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Religious-upbringing Clause in Marital Settlement Agreement

Categorized as Child Custody & Visitation, Divorce, Divorce Litigation

Religious-upbringing Clause Almost Cost an Ex-Hasidic Mom Custody of Her Three Children

During the divorce process, most parents come to an agreement about how to raise their children. For the most part, this agreement is based on the way the parents were raised, or the way the parties planned on raising their children. For two Hasidic parents in New York, it was not out of the ordinary for them to agree upon their divorce that the religious-upbringing of the children would be in the Hasidic religion. However, a couple of years later, the mother came out to her family and children as lesbian and moved in with a transgender man. The news shocked her conservative religious community and caused her ex-husband to seek emergency custody of their three children.

Impact of Religious-upbringing Clause

To the mother’s surprise, the trial judge granted the emergency motion, granted the father custody of the children, and forbade the mother from discussing her sexuality with her youngest children. After a long battle and an appeal to the Appellate Court, the children were given back to the mother so long as she maintains a kosher home and keeps the children in Hasidic schools.

This story serves as a caution both to parents and divorce attorneys when they are drafting Marital Settlement Agreements. Although specificity can make Marital Settlement Agreements more enforceable and provides clarity, it can also pigeon hole the parties into complying with its provisions for years after the agreement. If the parties agreed to raise the children Catholic even though neither party is particularly religious, the parents may be restricted from changing their children’s religion because of these provisions. The same goes for extracurricular activities, daycare, and other provisions that may no longer be relevant a few years after the entry of the agreement. The provisions can always be changed by agreement, but it may cost the parties attorneys’ fees and a big headache to make these changes.

As to this particular case, regardless of the provisions stated in the Marital Settlement Agreement, the trial court imposed its own morality and found that the mother’s new lifestyle clashed with her agreement to raise the children in the Hasidic faith. While that may be true, the terms of the agreement did not dictate that the mother herself would continue in the Hasidic faith. In addition, she agreed to continue raising her children in the Hasidic faith. As a result, as the Appellate Court held, the children could remain in the mother’s care so long as she continues to abide by the religious-upbringing clause agreeing to raise the children in that particular faith.

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