Religious and Cultural Considerations  in New York  Divorce and Custody Matters

By Jacqueline Harounian, Esq.

How to use this guide

After practicing matrimonial law for nearly 25 years, the clients I meet with increasingly have questions regarding religious and cultural issues relating to marriage, custody issues and divorce.

These issues include:

  • Interfaith parenting and custody issues
  • Interfaith custody disputes
  • Islamic Mehr
  • Jewish Gett
  • Halachic Prenups
  • Sharia Prenups
  • Catholic annulments
  • Secular annulments
  • Legal separation for couples seeking marriage counseling
  • The role of the religious tribunal in civil divorce matters
  • Conflicts regarding private religious school
  • Diet and lifestyle issues relating to children
  • Vaccines and medical issues
  • Domestic violence and coercive control

This guide contains some background information I give to clients regarding this topic.  The first section deals with custody issues, followed by divorce issues.  In the final section, I will address how to resolve family conflict via mediation and out of court process.  

Note: In cases of domestic violence, or more complex custody matters involving mental illness or substance use, you should consider therapeutic intervention by a trained mental health professional, and consult with an attorney.

Introduction

For individuals and families with traditional backgrounds and more stringent religious observance, divorce can be an especially difficult (and at times contentious) process.  There are many reasons for this. Individuals that come from traditional cultures, ethnicities and religions often have values and beliefs that stigmatize mental health challenges, and family dissolution.  When problems arise in the marriage, these individuals may avoid consulting with therapists, attorneys, courts, child protective services and the police. As a result, secrets and problems are not addressed and may escalate behind closed doors.  

Individuals of all faiths, cultures and backgrounds have life cycle rituals and betrothal traditions. Upon divorce, there are rules in place that are based on thousands of years of religious practice. In many communities, including but not limited to Orthodox Jews, traditional Muslim, and Christians, the end of a marriage can be a shameful experience. The rift between the couple is a deep disappointment that affects each individual but also his or her extended family. 

It is not a secret that divorce matters have an emotional intensity that few other legal practice areas have. When you combine stigma, family honor, unresolved anger, and an adversarial legal forum, otherwise simple divorce matters can become very complex to handle. 

It is vitally important to understand where clients are coming from and to respect the cultural and religious context of their lives and their disputes. The lawyer’s task is to help clients make informed rational decisions that will shape their future.  

If you and your ex are on amicable terms, and are willing to resolve your case out of court with a neutral mediation process, check out the end of this guidebook: “Split Smart”.  If you would like additional help with your family law matter, contact me at jackie@lawjaw.com.  We can set up a time to video chat or phone chat, or meet in our Long Island office at no charge. 

In the case of domestic violence or other serious issues affecting safety and health, please seek help immediately.  WHA can provide referrals to shelters, counseling, and support groups for victims of domestic violence.

Religious Marriage Contracts[1]

Religious divorce is a particularly complex area of family law because it is

not just a civil matter, but instead a fusion of legal rules, religious practices, and sociocultural expectations and norms. Judicial interpretations of these contracts reflect this complexity. Not only must lawyers and judges be well versed on the intricacies of religious law and marriages, they must fully understand the role of (and limits of)  religious arbitration tribunals.

[1] The information contained in this guide stems from law review articles and my own research on case law and statutory law.  I am not a religious scholar, and my advice is based on my 25 years of professional practice in this area.

PARENTAL RIGHTS

The vast majority of traditional parents have the best interests of the child in mind. While reasonable minds may differ, New York courts have an obligation to try to come up with an equitable solution that is satisfactory to all parties and one that does not infringe on nor offend the US Constitution. Court ordered mediation, religious tribunals, or consultation with religious clergy are legal and commonly utilized in religious divorce and family matters. If these measures do not result in a resolution of the issues, the Family Courts and Supreme Courts are also available, although these are usually the last resort.  

SEPARATION OF CHURCH AND STATE 

“Congress shall make no law respecting an establishment of religion …” “Neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”  This is known as the doctrine of neutrality. While total separation is an impossibility, the goal is to “prevent as far as possible, the intrusion of one into the precincts of the other.”

CUSTODY LITIGATION

Custody and divorce litigation involving religion and cultural beliefs are arguably the most adversarial of court proceedings.  The United States Constitution provides parents with several enumerated and implied rights that protect their ability to parent and raise their children as they see fit.

Liberty and the pursuit of happiness is inclusive of a parent’s right to raise his or her children as he or she sees fit. However, as with all constitutional rights, it is not absolute. The State, upon a showing of substantial harm, has the power to protect a child’s mental or physical health or safety. Where no substantial harm has been shown, however, a state seeking to take away parental rights must meet a due process burden.

The chosen procedure in most child custody cases is a fact finding mission based on several different standards. Generally speaking, courts have used one of several methods to determine custody. They include:  

  • substantial harm,
  • best interests,
  • parental stipulation, and
  • child preference.

Generally speaking, the state has two interests in custody proceedings, (1) the safety and welfare of the child, knows as a parens patriae interest, and (2) a fiscal and administrative interest in reducing the cost and burden of such proceedings.

Courts have held that parents have the right to direct the religious upbringing of their children. This includes the inculcation of moral standards, religious beliefs, and elements of good citizenship. Other courts have held that only parental decisions that jeopardize the health or safety of the child, or have a potential for significant social burdens will limit the parental rights.  Thus, barring any substantial threat to the physical or mental wellbeing or safety of the child, it would be beyond the court’s jurisdiction to prevent any parent, custodial or not, from freely exercising their religious and parental rights to freely indoctrinate their children.

As applied to religious custody litigation, custody proceedings in general have a secular purpose of advancing the safety or health of the child.  As a whole, custody proceedings have a principal purpose to determine the best interest of the child in terms of advancing the state’s stated interest of the health and safety of the child. 

THE BEST INTERESTS OF THE CHILD

The familiar term “best interests of the child” is derived from a historical recognition that “natural bonds of affection lead parents to act in the best interests of their children.” Optimally, custody decisions are left to the discretion of the parents. Courts, however, will frequently have to decide the question of custody, as emotion and prejudice beclouds the parental discretion and judgment. 

Substantial Harm

In Munoz v. Munoz, considered by many to be the leading religious custody dispute case, the court has stated the rule, that barring a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child, the courts must maintain an attitude of strict impartiality toward the parents’ religions.[1] In that case, custody was given to the mother, a practicing Mormon. The father, a practicing Catholic, was granted visitation. The trial court determined it to be against the best interests of the children to be exposed to conflicting religious beliefs. Sole control of their religious upbringing was awarded to their mother. The state Supreme Court overturned, holding that there was no evidence of conflict or substantial harm to the children. 

In a different case, a New Jersey state court has held that upon a showing of harm to the child, a non-Jewish father can be forced to provide for and enforce Jewish dietary laws during his parenting time.[2] Another example is Funk v. Ossman.[3] In that case involving a Jewish-Catholic interfaith couple, the child attended both church and synagogue. However, when taking bar mitzvah lessons, the stress induced encopresis, a bowel control problem. Upon a showing of relation to the stress of the bar mitzvah lessons, the court ordered the lessons discontinued, but allowed the boy to continue attending synagogue. These cases clearly demonstrate the state’s legitimate interest and power to protect the health and safety of children in custody proceedings, where there is a demonstrated harm. 

[1] Munoz v. Munoz, 489 P.2d 1133 (Wash.1971).

[2] Brown v. Szakal, 514 A.2d 81 (N.J. Super. Ct. 1986).

[3] 724 P.2d 1247 (Ariz. Ct.App.1986).

Best Interests

Courts will often determine custody based on a determination of the best interests of the child.  Although all States use some form of best interest standard, there is hardly a uniform standard. Some provide for religion as a factor, while others bar it completely. Often, using some form of best interest test, courts will award custody to only one parent. That parent will be free to exercise her religious freedom and indoctrinate the child with her religion. The noncustodial parent is then faced with having to support the indoctrination, despite the encroachment unto his own personal religious freedom, not to say anything of his rights as a parent, during his visitation or parenting time.[1]   c. Parental Stipulation

Often parents will stipulate to a specific religious upbringing for their children. This can happen either orally or by written contract and either as a prenuptial agreement. Where parents remain in agreement there is obviously no issue. The problem arises when one parent breaches the agreement or contract. It may be the either the custodial or noncustodial parent who breaches. The non-breaching party would then seek to have the agreement enforced in court. 

In applying these principles a New York court declined to enforce a branch of a divorce settlement agreement that required the non-practicing Jewish mother to act in accordance with Hasidic Jewish customs while in the presence of the children.[2] In Weisberger, a Hasidic couple divorced after the wife came out as a lesbian and stopped practicing in accordance with the Torah. The settlement agreement, amongst other things, required the mother to “give the children a Hasidic upbringing in all details, in home or outside of home ….” Three years later the father moved to “enforce the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Jewish Hasidic practices of ultra Orthodoxy at all times and to require her to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools.” The trial court granted the motion, finding that the “mother’s conduct was in conflict with the parties’ agreement.” The court noted that the agreement’s “very clear directives” required the court to “consider the religious factor as a paramount factor in any custody decision.” The Court of Appeals reversed, holding that “undue weight” was given to the agreement. 

Relying on New York case law precedent, the court said that while religion may be a factor in determining best interests of the child, it alone may not be the determinative factor. Enforcement of religious upbringing clauses will only be enforced where they are in the best interests of the child. Here, the court noted the undisputed testimony and evidence that the mother was the primary caretaker, while the father rarely visited. 

The Weisberger court, however, did uphold the settlement agreement with regards to the children. Applying the best interest standards, the court held that the “maintenance of status quo is a positive value [. . . ] entitled to great weight.” The court found that given the children’s overall upbringing, the schools attended, the extended family and communities, that the best interests of the children would be served by having them continue in the Hasidic faith. Thus, the court ordered the mother to ensure that the children be brought up consistent with the Hasidic traditions, even while in her custody, including providing the children with kosher food.

Deference to the child’s wishes

When children are old enough some courts will defer to the child’s wishes. When the child’s wishes differ from the parent’s, the constitutionality of the child’s rights is brought into question. What rights, if any, does a child have to freely practice his religion of choice? The answer to this depends on the age and maturity of the child, and the unique facts of the case. 

[1] See Deal v. Deal, 197 Mich.App. 739, 496 N.W.2d 403 (1993) (holding that an Orthodox Jewish mother could not force father to desist from travel on Friday evening, because such would interfere too greatly with his visitation); Johnson v. Nation, 615 N.E.2d 141 (Ind.Ct.App.1993). But see In re Marriage of Tisckos, 514 N.E.2d 523 (Ill. App. Ct. 1987) (ordered a noncustodial father to take his daughter to church on Sunday); Overman v. Overman, 497 N.E.2d 618 (Ind.Ct.App. 1986); Reynier v. Reyneir, 545 So.2d 663 (La.Ct.App. 1989); Colley v. Colley, 200 A.D.2d 839, 606 N.Y.S.2d 796 (1994). 

[2] Weisberger v. Weisberger, 60 N.Y.S.3d 265, 268 (N.Y. App. Div. 2017). 

JEWISH DIVORCE

Under New York’s current law, any one married more than six months can file for a “No Fault” divorce. Once a divorce is finalized, the Supreme Court issues a decree, and then either party is free to move on with their lives in every respect, including remarriage.  In 1983, New York  enacted Domestic Relations Law § 253, the “Gett Law”, which was intended to resolve the above scenario by requiring the person who commenced the proceeding, the plaintiff, to sign what is known as an “Affidavit Removing Barriers to Remarriage” in order to procure a civil divorce. 

But under Jewish religious law, a civil decree is not enough for a woman to remarry. The religious community looks upon the woman as still married and not released from her husband, no matter what New York State may say. In order to end the marriage, the woman must obtain a Gett, which is a writ of religious divorce. 

For a divorcing Jewish couple, obtaining a Gett is a Biblical mandate, found in Deuteronomy 24:1-3 and comprising one entire Book of the Talmud. It is also an imperative of the highest order. According to Jewish law, a rabbi may not officiate at the remarriage of either a husband or a wife unless their Gett has been obtained. For someone observant, not obtaining a religious divorce decree effectively means she cannot date and cannot have more children. 

JEWISH RELIGIOUS TRIBUNALS

A Beth Din (“House of Judgment”) is a Jewish court of law. A panel of rabbis sit and decide private disputes through the application of Halacha, Jewish law. Subject matters may include monetary disputes, as well as divorce and marriage, conversion, kashrut, and Jewish rituals and customs. Halacha mandates that Jews settle disputes by a Beth Din and not by secular court. A special dispensation is required from the Beth Din in order to appear before a secular civil court. 

Islamic Divorce and the Mahr

Like most other Americans, most Muslim Americans have a religious marriage ceremony. For Muslims, this involves a local Imam who solemnizes the marriage consistent with Islamic traditions and law, referred to as Shari’a, which in Arabic is defined as straight or clear path. Muslim marriage is called Aghd, and marriage contracts include a provision called Mahr (also called Mehrieh or Mehr.) Under Islamic law, marriage is considered a civil contract. A Mahr is intended to assist the wife financially post-divorce. As you might imagine, a valuable deferred Mahr is a strong deterrent to divorce. 

U.S. courts have been inconsistent regarding the enforcement of Islamic Mahr. Cases demonstrate a multitude of court outcomes, often inconsistent with one another. In New York, the Mahr is interpreted not as a dowry or prenup, but as an enforceable gift in favor of the wife.  

Secular Remedies

New York courts have the authority to impose penalties and sanctions if the husband refuses to cooperate with the Gett or the Mahr in a reasonable period of time. Penalties can include counsel fees, increased support awards to the wife, as well as an increased share of assets to the wife. 

Despite the enforcement remedies available, there are still real human casualties. These include victims and their children, whose lives are really torn apart by unfair outcomes in divorce matters. Victims in religious and traditional households stay in abusive situations far longer than their more secular counterparts. 

As a civil rights matter, according to the United States Constitution, individuals should not be discriminated against based on their religious practice. Religiously motivated agreements must be interpreted the same as secularly motivated ones, as long as they can be interpreted using neutral principles and without evaluating religious doctrine.

Split Smart. Here’s how.

In divorce and custody mediation, two parents come together with a neutral professional to try to work out a solution to their family and marital issues. The goal is for all parties to work out a solution they can live with and trust. Mediation focuses on solving problems, not uncovering the truth or imposing legal rules and penalties. The goal is to find a middle ground on all issues. Nothing will be decided unless both parties agree to it. If mediation does not produce an agreement, either side is free to go on to court.  

Jackie Harounian has 25 years of family law experience as an attorney, mediator and counselor. In addition to a law degree, she has a graduate degree in Family Systems and Behavioral Forensic Psychology. Her “mediation style” is bottom line oriented and directive.   

Along with her dedicated staff of twenty attorneys and professionals, Jackie can finalize the entire divorce process, including all necessary court orders, expeditiously and at a surprisingly reasonable cost. If you and your ex can accomplish the goal of an out of court settlement, you will have something money cannot buy: an amicable co-parenting relationship that will pay dividends throughout your life and your children’s lives.  

How It Works

  • Stage 1: The parties agree to a free joint consultation meeting (in person, by phone, or video).  Jackie will explain the goals, rules and costs of the mediation and encourage the parties to work cooperatively toward a settlement.  
  • Stage 2:  Each party is invited to describe, in his or her own words, what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt.   
  • Stage 3: Follow Up Meetings.  Jackie and the parties will agree to what issues need to be  addressed.  We will exchange emails, to share information and concerns.
  • Stage 4: No private meetings. All discussions with the parties (mother and father) are done  simultaneously.  Jackie does not have private meetings and discussions unlike some other mediators.   This is to maintain true neutrality and to build trust. 
  • Stage 5: Agreement. We will confirm the terms that are agreed on by email, and narrow down the areas of dispute.  Jackie will then prepare a full written agreement and send it to the parties for them to review with their attorneys or advisors.  The emphasis is always on sharing information, making compromises and making progress with settlement.  No one should feel pressured or rushed!  
  • Stage 6: Closure. The parties will sign a legally binding contract.  If no agreement is reached, Jackie will advise both parties of their options and risks. 
  • Stage 7:  If it is divorce matter, Jackie’s office prepares all of the necessary paperwork to finalize the process on a neutral basis.  Property deeds, QDRO’s and other documents can also be processed, as well as real estate closings, based on mutual consent of the parties 

Co- Parenting Information

  1. What is the parenting schedule now?
  2. Do your children have any special needs or requirements?
  3. Are you willing to make compromises for the best interests of your children?
  4. What are your children’s activities and what is the cost?
  5. What schedule do you think works best for your children long term (after the separation)?
  6. Do the children attend private school and what is the cost?

I hope you found this guide helpful. Please don’t hesitate to reach out if need more information about religious divorce and custody issues, Split Smart and co-parenting strategies.

Wishing you peace of mind as you move forward with this journey,

Jacqueline Harounian, Esq.

Email: Jackie@lawjaw.com.

Call (516) 773-8300 or contact us online today for a consultation!