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Faith no more–but can the court make a parent act religiously?

By June 6, 2018October 26th, 2021No Comments

What happens when a separating parent leaves their religion, but a court orders they must maintain a pretence at home and continue to raise their children religiously? In New York, home to hundreds of thousands of ultra-Orthodox Jewish people, such cases have been appearing in the courts and have been raising human rights concerns, with some critics claiming that “the government is enabling people to force their religious beliefs on others as a condition to maintain their relationships with their children.” And requiring an adult to act religiously is unconstitutional.

An article in the New York Times, “When Living Your Truth Can Mean Losing Your Children”, looks at the problem confronting parents experimenting with their identity in terms of religion or sexuality and who discover there could be an real effect on their access to their children.

One case involves 35 year old mother Chavie Weisberger, who was leaving the ultra-Orthodox fold and also discovering her lesbian identity. In Weisberger’s custody case, the judge ruled she should lose custody “largely because she had lapsed in raising them according to Hasidic customs”.

Although the ruling was reversed on appeal, the case is having an impact on family law in New York, because it has highlighted the need for courts to take the totality of circumstances into account to determine a child’s best interests rather than just looking at a single factor–in this case, religion.

The backstory is that Weisberger had divorced via a beth din, or Jewish court, and a religious divorce agreement had initially granted her full custody of the children (aged 1, 3 and 5). At the time of signing the religious divorce agreement, the mother says she didn’t notice its clause regarding maintaining traditional customs.

She allowed the children to try nonkosher food, like a chicken kebab at a street fair, and permitted her girls to wear pants in the house. That violated the terms of her religious divorce agreement, which required her to raise the children Hasidic.

When she subsequently came out as a lesbian and began wearing secular clothes, it wasn’t long before her ex sued for custody of the children. He claimed his ex’s “changed lifestyle” was in violation of the divorce terms and would traumatise the children.

The NY Times article explains how, in the event of a dispute over a religious divorce agreement, matters are often taken to civil courts for secular judges to enforce the terms. The secular judge then places “personal religious matters under a microscope as [the] judge seeks to determine whether the parents are honouring their original agreement”.

In Weisberger’s case, the judge awarded sole custody to her ex, ruling that “her personal transformation had caused too much turmoil for the children, who attended yeshivas and were struggling to live between two worlds”.

Some argue that seemingly “trivial” details of religious practices are justifiably to be considered by secular judges, because fitting into a community and observing its customs is something that can be related to a child’s wellbeing.  It’s also argued that it’s fair for state courts to look unfavourably on someone who reneged on an agreement—and the religious divorce agreement is seen as a legal contract.

But critics say the “deference to beth din agreements” is idiosyncratic, depending on the judge. There is also the allegation that such deference occurs more often in particular jurisdictions where large populations of ultra-Orthodox Jews have elected judges.

Weisberger’s appellate judges found the trial judge had “erred in making religious observance the paramount factor when deciding custody”. The court also said Ms Weisberger’s constitutional rights had been violated “by requiring her to pretend to be ultra-Orthodox around her children, even though she was no longer religious, in order to spend unsupervised time with them”.

This does not appear to be a gender issue, because practitioners say both mothers and fathers are being affected:

Julie F. Kay, a human rights lawyer in private practice, said she knew of at least one court that issued an order denying a formerly ultra-Orthodox father visitation rights because he showed up to a parental visit in jeans, which are not permitted to be worn by the ultra-Orthodox.

Some argue part of the problem is the guiding principle of “the best interests of the child”, which underpins family law in the US, just as it does here. This automatically places the parents’ rights secondary, when sometimes what is right for a parent may actually be what is in the best interests of the child.  Says Chavie Weisberger, “I was that confident that I could be the person I am, and that’s what’s best for my children.”

Read the full NY Times story.

You can also read more on our blog about Australian cases involving custody issues and religion here and here.

Do you need assistance with a parenting or other family law matter?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.

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