One of the hardest lessons I learned in my early days of practicing family law is that a case is never really over when we think it’s over.  I remember walking out of my first uncontested hearing so proud that I helped finalize a client’s divorce, emotional for their loss (yes, it happened to be a case where each party cried and hugged) and hopeful for their future.  I still have those feelings but, over time (and it didn’t take long), have become less blinded by the proverbial success of “putting through” a divorce because it’s never really over, especially when children are involved.  Instead of focusing on getting across the finish line sooner rather than later, the focus shifts to preparing agreements that will hopefully enable the parties to have their uncontested hearing as the last piece of the puzzle, and not the start of a new jigsaw.  Admittedly, this is not always easy.  Sometimes in that 3rd, 4th, 5th mediation session, when it’s 8:00 at night,  stomachs are rumbling and the caffeine is wearing off, and agreements are complete but for certain issues that seem minor at the time, it’s hard for clients to walk away without a signed writing just because of an ancillary thought that, in the moment, may seem resolvable down the road.  What if the parties are amicable and you are trying to convince a client to open up an issue that he/she may not want to address with their spouse because they know it’s a trigger and doubt they will ever become acrimonious down the road?  However, the price to pay in the days, months or years to come is worth the extra time to resolve issues now to the extent that they are ready for resolution.  But, as hard as we try, we have all been there!

In a recent unpublished (non-precedential) decision Soler v. Stark,  the issue at first glance appears to be the children’s religious upbringing when each parent observes a different faith.  However, when reading between the lines, the crux of the case is really the importance of comprehensive settlement agreements without leaving ripe issues for future resolution down the road.  Put another way, it seems apparent that a difficult, and possibly impossible to resolve issue was kicked down the road, even though it was foreseeable that future litigation would ensue.

In Soler, the parties entered into a marital settlement agreement, with an incorporated custody parenting time agreement.   Plaintiff was designated as the parent of primary residence for school enrollment only.  The parties explicitly agreed to share equal decision making rights regarding all integral decisions for their children.  The parties acknowledged in their agreements that they each have different religious and cultural backgrounds (plaintiff/mom is Catholic and defendant/dad is Jewish).  They  agreed to later submit to mediation any unresolved issues regarding the cultural and religious upbringing of their children.  It seems that they did allocate parenting time for holidays of both religions because, as relevant to this decision, Defendant had parenting time for Easter Break every year but Plaintiff had parenting time on Easter so long as Defendant was not traveling with their children.  All seems standard and not unlike many agreements that I have reviewed/drafted.  So, what comes next?  The parties disagree about their children’s religious upbringing.

In 2018, Defendant filed an application seeking to complete their youngest child’s conversion to Judaism, to enroll the twins in Hebrew School and also enroll their youngest child at the relevant age, as well as to compel Plaintiff to bring their children to Hebrew School during her parenting time and restrain her from making derogatory comments about the religion to their children.  In opposition, Plaintiff sought to have their children exposed to both religions/cultures and for Easter Sunday parenting time every year.  The trial court heard oral argument but did not require a hearing.  Briefly, in support of his application, Defendant certified that Plaintiff took classes in Judaism before their marriage, that they agreed to raise their children in the Jewish faith and that their son was circumcised in a Jewish ceremony but his conversion was not complete.  In opposition, Plaintiff certified that she went to the class to support her then soon-to-be husband, that she never agreed to raise their children in the Jewish faith/send them to Hebrew School and only partook in certain rituals during their marriage due to Plaintiff’s pressure to do so, as well as claimed that Defendant wrongfully withheld Easter parenting time from her in 2018 when he brought their children to a local amusement park.

Ultimately, the trial court determined that their youngest child would complete his conversion to Judaism, that Defendant may bring their children to Hebrew School during his parenting time but that Plaintiff need not do so during her parenting time, and granted Plaintiff’s request for Easter Sunday parenting time every year commencing in 2020, as well as permitted her to educate their children with her religious and moral values.  This appeal followed.

The Appellate Division ultimately held that (1)  Each party was free to raise their children in their own religious beliefs during his/her parenting time; thus, the trial court’s decision allowing Plaintiff to do so was affirmed; and, (2) The trial court improperly modified Easter parenting time with a showing of changed circumstances and the court did not conduct a hearing to determine if the modification was in their children’s best interests; thus, the modified Easter parenting time schedule was reversed.  The Appellate Division noted that Plaintiff may be entitled to compensatory parenting time for her loss of Easter parenting time, but even if Defendant violated the schedule, one violation does not equate to changed circumstances warranting a modification to their parenting time schedule.

Notably, the Appellate Division reviewed case law regarding superior rights bestowed upon primary/custodial parents to make decisions on behalf of their children, which was not relevant here given the language of Plaintiff’s designation being for school enrollment only, as well as case law regarding disputes for religious upbringing and each party’s constitutional right to religious freedom.  This was all required because the contractual agreement lacked a decision with respect to their children’s religious upbringing.  The Appellate Division also reviewed the parties’ conflicting certifications but could not determine whether they had an agreement to raise their children in the Jewish faith because the trial court did not conduct a plenary hearing.  Of note, had the court done so, each party would have spent a substantial amount of time and money litigating this issue that was held in abeyance.

While the case law history is interesting, and I recommend a read to brush up on who gets to determine a child’s religion, the puzzle is really solved by addressing all relevant issues to the extent we can at the time the agreement is finalized.  This also enables you to be the person who chooses the outcome, rather than asking the trial court or Appellate Division to determine material child-rearing issues on behalf of your family.

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or

Lindsay A. Heller, Associate, Fox Rothschild LLP