With the holiday season upon us, this is the time of year when matrimonial lawyers face all kinds of questions from our clients. Special situation arise which were unanticipated at the time of the break up arise, parenting time changes, as well as arguments about which parent gets to purchase certain presents for the children.
New relationships often pose issues at the holidays which are at best, murky. When a new significant other practices a different religion, tough challenges are presented. Certainly, there are some religions, which while different, have such similar customs that there are few issues presented. However, other situations involve practices which are far different, and pose such theological and philosophical differences, that the lawyers get called in. What happens, for instance, when there is an agreement between divorcing parents, put into the settlement agreement, to rise a child in the Christian faith, and then one parent ( let’s say Dad) marries someone who celebrates a different religion, and then he wants to include the child in the celebrations of step mom?
In New Jersey, as in most states, the primary custodial parent has the unquestionable ability to make religious determinations relating to a child. This is consistent with the philosophy that as a primary custodial parent, one has the right and indeed, the obligation, to make decisions which are in the best interests of the children.
More difficult questions arise, however, when the parents have reached an agreement, in a settlement agreement, which is a contract, which is impacted by religious celebrations. While courts will generally enforce an agreement ( for instance, there are cases in which judges have compelled a parent to pay for parochial school when that obligation was part of a written agreement), judges cannot and will not make an individual take any action which is contrary to that person’s religious beliefs.
Judges, however, are mindful of our multicultural families, and have at times, reminded litigants of the price that can be paid when children are placed in the middle of religious disputes. In one case, the trial court was involved in a situation in which a Jewish father had residential custody of three children. The mother was Catholic. Part of the dispute between the parents was the fact that the older daughter wore a cross while in the father’s home. While the court’s order acknowledged that the father had the final say, he court had the following to say to the father:
I will not have them used to advance somebody else's agenda. I don't care whether its Hasidic. I don't care whether it's Jesuit. I don't care whether it's Muslim. I don't care what it is. The children will not be used as a vehicle. You cannot enforce your personal views in this situation to their detriment. They are being exposed to a multicultural reality. If you don't understand that, if you can't live with it, then you will suffer and they will suffer. That is not what I want to happen.
The Appellate court noted that the trial judge was not expressing a preference for the Catholic religion, but rather he was attempting to respect the religious freedom of the child.
Kids are exposed to many customs and practices through their friends, social media, and TV without having a negative effect on them. As long as the child is comfortable, learning about a step parent, or significant other’s customs may not necessarily be a bad thing. The holidays are meant to be enjoyed.