“Train the youth according to his way; even when he grows old, he will not swerve from it.”

Mishlei (Proverbs) 22.6

In performing research, I stumbled upon some older cases which might be of interest to my readers. These cases involved the intersection of secular and religious laws concerning child rearing. The first of such cases is discussed below.

Schwarzman v. Schwarzman, was a Nassau County case which resulted in a decision from a trial court in that county. The issue at hand was the father’s request for an injunction preventing the mother from changing the children’s religion and requiring that the children receive a Jewish education.

The father was a Jew and the mother had been raised as a Roman Catholic. The father demanded that the mother convert to his faith before he would marry her. She eventually underwent a conversion under the authority of the Reform movement. Four children were born of the marriage. The parties were later divorced and custody of the children, by mutual agreement, went to the mother. There were no terms in the divorce decree or settlement agreement concerning the children’s religious upbringing. Following the divorce, the wife remarried and returned to the Catholic faith.

The mother and her second husband began taking the children to church and teaching them Catholic practices. The father sought to end the children’s exposure to Catholicism and to have them receive instruction in Judaism. The mother countered that she had never agreed to raise the children as Jews and had indicated at the time of the divorce that she intended to return to the religion of her birth. The father’s contention was that the children had undergone a “ritual introduction to the Jewish faith” after they were born.

Interestingly, the Nassau County court turned to religious authorities in order to resolve the parties’ issues. The court cited Masechta (Talmudic Tractate) Kiddushin 66b for the proposition that the child of a Gentile mother is a Gentile. Since the mother was not converted in accordance with Halacha (Jewish law) she had not attained the status of a Jewish woman. Therefore, the children were not Jewish. The court then turned to principles of secular law to effectuate a solution.

The court noted that, in mixed marriages, religious differences become most pronounced in the area of child rearing. There was no allegation by the father that the mother was not a fit parent. Each party also acknowledged that, after the mother’s conversion, it was their intention to raise the children in the Jewish faith. However, the court felt that such an understanding did not contemplate the situation presented by the divorce. The court also noted that, under New York law, absent an agreement to the contrary, a fit custodial parent should be allowed to determine the children’s religious upbringing.

Ultimately, the father’s application for an injunction was denied. The mother was a fit custodian. The court opined that the children were neither Jewish nor Catholic and that the parties had reached no agreement about the children’s religious status at the time of the divorce. In its closing remarks, the court stated its wish that that the mother would choose a course of religious instruction consistent with the children’s best interests with appropriate regard and respect for the father’s faith.

By Mark I. Plaine Esq.

 

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