Americans are almost obsessed with the ideal that government should be entirely separated from any religion. Indeed, the term “separation of church and state”—a quote from Thomas Jefferson—is the most common label for the freedom of religion guaranteed by the First Amendment of the Constitution.

But how does this bedrock principle play out when a living, breathing child is at stake? Can a parent mandate that the child practice one religion over another? Can a court? Can an agreement specify that the child will enroll in certain religious educational courses, or even attend a certain religious school?

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In a recent reported (precedential) decision, Rothstein v. Warschawski, the Appellate Division concluded that the decision to enroll a child in religious school must be analyzed under the “best interests of the child” standard, which is the same analysis the Court undertakes in determining issues of custody and parenting time.

In Rothstein, the parties had joint legal custody of their minor child, Yael, and the mother, Rothstein, had primary physical custody.  Their divorce agreement noted that the parties had not reached any meeting of the minds as to whether they would enroll Yael in religious education, but stated that if they did, the parties would agree to split the cost 50/50.  It further stated that the parties would have equal say in any decisions as to Yael’s education.

In the years following the divorce, Rothstein enrolled Yael in an Orthodox Hebrew Day School.  The father, Warschawski, objected, stating that, although the school Rothstein selected was accredited by an organization of Hebrew Day Schools, it was not accredited by a secular education body, and therefore the child should not attend.

In March 2012, the Court agreed with Warschawski, and compelled the mother to enroll Yael in a “mutually agreed upon” school for the upcoming 2012-2013 school year that was accredited by the Middle States Association of Colleges and Schools (MSACS).  The Court did so without a statement of reasons, an explicit definition of “accredited” or any explanation as to why accreditation was important.

Nonetheless, the mother did not appeal the Court’s order.  The parties thereafter did not agree on an accredited school and Yael remained in the school that Rothstein had initially selected.

Thereafter, Warschawski filed a motion to enforce the Court’s order.  In response, Rothstein asserted Yael was thriving in her current school, that the school provided her with an appropriate religious curriculum and performed well on testing as to its secular curriculum.

Following a series of subsequent applications, the Court ultimately decided that Yael should be enrolled in an accredited school for the 2013-2014 school year.  In its statement of reasons, the court noted, “The issue of accreditation has been addressed multiple times.” The court recognized “perhaps prior Orders have not stated a ruling with sufficient clarity . . . .” The court concluded, “[Yael]’s current school . . . is not an adequately accredited educational institution and Plaintiff is Ordered to remove [Yael] and enroll her in a different, accredited school, agreeable to both parties.”

The mother appealed.

In accordance with the laws on joint legal custody in our State, the Appellate Division rejected the mother’s argument that as the primary residential custodian, she was empowered to determine unilaterally Yael’s religious upbringing, and, by extension, her private religious education.  Moreover, the parties’ agreement specified that they would confer regarding Yael’s religious education and upbringing.

However, the Appellate Division then parsed through the Family Court’s role in resolving dispute between parents involving religion:

The courts cannot choose between religions; they cannot prevent exposure to competing and pulling religious ideas and rituals. But the courts should seek to minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the child’s religious upbringing before their marital relationship foundered, subject to the predominant objective of serving the child’s welfare comprehensively.

Against that backdrop, the Appellate Division stated that a dispute between parents involving school selection must analyze the best interests of the child – a fact sensitive, and fact intensive analysis.

The Appellate Division found that the trial court failed to apply the above principles in its determination that Yael should only attend a school accredited by MSACS without any rational that this was essential. Nor did the record support the conclusion that Yael’s secular educational needs can only be met by attending a MSACS-accredited school.

As a result, the Court remanded the matter for an assessment of Yael’s best interests, which involves a close examination of her “peer relationships, the continuity of friends” as well as her “emotional attachment to school and community that will hopefully stimulate intelligence and growth to expand opportunity.”

Family courts tend to shy away from determinations involving religion or religious education, sometimes even citing the First Amendment as justification (although that did not occur here). However, it is impossible to conceive of a situation where a family court judge can legitimately and appropriately throw up its hands and stating that matters of religion are not examined when the well-being of a child is at stake.

See Robert Epstein’s prior blog related to this topic, entitled A Child’s Religious Upbringing – Choose But Choose Wisely, from June 2013.

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Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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