Legal Question in Family Law in New York

Re: religious decisions

Although Courts generally do not intercede on issues of reigious upbringing due to constitutional issues of separation of church and state, there are exceptions, e.g., especially if there was a PRIOR AGREEMENT between the parents concerning the children's religious upbringing which your ex-husband is violating by bringing the children t his new church; and/or if his bringing the children to his new church was endagering the health or the welfare of the children.

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Due to length restrictions on posted answers, I will go into greater detail in a SECOND FOLLOWUP posted answer to your question, discussing various prior court decisions on these issues.

Re: religious decisions

I am adding a follow-up answer to my initial answer to your question, to provide you with examples of some court decisions wherein courts do take religion into account in awarding or modifying custody.

In the NYS court case, Aldous v. Aldous, 99 A.D.2d 197, 473 N.Y.S.2d 60 (3d Dept. 1984), appeal dismissed, 63 N.Y.2d 674 (1984) cert denied, 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed2d 780 (1985), the court ruled that a court is not allowed to query the religious practices or beliefs of the parents and that a court is not allowed to base the court's decisions concerning custody of the child on the courts determination that either parent's religious practices or beliefs are not in the best interest of the children.

However, there are exceptions to this general rule.

For example, if the parents had AGREED that the child would be brought up in a specific religion, then that agreement is enforceable: in NYS court decisions such as S.E.L. v. J.W.W, 541 N.Y.S.2d 675, 143 Misc.2d 455 (N.Y. Fam Ct. 1989) and Spring v.

Glawan, 89 A.D.2d 980, 454 N.Y.S.2d 140 (2d Dept. 1982),New York courts have ruled that the child's religious upbringing will be decided by the child herself or himself if the child is of sufficient age (or sufficiently intelligent); or, decided by AGREEMENT between the parents, or, where there is no such agreement, then the childs

religious upbringing is to be decided by the custodial parent.

Additionally, the court is allowed to take religion into account as a factor, in circumstances where specific religious practices ENDANGER the welfare and health of the child or where the child develops ties to a specific religion. (See, for example,

NYS court decisions, Mester v. Mester, 58 Misc.2d 790, 296 N.Y.S.2d 193 (Sup Ct. Nassau Co. 1969) and People ex rel. v. Sisson, 271 N.Y 285 (1936).

Using this criterion of religious practices which endanger the health or welfare of the child, in Mahoney v. Marrano, 134 A.D.2d 834, 521 N.Y.S.2d 587 (4th Dept., 1987), the court upheld transfer of the children's custody to the father after the mother had moved with them to a religious commune. In Smith v. Smith, N.Y.L.J

10/9/90, p.34 at column 1, (Family Court Monroe Co.), the father based his case for custody on the argument that the mother was forcing the children to comply with her

new religion's rules which prevented the chldren from participating in school, and which also prevented the children's participation in extracurricular and social activities. Additionally, the father alleged that the mother was refusing to provide

afdequate medical care for the children because of her new religious tenets. The Court refused to give the father custody; however, the Court held that the mother had VIOLATED her AGREEMENT to raise the chldren as Catholic, and, therefore, the Court

restrained the mother from forcing the children to practice a religion other than Catholicism.