Close up of hebrew and english Bible.

Absent agreement of both parents, neither parent sharing joint legal custody nay cause or allow the children to receive any religious sacrament or education. So held Supreme Court Nassau County Justice Jeffrey A. Goodstein in his January 13, 2017 decision in DK v. AK.

The parties had two children together (currently ages 6 and 5). The parties were divorced in 2016 by a judgment which incorporated, but did not merge, the terms of their 2015 Stipulation of Settlement. Pursuant to the Stipulation, the parties shared joint legal custody of the children, with the mother having residential custody. Here, the father had brought this post-judgment motion for an order prohibiting the mother from causing or allowing the children to be baptized, or to receive any religious sacrament, or a religious education in any faith other than Judaism, without his written consent.

The father argued that there had been no issue with regard to the parties’ joint custodial relationship until the mother’s decision to baptize the children. The father further argued that the children were raised in the Jewish faith, as was allegedly agreed upon by the parties prior to their engagement. The mother acknowledged that the parties’ son had a traditional Bris, performed by a Mohel (performer of ritual circumcisions). The mother also acknowledged that the parties had a naming ceremony for their daughter although she contended that it was the paternal grandfather who wanted the baby naming and scheduled it, so she took over planning it.

The father further alleged that prior to their separation, the parties “actively” raised the children in the Jewish faith by celebrating the Jewish holidays. He contended that the children now accompany him to synagogue when he attends. Further, he set forth that a few months ago, the children started attending Hebrew school, with the mother’s consent.

The parties recently attended a mediation session when the mother wanted to bring the children to Catholic events. As reported by the parties, the mediator took the position that the children could be raised as both Jewish and Catholic, to which the father strongly disagreed. Shortly after the mediation session, the mother notified the father of her intent to baptize the children and invited him to attend the ceremony. The father further argued that a baptism is tantamount to changing the children’s religion without his consent.

The mother acknowledged that their son had a Bris, but that she strongly objected to a conversion ceremony being performed. She argues that Jewish law sets forth that a child born to a Catholic mother who has not converted, would recognize that child as not Jewish. Based on that understanding, she did not object to the ceremony. She further acknowledged the naming ceremony for their daughter was arranged by the paternal grandfather because he intended to convert the daughter to Judaism at this ceremony. It was at that point when mother took over the planning for said event. The mother further alleged that the naming celebration took place when the daughter was 16 months old and was nontraditional in nature as it took place in the party room at a local pub.

The mother further argued that aside from these two events, the father took no steps to raise the children in the Jewish faith. She contended that the children never attended a synagogue during the marriage, but did, in fact, attend Catholic Mass with her or her parents on an average of at least once a month. The Jewish holiday celebration consisted of a family dinner, similar to their celebration of Catholic holidays, but which also included Mass attendance. She further contended that she reluctantly consented to the children’s attendance at Hebrew school because of the father’s intimidation and threats of legal proceedings. The mother stated that she has always, and continues to encourage, and never objected to, the father’s willingness to share his religion with the children. The mother recently gave birth to a son with her new husband, who she intends on baptizing.

In reply, the father argued that the mother’s allegation that the absence of a provision in the Stipulation setting forth the children’s religious upbringing was intentional, does not mean that he agreed that they could be raised in the Catholic faith. He argued that at the time of the execution of the Stipulation, there was no dispute that the children would continue to be raised Jewish and therefore, no reason to include a specific provision to that effect in the Stipulation. He further alleged that if the children attended Catholic Mass during the marriage, it was without his knowledge or consent. Finally, he asserted that the mother made no attempt during the marriage to baptize the children.

It is well established that joint legal custodial parents share legal responsibility and joint control over a child’s upbringing. It involves mutual consultation and joint decision making by the parents concerning major issues such as the medical care, education, religious upbringing and discipline of their children.

As a matter of policy, the initial posture of the courts with respect to the religious upbringing of a child should be one of noninterference. The determination of the children’s religious upbringing “is best left…to the agreement of the parents…” Only when moral, mental, and physical conditions are so bad that they seriously affect the health or morals of the children should the court be called upon to act with respect to a disagreement between the parents over the internal arrangements of family life.

The Stipulation is a very detailed 36-page document resolving the parties’ divorce action. It provided that the mother have parenting time every Christmas Eve and Day (until 5:00 p.m.) and Easter Sunday. The father had parenting time every Rosh Hashanah and the first two nights of Passover (Easter given priority over Passover). The Stipulation was silent as to the religious upbringing of the children. Interestingly, the Stipulation, explains how each parent is entitled to be present at every important event in the children’s lives, and in fact lists, as examples, events having to do with “school, social, athletic or extracurricular activities, examples being graduation, academic honors or achievements, school conferences, plays, athletic events and any other same or similar events of importance.” But even here the Stipulation is silent as to religious events. This is a most glaring omission in this otherwise well drafted and very specific Stipulation.

Both parties agreed that while the marriage was intact, when celebrating both religious holidays, as many interfaith marriages now do, the celebration consisted of a family dinner, and sometimes, the attendance at Mass. The Court found no merit in the father’s contention that the Stipulation was silent as to religion because it was a foregone conclusion that the children would be raised in the Jewish faith. The Court is well aware that the best practice, even when parties are not at odds as to the religious upbringing of children is to include a statement addressing in what religion the children will continue to be raised. Likewise, the Court did not adopt the mother’s argument that because the Stipulation provides that if a Jewish and Catholic holiday fall on the same day in a particular year, she is permitted to enjoy the Catholic holiday, this fact alone establishes that the children would be raised Catholic.

The case law is clear that the Court should avoid decisions with regard to the religious upbringing of children during a divorce, or post judgment as is the case here, except in circumstances demonstrating that there is a detriment to a child.

Precedent is also clear that the custodial parent has decision making with regard to religion for the children. However, here, the Stipulation states that the parties share “joint legal custody.”

The fact that the mother has residential custody subject to the father’s parenting time is of no consequence with regard to decision making power.

The Court continues to see more and more interfaith marriage cases before it. In some of those instances, the parties have made a definitive determination as to what religion the children will be raised and will follow that faith to a certain agreed upon degree. In others, it is clear that the parties intend to celebrate the history and the holidays (as traditions) of both particular faiths, without choosing one belief system over the other. The Court has seen, in both of those situations, stipulations setting forth the parents’ intentions.

Here, the parents arranged for (although there is a factual allegation that participation was not willful), a Bris for the son and a baby naming ceremony for the daughter. It is also undisputed that there was never a conversion into the Jewish faith by the Catholic mother, or as she states, for the children. The father contended that his mother was a Roman Catholic and he was raised in the Conservative denomination of the Jewish religion.

As a post judgment issue, this Court is relegated to making a determination based upon the Stipulation, which provides both parents with legal custody (which means joint decision making on all major decisions, including medical, educational and religious).

It appears to the Court based upon the Stipulation, that the parties intended for the children to enjoy both parents’ celebrated religious holidays, while at the same time, by being silent, making it clear that the children would not be raised in any specific religion.

Since the parties share joint legal custody, any decision regarding the religious upbringing of the children would have to be made on express consent of the other party. Absent said consent, as the Stipulation is silent, neither parent may bring the children into any particular religious faith.

Accordingly, based upon the case law of the courts’ non-interference with the religious upbringing of children, and more importantly, with the deafening silence in the Stipulation with regard to religion, this Court can make no determination as to the children’s religious upbringing.

Therefore, Justice Goodstein ordered that each parent be prohibited and enjoined from causing or allowing the children to receive any religious sacrament or education, without the other’s written consent. Such did not prohibit either party from attending Mass or Temple services regularly, or from joining a particular Temple or Church, or from having the children attend worship services with either parent during their parenting time.

The mother was represented by Michelle DiPaolo, of Massapequa. The father was represented by Clifford J. Petroske, of Hauppauge.