Court Bars Mother from Exposing “Child to an Activity That Violates” “Child’s Orthodox Jewish Chasidic Faith”;

Start at Weichman v. Weichman, decided in November by the N.Y. Appellate Division (in an opinion by Judges Mark C. Dillon, Sylvia O. Hinds–Radix, Linda Christopher, and Joseph A. Zayas):

They were married on May 5, 2005. The marriage produced one child, who was born in 2006. One child, born in 2006, was adopted by the couple. In March 2015, the plaintiff commenced this action for a divorce ….

Plaintiff identifies with the LGBTQ community and is an Orthodox Jew. After a hearing on custody and parental rights, the Supreme Court awarded sole custody to the defendant. The plaintiff was allowed parental access for a specified period. A number of restrictions were placed by the court on the plaintiff’s parental access periods, with one requirement: [plaintiff]You must not expose your child to any activity or place that is contrary to the Orthodox Jewish Chasidic Faith of the child. The following are the [plaintiff]shall be sure the child can follow the Mosdos Chasidic Square’s rules and laws regarding the Shabbat and Jewish Holidays. …

A custodial parent is entitled to decide the education of a child if there has not been an agreement. “It may, however, be appropriate depending on the specific circumstances of each case to grant some custodial authority to the parent who is not the custodial parent. There was sufficient evidence to support the Supreme Court’s decision to grant the defendant decision-making power on the matter of the child’s education. When he turned two, the child had already been in the same yeshiva. There he did well academically as well. However, the plaintiff failed in her attempt to show that she would prefer the child be enrolled in a different yeshiva.

We agree with the plaintiff, however, that she must revoke the Supreme Court’s directive that during periods of parental access, the mother “shall not take or expose her child to any activity that is contrary to the rules, practices and culture of the Orthodox Jewish Chasidic Faith of the child.”

The custodial parent can decide the religion of the child if there is no written agreement. Courts may direct parents to follow the best interests of the child and require them to observe the religious beliefs and practices of the children. However, … a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle.

“Reverse, in fact,”[i]It is clear that the Constitution does not allow government to coerce people into supporting or participating in religious beliefs or their exercise. An enforcement of a religious upbringing provision is not allowed if it interferes with a parent’s right to free expression and freedom to live. If a religious-upbringing provision has the intended effect of forcing a parent or guardian to follow a particular religion rather than simply directing them to offer a religious education to their child, it must be repealed.

Although the restriction challenged does not require plaintiff to follow Orthodox Jewish Chasidic guidelines during times of parental access, it is implied that she must. We agree with plaintiff, however, that she cannot “expose the child” to activities which are contrary to Orthodox Jewish Chasidic beliefs. [two prior cases]. For the plaintiff to be able to enforce the restriction, she must comply with any religious requirements the child has during periods of parental accessibility.

At the trial, the defendant testified that the plaintiff was expected to conduct herself “inappropriately”. [the child’s]”Presence according to the rules of the child’s faith. He was particularly concerned about the possibility that the child might be exposed to gay lifestyles. The defendant testified that if plaintiff had a relationship or married a woman, the father would ask that the parent not allow the spouse access during parental access. Same-sex relationships violate Chasidic religious principles. This restriction on parents’ ability to “express themselves and live free” goes beyond the fact that the noncustodial parent must support the child in his religious practice and is impermissible.

However, the Supreme Court has not ruled that during parental access periods, the plaintiff “shall ensure” that her child “is able to comply with the laws and rules regarding the Shabbat, Jewish Holidays Kosher Chasidic food requirements and the Mosdos Chasidic Square. That provision effectively addresses the plaintiff’s obligation to ensure the child’s compliance with his religious requirements during her periods of parental access….

This article has more details. Restrictions on Parent-Child Speech or Child Custody Speech.