Dispatches from the Creation Wars

New Ruling on Religion and Custody

One of the rarely discussed tragedies in custody cases is how commonly judges assign custody based upon religious preference. There is enormous bias against non-religious parents and judges often reinforce that bias by awarding custody to a religious parent over a non-religious one, even where there are other serious factors that should compel the opposite outcome.

I’ve got a friend in New York who just went through this and I’m gathering all the legal documents to publicize that case. The outcome was beyond outrageous. The mother, who had full custody during the divorce and custody fight, lost custody because the father would make the child attend church while the mother would not.

This despite the fact that the father had multiple drunk driving arrests and even admitted under oath that he still drove with the child in the car after drinking. This also despite the fact that he had a history of violence, enough to warrant a personal protection order granted to the mother. But the judge felt that raising the child in a “Christian” environment trumped all of that.

The Michigan court of appeals just upheld a similar custody award, though the facts in that case are nowhere near as clear as the one I mentioned above. There were a lot of serious mitigating factors in the Michigan case, including allegations of sexual abuse and arrests. But at least part of the reason the court awarded custody to the father was based on his more rigorous following of Orthodox Jewish tradition:

Under factor (b), the trial court considers the “capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.”13 The trial court found that factor (b) favored Marc Herschfus. The trial court noted that both parties are practicing members of the Orthodox Jewish faith. As part of the divorce settlement, the parties signed a document outlining specific terms for raising Jacob in that religion (the “Upbringing Document”). The trial court recognized that the judgment of divorce indicated that the Upbringing Document “is disputed,” but found that the nature of the dispute was not part of the record. The trial court found that the parties “have different views on how strictly to observe their religion,” such as in relation to driving on holy days. The trial court noted that Marc Herschfus hired a private investigator to follow Tonya Herschfus on holy days in 2006 and caught Tonya Herschfus driving with Jacob. The trial court found that Tonya Herschfus was clearly “attempting to hide the fact that she is driving from [Marc Herschfus]. The message to Jacob, of course, is that it is appropriate to deceive his father.” The trial court noted that the parties also disagreed about the use of kosher food. Tonya Herschfus believed that Marc Herschfus had brainwashed Jacob to read the food labels at her house. She also testified that Jacob refused to eat at her non-Jewish family’s home on Thanksgiving 2006. Tonya Herschfus testified that Jacob acted “troubled and withdrawn” even
after she promised that she would only give him kosher foods.

The trial court found that Jacob was in turmoil given the different religious observances of his parents. The rules at Marc Herschfus’s home and Jacob’s religious school were inflexible, while Tonya Herschfus was more lax, causing him “substantial stress.” Jacob sought “structure and guidance” but felt “conflict and divided loyalty.” Jacob’s school principal testified that Jacob is a “loner,” “hyper and easily angered,” and the other children tease him. At the age of five, Jacob already saw a therapist to deal with stress and anxiety. The trial court reasoned that it was not choosing a religion for Jacob or the parties and, therefore, was not interfering with the parties’ constitutional right to freedom of religion. Rather, the parties agreed to raise Jacob in the Orthodox Jewish religion. Tonya Herschfus could personally practice any religion as long as
she nurtured Jacob in his religion. The trial court determined that the Upbringing Document was
“not specifically enforceable,” but noted that it was “evidence of their agreement and sets forth
their specific understanding of the important principles that are to be followed.” Those principles were consistent with Orthodox Judaism. The trial court determined that “Orthodox religious practice is not flexible or subject to broad interpretation. Strict religious observation impacts all aspects of life.”

This is extremely bothersome to me and it should be to others as well.