Religion is always a delicate subject, whether being discussed between family or friends, in politics or at the dinner table, and the like. This especially holds true in the area of family law. Decisions regarding a child’s religious upbringing including, but not limited to, the choice of religion, exposing the child to a different religion, converting to a different religion, or raising a child with any religious background at all, can prove to be hotly contested matters involving the children where courts require that conflict to the child be minimized.
Generally, the law in New Jersey provides that the designated Parent of Primary Residence – defined as the parent who provides a residence for the child more than 50% of the overnights on an annual basis (or, if sharing is equal, providing the residence for the child while the child is attending school) has the right to determine the child’s religious upbringing and education. The other parent, known as the Parent of Alternate Residence, may expose the child to, but may not educate the child in, a different religion.
Education versus exposure is a nuance with a difference, where a family part judge may be charged with having to determine into which category a particular religious-based activity falls. For instance, I had a case a few years ago where Mom was the Parent of Primary Residence and was raising and educating the child in the Catholic religion. Dad, who was not concerned with religion during the marriage, started taking the child to Muslim-based services after the divorce. Mom argued that the sevices constituted a form of religious education, while Dad countered that the child would largely stay in a separate playroom during services. Ultimately, the court concluded that Dad was trying to educate the child in the Muslim religion, and he was precluded from further doing so.
That brings me to the Appellate Division’s recently unpublished (not precedential) decision in Phillips v. Emerson, which, at first glance, seems to run contrary to the law I describe above. A closer examination, however, reveals that the Appellate Division was more seemingly concerned with the trial court’s parens patriae duty to protect the child, and how the trial court reached its decision without taking testimony or interviewing the child at issue, than with the trial court’s actual substantive decision.
Here are the facts that you need to know
- The parties were divorced on November 4, 2002 pursuant to an Amended Dual Final Judgment of Divorce that provided, “[t]he parties shall have joint legal custody of the four minor children born of the marriage,” and Mom was designated as the parent of primary residence, with Dad as the parent of alternate residence.
- Notably, during the marriage, neither the parties nor the children actively practiced their respective religious faiths – Dad raised as Jewish and Mom raised as a Christian, and the only real mention of religion in the judgment was that Dad would have parenting time on the Jewish holidays and Mom would have parenting time on the Christian holidays.
- All of the kids attended public school until 2012.
- Mom then remarried and, with that she converted to Catholicism and began regularly attending Catholic services with her new husband.
- Dad then learned in August, 2012, without the parties having ever previously discussed the issue, that Mom had enrolled their daughter in a private Catholic-faith based high school. The daughter had made mention of her desire to attend, but Dad viewed Mom’s decision as designed to convert all of the children to Catholicism and “further separate the children from [him].”
To stop the daughter’s attendance at the Catholic high school, prior to the commencement of the 2012-13 term, Dad filed a motion seeking to bar her enrollment or, if already enrolled, for it to be undone, so to speak. Mom responded by attaching emails from the daughter to Dad expressing her desire to go for reasons related to her being bullied at school, her having chosen to be Catholic, and her belief that she would do better in the private school environment. Dad responded that he was not only against religious-based schools, but that he would not have married Mom had he known she wanted to be Catholic or that it was important to her. Not quite something that a child typically wants to hear from a parent, but nonetheless his point was made.
The trial court denied Dad’s motion – without taking testimony or interviewing the daughter – finding that the daughter’s reasons for wanting to attend the private school were legitimate (bullying included), and that it would provide her with a good education in a “place where she’s comfortable.” The court also noted that neither parent had actively pursued either of their respective faiths, which seemed contrary to Mom’s conversion to Catholicism. From a reading of the Appellate decision, the trial court made no mention of the prevailing standard favoring the PPR’s ability to determine a child’s religious upbringing and education.
The Appellate Division disagreed with the trial court, finding that Dad was entitled to a hearing to determine whether it was in the child’s best interests for her to continue enrollment at the private Catholic school. Specifically, the Appellate Court noted that the parties’ joint legal custody arrangement extended to selecting the child’s school and exposing the child to a “particular faith community,” and that the trial court’s conclusion was not supported by credible evidence, with a deficient record lacking in testimony from the parties and an interview with the child. The Appellate decision seemed to have more to do with the record upon which the trial court denied Dad’s motion, cautioning that a better exercise of parents patriae oversight was necessary, even if the same conclusion ultimately occurred.
As with the trial court’s decision, there was no mention by the Appellate Division of the law favoring a PPR’s right to choose a child’s religious upbringing as well as the law regarding deference to the decisions to the PPR in the case of a deadlock. Does this case have any real bearing on that line of precedential case law? While the decision is unreported, the lack of any mention of that standard is interesting, especially since the Appellate Court specifically noted the parties’ joint legal custody arrangement. Whether such reference to the joint legal custody arrangement was an implied guide for the trial court to follow, or whether the Appellate Court was simply looking for the trial court to properly hold a plenary hearing is uncertain. If one thing remains certain, though, it is that religon-based custody litigation can be a very emotional and difficult area of the law in which children will always be front and center of the dispute.
Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.