Tag: Custody Agreements Religion

Religion LGBTQ+ and Custody Rights Erupt

Religion LGBTQ+ and child custody rights recently erupted in a Washington federal court. Parents usually have the right to direct the religious upbringing of their children, but one couple found their religious beliefs prevented them from even becoming parents.

Parent Custody

Rumblings

James and Gail Blais wished to become foster parents, and eventually adopt, Gail’s biological great-granddaughter, H.V. The first step to adoption requires them to be licensed foster parents. However, they are observant Seventh day Adventists.

The reason for the need to become foster parents so quickly is because shortly after H.V.’s birth – in fact, while she still was in the hospital – H.V. was removed from her biological parents and placed in foster care out of concerns for her welfare. H.V. is an infant. At no time during the application process has she exhibited any issues with regard to sexual orientation or gender preference.

The Blaises wanted to care for H.V. by becoming her foster parents with the goal of adoption if reunion with her mother was not possible. They are the only biological relatives who have expressed an interest and ability in fostering and adopting H.V.

The Department administers the State’s foster licensing and placement program, and the requirements for becoming a foster parent are laid out in Washington law and the Department’s Policy 6900, entitled “Supporting LGBTQ+ Identified Children and Youth.”

The Blaises participated in Department mandated training and required certification courses. They made clear that, as Seventh-day Adventists, they believe it is important to love and support all, particularly youths who may feel isolated or uncomfortable because of who they are.

But with regard to the specific hypothetical questions relating to possible hormone therapy, in the event H.V. one day developed gender dysphoria, the Blaises said they could not support hormone treatments based on their sincerely-held religious convictions, but would still be loving and supportive of H.V.

The Department denied the Blaises’ foster care license application, and H.V. remains in non-relative foster care. The Blaises filed a federal action against the Department seeking to enjoin the enforcement of the Department policy as it violated the First and Fourteenth Amendments.

Florida Religion and Family Law

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

That’s because placing restrictions on a parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

Eruption

The federal judge found the question in this case was whether Washington’s regulations covertly suppressed religious beliefs. The judge found that in practice, the Department regulations work to burden potential caregivers with sincere religious beliefs yet almost no others.

It also found that the Department’s interpretation of its regulations and policies also favored secular viewpoints over certain religious viewpoints.

For example, the Department favors religious and non-religious applicants who have neutral or pro-LGBTQ+ views over religious and non-religious applicants who have non-neutral or anti-LGBTQ+ views.

The State denied their application because the tenet of the Blaises’ faith flouted the Department’s regulations and policy, and therefore “punished the expression of religious doctrines it believes to be false.”

The Court enjoined the Department from using Policy 6900 against prospective foster parents.

The injunction order is here.

 

Custody and Vegans Don’t Pair Well

Child custody and religion often conflict. But can a family court judge ban a parent from feeding their child “fish, meat, or poultry” without the other parent’s consent? What if it is in the child’s best interest to eat vegetarian? A New York court had to answer that question, and the decision may leave a bad taste in your mouth.

Custody and Vegetarians

Nobu, Katz’s Deli & Carbone? Fuhgeddaboudit

In a New York custody case, the parents, who were represented by counsel, agreed to jointly determine all major matters with respect to their child, including “religious choices.”

The parenting coordinator on the case recommended that each parent be free to feed their child as he or she chooses during his or her parenting time, and that neither party shall feed or permit any other person to feed fish, meat or poultry to the child without the other party’s consent.

In their parenting agreement, however, the 24-page agreement did not otherwise mention the child’s religious upbringing and makes no reference at all to dietary requirements.

Although the parenting coordinator found that the child’s diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child’s diet was a religious choice, and dictated the child’s diet by effectively prohibiting the parties from feeding her meat, poultry or fish.

Florida Custody and Vegetarians

I’ve written about child custody issues before, in fact, I have an article on the intersection of religion and custody, especially when that intersection relates to harm to the child.

Knowing whether the dietary impasse between the parents is about the child’s health or religion is an important distinction. The New York dietary ban sounds very much like a religious dispute between the two parents. New York, like Florida, is a melting pot of religions and ethnic backgrounds where kosher, halal and a number of other religious dietary restrictions are common.

Of course, New York is facing another issue involving children and religion: vaccinations. With the recent outbreak of vaccine preventable diseases, such as the New York measles outbreak, lawmakers in New York voted last week to end religious exemptions for immunizations.

Usually, religion is used by the objecting parent as a defense to vaccinating children. In the New York case, the dispute was what to feed the child. Whenever a court decides custody, or issues relating to the child’s upbringing, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

There is nothing in our custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution. So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge.

Ironically, that may not be the rule all over Florida. Different appellate courts in Florida have slightly different takes on the issue, and the question of whether a trial court can consider a parent’s religious beliefs as a factor in determining custody has been allowed.

Custody and the Big Apple

The New York appellate court found the family judge abused its discretion with the ban on feeding certain foods. To the extent mother promised the father, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding.

The court felt this was particularly in view of the parenting agreement, which omits any such understanding. Nor was there any support in the trial record for a finding that a vegetarian diet is in the child’s best interests.

Recall that in Florida, whenever a family judge has to decide custody, or issues relating to the child’s upbringing, the sine qua non is the best interests of the child. The Mother’s argument that she should have been granted final decision-making authority with respect to the child was improperly raised for the first time in her reply brief.

In any event, the appellate court found that the record does not support her contention that the totality of the circumstance warrants modification in the child’s best interests.

The New York Court of Appeals declined to hear the case. The opinion is here.

 

This is your Religious Prenup

A Detroit-area man must pay his former wife $50,000 under the terms of their Islamic prenup. Not only are prenuptial agreements on the rise among all engaged couples, they are also becoming very popular for religious couples. But is a religious prenup enforceable in the U.S.?

muslim prenup

Mehr Agreements

A Michigan man argued that a family court judge exceeded her authority by trying to resolve a religious issue in a divorce. In 2012, the husband approached Mohammed Ali and asked permission to marry Mr. Ali’s daughter.

They negotiated the terms of the arranged marriage. Mr. Ali proposed that defendant could marry his daughter if defendant paid her $51,000, a payment the parties referred to as Mehr, a traditional component of Islamic marriages.

He agreed to the payment proposed by Mr. Ali. The Wife considered the offer of marriage, on the financial terms negotiated by her father, for approximately one year and ultimately decided to accept the marriage proposal and the parties married in 2013.

Florida Prenups

I’ve written about prenuptial agreements and even about a religious prenup. Prenuptial agreements are about more than just resolving uncertainty in a marriage.

Any couple who brings any personal or business assets to the union can benefit from one. They are also important to have in place before a couple starts investing in businesses, properties and other investments.

A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry. A prenup determines spousal rights when the marriage ends by death or divorce. This can be especially important in second marriages.

If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment.

Without a prenup, if your spouse dies, you will have statutory rights under state law to a share of your deceased spouse’s estate and may also have a right to lump sum death benefits, or a survivor annuity under a retirement plan.

That’s where prenups come in. Prospective spouses may limit or expand these rights by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce. Prenups can be very worthwhile provided they’re done right.”

The most basic of prenups should list an inventory of premarital assets that would stay with the original owner in case of a divorce. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Religious Prenup

Back in the Michigan case, it was uncontested that the Husband and Wife had only a verbal agreement for payment of $51,000, in consideration of marriage, until the day of their marriage ceremony.

During that ceremony, the parties signed a document that placed the contract to marry in writing. The one-page document signed by the parties was titled “Marriage Certificate” which is the basis for the religious prenup dispute.

The document stated that the Groom solemnly proposes to marry the bride and take her as my wife and agree to pay Mehr of $51,000 Later. Furthermore, the document stated that the Bride solemnly accepted the proposal.

During the course of the marriage, the Husband made several payments, totaling $3,900, toward the $51,000 mehr. In 2016, the Wife filed an action for separate maintenance and the Husband filed a counterclaim for divorce.

During the divorce trial, plaintiff asked the trial court to enforce the contract to marry and award her $47,100, the unpaid amount of the mehr.

The trial court concluded that the parties executed a valid, simple contract and entered a judgment in plaintiff’s favor in the amount of $47,100. In addition, the trial court granted the parties a judgment of divorce, denied the request for spousal support, and divided the parties’ marital assets.

Does Shariah Law Apply?

The Husband actually argued that the contract states on its face that it was made under Shariah law and that it was not made under any state law. But did the Mehr merely provide for a religious obligation or was it an enforceable contractual obligation under Michigan law?

The trial court clearly stated that it was not applying Shariah law, but was applying Michigan law to the parties’ contract:

“We are not interpreting or applying the contract between the parties under Shariah law, but are applying Michigan law to the review of the parties’ contract and the judgment of divorce entered by the trial court.”

In this case, neither the trial court nor this Court is required to resolve ecclesiastical questions. The trial court did not claim any power to grant the parties a divorce under Islamic law, but only the power to grant the parties a civil divorce under Michigan law.

The trial court did not decide the parties’ respective religious obligations under the tenets of their faith tradition, but only decided the parties’ respective obligations under long-established principles of Michigan contract law. Because this case does not require the resolution of any ecclesiastical questions, we conclude that defendant’s argument is without merit.

U.S. courts don’t enforce religious laws, be they Christian, Jewish or Muslim. U.S. courts enforce American law. As long as a religious agreement can be enforced without resolving theological questions it may be enforceable.

The U.S. News article is here.

 

Getting a Religious Divorce

Just in time for the holidays is the problem of religious divorce. Many women are stuck in their former marriages because their secular divorce was not enough to allow them to remarry in their religion. This post looks at the problems and solutions for getting a religious divorce.

The Religious Problem

I’ve written about the issue of religious divorce many times. The religious nature of divorces for many couples, particularly for Muslim and Jewish women, complicates settlement.

That’s because religious courts have no enforcement authority in the United States, and the First Amendment of the Constitution prevents secular courts from intervening in purely religious disputes.

Also, religious authorities are very critical about the secular enforcement of divorce as it can contravene religious law. Among religious people, there’s also a reluctance on using secular courts against their coreligionists, which discourages people from getting help in state court.

Islamic Divorce

The Economist recently reported on Shirin Musa, and her bitter religious divorce experience which ultimately inspired her to help women caught between legal and cultural worlds.

A resident in the Netherlands, Shirin was unhappily married to a man from her native Pakistan. In 2009 a Dutch judge divorced them, but her husband would not grant an Islamic divorce.

Although she lived in secular Europe, her husband’s refusal to grant a religious divorce mattered. If she remarried without a religious divorce, she could be considered an adulteress under Islamic law. She also risked religious punishment if she ever tried to return to Pakistan.

So, Shirin sued her former spouse through the Dutch secular courts. In 2010 she received a landmark judgment: her ex-husband would be fined $295 a day, up to a maximum of $11,795 as long as he refused to cooperate.

The sanction had the desired effect on her ex-husband She then persuaded the Dutch parliament to make holding women in such “marital captivity” a criminal offence, in theory punishable by jail.

Jewish Divorce

Jewish women share a similar problem to Muslim women. Under the strict interpretations of Jewish law, only the husband can grant a divorce document, called a “get.” Without a get, the woman is still religiously married, regardless of how long it’s been since the civil divorce.

Without a get, a Jewish woman can’t remarry and have more children, lest she be declared an adulterer and her children from the second marriage shunned by the community.

Women in this situation can be trapped for years as their childbearing years fade away. In Hebrew, many call them agunot, or “chained women.”

Solutions

First, you may want to secure a religious divorce before even filing a secular divorce. This prevents the husband from using the religious divorce as a bargaining chip.

Securing a religious divorce before filing a civil divorce also prevents another common problem: imams and rabbis stepping in to negotiate large cash payments in exchange for a religious divorce.

Another civil legal remedy is a prenuptial agreement. Under a prenuptial agreement, the spouses could agree to arbitrate the marital dispute, and the husband agrees to pay the wife a set amount per day until he grants a religious divorce.

The Economist article is available here.

 

Viva Las Agreements

Some lucky hound dog is going to buy Elvis Presley’s marital settlement agreement. It is now or never if you want to bid on the King’s agreement with Priscilla Presley too, because it’s going up for auction.

Return to Sender

As People magazine reports, one of rock-n-roll’s most famous marital settlement agreements will soon be a very expensive keepsake for any fan with a burning love of Elvis.

The document marks that period when Elvis checked into the Heartbreak Hotel, signifying the end of the Elvis and Priscilla Presley marriage, and is dated Aug. 15, 1972.

Fans may be all shook up, because each of the 12 pages contains fascinating details and offers the reader a snapshot into the details, and struggles involved between both parties that only legal documents can give.

Priscilla may have told the King don’t be cruel to her, because the agreement states that the former couple agreed to divide up their property via to avoid “emotional stress.”

Florida Marital Settlement Agreements

Many people don’t realize it, but most family law cases are resolved by agreement, not by trial. A Marital Settlement Agreement is the method to resolving all of the issues, and is the final product of the negotiations.

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan, the division of assets and liabilities, alimony, child support, attorney’s fees, and any other items agreed to.

A marital settlement agreement entered into by the parties, and ratified by a final judgment, is a contract, subject to the laws of contract. Because they are contracts, they are subject to being set aside.

I have written about marital settlement agreements before. You can set aside an agreement in Florida by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

There is another ground to vacate a marital settlement agreement in Florida, and it has a few elements. First, you have to show that the agreement makes unfair or unreasonable provision, given the circumstances of the parties.

Once you have shown the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge of the finances at the time the agreement was reached.

The burden then shifts to the spouse defending the agreement, who may rebut these presumptions.

Can’t Help Falling in Love

“The parties were married on May 1, 1967 in Las Vegas, Nevada,” the agreement states:

Unfortunate circumstances and unhappy differences have arisen between the parties by reason of which they have lived separate and apart since February 23, 1972, and by reason of which they intend to dissolve their marriage.

For suspicious minds wondering what’s in the settlement signed by both Elvis and Priscilla: the music legend signed over his famous 1971 Mercedes Benz, his 1969 Cadillac Eldorado, a 1971 Harley Davidson motorcycle and $100,00.

Priscilla was definitely not moving into the Ghetto. She also received half the income from their three homes located in Beverly Hills, Los Angeles and Palm Springs, California.

A pre-sale estimate of the settlement is between $26,318 to $32,898. The last time the settlement documents came up for sale in 2011 they sold for just under $8,000.

The former couple married on May 1, 1967. Elvis was 32, while Priscilla was 21. The had daughter Lisa Marie less than a year later in February 1, 1968.

The People magazine article is here.

 

Religious Upbringing and Divorce

Divorce agreements can dictate the religious upbringing of a child: which church to attend, or how strict a religious education should be. What happens after divorce if an ultra-orthodox mother concludes she is a lesbian and wants to live a normal life?

The New York Case

In last week’s New York case involving the Weisbergers, the parents agreed to give the children a Hasidic Jewish upbringing in all details, in the home or outside of home, including which school the children attend.

Three years after the divorce, the mother came out as a lesbian, disparaged the basic tenets of Hasidic Judaism, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community.

The trial judge ruled in favor of the father, circumstances had changed so much that he should have sole custody because of the mother’s transition from an ultra-Orthodox Hasidic lifestyle to a “more progressive, albeit Jewish, secular world.”

The court noted that the mother’s conduct was in conflict with the parties’ agreement, which “forbade living a secular way of life in front of the children or while at their schools.” The court posited that had there been no agreement it might have considered the parties’ arguments differently.

Florida Religious Upbringing

In Florida, there is no provision in our laws purporting to authorize such judicial enforcement in married parents. Religion and divorce is a matter I’ve written on before.

In a divorce action, the court’s powers over custody of children are found in the Florida Statutes. When a court is required to decide an issue as to the custody or support of minor children, the sine qua non of the exercise of those powers is the best interests of the child.

There is absolutely nothing in the statutory listing that expressly makes the religious training of the child a factor that the court should consider.

The Florida Statutes command all parents to confer on all major decisions affecting the welfare of their child, and to reach an agreement as to any required decision.

When the matter involves the religious training and beliefs of the child, courts cannot make a decision in favor of a specific religion over the objection of the other parent. Generally, a child’s religion is no proper business of judges.

New York Law Changes

The appeals court in New York reversed the father having sole custody of the children, and final decision-making authority over medical, mental health issues, with supervised therapeutic visitation to the mother.

When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor.

Clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children.

Importantly, no agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the children’s best interest.

The Washington Post article is here.

 

Child Custody, Sex, and Religion

Should a judge make a child custody decision based on how much sex you are having? What about attending church, should that be a factor? A woman in Massachusetts learned the hard way that lifestyle choices matter.

Case History

The couple met when she was just 16, and the husband was 21. Initially, the wife lived with her mother and the husband lived with his parents. But the wife was “kicked” out of her home when her parents found out about her relationship, and she was moved into foster care.

The couple married after they found out she was pregnant, and separated right afterwards. During the trial, the family court judge granted custody to the father.

The judge made several factual findings in her decision about the child’s Catholic baptism, the husband’s Catholic background, and the wife’s lack of religious affiliation, even though religious upbringing was not an issue in the case.

The judge also detailed the frequency of sexual relations during the parties’ marriage, the wife’s sexual activity and abortion before she met the husband, and the wife’s sexual activity after the separation. The Wife appealed.

Florida Child Custody

I’ve written about the intersection of religion and custody a few times. Religion, religious beliefs, and religious practices are not specific statutory factors in determining parental responsibility.

Nor are religion and religious practices areas in which a parent may be granted ultimate responsibility. Instead, the weight religion plays in custody disputes changed over time in various cases.

Currently in Florida, child custody decisions are based in accordance with the best interests of the child. One of the express factors a court has to consider in making a child custody decision is the “moral fitness of the parents.”

As it relates to religion though, Florida courts have decided that, in general, there must be a clear, affirmative showing that religious activities will be harmful to the child for the religion to be a factor.

Merely weighing that one parent is church-going, while the other parent is not, does not fit in with the current standard in Florida about whether or not the religious practice, or lack of religious practice, is harmful to the child.

Epilogue

After the Wife in the Massachusetts case received the final judgment, in which she lost custody of the children to the Husband – in part of her sexual promiscuity and lack of religion – she appealed. The appellate court reversed.

The appellate court decided that the family law judge should not have considered the wife’s sexual history, as it was irrelevant to the division of care-taking responsibilities and the warmth of the child’s relationship with the parents.

The Massachusetts appellate court opinion is here. The Volokh Conspiracy article is here.

 

International Prenups

Welsh actress, Catherine Zeta-Jones married American actor, Michael Douglas. They reportedly have a prenuptial agreement that states she gets $2.8 million for each year of marriage, and a $5 million bonus if Michael has an affair.

While there are many benefits to prenuptial agreements in American marriages, the benefits of international prenups are multiplied when the spouses are from different countries, or hold foreign assets, or who contemplate living in other countries.

Prenuptial Agreements

A prenuptial agreement, sometimes called an “antenuptial agreement”, and/or “premarital agreement”, are commonly called “prenups.”  A prenup is a legal contract, much like any other legal contract, and it is entered into before a marriage by the couple intending to marry.

The contents of prenuptial agreements can vary widely. However, prenups commonly include clauses that spell out how to divide property accumulated before and after the marriage, and support or alimony in the event of divorce or death.

I’ve written on some of the more extreme clauses people insist be put in the prenups before. For example, prenups can include provisions to cover you in the event your spouse engages in excessive drug use, has extra-marital affairs, becomes an excessive spender, or begins a gambling habit.

International Prenuptial Agreements

A prenuptial agreement for international couples is generally a good idea, but international prenups have their own set of unique problems. For example, a prenup that is valid in Florida, may not be valid in another American state, let alone a different country.

When people live in different countries, hold foreign assets, or are planning to either marry overseas, or live in other countries, they should try to consider the law of all jurisdictions where they contemplate living.

There are many advantages and disadvantages to having an international prenup which states that the law of one country governs your divorce.

Issues with International Prenups

International prenups can involve couples from different countries, or couples from one country who live in different countries, or couples who have assets located overseas.

Since the law of each country can be very different, the choice of law clause in international prenups can take on great importance. Additionally, the language used in prenups can be extremely important for two reasons.

First, legal terms in the United States may have different legal meanings in other countries, or may not be terms recognized under foreign law.

Second, the enforceability of international prenups may just depend on whether it was understood by the signors, and they may not speak the language the agreement was written in sufficiently.

Whether in the United States, or in another county, make the effort to disclose all of the finances, even if financial disclosure may be waived in your country.

Additionally, any prenup should be signed well in advance of the wedding. In an ideal situation, the agreement should be fully signed before the wedding invitations even go out.

The Suggest article on the Zeta-Jones prenup is here.

 

Shared Custody Agreements and Religion

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Friday, January 18, 2013.

Joint child custody in parenting plans and agreements help resolve a lot of the child timesharing issues after the divorce. But sometimes the provisions conflict with each other. The Volokh Conspiracy recently reported on the interesting New York case of Katz v. Katz. Katz involves two ultra-orthodox Jewish parents. The parties separated religiously, but never had a court approve their agreement. The agreement said:

(7) JOYOUS OCCASIONS. The Child will participate in every joyous occasion of the relatives who are disqualified as witnesses, such as engagement, wedding . . .

(8) EDUCATION. The 2 parties are obligating themselves to raise The Child to appropriately respect the 2 parents. . . No party will take The Child to any place which is incompatible with the aforementioned style and manner, not even temporarily . . .

The mother wanted to travel to Israel with the child for her brother’s wedding. The father objected, citing his religious beliefs that travel to Israel violated the religious views of his Jewish sect. He argued travel to Israel would undermine the child’s religious beliefs, confuse the child and “would be against the child’s best interests because he is too young to understand the differences that he will be exposed to in Israel . . .”

The mother noted that the father himself has already traveled to Israel – in fact he acknowledged that he traveled to Israel three times, and as recently as within the last 12 months, but that each time he traveled to Israel it was in his adult life, not as a child.

Strangely, the judge ruled:

At this juncture, it is not in this child’s best interest to require him to travel to Israel for a celebration; the emotional risk to him outweighs any benefit that conceivably would be derived from the experience. Furthermore, the mother did not demonstrate any serious adverse affects that would be contrary to the child’s best interests if he were to stay.

As a side note, religion and divorce often get thrown together, such as in the Muslim Mehr agreements I blogged about earlier. The establishment clause tries to separate government and religion, but Katz shows why it can’t be avoided sometimes. However, the Establishment Clause is usually not violated when neutral principles of law, such as the best interest of the child test, can resolve a dispute without relying on religious doctrines.