For many issues pertaining to child custody in New Jersey it is difficult to find straightforward answers to legal questions. When asking what are assumed to be easy questions, clients often hear from attorneys that “it depends on the circumstances of the case.” Attorneys give this answer not because the attorney does not know the answer, or because they are trying to put their client off, but rather because the way the law is written there is rarely an easy answer. Child custody laws, for example, often give judges guidelines for determining child custody issues, but they often allow the judge discretion to determine what is the best interest of the parties involved. It is rare when there are clear-cut answers to questions about child custody without knowing all of the facts of the case. In the case of child custody and religion, however, we have a very clear answer to the question of who determines the religion of a child.
NEW JERSEY CASE LAW ON RELIGIOUS UPBRINGING
New Jersey case law makes it clear that the child’s primary caretaker has the power to decide on the religion of the child. Also called the Parent of Primary Residence, this is the parent who spends more than 50% of time with the child. Even in cases where the parents have joint custody, the primary caretaker still has the power to make religious decisions for the child. The religion that the parents raised the child with before the divorce is irrelevant in the eyes of the courts; the sole power lies with the primary caretaker.
The other parent, called the Parent of Alternate Residence, is allowed to expose the child to, but may not educate the child on a different religion. This means that the other parent is permitted to take the child to religious services, but may not enroll the child in any type of religious training or educational classes (such as Sunday school or Hebrew school).
PARENTAL AGREEMENTS ON RELIGION
While New Jersey case law is clear on how its courts will answer the question of who will determine the religion of a child, the parents of the child are of course free to agree to do something different. New Jersey Courts are, however, reluctant or sometimes unwilling to enforce such agreements if not carefully drafted. For the best chance of having an agreement enforced, the contract must be written rather than oral, must be as specific and detailed as possible regarding the type of religious participation, and it must be a current agreement (courts are reluctant to enforce agreement that are more than a few years old). If drafted properly, a written agreement between the parents may be enforceable in a New Jersey Court.
Child custody issues involving parents of different religious backgrounds are increasingly common in New Jersey. While the law in New Jersey is quite clear, the law may seem unfair to the parents whose authority has been stripped. Call Peter Van Aulen today for a free consultation if you need assistance with a child custody case involving a dispute about the religious upbringing of your child.