A news story out of Chicago tells the tale of a Laura Derbigney, a Hispanic Catholic woman who claims to have recently been ordered by a court to obey Orthodox Jewish dietary restrictions and keep the Sabbath. The reason? Laura’s husband has a son with an ex-wife – an ex-wife who follows the strict dietary and other rules of the Hasidic branch of the Jewish religion.
The boy’s mother, apparently upset that the child was fed a non-kosher hot dog while in the father’s care, asked a Chicago court to order Laura’s husband to obey Orthodox Jewish dietary and other rules while the son is in his care. The court agreed with the boy’s mother, and ordered the father to feed the boy only kosher foods, and to observe the Jewish requirement of resting on the Sabbath (which for Orthodox Jews means refraining from such activities as cooking, operating electronic devices, and driving).
Laura, who is most probably not an actual party to the litigation between her husband and the boy’s mother, and thus not actually ordered by the court to do (or not do) anything, complains that the court’s order functionally restricts her lifestyle – while the boy is visiting his father – to that of an Orthodox Jew. She specifically points out that the court’s order bars her from preparing many Hispanic dishes while the boy is in her home. She’s hired an attorney to attempt to overturn the court’s order.
The story has few other details about this case, but of note is the fact that Laura’s husband is himself a Catholic who does not personally observe Jewish traditions either.
So why is the court forcing this family to act like Hasidic Jews when caring for this child? We can imagine a few possible scenarios. First, despite the fact that the father now calls himself a Catholic, he was indeed once married to a Hasidic Jewish woman. It may well be that during his marriage the father also considered himself to be Jewish and that the family obeyed Jewish laws prior to the divorce.
Thus the mother’s argument may be grounded in the fact that the child has always been raised in the Orthodox Jewish tradition and that the father, despite now considering himself Catholic, should continue to raise the child in a household which follows Jewish rules. Indeed, the parents may even have agreed to do so when they were divorced.
It’s also possible, of course, that the father has always considered himself Catholic, and that the family practiced both religions prior to the divorce. Or it’s possible that during the marriage the father consented to raising the boy as a Jew, despite the fact that he himself followed the rules of the Catholic church.
The more important question, however, is this: can a court even order a parent to follow any one religion’s practices without violating an individual’s right to freedom of religion?
We think the answer is no. While we’re not constitutional lawyers, as family law practitioners we often encounter the issue of religious decision making between separated parents. It is quite common for our clients to be concerned about whether or not the other parent will continue to raise the child in a certain religious tradition after separation or divorce. We often advise clients that any order or agreement that commands one parent to observe certain religious practices would not be enforceable in court.
This is not to say that two divorcing spouses cannot agree to continue to raise their child in the family’s chosen religious tradition – certainly divorced parents can make the same decisions regarding the religious education of their children that married parents can. It is not all that unusual for two parents who cannot get along as spouses to continue to share religious values and priorities when it comes to their children. It is also not uncommon for divorced spouses to agree that each parent may include the child in their own religious activities, even when each parent practices a different religion. In fact, we’ve seen many Washington parenting plans that specifically state that each parent may include the child in their own religious practices so as to avoid the conflict we see in Laura Derbigney’s story.
But, where divorced parents run into trouble is when they ask the court to make orders that endorse one parent’s religion over the other’s. Religious beliefs (or, just as importantly for some people, the lack thereof) are obviously of profound importance to many individuals and families.
We don’t underestimate how difficult it is for some parents to send their child off to a household with a different religious lifestyle, especially when that household’s religious beliefs are radically different than the other parent’s household. In an ideal situation, parents will be able to reach some compromise or consensus about the role of religion in their child’s life. But as this story shows, achieving harmony between two very different households is often difficult – not only for parents, but for the courts as well.
