to remarry unless she has a valid Get issued by a bonafide Rabbinical Court, or Beth Din.   Some States like New York, have a Get Law that requires the parties to remove any impediments to the remarriage of the other party.  New Jersey does not have this yet, nor do most states.  When a couple sign a pre-nuptial agreement (now required by Rabbis performing wedding ceremonies who are affiliated with the Rabbinical Council of America) that in the event of a divorce, the man shall give a Get to the woman, then the State Court can enforce that contract.  Absent a written contract or an enacted Statute, there is little that can be done by the State Courts to force a man to give this religious document to a woman.  Often, the reluctant husband is dealt with by his local religious community and sometimes prevailed upon to grant the Get so that the wife may remarry at will.  Whether divorcing under Jewish Halacha, or Islamic Sharia, or a Catholic  Annulment, or under other religious code, the procedures used by the respective clerical courts are separate from that of the State Courts and do not replace the civil divorce issued by the State Court.  State Courts are careful not to violate the separation of Church and State provisions of the U.S. and State Constitutions.

How Spiritual Can You Get in Court?

            After years of being present in Family Court, dealing with clients and observing the proceedings, it is evident that litigants need ways to cope with very upsetting circumstances.  People have their unique ways of coping with great stress, painful events, fear, etc.  Some clients who are immersed in their religious beliefs, use those beliefs as a comfort in time of heartbreak and anguish.  For those who are comforted by religious supports, it is to be encouraged.  There is a difference between falling back upon one’s spiritual life to gain inner strength, and imposing one’s religious beliefs on another person, however.  A Judge will rarely tell a litigant to speak with a member of the clergy, and will never order a person to do that.  But the Court has no problem with litigants seeking their own solace through their religious institutions or beliefs.   A Judge  will order people to get treatment by a licensed professional such as a Psychologist or other therapist when it is deemed necessary.   The Court will be happy with whatever reasonable methods one uses, however, to maintain equilibrium and emotional stability. 

It is well known that people for whom religious practice is valued and is a comfort, will go there as a refuge.  Religion can be a valuable method of coping for individuals going through a break-up.  If the couple can agree, they can both use this resource and provide consistency to their child(ren) by agreeing at least on religious issues and practices.  If that can be accomplished, all the better for the child.  If an individual parent must proceed solo in the religious sphere, however, the challenge is to let go of the expectation of controlling the religious practice and beliefs of the now-estranged other parent since that will be an exercise in futility.  Forcing religious practice on a child who is being offered an easier route by the more secular parent will backfire.  It is a better approach to make the parenting time in the religiously observant home a warm and enjoyable experience, rather than to question the child as to what they were allowed to do at the other parent’s home.  The child will remember the good times, the warmth, love and enjoyment they felt practicing their religion and will be more likely to take that with them into adulthood.  Interrogation techniques and criticism of the other parent, as well as guilt-trips will push the child away from religious practice and this self defeating approach should be avoided at all costs.  You might consider speaking to your clergy person for more guidance in difficult situations. Please let me know your thoughts and post a comment if this is an issue that you have experienced.  Good luck.  

Copyright © Jonathan D. Gordon, Esq. 2012

Please note, this blog is for information purposes only. It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.

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