THE ROLE OF RELIGION IN CUSTODY/VISITATION CASES
IN NEW YORK STATE
Sakinafi Suzanne Arady
SPRING 2001
Updated Spring 2015 by Anaiss Rijo
Completed to fulfill the requirement of the Attorney for the Child Externship, SUNY Buffalo
Law School, Prof. Susan Vivian Mangold
May be cited with proper attribution to student authors
1
The Role of Religion in Custody/Visitation Cases in New York State
The First Amendment to the United States Constitution provides that: “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Parents have a constitutional, protected liberty interest in raising their children as they see fit,
absent a showing of harm to the child.1 However, where the family is no longer intact, it is no
longer autonomous and, historically, intervention by Courts occur. The essence of custody is the
companionship of the child and the right to make decisions regarding the child's care, control,
education, health, and religion.
The United States Supreme Court has not had occasion to address religion as it pertains
to custody and visitation matters. However, the Court has made it clear that parents have a
fundamental, protected right to determine how their children will be raised, including their
religious upbringing.2 The problem, however, arises when there are two parents with such rights
who disagree about which religion their children will practice, thus leaving the Court to step in
and decide how such issues win be resolved.
In a custody case, a New York court will look to the future, and predict which parent will
be the better parent in rearing the child "in the best interest of the child."3 Religion will play a
role when a child has been raised in one religion and the parents are of different religions. 4 The
court will favor the parent who is better able to continue with the child's religious upbringing.
Needless to say, trying to change a child's religion or interfering with a child's religious
instructions will not be looked upon favorably by the court. The State of New York has varying
degrees of analysis and holdings depending on the specific issue and the jurisdiction. There are
1
Wisconsin v. Yoder, 406 U.S. 205 (1972).
Id,
3
J. Douglas Barics. Child Custody in New York State. (2007); The factors to consider in the best interest are not
statutory, they come from case-law. The leading case is Eschbach v. Eschbach, 56 N.Y.2d 167 (Court of Appeals
1982).
4
Aldous v. Aldous ,99 A.D. 2d 197 (3rd Dept. 1984).
2
2
contradictory holdings within the same department and varying opinions amongst the appellate
courts.
The New York Court of Appeals has discussed some issues pertaining to the role of
religion in custody proceedings, as have the appellate courts. Similarly, the Fourth Department
has published a few opinions relating to the role of religion in custody and visitation matters. The
issues addressed in the three remaining departments include the role of religion in deciding
custody, the effect of prior agreements outlining the terms of religious upbringing, and the rights
of the custodial and non-custodial parent when it comes to religious training of the children, with
the best interests of the child considered as necessary in each of these circumstances. These
factors will be examined thoroughly below.
New York Court Of Appeals Decisions
In 1932, the Court of Appeals decided Weinberger v. Van Hassen. In that case a mother had
made an agreement with a non-relative that she would retrieve her child from a maternal uncle in
Holland and bring him back to the United States so the child could be placed with the non-relative as
custodian.5 The custodian would then provide for the child's needs, including religious training.
Although the issue before the Court was not custody or visitation issues between two parents, but
rather the matter of enforcement of an agreement, in its opinion the Court said it would not decide
religious education unless the custodian is unfit.6 The Court added that it must occasionally decree
partial custody, including the right of religious education according to views of the custodian.7
The Court went on to note that agreements between parents regarding religious upbringing are
generally held valid in this country.8 The discussion in this case is unclear whether the Court intended
5
206 N.Y. 294 (1932).
Id.
7
Id. at 298.
8
Id.
6
3
to make a binding ruling as to religious matters or was simply making a general statement; some
courts have used the statements as support in deciding later cases, and other courts have ruled in ways
that seem contrary, as will be illustrated. This uncertainty may be because Weinberger was not a
custody or visitation matter, but rather a matter brought to the court's attention by a mother wishing to
enforce an agreement made with the custodian of her child. The mother alleged that the custodian was
no longer upholding his part of their agreement, and the only issue the court was deciding was in
regards to the performance of a contract.
However, in a later case, Martin v. Martin, the Court of Appeals decided that a twelve-yearold child was competent to decide which church/religious affiliation he preferred and also the option
to transfer out of a parochial school and into a public school, even though the parents had a prenuptial
agreement directing that the child be raised Catholic.9 The mother had been given custody on the
condition that the son be raised Catholic, but the Court felt it was in the son's best interests for him to
make his own choice. Despite the majority opinion, there was a strong dissent, in which a second
judge concurred, outlining the bad policy of considering the choice of a twelve-year-old child to be
binding on the court and the parents, and against the parens patriae policy of New York, citing a
number of laws in New York, such as those dealing with control of alcoholic beverages, child labor,
debtors and creditors, and penal law, etc.10 The dissent also pointed out the statement in Weinberger,
about agreements between parents involving religious upbringing being held valid, and went on to
add that it must be especially true in the instant case considering the agreement was confirmed by a
judgment (of separation) by the court. Lastly, the dissent noted that the only factor motivating this
action was the child's desires, a factor, which came up only because the mother violated the
agreement in the first place.
9
308 N.Y. 136 (1954).
Id. at 137.
10
4
Fourth Department Decisions
In a 1991 case, Barran v. Navyar, the Fourth Department affirmed a lower court's order
requiring a non-custodial parent to ensure that his child attend religious services of the other
parent's faith during visitation.11 The father, who is Hindu, appealed the order requiring him to make
sure his son attended Mass on Sundays and other holy days as obligatory according to the Catholic
Church. In denying the appeal, the appellate court held that "the order did not impermissibly interfere
with respondent's own religious practices."12 The court' s opinion was very brief, with no references to
the particular facts of the case, and there was nothing in the opinion, which indicated whether the father
would be restricted from exposing his children to his faith, as well.
Another case, Wheeler v. Wheeler, held that a non-custodial parent may expose his children to
his religion even against the wishes of the custodial mother, so long as, it is not contrary to the best
interest of the children.13 In this case, the lower court included in its visitation order that the noncustodial father must comply with the custodial mother's restrictions preventing the children from
attending religious services with their father during visitation. The father appealed, and the appellate
court deemed such a restriction to be an error, where there was no hearing to show that the father's
insistence on taking his children with him to Christian Science religious services was against their best
interests and where the court did not make a finding of harm to the children. The case was remanded
with the mother having the burden to prove such harm.
One last appellate case in this department touching on religious upbringing of children postdivorce was Mahoney v. Marrano, where custody was changed from the mother to the father after the
mother moved with her children to a religious commune.14 However, there were a number of issues
572 N.Y.S.2d 821 (App. Div., 4th Dep’t. 1991).
Id.
13
147 A.D.2d 939, 537 N.Y.S.2d 387 (App. Div., 4th Dep’t 1989).
14
134 A.D.2d 834 521 N.Y.S.2d 587 (App. Div., 4th Dep’t 1987).
11
12
5
separate from the religious issue itself, including that the mother apparently abdicated her parental
responsibility by allowing elders at the commune too much responsibility over the children and that
the mother moved out of state against the terms of the court order and intended on keeping the
children away from their father until they had time to be "established in the commune philosophy,"
bearing on her fitness as custodian.15
The single published opinion from the lower courts in this department is Robert Q. v.
Judy E., a 1977 case, where the court held that it would be against the best interests of a child to
prohibit him from participating in religious training with his noncustodial father during visitation
times.16 This matter concerned a custodial mother who decided she no longer believed in organized
religion and no longer wanted her nine-year-old son taken to religious services by his father during
visitation times. The court considered that the separation agreement stated the parents would consult
with each other and jointly decide all questions regarding, among other items, their son's education
and welfare, but the court also considered the best interests of the child.17 In so doing, the court
determined that it would be best for the son to continue attending the religious services as he had been
with his father.18 The court also was not swayed by the mother's argument that allowing the son to do
so would alienate the child against her, but rather suggested that this could happen if the parents made
the child aware of their religious conflicts and so they should refrain from doing so.
Other Departments
The remaining three departments in New York have come up with different analyses and
opinions involving the myriad of religious issues raised in the state courts. The holdings vary
15
Id. at 834, 588
90 Misc. 2d 439, 395 N.Y.S.2d 351 (Fam. Ct., Erie Cly. 1977).
17
Id.
18
Id.
16
6
amongst the lower and appellate courts. The analyses often detail a concern for the best interests of
the children.
1. Awarding Custody
Courts may consider religion as a factor in determining a custody award, but religion may
not be the only factor.19 In one case, the appellate division ruled that the lower court's determination
that the father's religious beliefs are too discipline-oriented was "unconstitutionally impermissible",
but the custody award to the mother was upheld because religion was only one of many factors
analyzed.20 And in another case, a non-custodial father was denied a change in custody, which he
wanted primarily so he could help strengthen his now-teenaged son's religious education, and
which the court denied because there was no basis for the change and the child's best interests
(and expressed wishes) were for him to continue living with his mother.21
The appellate court in Perlstein v. Perlstein, held that religion could be a determinative
factor in changing custody when a written separation agreement specifically outlined the
religious upbringing of the child and provided that failure of the mother to abide by the
agreement would transfer custody to the father.22 However, the particular circumstances of this
case show why the court would consider allowing a religious factor to determine custody, absent
a showing by the custodial mother that the religious guidelines of the agreement were
detrimental to the child. As the court noted, the agreement was voluntarily entered into, the level
of religious requirements was fully understood by the mother, she was represented by counsel
when she signed the agreement, and her attorney even stipulated at trial that she "understood,
knew and violated the terms of the agreement" The court also described some of the statements
19
King v. King, 225 A.D.2d 819, 638 N.Y.S.2d 980 (App. Div., 3d Dept. 1996).
Aldous v. Aldous, 99 A.D.2d 197, 473 N.Y.S.2d 60 (App. Div., 3d Dept. 1984).
21
Mester v. Mester, 58 Mise.2d 790, 296 N.Y.S.2d 193 (Sup, Ct. Nassau Cty. 1969).
22
76 A.D.2d 49, 429 N.YS.2d 896 (App. Div., lst Dept. 1980).
20
7
by the mother and her attorney at trial which sought to attack and belittle the father's religion.
The court further reasoned that, according to the evidence on record, the child's behavioral
problems may be caused by the mother's failure to continue maintaining an orthodox household
as provided in the agreement, rather than due to the level of religious requirements of the father's
religion.23 The case was remanded for a new trial, with the burden on the mother to show that
following the agreement would be detrimental to the child.
In Romano v. Romano, a family court decided that a mother could retain custody of her
children, who had been raised Catholic because that had been the religion of both parents,
despite the conflict that was created for the children when the mother became a practicing Jehovah's
Witness.24 The court found both parents to be fit, but expressed some concern about the children
living with the father because he would be living with his brother and sister-in-law and the mother
had a strained relationship with the in-laws.25 Plus, the court noted that the mother agreed to allow
the children to continue to attend Catholic school and Catholic Church if the father wished them to,
even though she preferred them to be raised as Jehovah's Witnesses. There were no concerns about
bad condi6ons affecting the health or morals of the children, so the fact that the mother was
Jehovah's Witness would not be a bar to her having custody.26
In Burkum v. Burkum, the appellate court noted the lower court's lengthy written opinion
addressing the Jehovah's Witness lifestyle and how that impacts the children.27 The mother, a
Jehovah's Witness, lost custody of the children to the father, whose faith was not mentioned. The
mother appealed the custody award and requested a modification of the visitation schedule to
accommodate her religious services. The appellate court said that her religion was not the only factor
23
Id. at 53.
283 N.Y.S.2d 813 (Fam. Ct. Kings Cty 1967).
25
Id.
26
Id. at 972, 815-16.
27
273 AD.2d 520, 708 N.Y.S.2d 734 (App. Div., 3d Dept. 2000).
24
8
in determining custody, and determined the children would have a better lifestyle remaining with
their father in the family home. The court pointed out that the father was willing to allow the children
to attend religious functions with the mother, so there was no need to modify the visitation
schedule.28
In two other lower court cases around the same time, the best interests of the children and the
parent’s religions were factors important in the custody award.29 In Battaglia v. Battaglia, a father
was awarded custody over a mother, in large part due to her becoming a Jehovah's Witness, using the
best interests of the child as the determinative standard. The opinion stated that, although the mother
is allowed her freedom of religion, a child could not be deprived of a blood transfusion that may
preserve the child's life.30 The record was unclear as to whether the child was sick or if there was any
likelihood of such medical services being needed. The court did not directly state that religion was the
only reason for their opinion but it was mostly centered on the religious aspect.
In Weiss v. Weiss, a mother filed for separation against the father, and the father argued
custody should go to him because the mother failed to rigorously observe Orthodox Judaism.31 Due to
the child's young age, the court awarded custody to the mother, and was not persuaded that her alleged
"backsliding" of religions was adverse to the child's welfare.32
2. Prior Agreements Between Parents
Although the New York Court of Appeals remarked that agreements between parents are
generally held valid in this country, most courts have held that such an agreement is generally binding
only if reduced to a written agreement, e.g., separation agreement, stipulation, or judgment of
28
Id.
Battaglia v, Battaglia, 9 Misc.2d 1067, 172 N.Y.S.2d 361 (Sup. Ct. Albany Cty. 1958); Weiss v. Weiss, 53 Misc.2d 262,
278 N.Y.S.2d 61 (Sup. Ct., Rockland Cty. 1967);
30
Id.
31
Weiss, id.
32
Id.
29
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divorce.33 Furthermore, some courts have also considered that an ante-nuptial agreement regarding
religious upbringing may not have considered post-divorce circumstances, and therefore would not be
enforceable. 34
However, some courts make it clear that such agreements will be enforced.35 In Spring v.
Glawon, a non-custodial father brought an action to enforce the divorce decree which incorporated a
stipulation between the mother and father that their "child shall have no religious upbringing
without the express written permission of both parties."36 The mother remarried and resumed
practice of her faith, then enrolled her son in parochial school. The court placed the burden on the
mother to show why following the agreement would not be in the best interests of their son.37 Since
the mother was unable to provide any allegations sufficient to warrant even a hearing, the court
ordered her to remove the child from parochial school and enroll him in either a public or
nonsectarian private school.38
In an older case of Gluckstern v. Gluckstern, the trial court found the custodial mother in
contempt of court, when she was not raising the child in the Jewish religion as provided in the
divorce decree, but rather was raising the child in the religion her new husband followed and to
which she converted, Christian Scientist.39 The child lived with his mother and stepfather in a home
where their religion was being practiced, and the child decided he did not want to be instructed in
his father's faith, but instead wanted to follow his mother's religion.40 The court determined that the
twelve-year-old child "should not be permitted to abandon so easily the faith he was born in", and
33
Jabri y Jabri, 193 A.D.2d 782, 598 N.Y.S.2d 535 (App. Div., 2R Dept. 1993); 552 N.Y.S.2d
624 (App. Div. IR Dept. 19%); Stevenot v. SWvenot, 133 AD.2d 820, 520 N.Y.S.2d 197 (App. Div., 2nd Dept 1987).
34
Stevenot, id; Schwmzman v, Schwarzman, 88 Misc.2d 866, 388 N.Y.S.2d 993 (Sup, Ct., Nassau Cty. 1976).
35
Spring v. Glawoq, supra; Gluckstern vz Gluckstern, 231 Misc. 2d 58, 20 N.Y.S.2d 623 (Sup. Q., N.Y. Cty. 1961);Shearer
v. Shearer,, 73 N.Y.S.2d 337 (Sup. Ct., Steuben Cty. 1947).
36
Spring v. Glawon, supra.
37
Id.
38
Id.
39
Gluckstern, supra.
40
Id.
10
that the child is too young to understand the importance of making such a choice. The judge found
that the mother had greatly influenced her son's thinking, and that she did so "willfully and
deliberately." Although a change of custody in order to raise the child in the religion as agreed to
was not before the court, the father could make a separate application for such action.41 On the other
hand, in Siegel v. Siegel, the court determined that a separation agreement directing that the parties
must consult with each other as to religious upbringing did not take away the ultimate right of the
custodial parent to determine religion.42
Courts have also considered the best interests of the child by whether the custodial parent
followed the agreed upon religious upbringing.43 In Schwarzman v.Schwarzman, the court
considered that the welfare of the children would not be best served by following the parents' prior
agreement to raise their children Jewish, now that the custodial mother converted back to
Catholicism, married someone Catholic, and would maintain a Catholic home. In deciding this case,
the court went through a lengthy discussion of the religious issue, including that the father had
demanded his wife's conversion as a precondition to marriage, whether the mother had ever truly
intended to take on the new faith, and even included Jewish authority to aid in its decision. The
court then held that such ante-nuptial agreements were enforceable to the extent they provide for the
best interests and welfare of the child. The agreement in this case did not meet this standard.44
In Gruber v. Gruber, the separation agreement between the parents, which was incorporated
into the divorce decree, requires that the two sons of the marriage, ages twelve and thirteen, would
attend a Jewish day-school acceptable to the parents and would remain there through the 12th
41
Id. at 59-60, 624.625;
Siegel v. Siegel, 122 Misc. 2d 932, 472 N.Y.S.2d 272 (Sup. Ct., Nassau Cty. 1984).
43
Garvgr v. Fallings, supra; Gruber, supra; Schwarzman, supra; O'Neill v O'Neill, 45 Misc.2d 1, 255 N.Y.S.2d 776 (Sup.
Ct., N.Y.Cty. 1965); Miles v, Liebolt, 230 N.Y.S.2d 342 (Sup. Ct, N.Y.Cty. 12962); Hehman v. Hehman, 13 Misc.2d
318, 178 N.Y.S.2d 328 (Sup. Ct., Queens Cty. 1958).
44
Schwarzman, supra, at 874, 998.
42
11
grade.45 When custody was changed from the mother to the father, a year later, the father removed
the children from the school, and sought and received a court order allowing him to enroll the
children in public school and attend a supplemental religious school, instead.46 On the mother’s
appeal, the appellate court held, in a well-discussed opinion, that the lower court erred based on the
evidence on record, including the precise language of their agreement and that the type of religious
training in the supplemental schooling would no longer be appropriate for these children after
having spent 5 and 7 years, respectively, in Jewish day schools.47 Therefore, the best interests of the
children would be for them to continue to attend a Jewish day school through grade 12.
3. Rights of Custodial and Non-Custodial Parents
The courts in New York have overwhelming held that the custodial parent has the right to
determine the religious upbringing of his or her children.48 Some courts have also decided that a
custodial parent’s determination of religious upbringing for her children cannot be restricted absent
evidence that the children were being harmed by their moral, mental and physical conditions.49
Additionally, some courts have held that they will not decide religious training unless the custodian
is unfit.50
In Well v. Clavering, the appellate court went even further to protect the right of the
custodial mother to determine her child's religious upbringing by prohibiting the fathers from
45
Id.
Id.
47
Id.
48
DeLuca v. DeLuca, 202 A.D.2d 580, 609 N.Y.S.2d Sq (App. Div., 2md Dept. 1994); Lebovich v. Wilson, 547
N.Y.S.2d 54 (App. Div., la Dep’t 1989); Bentley v. Bentley, 86 A.D.2d 926, 448 N.Y.S.2d 559 (App. Div., 3a Dept.
1982).
49
DeLuca, supra (Custodial mother converted to Jehovah's Witness, and appellate court overturned lower court's order
that she cannot take children to Jehovah's Witness services and that she not restrict them from celebrating birthdays and
other religious holidays);
50
Application of Seltzer, 11 A D.2d 805, 205 N.Y.S.2d 218 (App. Div., 2nd Dep’t 1960) (modifying lower court order
directing custodial mother in religious training, instead allowing father to give religious instruction if he chose).
46
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involving their son in any religious activity, unless the father obtained the mothers consent.51 The
mother, a Roman Catholic, decided to raise their two-year-old son in her faith, and the father, Jewish,
had acquiesced in her decision. The court order prohibited him from including the child in his
religious activities while also setting up the visitation schedule in such a manner so the mother could
take their son to Sunday Mass. The appellate court decided this was not a violation of the father’s
religious rights because it does not interfere with his own religious activity.52 The court also did not
modify the visitation schedule as the father had requested, stating that the schedule was "consistent
with the recommendation of the Law Guardian and that it ensures the mother would be able to take
the child to Sunday Mass.”53
In, Kadin v. Kadin, the court gave a well-reasoned opinion to protect religious rights of the
non-custodial father.54 The court addressed the issues in a logical manner, keeping in mind the best
interests of the children. The divorce decree allowed for the mother to have daily telephone access
with her children during visitation with their father, and provided a specific visitation schedule for the
Jewish holidays, giving the first day of Rosh Hashanah and the second day of Passover on one year,
and the opposite in alternating years.55
The father appealed, stating that allowing the children to use the telephone during the Sabbath
and allowing them to travel in automobiles on those particular religious holidays violated his right to
follow his religious tenets.56 The appellate court determined that modifying the visitation schedule so
that no phone contact was allowed during the Sabbath was a change that would not adversely affect
the best interests of the children while at the same time keeping the father from having to violate his
51
Weil v. Clavering, 215 A.D.2d 766, 627 N.Y.S.2d 92 (App. Div., 2nd Dept. 1995).
Id.
53
Id.
54
Kadlin v. Kadlin, 131 A.D.2d 437, 515 N.Y.S.2d 868 (App. Div., 2nd Dep’t 1987).
55
Id.
56
Id.
52
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religious beliefs.57 The court also adjusted the visitation schedule so that the children could be with their
father during the first two days of Passover and the first two days of Rosh Hashanah in alternating years,
instead of the father and mother sharing both the first and second days of the two holidays each year.
This would prevent the children from having to travel by car during those two days. The court felt this
modified arrangement would still serve the best interests of the children.58
Another court determined that it was in the child’s best interest too be enrolled in after-school
Hebrew School.59 The custodial mother was a non-practicing Catholic, and the father was Jewish. The
court reasoned that the mother had acquiesced to the Jewish training since their son’s birth and that he
would receive no religions training if he did not go to Hebrew school. The court also noted that the
mother had recently moved further away which made it difficult for the son to visit with his father as
frequently and continue his religious training.
In Ervin R. v. Phina R., the court stated that a noncustodial parent must honor the custodial
parents’ right to determine the religious upbringing of children during visitation time with the children.60
In this complex case, the mother was awarded custody of their daughter, and the father received custody
of their son. Though both parents were both Jewish, they followed different levels of their faith, the
mother being a less observant Orthodox Jew and the father a strictly observant Hasidic Jew. The conflict
arose when the parents put the children in the middle of their religious conflicts and interfered in
visitation rights of the other parent, and sought to enforce their own visitation rights.
In a detailed opinion, the court admonished the parents that they must honor the custodial
parent's right to determine the appropriate level of religious beliefs. The court directed the mother not to
interfere with her son's level of religious practice and belief, and directed the father not to allow the
57
Id.
Id.
59
Grayman v. Hession, 84 A.D.2d 111 (App. Div. 3rd Dep’t 1982).
60
Ervin R. v. Phina R., supra
58
14
daughter to feel pressured, by him (or by his son. her older brother), because of their belief that she
and her mother were not properly practicing their faith. To further enforce a custodial parent's right
to decide religious upbringing, some courts will uphold a stipulation entered into by the parties
restricting the non-custodial parents religious activities with children,61 or even order a parent to
help raise a child in the custodial parent's faith.62 In Calley v. Calley, the appellate court determined
that, after a lower court awarded temporary custody during a divorce proceeding, it was not
unconstitutional to order the non-custodial parent to take children to church services of the custodial
parent during his visitation time because it did not interfere with the noncustodial parents own
religious practices (in line with the Fourth Department ruling noted above). However, the court also
held the award of temporary custody by the lower court was improper without an evidentiary
hearing.63
One court recognized the emotional strain placed on a child by the religious conflicts
between her two parents, and stated that the father was overreaching and taking advantage of his
daughter.64 The court then denied the father's appeal to modify the lower court order limiting the
father’s ability to have the child participate in his religion. Another court also considered the welfare
of the child when allowing only limited exposure to the non-custodial father's religion and
protecting the right of the custodial parent to determine religious upbringing.65
However, in a 2014 case, Gribeluk v. Gribeluk, the Second Department held that it 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.66 The Family Court
McFarlane v. McFarlane, 148 A.D.2d 589 (App. Div. 2nd Dep’t 1989).
Colley v. Colley, 606 N.Y.S.2d 796 (App. Div. 3rd Dep’t 1994).
63
Colley, supra.
64
Lebovich v. Wilson, supra.
65
S.E.L. v. J.W.W., 143 Misc.2d 455, 541 N.Y.S.2d 675 (Fam. Ct., N.Y. Cty. 1989) (briefly discussing numerous
New York cases dealing with religious upbringing of children post-divorce).
66
120 A.D.3d 579, 580 (2014).
61
62
15
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. Cases such as
Gribeluk, provide examples of the varying levels religion may or may not play as a significant
factor in custody proceedings.
Conclusion
The courts of New York have dealt with a number of issues pertaining to religion as a factor
in custody and visitation disputes. While the Court of Appeals has had limited opinions, and only a
couple of opinions have been published within the Fourth Department, there are numerous other
courts in the remaining jurisdictions within the state that have come up with many well-reasoned
holdings that decide how to include or limit religious issues in custody awards, how to handle prior
agreements the parents had regarding religious upbringing of their children, and the rights of parents
who are awarded custody or who have visitation with their children. The courts have decided on
these issues while keeping in mind the welfare of the children involved and how these religious
issues can impact the children as well as the parents.
16