Parent of Primary Residence

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That brings me to the Appellate Division’s recently unpublished (not precedential) decision in Phillips v. Emerson, which, at first glance, seems to run contrary to the law I describe above.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.


Religion in both marriage and divorce is often a very delicate issue that can strain family relations and put family members at odds with each other.  The strain can be even greater when the parents are each of a different religion.   An interesting article from today’s Chicago Tribune by Manya A. Brachear called Religion Used as Weapon in Divorce focuses on the issue of a child’s religious upbringing post-divorce in light of increased interfaith marriages.  Notable figures cited in the article include a percentage increase of interfaith marriages in the Jewish community from 17% to 47% from 1970 to 2000, and that interfaith households are 3 times more likely to end in divorce as those where both parents share the same faith. 

In New Jersey, the primary caretaker of the child (the Parent of Primary Residence – defined as providing a residence for a child for more than 50% of overnights annually 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 rationale is to allow the primary caretaker to decide the issue should there be a disagreement because that parent might know the child better than the other based on greater day-to-day exposure with the child.  By contrast, the other parent (the Parent of Alternate Residence) may only choose to expose, but not educate the child in another religion.  What does expose mean as compared to educate?  Exposure generally includes taking a child to religious services during the non-primary caretaker’s parenting time, but not enrolling him or her in religious training or classes. Continue Reading Religious Upbringing After Divorce – Which Parent Decides?