Preference for religious stability vs. parent’s desire to leave religious group

From yesterday’s New York appellate decision in In re Gribeluk v. Gribeluk (N.Y. Super. Ct. App. Div. Aug. 14, 2014):

… [T]he mother appeals from an order of the Family Court, … which … granted the father’s petition for custody of the parties’ children, with certain visitation to [the mother].

ORDERED that the order is affirmed ….

When making a decision in custody matters, the primary concern is the best interests of the child. Custody determinations … are entitled to great deference and should not be disturbed unless they lack a sound and substantial basis in the record.

The courts may consider religion as one of the factors in determining the best interests of a child, but religion alone may not be the determinative factor. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other.

Here, contrary to the mother’s contentions, the Family Court did not rely solely on religion and the mother’s decision to leave the Hasidic Jewish community in making the determination to award the father custody of the parties’ children. The Family Court expressly stated that it passed no judgment on either parent’s religious beliefs and practices. The children’s need for stability, and the potential impact of uprooting them from the only lifestyle which they have known, are important factors in making a custody determination.

The Family Court also found the mother’s repeated allegations of sexual abuse of the children by the father to be unfounded, which subjected the children to numerous interviews and examinations, casting doubt upon her fitness to be the custodial parent.

Although the children expressed a preference to reside with the mother, and the attorney for the children advocated awarding custody to the mother, the children’s preference and the recommendation of the attorney for the children are not determinative and do not usurp the judgment of the Family Court.

Considering the totality of the circumstances, there was a sound and substantial basis in the record for the Family Court’s determination that it was in the best interests of the children to award custody to the father, with certain visitation to the mother.

I think that there’s good reason, in child custody disputes, for favoring — all else being equal — the parent who would do better in maintaining as much as stability as possible in the children’s lives (especially since that stability is already being disrupted by the divorce). And I think that can include stability of religious upbringing as well as other forms, especially when religion plays a deep role in the children’s lives, though I think consideration of the merits of the rival religious belief systems are generally unconstitutional. This result, then, may on balance be sound.

Nonetheless, this principle does make it much harder on parents who want to leave such religions — and, in particular, on mothers who want to leave traditionalist religions that they have come to view as stultifying for them as women. In this instance, the religion is Satmar Judaism, and the mother came to the faith on her own (from secular Judaism) at age 21. In other instances, it could also be young women who grow up within the traditionalist community (whether devoutly Jewish, Muslim, Protestant, Catholic, or whatever else), who marry very young, and who find themselves unable to leave without giving up custody of their children.

I’m not sure there’s anything that can legally be done about this, without making matters still worse. And of course having children generally limits one’s life plans in many ways, and divorces often put parents who want to maintain custody of their children in difficult positions for many reasons. Still, I thought this particular sort of situation was worth highlighting.

For more on this case, see this story from the New York Jewish Week last year (though I of course can’t vouch for its accuracy),

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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