Raising children born of interfaith marriages can have its challenges (and of course, its unique joys – Chrismukkah, anyone?), but at least parents in intact families navigate and mediate these challenges together.  If and when parents of different religious faiths divorce, the questions of whether and how to raise the children in a particular religion while respecting the traditions of both parents and their families are difficult ones to answer.

New Jersey’s case law on this subject is straightforward.  The case of Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005) tells us that the custodial parent ultimately controls the children’s religious upbringing, absent some sort of agreement specifying otherwise.  However, this does not prevent the non-custodial parent from engaging in his or her own religious practices and exposing the children to those customs during his or her parenting time.  Put another way, the custodial parent cannot go so far as to control the non-custodial parent’s own religious practices; likewise, the non-custodial parent cannot take any action that interferes with the religious upbringing of the children.

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The recent unpublished (non-precedential) Appellate Division decision Dilisi v. Dilisi illustrated the balance that must be struck in order to both uphold the custodial parent’s authority on this issue and also support the non-custodial parent’s religious freedom.  In that case, the Mother was the custodial parent and the Father the non-custodial parent.  Their divorce decree contained an agreement that the children would be raised in the Roman Catholic faith, which was the faith of the Mother.  The Father had been bringing the children to a non-denominational Christian church during his parenting time on alternate weekends.  The children continued to be raised as Roman Catholics and engaged in all of the usual religious practices of that faith, without interference from the Father.

The lower court interpreted the parties’ agreement that the children would be raised in the Roman Catholic faith as an agreement that, if the children were to attend church, then it would be a Roman Catholic church.  The lower court judge, therefore, ordered the Father to stop bringing the children to his church during his parenting time, and directed that he could only bring the children to a Roman Catholic church.

The Appellate Division overturned this decision, finding that the Father was not doing anything to impinge on the Mother’s authority as the custodial parent to determine the children’s religion, because even though he was bringing them to a different type of religious service, they were still being raised as Roman Catholics.  Further, to prohibit the Father from going to his desired church service during his parenting time forced him to choose between practicing the religion his daughters were being raised in, or no religion at all.  This, the Court found, was a violation of the Father’s own religious freedom and, therefore, was a bridge too far.

If you are going through a divorce and yours is an interfaith marriage, this is something to consider when negotiating the terms of a settlement agreement.  While religious differences may or may not have been a major source of marital strife, they may become an issue post-divorce.  It is important to know that the custodial parent will be given preference in this area unless you agree to the contrary or specifically identify this issue as one in which neither party is to be given priority.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.