In a disturbing ruling last week, a mid-level New York State appeals court curtailed the power of a divorce court judge to ensure that a non-frum, non-custodial parent does not undermine the ability of a frum custodial parent to raise their child in accordance with Jewish observance.
Judges, as a matter of ruling in with the best interests of the child in mind, have typically directed non-custodial parents exercising their visitation rights not to undercut efforts of the custodial parent to raise the child in a particular lifestyle. If not reversed or modified by the New York State Court of Appeals, New York’s highest state court, custodial parents with the responsibility for the day-to-day raising their children will have their ability to do so materially compromised.
In 2016, a NYS Supreme Court trial judge awarded sole residential and legal custody of the son of an originally Orthodox Jewish Chasidic couple to the husband. However, while the father maintained his Chasidic Orthodoxy, the mother had come out as a member of the LGBT community and took the child to LGBT events. So the trial judge issued an order which included the following provisions:
The Mother 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 Mother 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….
The mother challenged the restriction in the NYS State Appellate Division of the Supreme Court and was supported by a friend of the court brief filed the New York Civil Liberties Union, arguing that this provision was unconstitutional because it forced the mother to honor specific requirements of the Orthodox Jewish faith.
Lawyers for the father responded with a reply brief arguing that the court order is addressed to parental control of the child’s conduct – i.e. eating kosher and keeping Shabbos – not to the parent’s own personal religious freedom, and is therefore constitutional. That is, it is not addressed to what the mother may or may not do personally and independently of her son.
The reply brief was filed by the father’s attorney, Martin Friedlander, a leading New York matrimonial lawyer. He collaborated with the noted constitutional lawyer Nathan Lewin who developed constitutional and other arguments countering the NYCLU brief. As a sign of the importance of the issue in the case, Lewin had been requested by national Orthodox organizations to draft the reply in which they also signed onto.
The appellate court acknowledged that the judge’s order “does not expressly require the [mother] to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access.” But then went on to say,
Nonetheless…. 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…The only way for the [mother] to ensure her compliance …is for her to comply with all religious requirements of the child’s faith during periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements.”
Significantly, the appellate court specifically noted a concern that the restriction could be read as requiring that a same-sex partner of the mother not be present during visitations. So the conflict between religious and gay rights – one of the overarching domestic issues of our time – came into play as well.
The husband in the case has indicated that he will seek to appeal the case to the Court of Appeals. We hope the court takes the case for review. It has ramifications for both custody protocols and religious rights in the modern era.