New Jersey is an ethnically, racially, and religiously diverse state, where interfaith marriages are common. The breakup of interfaith marriages is also common and parents sometimes disagree over the religious education and upbringing of a shared child. The parties should try to work out an agreement that’s mutually acceptable, but if there is no such agreement or it’s poorly written, New Jersey law generally favors giving these decisions to the parent with primary physical custody (measured by day-to-day responsibilities for the children, psychological bonding, and number of overnights the children spend with him or her).  Both parents almost always share joint legal custody – input into major decisions affecting a child’s health, education, and welfare.  That has nothing to do with primary physical custody.

New Jersey judges have created some nuance by putting the primary caretaker in charge of religious education and participation in religious services, but the non-custodial parent may also take the children to religious services of his or her choice during that person’s parenting time (though any formal religious education could be prohibited).

A Parenting Agreement, a Consent Order, or a Final Matrimonial Settlement Agreement may state any number of things about what should and shouldn’t be done regarding a child’s religious upbringing. The Agreement could be in conflict with settled New Jersey law and give the non-custodial parent primary responsibility for children’s religious upbringing.  Perhaps the primary custodial parent is an atheist or does not like his or her religion of birth, whereas the non-custodial parent has a close connection with his or her religion and has historically shared that with the children.

Where a dispute arises that does not seem resolvable between the parties, or even the parties and their lawyers, then the next step ought to be one or more modes of Alternative Dispute Resolution:  Mediation, collaborative law, and arbitration.  In mediation, the skilled neutral facilitator works with the parties to reach common ground, if possible.  In collaborative law, the parties and their lawyer pledge up front not to go to court on other than an uncontested basis.  If either party abandons the enterprise, both lawyers have to yield and the parties must get litigation counsel, one for each of them.  In collaborative law, the lawyer work hard not to be adversarial to the other party or the other lawyer.  It is a caretaking process.  The parties will use joint therapy experts if there is a need, and the same for financial experts.  With arbitration, the parties typically opt for a final and binding award by a trained neutral, typically a lawyer or a retired judge.  The arbitrator takes informal testimony and looks at exhibits, including expert reports, if any.  S/he then makes a written award memorializing the decision, which is confirmed in Superior Court as a Final Judgment of the Court.

In Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005), the New Jersey Appellate Division considered a case involving conflicting accounts of how the parents (husband was Jewish, wife was Catholic) had agreed to handle the religious upbringing of their three kids. This case shows how religiously complicated a child’s life can be when his or her divorced parents are of different faiths.

• The wife wanted to raise the children in the Catholic faith, but they would be exposed to the Jewish religion and holidays.
• The husband wanted to raise the children in the Jewish religion, especially since he had physical custody of them and he was the primary caretaker.
• The first born was baptized in the Catholic Church and given a Hebrew name in a Jewish naming ceremony.
• The second child was baptized in the Catholic Church and given a Hebrew name after the parties divorced.
• The third child was both baptized in the Catholic Church and circumcised in a bris, a Jewish ritual ceremony.
• The parties’ property settlement agreement didn’t cover religious upbringing of the children but did state the parents would have custody of their children on their respective religious holidays. If there were conflicting dates, the Catholic holiday had priority.

After reciting the essential facts of the case, reviewing the law, and applying the law to the case, the Appellate Court ruled as follows:

• The mother/secondary caretaker couldn’t enroll the children in Catholic educational classes over the primary caretaker’s objections.
• The decision to enroll the children in Catholic education classes was contrary to the primary caretaker’s right to educate the children in the religion of his choice.
• The mother could take the children to church services during her visitation time.
• Giving the father/primary caretaker the sole authority to choose the children’s religion was in the children’s best interests.  However, allowing them to attend services with their mother reduced the pressure on the children to choose between the two different religious traditions, or to feel guilty at disappointing one, the other, or both of their parents.

If you are considering a divorce and have a crisis or concern about child custody rights, whether or not related to religion, call the Central Jersey law offices of Kingston Law Group at 609-683-7400, or contact us online.  We provide a reduced fee initial consultation, in which we will discuss your facts, explain the applicable laws, and advise you about your best pathways to protect your legal rights and interests – and those of your beloved children.  Call now.  You will be glad you did.