Enid Weiss is a staff writer for New Jersey Jewish News.
Appeals Court Backs Jewish Dad?s Bid in Custody Battle
Reprinted with permission of New Jersey Jewish News. Visit www.NJJewishNews.com.
A state Superior Court ruled last week in favor of a Jewish man with primary custody of his three children who wanted to insure they would not attend Catholic education classes.
The June 8 decision follows previous decisions in upholding the primary caretaker's right to determine the religious upbringing of the children.
As the case stands, “there can be no formal religious education for these children other than in Judaism,” said Bernard Weiss, attorney for the children's father. “The case now returns to the lower court for a determination on financial issues.
The religious issue arose in the midst of a divorce that has bounced around the family part of the chancery division of the Morris County Superior Court system for several years, during which Howard Feldman of Morristown and Bridget Howell have fought over financial and custody issues. The three children involved--two girls, 10 and nine years old, and a seven-year-old boy--live with their father, who has primary custody. The mother does not have a permanent job, home, or automobile, according to court documents.
When originally married, the interfaith couple was not particularly observant, according to Weiss.
The two oldest girls, born before their parents were married in 1996, were baptized in the Catholic Church as infants; one was also given a Hebrew name during a naming ceremony as an infant. The other girl was given a Hebrew name later. The youngest, a boy, was given a Hebrew name and circumcised during a brit as an infant.
The children began living with their father as part of a divorce agreement signed in October 2001 and the court battle over the children's religious training began in September 2002, according to court documents.
After their divorce, when Howell lost custody, she sought to take the children to classes in the Catholic faith, known as Confraternity of Christian Doctrine, or CCD. The mother had claimed that the original divorce agreement indicated the children would be raised Catholic. The father argued he expected them to also be raised Jewish and interpreted the settlement to support him.
In previous court appearances during which the parents battled over the children's religious upbringing, Judge David Rand of Morris County Superior Court's Family Division had ordered the children raised in the Catholic Church as “consistent with their baptisms and that the children shall be exposed to Jewish culture and traditions.” Rand directed the father to arrange for the oldest girl to attend CCD.
In his appeal of Rand's 2002 decision, filed in April, Feldman argued that taking his children to CCD violated his rights as a Jew. Likewise he appealed to the court to reinforce his decision that his children were not allowed to wear jewelry with a Christian cross while in his home.
In siding with the father earlier this month, Judge Richard Newman, presiding judge for the appeal, wrote for the three-judge appellate panel, “We hold the primary caretaker has the sole authority to decide the religious upbringing of the children in training and education classes for programs.” However, Newman added: “The secondary caretaker is not barred from having the children exposed to religious services or holidays.”
Judges Rudy B. Coleman and John S. Holston Jr. were the other members of the appellate panel.
Weiss, the father's attorney, said the father's appeal represented a change of heart that is not uncommon. Since the divorce, when the children grew old enough to attend Hebrew school, Feldman has grown more observant, Weiss said. While initially he had been open to exposing the children to both parents' religions, the father felt dual instruction would be too much for the children.
“He's sincere in his beliefs,” Weiss said.
Weiss said the girls are enrolled in Hebrew school and go on a regular basis when they spend weekends with their father. Weiss said the seven-year-old wants to go, too, and will when he's older.
Howell, who was not represented by an attorney in the case, could not be reached for comment.
Berkeley Heights attorney Jerold A. Bressman said he doesn't have many interfaith clients seeking pre-nuptial agreements, but he has seen it. He generally counsels them to include in the document instructions on raising the children and their religious upbringing.
But given the current court ruling, the prenup may not apply, he said.
“I thought it was a very good decision,” Bressman said. “But the parent who gets primary custody is going to win no matter what the prenup says. It depends on who gets primary custody. It's different in a joint custody case; then I think the prenuptial agreement may stand.”
Bressman said he could see, should Howell decide to press the issue, the state Supreme Court taking up the case.
“I don't see them changing it,” Bressman said. “I think that's going to be a touchstone for cases to come.”
Copyright 2005 New Jersey Jewish News. All rights reserved.
Hebrew for "covenant," often referring to the ritual for Jewish boys when they are 8 days old ("brit milah" - "covenant of circumcision"). It is commonly known as "bris," which is the Ashkenazi or Yiddish pronunciation of "brit."