S.E.L. v. J.W.W.
S.E.L. v. J.W.W.
541 N.Y.S.2d 675
N.Y.Fam.Ct.,1989.
March 16, 1989.
Family Court, New York County, New York.
In the Matter of S.E.L., Petitioner,
v.
J.W.W., Respondent.
March 16, 1989.
Upon cross petitions asserting custody and visitation of
parties' daughter, the Family Court, New York County, Kaplan, J., held that no
limitation would be placed on noncustodial parent's right to practice his
religion when child visited him except to extent necessary to prevent any harm
to child.
Order in accordance with opinion.
**676 *455 John A. Pannone, Brooklyn, for petitioner.
Carolyn Wah, Brooklyn, for respondent.
Doris McCann, New York City, law guardian.
BRUCE M. KAPLAN, Judge:
How to reconcile a custodial parent's right to determine her child's religious
upbringing with the non-custodial parent's right to free exercise of religion
when the child is visiting with him, is the task confronting the Court in these
cross petitions for visitation and custody. Soraya Esteban, now Soraya Esteban
Lebovich (S.E.L.) was divorced from James Willson (J.W.), in March 1987. Divorce
did not attenuate *456 their acrimonious relationship and she soon initiated
litigation in Family Court with respect to J.W.'s visitation with their daughter
Natalie. In November, 1987, J.W. cross petitioned for custody.
Numerous attempts were made to resolve the issue by Judge Gallet. The ultimate
sticking point was the extent to which J.W. could involve Natalie with Jehovah's
Witness doctrine, religious services, activities and teachings.
J.W.'s petition for custody is denied. Accordingly, custody of Natalie, which
was granted to S.E.L. in the judgment of divorce, will remain with her.
J.W.'s petition for modification of custody, brought less than a year had
elapsed since the judgment of divorce, is a thinly disguised ploy to obtain
leverage with respect to his demands for visitation. Since his petition is
utterly lacking in merit it is dismissed.
We next turn to a consideration of not only the amount of visitation that should
be awarded J.W., but also what restrictions, if any, should be placed upon his
ability to expose his daughter to his religion.
We shall do so by focusing on the following issues: 1) What are the rights and
responsibilities of the custodial parent with respect to a child's religious
training? 2) To what extent are those rights and responsibilities abridged by a
non-custodial parent's First Amendment right to the free exercise of his or her
religion when enjoying visitation with his or her child?
The Court will attempt to resolve these salutary, and ofttimes conflicting
objectives in the context of the best interests of the child.
A Custodial Parent Has The Right To Determine The Child's Religious Upbringing
And Training.
[1] New York law has consistently held that the custodial parent has the right
to determine a child's religious upbringing and training.
The following cases illustrate how this right is subject to State regulation and
State protection. **677 In Weinberger v. Van Hessen, 260 N.Y. 294, 183 N.E. 429
(1932), the Court of Appeals, in 1932, held that a child's religious education
should be determined by the custodian. In determining that a cause of action in
equity was stated, it noted that it is proper, on occasion, to make a decree of
partial custody including the right of religious education according to the
views of the *457 custodian. While this case did not involve a dispute over
religious upbringing between parents in the context of a custody proceeding, it
nonetheless recognized a right and responsibility accruing to a guardian.
In Sisson v. Sisson, 271 N.Y. 285, 2 N.E.2d 660 (1936), the Court of Appeals
held that it was improper to intervene in a dispute between parents with respect
to the child's education. It noted that a "dispute between parents when it does
not involve anything immoral or harmful to the welfare of the child is beyond
the reach of the law" [at 287, 2 N.E.2d 660]. The court cannot regulate by its
processes the internal affairs of the home.
Since this case involves an intact family, it is of little precedential use.
In People Ex Rel. Portnoy v. Strasser, 303 N.Y. 539, 104 N.E.2d 895 (1952), the
Court of Appeals reversed the granting of a writ of habeas corpus to the child's
grandmother against her custodial parent.
The Court dismissed the writ, and rejected the grandmother's argument that the
child was not being trained in the Jewish religion, or any religion. It held
that the choice of whether to train a child in the faith of her father's is
within the parent's sole control.
It concluded that there was no proof of neglect as would authorize any court to
take an infant from its mother, or interfere in the internal arrangements of
family life.
In Diemer v. Diemer, 8 N.Y.2d 206, 203 N.Y.S.2d 829, 168 N.E.2d 654 (1960), the
court affirmed the grant of custody to the wife where the husband had claimed
that his wife, a Catholic, had violated a prenuptial agreement to raise the
child as a Protestant. It affirmed a trial court finding that no such agreement
existed. It noted that, absent such agreement, the wife's decision to bring up
the child as a Catholic was not grounds to change custody. This decision can be
cited for the proposition, that absent an agreement with respect to religious
upbringing, the custodial parent has the right to determine the choice of the
child's religion.
In his concurring opinion in Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862,
418 N.E.2d 377 (1981), Judge Meyer also noted that a custodial parent has a
right to determine a child's religious education absent controlling contrary
provisions in the Separation Agreement.
We next turn to a consideration of the extent to which an order of visitation
may constitutionally abridge a non-custodial parent's right to free exercise of
his or her religion.
A Court Order Which Adversely Impacts A Non-Custodial *458 Parent's Free
Exercise Of His Or Her Religion Would Be An Unconstitutional Infringement of
First Amendment Rights When Based On An Assessment Of The Merits Of His or Her
Religion.
[2] The right to free exercise of religion guarantees that a court will not
make, inter alia, a custody decision, based on its view of the respective merits
of two religions. It further guarantees that a non-custodial parent's right to
practice his or her religion will not be abrogated when the child visits except
to the extent necessary to prevent any harm to the child.
In Aldous v. Aldous, 99 A.D.2d 197, 473 N.Y.S.2d 60 (3rd Dept.1984) the court
noted that, while religion may be considered in determining a child's best
interest, it is inappropriate to make a custody award based on religion alone.
Religious beliefs are to be considered when a child has developed religious
beliefs that can be better served by one parent than another, or if the religion
violates State law, or poses a risk to the child's well-being.
In Bentley v. Bentley, 86 A.D.2d 926, 448 N.Y.S.2d 559 (3rd Dept.1982) the court
affirmed Margaret B. v. Jeffrey B., 106 **678 Misc.2d 608, 435 N.Y.S.2d 499 (Fam.Ct.Warren
Co.1980). The Family Court had determined that the custodial parent was the
proper regulator of the child's religion, that the court would not generally
interfere unless mandated by a clear need to protect a child, that the child's
best interest dictated that the child be reared in one religion, and absent
agreement that determination must be left to the custodial parent.
The Appellate Division noted that the Family Court's order prohibiting a
Jehovah's Witness father from instructing the child in Jehovah's Witness
teaching, and taking him to Jehovah's Witness religious and social activities
was proper because there had been demonstrated harm to the child. It noted that
it would be improper in the absence of such demonstrated harm.
The harm found to exist emanated from the children being emotionally strained
and torn because of the parties' conflicting religious beliefs, and not from any
judicial evaluation of the relative merits of Jehovah's Witness doctrine, and
that of the custodial parent's Catholic faith.
The basis of this decision is grounded not in any assessment of the respective
worth of Catholicism vis-a-vis Jehovah's Witness, but because the conflict which
arose from differing religious beliefs had an adverse impact on the children,
and the Court wished to ameliorate it.
*459 The purpose of the prohibition was to avoid conflict which had rendered the
children emotionally strained and torn, and not on any judicial denigration of
the validity of Jehovah's Witnesses teachings. The only way that this harmful
situation could be obviated was to allow the custodial parent to determine the
religious upbringing.
In Gruber v. Gruber, 87 A.D.2d 246, 451 N.Y.S.2d 117 (1st Dept.1982) the court
was called upon to enforce a Separation Agreement which provided that the child,
born to persons of different religions, would attend a Yeshiva, or a school
providing Jewish religious training. In directing that this agreement be adhered
to, the Court noted that where a person breaches a Separation Agreement
provision respecting religious training, that parent must demonstrate that
adherence is detrimental to the child's best interest.
In Stevenot v. Stevenot, 133 A.D.2d 820, 520 N.Y.S.2d 197 (2nd Dept.1987) the
Court held that absent a specific agreement the custodial parent is the proper
party to determine the children's religious training.
It did so in the context of holding nugatory an alleged oral agreement to raise
the parties children in the religious faith of the Congregational Church. It
noted that the only agreements between divorcing spouses that would be upheld by
the courts are those incorporated into separation agreements, court orders or
signed stipulations.
It went on to hold that since no such agreement existed, the custodial parent is
the proper party to determine the children's religious training.
In Spring v. Glawon, 89 A.D.2d 980, 454 N.Y.S.2d 140 (2nd Dept.1982) the Court
enforced a provision contained in the Stipulation of Settlement, incorporated
but not merged into a Judgment of Divorce, which provided that the child should
have no religious upbringing without the express written consent of both
parties.
It rejected the custodial parent's argument that the child should be enrolled in
a Catholic parochial school which, not only was located one block from her
residence, but which offered a superior educational opportunity for her son.
The Court noted "as a matter of policy, the initial policy of the courts with
respect to the religious upbringing of a child should be one of non-
interference. (In Matter of Paolella v. Philips, 27 Misc.2nd 763 [209 N.Y.S.2d
165 (1960)]. The determination of that matter is best left to the child, if of
sufficient age and intelligence, the agreement of the parents or, where there is
no agreement, to *460 the custodial parent. See Matter of Paolella v. Philips,
supra, see also Martin v. Martin, 308 NY 136 [123 N.E.2d 812 (1954)]; Mester v.
Mester, 58 Misc.2nd 790 [296 N.Y.S.2d 193 (1969)] )." 89 A.D.2d at 981, 454
N.Y.S.2d 140.
**679 The court went on to note that courts have consistently upheld the
validity of agreements relating to the religious and moral training of a child.
It further noted that before the court would interfere with the carrying out of
such an agreement "the burden is on the party seeking to modify or avoid the
agreement to demonstrate that enforcement will not be in the best interest of
the child." 89 A.D.2d at 981, 454 N.Y.S.2d 140.
Bentley, supra is the only case in New York which has focused on the interplay
of the non-custodial parent's First Amendment rights, and those of the custodial
parent to determine the child's religion. It did not involve a separation
agreement.
Gruber v. Gruber, supra, and Spring v. Glawon, supra, both dealt with separation
agreements, and held that such agreements were entitled to enforcement by the
courts. They further held that if a party wished to avoid or modify such an
agreement he or she bore the burden of proving that enforcement would not be in
the children's best interests.
[3] A synthesis of these holdings leads to the conclusion that J.W. has the
burden of proving that denying him the right to expose Natalie to Jehovah's
Witness training would not be in her best interests.
That burden falls upon him because of the procedural posture in which the matter
comes before this court. J.W. agreed in the Stipulation of Settlement,
incorporated but not merged into the divorce judgment, that S.E.L. would have
absolute custody and exclusive supervision, control and care of Natalie.
This agreement is so pervasive in its reach as to be functionally
indistinguishable from Gruber, supra; and Spring, supra; and Stevenot, supra.
Since J.W. now wishes to abrogate this agreement he bears the burden of showing
that enforcing it will not be in Natalie's best interests.
While the Court is sensitive to J.W.'s First Amendment claim, the situation is
further complicated because rights of Constitutional dimension can be freely
waived. When J.W. agreed S.E.L. should have "exclusive supervision, control and
care" of Natalie he waived his right to the "free exercise" of his religion when
Natalie visited with him. He assumed the *461 onus of demonstrating that
allowing him to expose Natalie to his religion would not be harmful to her.
[4] After considering the evidence the Court concludes that J.W. will be
permitted to take Natalie to Jehovah's Witness services on Sunday but shall not
involve her any further except that he may answer casual questions which she
might ask him. No other exposure to Jehovah's Witness doctrine and activities
will be permitted because it has, and could lead to the kind of strain and
conflict enjoined in Bentley v. Bentley, supra.
The conclusion that any more extensive participation would be harmful to Natalie
turned almost entirely on an evaluation of the parties' credibility.
The Court finds J.W. less than credible. This conclusion is based on observation
of his demeanor, his denial to Dr. Dudley of the violent incidents toward S.E.L.
which furnished her grounds for divorce because of his cruel and inhuman
treatment, and Dr. Dudley's finding that J.W. was less credible than S.E.L.
It is highly significant that although J.W. testified that he was amenable to
Natalie being exposed to both faiths, Natalie revealed that he told her that he
"doesn't want her studying Catholicism, but wishes her to study what he's
studying".
Dr. Dudley further noted that Natalie was placed under such strain by her
parents' conflict (which centers around religion) that it inhibited her ability
to talk to either of them. Finally, Dr. Dudley reported that subsequent to their
meeting, Natalie called him twice. The first call, made from her mother's home,
was for the purpose of reaffirming her position that she wished to study the
religions of both her parents.
The second call was made from J.W.'s home. She stated that she wished to study
the Jehovah's Witness religion, and that **680 the only way she could do this
would be to move in with her father, and accept their faith.
I find this an unmistakable indication of J.W.'s overreaching. It reinforced
Natalie's interest in the Jehovah's Witness religion by taking advantage of her
youth and lack of insight, by subjecting her to undue pressure.
J.W.'s counsel has presented a resourceful well-written and comprehensive brief.
Its thoroughgoing analysis of First Amendment principles has meager relevance to
the factual context of this proceeding. The Court has little or no disagreement
with the cases cited and the principles expounded; but *462 they are generally
inapposite. Although there is an exhaustive analysis of the law of other
jurisdictions and Federal law, there is too little reliance on the common law of
this State. This Court, as a court of original jurisdiction, is bound to follow
the precedents of the higher courts of this State. And to the extent that they
compel results different than the cases, treatises and articles cited in the
petitioner's brief, New York common law will control.
Moreover this proceeding involves an existing custody order which was based on
the parties' agreement. The original determination in Rockland County Supreme
Court was devoid of any consideration of the relative merits of the parties'
religions. Nor has that issue been presented, let alone considered, in this
forum.
This decision is based on Natalie's best interests. It would have been the same
if J.W. were the custodial parent. His right to bring up Natalie as a Jehovah's
Witness would have been honored, and J.E.L. would have shouldered the burden of
demonstrating that it would not be harmful to Natalie for her to be exposed to
Catholicism.
VISITATION
The testimony established that problems arose from the twice weekly visitation
that had been temporarily ordered, now that Natalie lives in Yonkers.
Accordingly, Wednesday visitation is eliminated. In its stead J.W. is awarded an
additional four consecutive days in both Natalie's Christmas vacation and Spring
Vacation. The existing provisions respecting weekly Monday visitation, alternate
weekends, holidays and two weeks in the summer remain unchanged.
CONCLUSION
The right to free exercise of religion requires that a custody decision will not
be made because a court has determined the respective merits of two religions.
It further guarantees that no limitation will be placed on a non- custodial
parent's right to practice his or her religion when the child visits except to
the extent necessary to prevent any harm to the child.
It is one thing to grant the custodial parent the right to determine Natalie's
religion. It is quite another to allow her, in furtherance of that right, to
prohibit any exposure to her father's faith. *463 While S.E.L. has the right to
determine Natalie's religion, that right does not permit her to enjoin the child
from having the limited exposure to her father's religion permitted under this
decision.
[Portions of opinion omitted for purposes of publication.]
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