The United States Constitution protects parents’ rights to dictate their children’s religious upbringing. But what does a court do when divorced, divorcing, or otherwise unmarried co-parents disagree about the religious upbringing?
First, the easy answers: Family courts throughout the country apply a “best interests of the child” standard to custody and child-rearing determinations. Courts assess “best interests” on a case-by-case basis, while typically (i) preferring to maintain the status quo, (ii) deferring to the parent with primary custody, and (iii) preferring to uphold parents’ agreements. Thus, a party seeking to change the status quo, override the parent with primary custody, or modify a prior agreement should be prepared to offer persuasive evidence of both a change in circumstances and that the child’s best interests are at stake.
But religious disputes also implicate constitutional principles, including (i) parents’ fundamental rights to inculcate religious values in their children, (ii) all persons’ fundamental rights to freely exercise their own religious preferences, (iii) that judges cannot compel any person to adopt any particular religious lifestyle, and (iv) that a court can only interfere with a parent’s right to direct his or her child’s religious upbringing when there is a “substantial threat” of significant (non-speculative) harm to the child. Further, courts are supposed to be neutral on religious questions, without preferring one religion over another or aiding believers over non-believers. Finally, the Constitution prohibits courts from resolving controversies over religious doctrine and practice. Accordingly, secular courts must confine their analyses to secular law and leave the implication of religious laws and customs to the religious groups that recognize those rules.
Applying all the foregoing principles in a religious upbringing dispute between co-parents is difficult (if not impossible). The Supreme Court has never had occasion to do so. As such, as illustrated by the examples that follow, real-life cases are inconsistent in their approaches and outcomes.
Many family courts have relied on the Constitution’s Free Exercise and Due Process clauses,1 as well as their counterparts in state constitutions, to hold that the state may only encroach on parental authority over religious upbringing upon a showing of a “substantial threat” or “physical or mental harm to the child, or to the public safety, peace, order, or welfare.”2 Thus, direct evidence of harm is key for the party seeking to challenge the status quo. For example, in De Luca v. De Luca, 3 a Catholic father petitioned for custody because his ex-wife had become a Jehovah’s Witness, which allegedly interfered with the children receiving medical attention, among other things. The court held there was not sufficient evidence of harm to interfere with the mother’s custody. In Palmer v. Palmer,4 a state supreme court overturned restrictions placed on a Jehovah’s Witness who involved her three-year-old in a door-to door visitation ministry and took the child to adult church services. The court found that evidence adduced at trial that the child may be bored or unruly in such situations did not meet the standard of “substantial threat to the mental or physical health or well-being of the child” that would be necessary to infringe on the mother’s right to control her child’s religious upbringing.
The Constitution, moreover, may thwart one parent’s effort to enforce an agreement with the other parent as to their child’s religious upbringing. In Storfer v. Storfer,5 for example, where the parties agreed to raise their child Jewish and according to “the tenets of the Modern Orthodox Jewish Faith,” the court refused to hear a father’s complaint that the mother was breaching the agreement by raising the child Jewishly, but not according to “the tenets of the Modern Orthodox Jewish Faith.” The Storfer court held it could not adjudicate the meaning of “the Modern Orthodox Jewish Faith” by neutral principles of law, as the Constitution commands, and it was therefore a non-justiciable issue. By contrast, in Perlstein v. Perlstein, 6 the court held that it could enforce an agreement requiring attendance at specific Jewish schools and keeping kosher in the home. Other courts have disregarded the non-justiciability principle entirely.
Zummo v. Zummo7 prioritized a parent’s fundamental right to impart religious values to his child. The Zummos had agreed to raise their children Jewish, but after divorce, the father, who was not the parent of primary residence, wished to take the children to Catholic church. The court held that he had the constitutional right to do so, and it declined to enforce the parties’ agreement to raise the children Jewish on constitutional grounds, holding that, “while … a parent’s religious freedom may yield to other compelling interests, it may not be bargained away.” The court found that the children (ages three, four, and eight) were too young to have developed personal religious identities that would be harmed by exposure to Catholicism. The court found the mother’s assertion that the children’s best interests were served by “stability and consistency” in their religious indoctrination to be vague concepts that could not supersede the father’s constitutional rights. Nonetheless, the court compelled Mr. Zummo to take the children to synagogue Sunday school during his parenting time, seemingly bending his constitutional freedoms to the realities of co-parenting.
Recent New York cases have been far less protective of divorced ex-Hasidic parents’ rights than the courts in the cases discussed above. In Weisberger v. Weisberger,8 the parents had agreed that the mother would have primary custody and ensure a “Hasidic upbringing in all details,” while the father would have decision-making authority over the children’s education. After divorce, the agreement was not kept: the father failed to fully exercise parenting time for 18 months, excluded the children from his home, and failed to pay child support; the mother left Hasidism, told the children she was gay, permitted them to violate halakhah, and brought a transgender person to live in their home. The father then moved for temporary sole custody, which the court granted only one week later and made permanent three years later. It took roughly two more years for the appellate court to reinstate custody for the mother on constitutional grounds.9 The court declared the trial court’s order compelling the mother to practice Hasidic customs with her children, consistent with the parties’ agreement, to be unconstitutional. However, the court still ruled that she must keep a kosher home and provide the children with exclusively kosher food “in a manner consistent with Hasidic practices.” It also gave the father more parenting time and sole authority over the children’s education.
Cohen v. Cohen, 10 a 2019 case, was slightly more respectful of an ex-Hasidic parent’s rights. The trial court awarded the Hasidic mother sole legal custody, as she had been the children’s primary caregiver throughout their lives. The father, who had ceased being Hasidic, was required to undertake efforts to ensure the children complied with the religious requirements of Hasidic Judaism, but he was not compelled to follow those requirements himself. Indeed, the appellate court reversed a directive that he comply with the “cultural norms” of Hasidic Judaism when with the children.
Weichman v. Weichman, 11 a 2021 decision, was still better for the ex-Hasidic parent. There, the appellate court vacated an order directing the mother to “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.” The appellate court held that no directive may “coerce anyone to support or participate in a religion or its exercise,” or “violate[] a parent’s legitimate due process right to express oneself and live freely.”
The court declined to enforce the parties’ agreement to raise the children Jewish on constitutional grounds.
Take-Aways for Disputes on Religious Upbringing
So, what are the take-aways for co-parents caught in religious upbringing clashes?
First, family courts routinely focus on the “best interests” standard, parenting agreements, and status quo, but they relatively rarely address constitutional issues. Indeed, under the doctrine of Constitutional Avoidance,12 courts avoid constitutional issues when they can. Yet, the Constitution and Supreme Court precedents provide parents significant rights that can be invoked in these cases. Especially given the Supreme Court’s increasingly robust view of religious free exercise rights in recent years, a parent who believes a custody arrangement is interfering with their free exercise or parenting rights should consider raising constitutional arguments like those addressed here. It is even better to do so with counsel who appreciates the range (and sometimes inconsistent nature) of applicable constitutional principles and Supreme Court precedents that could be invoked.
Second, where parents share custody and their preferences are mutually exclusive (e.g., one wants yeshiva while the other wants public school), the parents’ constitutional rights may effectively cancel each other out. The court will focus on the facts of the case before it, putting considerable emphasis on the status quo and any prior parenting agreements. Courts may prioritize stability for the children over a parent’s wish to change an untenable religious situation. To combat that tendency, the challenging party will need to marshal evidence demonstrating harm to the children that necessitates the preferred outcome. The party advocating to keep the status quo or abide by an agreement has less of a burden. But evidence is of paramount importance.
Finally, buckle up. As the Weisberger judges acknowledged at the very end of their decision: “[C]ourts do not always have the perfect solution for all of the complexities and contradictions that life may bring.”13