Mediation and the Holidays: When Religious Traditions Clash

Mediation and the holidays

The end of another year is closing in; the days are growing shorter and the weather colder. This means, of course, that it’s time once again to celebrate the winter holidays.  While not everyone practices religious holiday traditions, many people do. In fact, some couples practice the traditions of more than one faith.

Interfaith couples sometimes adopt a single religion after marriage. They also sometimes decide that they will each continue to practice their own religions. When couples in this latter group have children, they may work out ways to celebrate and educate those children in the religious traditions of both parents. If such couples eventually separate, their interfaith practices can complicate reaching a parenting agreement. Creating a holiday time-sharing schedule around one set of established family traditions is challenging enough. Building a new schedule that honors the different faiths of two parents requires even greater flexibility and creativity.

Religious practices are deeply personal. When parents’ wishes for the religious upbringing of their children clash, there can be high emotions on both sides. Even several years after divorce, time-sharing through the holidays can continue to cause stress. Children may not be happy. One or both parents may not be happy either. Mediation presents an opportunity to discuss potential resolutions with a neutral facilitator who is trained in managing discussions around such highly charged issues.

New Jersey Law on Child Custody and Religious Upbringing

Parents are generally able to agree between themselves regarding the religious upbringing of children after divorce. In fact, courts much prefer that they do so.  It is helpful, however, to know what a court would decide in the absence of an agreement. If parents share legal custody (the most common scenario in New Jersey) and have either no agreement or an ambiguous agreement regarding their children’s religious upbringing, New Jersey law delegates the matter to the  parent with primary physical custody (also know as the primary caretaker) (Feldman v. Feldman, (N.J. App. Div. 2005) 874 A. 2d 606). The other parent retains the right to take the children to religious services of that parent’s choice during parenting time but does not have the right to enroll the children in religious education classes.

In the Feldman case, the father was Jewish and the mother Catholic. They had a written agreement that provided that each parent would have custody of the children on the parent’s birthdays and respective religious holidays. If a Jewish and Catholic holiday conflicted (such as, potentially, Chanukah and Christmas), the Catholic holiday would have priority. The agreement said nothing further about the children’s religious upbringing or education. The father, who was the primary caretaker, objected to the mother enrolling the children in an extracurricular program of Catholic education that infringed upon his parenting time. The court stated that as primary caretaker, the father had sole authority over the children’s official religion and that allowing the mother to formally educate the children in a second religion (without reference to when such education might be scheduled) would run contrary to the father’s right to educate them in the religion of his choice.

Determining which Parent is the Primary Caretaker

The primary caretaker, or primary physical custodian, is generally the parent with whom a child spends more time. If both of you have fairly equal time and you have not designated either parent as primary custodian, then a court might consider additional factors, such as which parent has more day-to-day responsibilities for childcare, and to which parent a child is more closely bonded. To prevent issues like this from turning into expensive court battles, it is important to designate a primary caretaker in your parenting agreement.

Children’s Best Interests

As in all cases related to parenting, the best interests of the children is paramount. The law as stated in Feldman is considered to be generally in those best interests. It ensures that a primary parent does not have to spend time encouraging children to follow religious traditions that are not a part of the parent’s routine. At the same time, the children are not put under excessive pressure to choose between two different religious traditions. This lack of pressure is important to children’s emotional well-being, as they may psychologically experience a forced choice as a compulsion to choose between their parents.

Freedom of Religion

The New Jersey law is also based in constitutional freedom of religion. The United States Supreme Court has held that freedom to believe in any particular religion is absolute. Freedom to engage in any particular religious practice, on the other hand, must be weighed against the public welfare. Cantwell v. State of Connecticut (S. Ct. 1940) 310 U.S. 296, 303-04. New Jersey courts have held that the freedom to practice religion must also be weighed against an individual’s right not to be compelled to abide by the rules of another’s religion. A court order compelling a person to affirmatively participate in a religion other than their own would constitute state action violating a constitutional right. (Feldman at 615).

Addressing Religious Upbringing in Mediation

As noted above, the best approach for parents is to resolve the issue of their children’s religious upbringing between themselves and then state it clearly in a parenting agreement. There are essentially two ways to do this. The first is to be silent on the issue while clearly designating one parent as primary physical custodian.  Pursuant to New Jersey law, that parent would then be in charge of making religious decisions.

The second, and much clearer option, is to address the issue in precise terms. It is important to be aware that parents do not have to give decisions over religious upbringing to the primary caretaker. So, for example, if only one parent feels strongly about bringing up the children in a particular religion, the agreement can put that parent in charge, even if that parent has much less parenting time than the other. If the parents both see this as an important issue and are not able to resolve it between themselves, mediation is a good forum for addressing it. If necessary, the parents can get opinions from child development experts or children’s therapists.

Are you an interfaith family experiencing stress around your holiday parenting schedule? The experienced family law mediators at Weinberger Mediation Center can help.  Contact us today for an initial consultation.