Tag: Religious agreements

Vaccinations and Custody

Posted by Ron Kauffman on

In Michigan, a judge reduced a mother’s child custody rights after she refused to vaccinate her son. What is the relationship between custody and vaccinations?

Michigan’s Vaccination Case

In Michigan, Oakland County Judge Karen McDonald ruled Wednesday that Rebecca Bredow will no longer have primary custody of the boy but will have joint custody with her ex-husband, James Horne.

Horne wanted to vaccinate the boy, and Bredow agreed to do so last November. But she didn’t. She says vaccinations go against her religious beliefs.

Custody and Vaccinations

Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends.

In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective

Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Florida Vaccinations

I’ve written about the decision to vaccinate and custody in Florida before.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

There are at least two cases in Florida dealing with the decision to vaccinate and custody, and they conflict!

In one case, a Florida court heard the conflicting positions on immunization and decided that it would be in the child’s best interest to allow the anti-vaccination Mother to make the ultimate decision regarding the child’s immunization.

Ten years later, a different Florida court heard conflicting testimony, and decided it was in the child’s best interest to award the pro-vaccination Father ultimate responsibility to make decisions regarding the minor child’s vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida.

Vaccination and Jail

Back in Michigan, Judge McDonald found Bredow in contempt of court last week and ordered her jailed. She also granted temporary custody to Horne and ordered the boy to be vaccinated. He received four immunizations on Monday.

Bredow told reporters Wednesday she was “in shock” by the court’s decision. Her attorney plans to appeal.

Triple Talaq Divorce Ban

Posted by Ron Kauffman on

The Triple Talaq allows Muslim men to leave their wives instantaneously by saying “talaq,” meaning divorce, three times. The thousand-year-old custom was just banned by the Indian Supreme Court.

Triple Divorce

I wrote about India’s controversial Islamic custom, and how the Indian Supreme Court was considering petitions that challenge Muslim laws governing marriage on the grounds that they discriminate against women, a charged issue that risks angering the country’s orthodox Muslims.

Among the petitioners calling for change is a Muslim woman whose husband, after 13 years of marriage, divorced her by saying “divorce” three times.

The Indian constitution protects gender equality, but on issues of marriage, divorce and inheritance, different religious communities are governed by their own so-called personal laws. Whether a person is subject to those laws is usually determined by their religion at birth.

Florida Divorce and Religion

In a Florida divorce, the court’s powers are found in the Florida Statutes.

Florida passed Senate Bill SB 386, which was approved by the Governor. Specifically, the bill prohibits courts in Florida from:

  • Basing a decision on a foreign law that does not grant the parties to litigation the same rights guaranteed by the Florida or U.S. Constitutions.
  • Enforcing a ‘choice of law’ clause in a contract which requires a dispute to be resolved under a foreign law that does not grant the parties the same rights guaranteed by the Florida or U.S. Constitutions.
  • Enforcing a ‘forum selection’ clause in a contract which requires a dispute to be resolved in a forum in which a party would be denied his or her fundamental rights guaranteed by the State Constitution or the United States Constitution. 

There are now over 30 states which have considered some limits on the application of foreign law, either through legislation or ballot initiative.

 India’s Supreme Court Ruling

India’s Supreme Court banned the controversial Islamic divorce practice known as “triple talaq” in a landmark ruling last week. The practice, that stretches back over a thousand years, allows a husband to divorce his wife by simply saying the Arabic word for divorce, talaq, three times.

The five-judge bench did not unanimously ban the practice, which Balaji Srinivasan, one of the lawyers on the case, called “disappointing.”

Instead, three judges ruled that it was unconstitutional, while the remaining two judged that it should be up to the country’s parliament to pass legislation officially banning the practice.

“The majority decision is that triple talaq is banned in law,” said Srinivasan. “From now on in India, the law is that there is no practice of triple talaq which is held to be valid.”

The judge in the majority ruling concluded, on the basis of an act in 1937 that enshrined Muslim legal beliefs and traditions into law, anything that was “anti-Quranic” was therefore banned and didn’t deserve constitutional protection.

“triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat … What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

Indian Prime Minister Narendra Modi, who has publicly advocated for a ban, added his voice to those celebrating the ruling. In a tweet on his official account, the prime minister called the court’s decision “historic,” adding that it “grants equality to Muslim women and is a powerful measure for women empowerment.”

The CNN article is here.

 

Religious Upbringing and Divorce

Posted by Ron Kauffman on

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.

 

Religion: Divorce or Stay Married?

Posted by Ron Kauffman on

A woman sued her divorce lawyers for negligence, claiming they failed to tell her finalizing her divorce would end her marriage. Crazy, right? It also places the issue of religion and divorce back in the news.

According to the U.K.’s Independent, the divorce malpractice case had already been rejected by the court, but was before a higher British court on appeal.

Jane Mulcahy had argued that the lawyers should have made it clear that a divorce would cause her marriage to be terminated – something which she apparently wanted to avoid.

The lawyers failed to regard her Roman Catholic faith, and should have recommended judicial separation – a step down from full divorce – as an alternative course of action, she said.

I’ve written about religion and divorces before. Each religion has its own requirements for completing a divorce. Although religion is not a factor Florida courts can consider in granting a divorce, for the parties, religion can be extremely important.

Islam has a waiting period. The Catholic Church has the Decree of Invalidity and other remedies so spouses are free to marry again. In Judaism, a husband must give his wife a “Get”.

To avoid problems such as the British woman’s Florida allows people to file for alimony and child support unconnected with dissolution.

In Florida, if a spouse has the ability to contribute to maintain and support the family, but fails to, the other spouse can apply to a court for alimony and for support for the child – without seeking a dissolution of marriage.

Many people are often unaware that there are serious consequences to ending your marriage (loss of health insurance and tax implications for example) and that you can’t simply annul your marriage the way you can divorce.

In the British case, Lord Justice Briggs said:

“The most striking of Mrs Mulcahy’s many allegations of negligence against her solicitors was that, having regard to her Roman Catholic faith, Mrs Boots had failed to give her the advice which was requisite in view of her firmly held belief in the sanctity of marriage…

The Independent article is here.

Enforcing Religious Marriage Contracts: How to Get a Get

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, March 27, 2013.

Divorce can be tricky when the divorcing couple is religious. Religious issues have arisen for clients of all faiths. This is especially true during religious holidays like Passover/Easter, and usually deal with decisions over holiday timesharing and religious upbringing.

However, different religions can have unique issues. For instance, Muslim clients sometimes have had disputes over the interpretation and enforcement of Mahr agreements – a religious prenuptial agreement.

For Jewish clients, a frequent problem is the “chained wife” or agunah. In Judaism, for a divorce to be effective, Jewish law requires that a man grant his wife a get. An agunah, or chained wife, is legally divorced in Florida, but the ex-husband refuses to sign a get.

There has historically been an imbalance of power, giving men the upper hand when religious couples negotiate child custody, division of assets and other issues. In some cases, wives and their families have paid hundreds of thousands of dollars for their husband to grant them a get.

Recently, a Connecticut trial court affirmed the constitutionality of the Modern Orthodox prenuptial agreement created by Beth Din of America aimed at protecting chained wives.

The Jewish Daily Forward reports that Rachel Light, a former wife, entered into a prenuptial agreement which had a ‘damages for delay’ clause requiring the husband to pay roughly $100 per day for every day he refused to sign a get. Ms. Light may possibly claim damages of more tha $100,000 from her ex-husband because he refused to sign a get.

Susan Aranoff, director of the advocacy group Agunah International, called the decision a ‘breakthrough for women,’ saying, “The unanswered question with regard to the prenup was always will it be enforceable in court. Now that is has been enforced husbands know there is a cost for withholding a get.”

Last July Rachel sued arguing that while she and Eben had separated years earlier, Eben refused to grant her a get. Rachel asked the court to enforce the provision in the prenup in which Eben agreed to pay $100, plus adjusted inflation, for every day he refused to grant the get. Eben argued that the prenup was a religious matter, and as such, it was unconstitutional for a secular court to enforce the document.

In his opinion, the judge found that enforcing the prenup was no different from enforcing a secular contract. He cited several cases, including Odatalla v. Odatalla, where a New Jersey court enforced an Islamic mahr agreement, and Avitzur v. Avitzur, which ruled that it was constitutional for a secular court to enforce a ketubah, or Jewish marriage contract.