In the vast majority of divorce cases in New Jersey, the parties agree that they will share joint legal custody of the children. This means that both parties have a voice in issues concerning religion, education and other major decisions involving the children. It is frequently the case that the parties’ Settlement Agreement or the Court’s Judgment will not provide more specific terms regarding these decisions, especially when the children are quite young at the time of the divorce. Accordingly, in the majority of cases, the Settlement Agreement or Judgment will provide little guidance in resolving these custodial disputes after the divorce.
When responding to issues concerning school choice and whether a child should be enrolled in a religious school or other religious educational program, many attorneys (and some Judges) suggest that the Parent of Primary Residence is entitled to make these decisions. However, our Appellate Courts have made it clear that the decision on these important matters cannot default to the preferences of the primary custodial parent. In fact, a recent New Jersey Appellate Court decision in the matter of Rothstein v. Warschawski (Decided February 11, 2014) rejected the primary custodial parent’s argument that she was empowered to determine unilaterally the child’s religious upbringing and private religious education. Rather, when faced with a choice of public school or religious school, the Court is required to “advance the best interests of the child”. The Court’s goal was best expressed in the Appellate Division case of Asch v. Asch (Decided in 1978) as follows:
“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
The key part of the Court’s opinion is the indication that New Jersey Courts will “give effect to the reasonable agreement and expectations of the parents”. Accordingly, if during the marriage, the parties regularly practiced a religion and/or the children attended a private religious school or other religious educational program, the Courts are likely to rule in favor of the parent who seeks to continue that religious training.
If during the marriage there are differing views of religion and if at the time of divorce, the children have not yet been involved in a religion, it is advisable that the issue should be addressed at the time that the custody provisions of the parties’ Agreement are being negotiated. In other words, the customary joint legal custody language needs to be discussed with counsel and more specific provisions regarding the religion issue should be negotiated. In the event of a dispute at the time of the divorce, it is common that these issues can be resolved through custody mediation and counseling. Remember, the focus should always be on what is in the children’s best interests. If religious and educational issues cannot be resolved and are presented to the Court, the Appellate Courts have made it clear that when making religious and educational decisions, those decisions should be made with the aim at stimulating the children’s intelligence and growth, rather than fostering either party’s religious preferences.
Barry Chatzinoff, Esquire has been representing South Jersey residents in Matrimonial and Family Law matters for more than 30 years.