In the absence of a written agreement, the custodial parent may determine the religious training of a child. Consistent with the children’s best interests, courts may properly direct noncustodial parents, during periods of parental access, to respect the children’s religious beliefs and practices and make reasonable efforts to ensure the children’s compliance with their religious requirements. However, as this Court explained in Weisberger v. Weisberger (154 AD3d at 53), a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle.
To the contrary, it is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise. A religious upbringing provision should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely (Weisberger v. Weisberger, 154 AD3d at 53, citing Obergefell v. Hodges, 576 U.S. 644, Lawrence v. Texas, 539 U.S. 558, 574, and Planned Parenthood of Southeastern Pa. v Casey, 505 U.S. 833, 851).
Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken.
Here, the challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access. Nonetheless, we agree with the plaintiff that the breadth of the provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith has the same effect as the provisions this Court struck down in Cohen v. Cohen (182 AD3d at 547) and Weisberger v. Weisberger (154 AD3d at 53).
The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. The defendant’s testimony at the trial supports this conclusion and demonstrates that he expected the plaintiff to conduct herself in the child’s presence according to the rules of the child’s faith.
The defendant was especially concerned that the child would be exposed to people involved in a “gay lifestyle” and testified that, if the plaintiff became involved in a relationship with or married a woman, he would request that the partner not be present during periods of parental access because same-sex relationships are inconsistent with Chasidic religious principles.
Such restrictions on a parents ability to express oneself and live freely go beyond requiring a noncustodial parent to support and enable the child’s religious practices, and impermissibly infringe on the noncustodial parent’s rights (Weisberger v. Weisberger, 154 AD3d at 53).
The plaintiff does not challenge the Supreme Court’s direction that, during periods of parental access, she “shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square. That provision effectively addresses the plaintiff’s obligation to ensure the child’s compliance with his religious requirements during her periods of parental access (see Cohen v. Cohen, 177 AD3d at 853).
Weichman v. Weichman, – NYS3d – , 2021 WL 5226234 (2nd Dep’t. 2021)
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