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Have you ever found yourself daydreaming about a perfect world? With a broad stroke of the brush, hunger, war and disease are eliminated. A second wash defines all human relationships with love and admiration, open communication, common goals, and mutual respect. We may all strive to make the world a better place, but the reality is that we must take one step at a time and will occasionally stumble, tumble, and free fall.
One glaring statistic is that 50% of American marriages end in divorce. The process spans from minimal legal involvement and mutual agreement to years of court hearings, startling expense and a stress level that exceeds the Richter scale.
At a time when couples are most vulnerable emotionally, they must make decisions with long-range implications about financial matters, living arrangements, jobs, and property. A new normalcy must be molded and formed, hammered and forged, for everyone involved--most notably, the children.
Divorce and custody law varies in each state, and in some cases, in each county. One constant, however, is that the First Amendment of the United States Constitution forbids the courts to interfere with religious freedom or to take judicial action that shows preference to one religion over another. This includes favoring religion over no religion. Consequently, when deciding what is in the best interest of the children, courts often shy away from decisions that suggest that religion is a determining factor at all, claiming no acceptable studies that indicate different religious training, inconsistency in religious training, or lack of religious training is harmful to a child. This additionally includes cases where the parents practice the same religion but in varying or conflicting ways.
David Weinstein, Assistant Attorney General with the New York State Department of Law, writes, "As the incidence of interfaith marriage has increased, so too have the dilemmas created by the break-up of these unions, particularly when children are involved. Estranged spouses often seek to ensure that their offspring are reared in accordance with their own religious and moral views, and family courts, already faced with the difficult task of determining appropriate custody and visitation arrangements, are presented with an even more daunting assignment; how to protect the interest of the children at issue without treading on parents' constitutional rights to freely exercise their religious beliefs."
We would assume that family law practitioners are well trained in all facets of the law and possess the wisdom of Solomon and the personality of pit bulls. Unfortunately, there are few religious custody cases on record, and in the heat of "who gets the pot and who gets the pan," often couples are not counseled to address long-range religious implications for their children.
Ruth, a practicing Reform Jew, and Patrick, a non-practicing Catholic, have two children. "One of the things we agreed on, even when we were still dating, was that our children would be raised Jewish. Patrick felt no connection with Catholicism and seemed appreciative and very supportive of having faith and religious ritual in our home," Ruth told me. "We belonged to a liberal synagogue that always welcomed Pat. He was the constant presence at Family Shabbat (Sabbath) services, Purim carnivals and every religious school event," Ruth told me smiling.
After ten years of marriage, Ruth and Patrick separated and began divorce proceedings. The state they resided in required a two-year separation period, theoretically to allow the divorcing couple to resolve their differences. The "time heals all wounds" concept for Ruth and Patrick had an adverse effect, allowing hurt and disappointment to fester into anger.
"I only get to spend time with my kids every other weekend, Patrick told me with flaming eyes while the divorce was still being negotiated. "I'm not giving up half of my Sunday driving back and forth to religious school. They get religion at home, but they don't get me!"
"Our son is less then a year away from his Bar Mitzvah and now he only can get to religious school for half the required amount of time. It's not fair to him or his sister. Even though the synagogue will allow Patrick to participate in the Bar Mitzvah, I feel like he's abdicated that privilege." Ruth lamented. At the time, twelve-year-old Alex had no trouble articulating his feelings. "Mom and Dad explained that the divorce wasn't about us, and how much they still love us. They both are so upset about Sunday school and holidays and my Bar Mitzvah, I wish the whole thing would just go away. How come we're the ones caught in the crossfire?" His seven-year-old sister sat quietly and said nothing.
Ruth and Patrick were officially divorced over a year ago. Ruth's request to have Patrick's visitation weekends begin on Saturday mornings so that the children could celebrate Shabbat on Friday was denied by the court, with the explanation that it was not the standard custody rubric. Subsequently the synagogue's educational director and rabbi waived some of the Bat Mitzvah attendance requirements for Alex's sister Alana.
The court additionally ruled that the children would spend secular holidays with Ruth or Patrick in alternating years, but that Christmas and Easter would be spent with their father. Ruth's request to have the children spend Jewish holidays with her was not denied unless the holiday falls on a weekend when they are scheduled to visit Patrick. (Rosh Hashanah, Yom Kippur, Sukkot, Simchat Torah, Hanukkah and Shavuot all occurred during weekends in 2002/5763. Patrick has agreed to alter visitation to accommodate the children's observance of the holidays.)
Patrick recently became engaged to Mary Beth, a practicing Episcopalian. They are both active in the church community and attend Sunday morning worship. Alex and Alana enjoyed their first Christmas celebration at their father's home with Mary Beth and her family, many of whom will participate in Alana's Bat Mitzvah. While Patrick supports his future wife's involvement with her church, he and the children spend their Sunday mornings at the diner while Mary Beth attends services.
The positive note is that many families regain their separate and individual equilibrium post divorce, in spite of judicial myopia. The Court would have thwarted Ruth and Patrick's efforts on behalf of their children. Instead they have compromised, when necessary, to achieve a best-interest goal for Alex and Alana.
"It was a really difficult time for us all", says Ruth reflectively, "and yet I would still urge every interfaith couple that divorces to take the extra time to talk about religious issues and bring them before the Court. It is parental responsibility to have our children's best interest be heard."