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Yesterday’s NY Times had an interesting article about a New York appellate court reversing the decision of a lower court judge (who happened to be frum) in a custody case involving a frum husband seeking to enforce the provisions of the get with his ex-wife. Without going into details, the Judge ruled that she should lose custody of her children, because her lifestyle was no longer consistent with that of frum yid as required by the get. The appellate court ruled that the judge had erred in making her religious observance the primary factor when deciding custody. The Appeals Court also ruled that the lower court judge violated the mother’s constitutional rights by enforcing an agreement which made her pretend to be frum around her children, even though she obviously was no longer observant. The article pointed to another similar case which raises the question of what will be the law going forward when the parties in a divorce file their get in secular courts as a “contract” governing their future commitments as part of a custody case. The gist of the article is that such “contracts” may no longer be relied upon in the future if the lifestyles of the former husband/wife change and the religious component of their agreement appear to conflict with social norms or constitutional rights. Will these types of decisions lead to even more custody challenges if the terms of a get might not be relied upon years into the future?
“terms of a get might not be relied upon”
while a Get can be given with “terms” attached i.e. al tnai. I dont think this is done because of the obvious takalah it can lead to
What this case also points to is that New York’s “Get Law” is an unconstitutional infringement by the State enforcing alleged religious components of the litigants beliefs.
This is actually a bigger problem than it appears. And BTW, Joseph is wasting his time with attention to the constitutionality of the “Get Law”.
The issue here is that every divorcing couple make an agreement (or it gets litigated in court), and there is often a clause about how the children are raised. This is not a factor that is part of the get law. Now if there is a reason to declare such a clause unconstitutional, then there is likely to be a court battle, with appeals, etc. This might not be a church-state separation issue. I would be curious to see the outcome of this.
Joseph
How does this case “point” to that?
adocs, the same constitutional logic applied in this case by the appeals court ruling that religion cannot be taken into account as a factor, logically follows that the courts/government/laws cannot constitutionally take into account whether a religious Get was given or not.
If you bribe the right people, you could enforce anything
GH:
The matter at hand is not the recognition of a psak beis din al pi halacha. The beis din does not have legal status as a court, and that is ancient history. The matter here is the role of the beis din as an arbitration panel. There are many other forms of arbitration besides beis din. And there is no reason that BD cannot serve as one, even though there is a religious aspect to it. Various states may have laws that limit the authority of an arbitration panel. Just as relevant is that there are often agreements that are not the result of “litigation” by either a court or BD. If two people agree on something, they should be held to it. These agreements, often mediated by toanim or other negotiators, are filed in court, and become legally binding. Can these agreements include commitments in how to raise the children regarding religion and lifestyle? From the report in the OP, it seems that a judge is stating that this cannot be done. I question that (I am not a lawyer). I would not be surprised to see another court overturn this ruling on appeal.
A religious court has no standing as a court in American law. But it does have standing as an arbitration panel. And agreements are not arbitration outcomes. They are agreements that the two sides reached, that were not imposed on them. I fail to see how a court can block that. Waiting for round two.
ghd, I don’t see any constitutional problem recognizing a Beis Din decision that both parties agreed to its jurisdiction, any more than civil courts recognizing any private binding arbitration (business or personal) that both parties agreed to its jurisdiction.
That’s different than creating a state law requiring an unwilling party to give a religious document, such as a Get, that they don’t want to give. The State is constitutionally prohibited from creating a law such as the latter.
Joseph
In this day and age , being “true to yourself “ is the ultimate value . And who you are , even your gender, can change on a daily basis. Is it any wonder that a modern court is going to find forcing someone to “live a lie” unconstitutional?
Twenty years ago psychologists may have testified that we should enforce the clause bc it’s in the children’s best interests to not live two different lives in two different homes.
But now those same psychologists testify that having same gender parents is perfectly normal and doesn’t cause harm. So what do you expect?requiring an unwilling party to give a religious document, such as a Get, that they don’t want to give Does this include someone being beaten up to dispense a “Get” until he just says “Dispense the Get” to get these attackers off him, but really does not wish to dispense a “Get”.
GH:
Not so fast about custody. NYS law, for instance, disallows arbitration agreements regarding custody, and every BD knows that. Batei din might make recommendations, but these have zero legal standing. There are other features to divorce agreements relating to children that can be argued to be considered part of custody. These become issues when the couple proceeds in BD and these issues are put on the table. The matter is not simple.
The Get Law in NYS was rewritten, with its first version having been thrown out by court as a violation of church-state. There are even poskim who consider today’s version an automatic “get me’usah” and will not perform a second marriage to any woman that has a get/divorce in NYS. Radical but reality. Nothing is simple in this arena.
Rav Elyashiv paskened that NY’s second Get Law, if used by a wife (i.e. her lawyer invokes it in court), automatically results in a Get Me’usa. This is normative Halacha as held by the vast majority of local rabbonim.
The first Get Law was not ruled unconstitutional. It’s still law in NY alongside the second Get Law. The first law Rav Moshe approved of and is pretty benign. It just denies a legal divorce if there’s no Get.
The first law Rav Moshe approved of and is pretty benign. It just denies a legal divorce if there’s no Get.
That’s a pretty big deal, as the courts can sometimes mandate one party agree to a civil divorce.
Joe – “It just denies a legal divorce if there’s no Get.”
That’s a great law! I wish it was in NJ.
“That’s a pretty big deal, as the courts can sometimes mandate one party agree to a civil divorce.”
I’m not sure what you’re trying to say. The first Get Law says if the husband doesn’t give a Get but files for a civil divorce, the civil divorce is denied (and he remains legally married to his first wife thus unable to civilly remarry) until he gives a Get.
If “the courts can sometimes mandate one party agree to a civil divorce”, so what? The husband might agree to (and even want) a civil divorce, but the first Get Law allows the wife to have him denied a civil divorce.
All the first Get Law does is allow the wife to stop the husband from getting a civil divorce that he wants. Nothing more and nothing less. (The second Get Law is a whole different parsha.)
Little
Not sure what your point is
Many divorces never proceed to a courtroom. Mine didn’t. My custody arrangements were made by the same arbitrator that worked out the rest of the agreement and it was ratified by the court.The first Get Law says if the husband doesn’t give a Get but files for a civil divorce, the civil divorce is denied
Then there will be cases where a get is mandated by the court.
Then there will be cases where a get is mandated by the court.
That’s incorrect. No court in New York (or anywhere in the US) will directly or even indirectly order or otherwise force someone to give or accept a Get. That would be blatantly unconstitutional according to anyone (from a first year law student through a SCOTUS justice.) And neither of New York’s Get Laws, or any other law, purport to directly or indirectly force that. The second Get Law allows the court to award a greater share of marital assets to someone whose spouse refuses to give/accept a Get. But that’s it.
If a court ordered someone to accept a civil divorce, he’s “yotzei” his court ordered duties by indicating he’ll accept it, even while he still declines to give a Get. He wouldn’t be legally obligated to give a Get.
In any event, two years ago New York become the 50th state to change its divorce laws to “No Fault”, which effectively is divorce-on-demand. Prior to two years ago a New York civil court could and did sometimes deny a petition for a civil divorce if the reason the divorce was being sought didn’t meet NY’s laws of why a divorce is justified. Now, under the new law, if one spouse asks for a civil divorce it is effectively automatically granted regardless of what the other spouse wants or not. The other spouse doesn’t have to agree to the divorce; it is automatically issued.
You made a of that up.
The get law forced a divorcing spouse to remove any “barrier to remarriage” which includes a get.You’re absolutely wrong. Neither of the two Get laws did that or even purported to do that. It did not ever force any divorcing spouse to remove any “barrier to remarriage”. The second law effectively imposes a financial penalty if a spouse declines to remove any “barrier to remarriage”. But the law doesn’t indicate he must or force him to remove any “barrier to remarriage” as long as he’s willing to be awarded a lower portion of the marital assets as a penalty for his not removing any “barrier to remarriage”.
No one in New York is or ever was or could be found guilty of not giving a Get for any reason whatsoever. No law is ever broken for declining to give a Get. And no US court can or ever has ordered anyone to give a Get. Pressure yes, mandate no.
You can get thrown in jail for contempt of court for not following the judge’s orders, which could include filing a civil divorce and giving a get where the judge determines that the marriage is effectively over.
As an aside, if a civil judge could under state law order a Get be given or hold someone in contempt for not giving it, and did that, the resulting Get would be a classical Get Me’usa b’chol hadeios. So it would an ineffective and counterproductive law that would essentially make giving a kosher Get virtually impossible and thus the court order unfulfillable.
No judge anywhere in America has ever or could ever order anyone to give a Get nor has or could hold anyone in contempt for not giving a Get. It’s a legal impossibility and has never occurred. That is no more possible than the idea of a judge ordering anyone to attend shul on Shabbos or church on Sunday or holding anyone in contempt for failing to do so. New York law does not allow a judge to order that a Get be given.
Like it or not, the ruling makes sense. It does in effect make any Beis Din effort that tries to tie religious observance to terms of a Get useless, as a person can simply lie in the arbitration about it and there is no enforcement option afterwards. From a secular standpoint it makes no sense that a person should lose custody of their children because their beliefs changed. Consider an alternative, should courts be allowed to remove children from families that become more religious, on the specious basis that this is somehow harmful to children. If we don’t recognize that changing religious standards is harmful to children (seems like the whole Baal Teshuva movement, which much of the Orthodox community long supports, does not believe that changing religious standards causes major harm; somehow when it comes to divorce this concept suddenly matters), then the provisions to live a certain religious lifestyle simply boil down to, you can have custody if you believe in God “X”, which is clearly something the courts cannot be involved in and should have no legal standing in a US court.
frumtd:
Nice try. The problem is actually different. The couple was not court ordered to raise the children as frum. The parting couple agreed to that and signed a contract to that effect. Raising the children differently is a violation of that agreement. What this decision suggests is that this issue cannot become a point of agreement, and that one can change their mind on such an issue as quickly as the Obama administration allowed someone to change their gender identity. And one can change back in the same blink of an eye. Well, that’s bizarre to me. Either we can agree to these issues, and that agreement is binding, or religious upbringing can never be included in a divorce agreement, as it can be nullified in a moment, and upheld by a judge. To me, this is assault on religious freedom.
The little I know:
Courts respecting such agreements is not freedom of religion, but rather courts enforcing religion. It is problematic to have the courts enforce any religious requirement. FYI, in all contracts there can be provisions that courts for various legal reasons will not enforce, why should a provision as to religious observance be special and be respected when the law does not seem to want the government to be involved in such matters. As much as this is a contract between 2 people (is this a contract or an arbitration ruling?), it is a contract as to a matter that has little to no place in a secular court.
Also it should be clarified, that usually these contracts are the result of arbitration (i.e. the Get process). As far as I am aware, arbitration awards have to follow legal principles to be upheld by a court (i.e. arbitration cannot order something that a court cannot order), so any lifestyle requirement that exceeds what a secular court would or could order should not be upheld in court.
I think that a good part of the reason in the past such requirements were upheld was under the argument that it was damaging to the children to change the lifestyle (and not that it is a violation of halacha). However, what it seems is that the court is not willing to make such a consideration a primary factor, but rather a lesser factor in considering the overall situation (e.g. maybe it is more emotionally damaging to take away the child from the mother regardless of the religious issue, so why give precedence to the religious issue? Truth is I did not read the case, so not 100% sure on all this, so a bit surmising here.
Frum
I like your overall reasoning
Courts do overturn agreements all the time.
Prenups and wills can be contested. I know a case of someone signing a non compete that covered the whole five boroughs and a court overturned it. Courts take into account a variety of reasons including various types of duress. Ex. They needed the job so they signed the restrictive non compete . Or in our case , she wanted a get so she agreed to abide by a religious standard she didn’t really feel like keeping.
And as I said earlier. In our liberal times , no one is going to argue that raising a kid in a less religious environment is harmful.frumtd: If two Evangelical Christian parents raise three children, if they get divorced and one of the parents (say the one with custody) suddenly decides to convert to Wahhabi Islam, you think it is okay for the newly converted Muslim to raise her previous Christian children as Muslims against their father’s wishes and against how they jointly raised their children until then? You think the courts should allow her to do that?
If not, a divorced parent going from Orthodox Judaism to something else raises the same legal concerns.
Joseph
“Ok” doesn’t enter the discussion
The question is would the court enforce it one way or the other. Why would the court see Christianity as being more valid then Islam? At best they would ask the kids if they feel they are being pressured into something they don’t want to do and then if the answer is yes they might get involved.FYI
my divorce didn’t link custody to religious issues. It did specify that we agreed to send to a specific type of school (mainstream brooklyn) and specified a frum expert on children as being an arbitrator in future disagreements.
BH we both stayed at the same level of frumkeit. But the question is, how enforceable are these clauses?
If only there was a family court expert in the CR who could answer these questions!
CT, you have been noticeably abscentMentsch1: He’s CTL not NYL. 😉
Mentsch1: Because Evangelical Christianity and Wahhabi Islam are fundamentally at terrible odds and contradictory with each other. And for a child to be pulled into those two extremely different directions by two differing parents is a terrible crime against the child’s well-being.
And since birth parents, in that case, effectively agreed to raise their children as evangelicals when they got married and before they had children, and in fact were raising them as such for a number of years, for one parent to unilaterally make a sudden change of the status quo is a wrong inflicted upon the children as well as upon the parental rights of the other parent and on the jointly agreed upon structure they entered into when they joined in union.
Your agreement, btw, is no different than most agreements where frum divorcing parents agree to continue raising their children frum post-divorce.
GH
Courts aren’t nuanced enough to understand the differences in frumkeit. Try explaining the difference between satmar and misnagid to a non jew and you will get a blank stare.Joseph
I still find that position untenable. The agreement is based on an understanding that the agreed upon arrangement is “better”. Ex That frum is better then not frum. And what court would agree to that? Why would they subject the kid to abide by an arrangement that they (the non religious court) doesn’t agree with?
The only way would be for psychologists to say it would be damaging. But for every frum psychologist who would say yes, there is an atheistic psychologist who would say it’s not damaging.Joseph
Intermarriage is inherently contradictory. I had a classmate (male not frum) who married a catholic classmate. At the time I asked Rabbi’s what to say to dissuade him. One pointed out that statistically kids of intermarriage are likely to disrespect both religions (he felt it was bc both parents had violated a cardinal rule of their faith so how could they demand allegiance to the faith). Courts don’t stop intermarriage despite the inherent contradiction.
And these couples break up all the time and go back to their original faiths, how can courts stop that? or demand fealty to a specific religion?
And even if they force the catholic to raise the kid jewish (as was agreed upon) the kids still see someone they love leading a completely different lifestyle, so it will rub off anyway
Unfortunately we see this all the time in frum divorces, one side has a big religious decline. I often see divorced women minus sheitels , in pants, taking their uniformed daughters to bais yaakov. Yes it’s great they are abiding by the originally planned decision on how to raise them, but it is contradictory to have a parent abide by a completely different set of rules. Kids don’t abide hypocrisy. If mom can wear pants so can I, bais yaakov upbringing or no. And no court is going to make mom put on a skirt.I understood the issue in a different way. Until now the courts looked at what is best for the child. Now it appears that if what is best for the child may violate a mother’s legal right then you can’t force the mother to lose that right.
If this is correct then this is not just a religious issue.Mentsch1: I don’t think you’re following my point. To simplify: For a child to have one parent tell her to be a good Evangelical Christian while her other parent is insisting she be a good Wahhabi Muslim, and they have joint custody, kills the child. It is highly detrimental to the child’s emotional health to be told to do to opposite and incompatible things by opposing parents.
The court needs to take a side in order to preserve the child’s health and prevent her health breakdown from such an impossibility from such a tug of war that the child’s in middle of as the pawn.
Joseph
Unfortunately kids are pawns in many divorces and there is little a court can do. The most common example is badmouthing the other parent which is very frequent and leads to issues.
That said, I agree with you that a kid shouldn’t be raised under two different religions. But again, what can a court do? If intermarried couples do it (and plenty of people I know where raised with Chanukah lights and a Xmas tree) why can’t divorced couples? Why would the courts view it as harmful and not multiculturalism?Regarding the Christianity vs Muslim upbringing of a child, I don’t think the case referenced here addresses such an issue directly (but it does give some indications where courts are moving on such issues). This case, was whether an arbitration panel could make the parent’s religious lifestyle a single factor that decides custody, which was determined to be a violation of here constitutional rights. No one seems to be suggesting that the emotional harm from such a lifestyle choice should not be considered, but that is not the same as determining it alone based on the parent’s religious observance (i.e. Which is not considering the emotional harm in light of the overall other factors. For example, perhaps it is healthier emotionally for the child to remain with the mother despite her mother’s lack of religion as opposed to being in a religious environment away from the mother… by removing the religious observance of the mother as the primary factor, you now can consider the overall situation). The issue with the specific upbringing of the children is more complex as we are moving beyond the personal life of the parent but to things directly impacting the children. In any case I would expect to see courts move away from specific religious upbringing requirements as they all place the court in a very difficult position of requiring something that the court is essentially supposed to be blind to.
It is impossible for the court to be blind to the psychological damage thrust upon the child when one parent unilaterally imposes a radical change in religious environment on the child, such as going from Evangelical Christianity to Wahhabi Islam or going from Orthodox Judaism to secularism.
Joseph:
You wrote: “It is impossible for the court to be blind ………”
Incorrect. It is not IMPOSSIBLE. You would be correct to say it is incomprehensible, or perhaps unacceptable. Today’s culture of political correctness places these ideologies that trash observant religions on a pedestal. Secularism is cherished, and a sort of affirmative action is tacitly supported that gives these lifestyles preference over religion. So the radical change that you recognize as drastic and radical that would likely have negative effect on a child would be alternatively welcomed as some form of enlightenment. I strongly agree with you that this approach is immoral and should have no place in any system that subscribes to a system of high values. But that is the churban that we are observing today, where one can defy biology and self identify as any of tens of gender states. Yes, it is bizarre. But that is what courts get away with today. So you think the court would find the other parent who shleps a kid into anti-orthodox lifestyles a problem? I wish yes, but a sadly predict that PC culture will win.
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