Jewish Custody Determinations by the Secular Court

Jewish Custody Determinations by the Secular Court by Joshua Katz

{8:00 minutes to read} “When a person has a judgment adjudicated by gentile judges and their courts, he is considered a wicked person.” Rambam, Hilchos Sanhedrin, 26,7.

As a custody litigator, my cases invariably involve litigants whose emotions run high while they battle over who is the most appropriate parent. An extra layer of complication comes into play when the secular courts are confronted with issues of religious observance as they affect the best interests and moral wellbeing of children. While the secular courts cannot make rulings based upon their interpretation of religious dogma, the courts are invariably faced with situations where they must assess the religious practices of the parties in reaching a decision as to issues of custody and parenting rights.

Interestingly, there are a number of reported decisions in New York through which state courts have had to adjudicate issues concerning the upbringing and best interests of Jewish children. The issues in these cases have run the gamut from

(a) appropriate levels of Orthodox observance;

(b) disputes between Orthodox and non-Orthodox parents;

(c) battles between Jewish and gentile parents,

(d) contests over the appropriate level of religious education; and

(e) even promises made to induce conversion.

Some of the more interesting cases I have found appear below:

  • Storfer v. Storfer is a recent appellate case. The parties had agreed to raise their child in the “modem Orthodox faith.” The father complained that the mother was not abiding by their agreement, and he applied to the court for help. The court indicated that it simply could not determine what the requirements of such a level of religious observance were, and consequently, the father’s application was dismissed. 
  • Barax v. Barax involved a situation where the parties had agreed to raise their children as Orthodox Jews. Initially, all three children were receiving an Orthodox education. When one of the children floundered at his yeshiva, the mother enrolled him in a school associated with Conservative Jewry. The father sought to enforce the parties’ agreement. Notwithstanding the parties’ agreement, both the trial court and appellate court manifested approval for allowing the child to enroll in a non-Orthodox school based upon the difficulties he had experienced in his yeshiva. 
  • Ervin R. v. Phina R. is a decision rendered by the Kings County Family Court in the year 2000. The parents had separated and were raising two children. The parties’ son resided with his father, a Chassidic Jew. The parties’ daughter was living with her mother, who is described in the court’s decision as an “Orthodox Jew.” A tremendous level of hostility permeated the parties’ custody litigation. Each party criticized the other party’s parenting skills and religious practices. The court noted the inappropriate level of parental behavior and admonished each parent that they needed to conduct themselves as adults. In an effort to halt the proliferation of parental warfare, the court ruled that each parent would determine the appropriate level of religious practice for the child living with him or her. The court further required that, during periods of visitation, the non-custodial parent must at all times respect the religious practices of the parent with whom the child primarily resided.
  • Kadin v. Kadin, a somewhat older case emanating out of Long Island, involved an Orthodox father and less observant mother. The parents’ homes were apparently not within walking distance of one another. This family had two children: a boy and a girl. Both children lived in the primary residence of their mother while visiting their father on weekends and holidays. The trial court fashioned a visitation schedule affording the father parenting time each year on one day of every two-day holiday. The father complained that this schedule infringed upon his constitutional rights, as he could not transport the children to or from the mother’s home without violating his religious observances. On appeal, the appellate court solved the problem by alternating the parents’ access to the children on successive religious holidays (rather than dividing the days). 
  • In De Arakie v. De Arakie, a case on appeal out of New York County, the parents had no specific agreement concerning the religious upbringing of their children at the time of the divorce. The children’s mother enrolled them in a conservative day school. Sometime thereafter, the father sought a change of residential custody, asserting that he and the children’s mother had contemplated an Orthodox upbringing for the children. In ruling on the father’s application, the appellate court attached great significance to the fact that there was no writing between the parties regarding the children’s religious upbringing. Based upon the lack of any written agreement, the court determined that the mother’s decision to enroll the children in a conservative school could not be successfully challenged.
  • Perlstein v. Perlstein, is, in contrast to the De Arakie case, a matter where the parties did reach a written agreement to raise their child as a Chassidic Jew. After the mother renounced her former Chassidic lifestyle, she began subjecting the child to a secular environment (enrollment in public school, exposure to a non-kosher diet). The father’s complaints that the mother was acting in defiance of the parties’ agreement fell on deaf ears at the trial level. There, it was the court’s position that it could take no action to enforce the agreement unless the father proved that the mother’s conduct seriously affected the child’s health or morals. On appeal, the trial court’s determination was reversed and a new trial was scheduled. The appellate court shifted the focus from the mother to the father. The appellate court noted that it was the mother’s obligation to explain why she was not following the parties’ agreement, and not the father’s duty to show that the mother had caused harm to the child. Absent a showing by the mother of harm, the agreement must be complied with. 
  • A twist from parents vs. parents wars occurred in Cohen v. Feiden, a Nassau County case. In this case, the mother commenced a lawsuit for money damages alleging defamation against the judge hearing her custody matter. Both parents were Jewish. During the course of the custody proceedings, the judge learned that the mother had an X-mas tree in her home. This caused the judge to become irate and scold the mother for engaging in “idol worship.” The judge later made similar remarks to a reporter during an interview with Newsday, expressing his outrage that a practicing Jew was exposing her children to goyish rituals. Although the judge was removed from the case, he was not found liable for damages based on defamation. Instead, the court hearing the lawsuit determined that the judge was merely exercising his right to express his opinion.
  • One of the more interesting cases l found was the appellate decision in Lowinger v. Lowinger. In this matter, the combatants were the wife, the husband, and the husband’s mother. In order to induce the wife to convert to Judaism and raise Jewish children, the husband’s mother allegedly made certain promises to the wife. There was no written agreement between the wife and her mother-in-law. The wife claimed that her mother-in-law promised that, upon the wife’s conversion, she would provide “a wonderful home,” “a generous lifestyle,” and “the best education money could buy.” The wife claimed that she accepted these terms, but never told anyone about them, not even her husband. Upon the wife’s conversion, the mother-in-law provided substantial financial support. When divorce proceedings ensued, the mother-in-law’s generosity ceased. This resulted in a lawsuit, wherein the wife sought to enforce the oral agreement. Ultimately the wife’s claims against her mother-in-law were dismissed. The court made this determination premised upon the fact that the terms described by the wife were too vague to enforce, and based upon the legal theory that agreements of this type must necessarily be made in writing.

The lesson of these religious wars seems to be … take nothing for granted when dealing with the secular courts. The terms of any custody agreement must be clearly defined, and the court must be given some type of explanation and direction as to how to apply terminology and concepts which are often foreign and cryptic to the forum. It is best to explicitly state everything in writing. Never overlook the maxim that an oral agreement is not worth the paper it is written on.


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