An article recently came out in the New York Times about a dynamic that tends to unfold in the context of Bais Din proceedings, where one parent leaving the Chassidic community seeks to withdraw their children from certain Yeshivos, but are ultimately stymied due to communal pressures and constraints that are inherent in that process.
Before I launch into my thoughts on this topic (I have many), I want to make clear that I am neither anti-Yeshiva nor anti-Bais Din. Rather, I believe that some individuals, particularly those who in more insular communities, may lack the resources and education to make informed decisions about the consequences of entering into the Bais Din process, especially when custody, parenting time, education, and welfare of their children may be involved.
All these issues are complex, and each person featured in the article has their own struggles and challenges. But it is important to remember that the lived experience of those featured in the NY Times article does not diminish or invalidate the lived experience of others. There should be tolerance and compassion for everyone involved here, especially the children.
And that is really the tug-of-war here; it is one between maintaining the children’s existing environment, and a parent who believes that environment does not serve his or her children’s best interests any longer, for whatever reason.
The article describes a particular situation where members of the Chassidic community are divorcing and bind themselves to the Bais Din process of adjudication – a Rabbinical Court comprised of a three-judge arbitration panel of community rabbis and leaders.
While certainly any citizen has access to civil courts, particularly in the Chassidic community and other insular sects, engaging a civil court is frowned upon and could lead to serious communal consequences if the proper dispensation is not granted to do so. Community members are strongly encouraged to keep disputes “within the family” so to speak. Hence the prevalence of Rabbinical Courts.
Once the parties are bound to that process through an Agreement to Arbitrate or other legal instrument, the Rabbinical Court tends make decisions that ensure children continue in their communal Yeshivos, many times over the objections of parents who have left the community and prefer institutions with more intensely focused secular studies.
These directives are then generally enforced by civil courts even if evidence is presented that such schools are not in compliance with state educational requirements.
While there are arguments from community leaders and scholars that when parents are divorcing, children should remain in their original yeshivas for their own stability, because that is what the parents decided when they were together, the issue grows more nuanced when one considers that the parents may not have “chosen” their way of life to begin with.
Oftentimes, a life may be predetermined simply by virtue of having been born into it, and raised in that manner without any outside influences. Should that fact compel a parent to condemn that same fate on to his or her child?
In other words, a choice may not really be a choice when the surrounding circumstances are considered.
When a parent decides he or she wants something different for themselves and their children, they are rebuffed both by the Bais Din’s arbitration decisions and by the civil courts that enforce them.
Many times, those parents wishing to keep their children enrolled in Yeshivos are backed by the community, including financially, while the other parent who has left the community may be left without resources to challenge the rulings.
Thus, the argument of Richard Bamberger, quoted in the article, that the “only change is [a parent’s] religious affiliation” may be a superficial look at a problem that runs very deep.
The question of whether a party would be fairly treated when agreeing to arbitrate with a Chassidic Bais Din regarding choice of school lingers for me.
If all decisions have religious undertones (after all, it is a religious tribunal), may all other considerations concerning the child’s best interests be colored? This is a particularly prominent concern where religious tribunal with an interest in maintaining children in religious institutions are asked to objectively decide between two institutions: one that conforms with its religious dictates and another that does not.
Again, these are complex issues, but litigants must weigh their options and the consequences of those options when deciding how and where to proceed with their divorce matter.
At its core, the story in the New York Times highlights those challenging issues and provides an important teaching moment for lawyers and litigants alike.
With this information in mind, a person who is leaving the community should give serious consideration as to whether he or she can get a fair hearing in a forum that does not support their decisions.
However, in the event you do choose to proceed in the Bais Din, consider including the following in an Agreement to Arbitrate:
- Setting forth that the best interests of the children should govern any determination. While this may not prevent an argument that continuity of care and education in the communal institutions in which the child was raised until the divorce, it would at least provide a concrete standard for any tribunal reviewing an arbitrated decision.
- Provide that the choice of school should not be final. It should be reviewed on an automatic basis at least every several years as the needs of the children change.
- Include a provision that state laws regarding educational requirements will be considered in choice of school for the children, or at the very least be a factor in the determination of best interests.
- Consider whether Bais Din should decide custody to begin with or if you would like to defer to a civil court. While certainly easier said than done, if you have serious questions about your ability to receive a fair and unbiased decision in Bais Din, you may want to consider a different forum altogether, at least for the custody piece of your case. Financial issues could still be decided in the Bais Din, with a carve-out for custody-related matters to be addressed in civil court.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in 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 firstname.lastname@example.org.