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“Hashem commanded us to perform all of these decrees, to fear Hashem, our G-d, for our good, all the days, to give us life, as this very day.”

Devarim (Deuteronomy) 6:24.

 

A number of cases have filtered through the courts in recent years which involve a parent who has assumed a non-religious lifestyle after having previously been part of an observant community. These cases find their way into the secular courts, and typically involve battles over custody of children. Generally, one parent is off the derech (has left the religious path) while the other remains committed to ritual observance and a frum (pious) lifestyle. One of the more notable cases in recent years evolves from a matter entitled Cohen v. Cohen. This case has wound its way through a trial court and an appellate court with heavily litigated issues of child custody.

Cohen I

During the marriage, the parties were members of the Satmar Chasidic community. At some point in time, the father decided to abandon a religious lifestyle. The parties separated in December 2016 and a divorce proceeding was commenced the next month. Following a trial, the mother was granted residential and legal custody of the children. The father was provided with a parenting time schedule. The trial court placed certain restrictions on the father’s parenting time. While the children were in his care he was to: (a) provide them with exclusively kosher food, and (b) to make “all reasonable efforts” to ensure that the children’s appearance and conduct complied with the religious requirements of their Chasidic community. This would include compliance with religious rituals practiced by the mother and taught to the children in their school. The court noted, however, that it was not mandating any specific mode of dress of religious practice which the father must adhere to.

Displeased with the trial court’s decision, the father chose to appeal. The heart of his argument was that the conduct required of him by the trial court imposed unconstitutional restrictions on his right to the free exercise of religion. The mother countered by arguing that the trial court was merely ensuring that the children be afforded a proper religious upbringing.

The trial court’s decision was affirmed on appeal and no abridgement of a constitutional right was found. Since the children had consistently adhered to Chasidic religious practices throughout their lives, the trial court’s choice to continue them in their religious lifestyle was not improper. The appellate court emphasized two aspects of the trial court’s decision which imposed appropriate constitutional safeguards. Firstly, the trial court did not require that the father practice any type of religious observance himself. He merely had to ensure the children’s compliance with their religion to promote their best interests. Moreover, the trial court emphasized that the father would be held to a standard of “reasonable efforts” and not perfection in meeting the children’s religious needs while in his care. As can be seen from the second round of litigation, as described below, the father was able to comply with the court’s required parenting provisions to this point.

Cohen II

 No sooner had the ink dried in the appellate court’s decision than the parties were back in court for a second round. By the summer of 2018, the parties were again before the trial court. The mother now requested that the court direct the father to himself comply with the cultural norms of Chasidic Judaism when caring for the children. A lengthy hearing ensued. The mother conceded that the father did not interfere with the children’s religious observance during his parenting time. However, she complained that the children’s best interest required that the father also conduct himself in accordance with the cultural norms established during the marriage. This further requirement was approved by the trial court. A new order was made requiring that, while caring for the children, the father must conduct himself in a manner consistent with the Chasidic lifestyle established during the marriage. A second appeal was filed.

In this appeal, the father once again argued that the court’s decision had imposed an improper restriction on his constitutional rights. Specifically, it was his contention that the trial court had simply gone too far in essentially requiring that he practice a particular type of religion.

On this occasion the appellate court agreed with the father. By directing the father to comply with the cultural norms of Chasidic Judaism, during his parenting time, the trial court ran afoul of constitutional limitations. Such a directive compelled the father to himself practice a religion rather than merely requiring that he provide the children with a particular religious upbringing. This was described by the appellate court as an unconstitutional modification of the religious upbringing provision in the parties’ judgment of divorce. Such a determination could not withstand constitutional requirements and was vacated.

The courts continue to struggle with the fine line between religious observance and constitutional limitations. There is little doubt that more cases will be litigated over these issues in the near future. It is essential that the parties receive proper legal representation in these challenging matters. 


Mark I. Plaine is an attorney specializing in matrimonial matters in Queens. He has been involved in this specialty for over 30 years.