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Asch v. Asch

Decided: December 26, 1978.

KARL ASCH, PLAINTIFF-APPELLANT,
v.
ROBIN ASCH, DEFENDANT-RESPONDENT



On appeal from Superior Court, Chancery Division, Union County.

Allcorn, Seidman and Botter. The opinion of the court was delivered by Botter, J.A.D.

Botter

Plaintiff appeals from the denial of his motion to compel defendant, his former wife, to enroll their young daughter in a public school or in a private, nonsectarian school, at plaintiff's expense. Asserting that his daughter is Jewish, since he has always been a Jew and defendant had converted to Judaism prior to their marriage, plaintiff sought to prevent the enrollment of his daughter in a Catholic, parochial school beginning in September 1978. The trial judge ordered that the child could attend the parochial school "provided that said child shall not receive religious instruction." Plaintiff's applications for a stay of the trial judge's order were made and denied in the trial court and in this court.

The parties were married in early 1972 and were divorced in November 1976. Their only child, Meredith, became six years of age on November 23, 1978. Although Meredith lived with plaintiff for one year after the parties separated, she now lives with defendant, who has remarried. In their household are defendant's husband, two of his sons, age 10 and 11, of a former marriage, and defendant's other daughter, age 7.

The divorce judgment refers to the provisions of a separation agreement between the parties which gives both parents "joint custody" of Meredith. The divorce judgment orders that the parties perform the terms of the agreement. The agreement requires the parties to "confer with each other on all major matters affecting the general welfare of the child," but it contains no mechanism for resolving disputes between them. Obviously, there is no provision in the agreement that expressly governs the present controversy, although

appellant contends that the school arrangements unilaterally imposed by respondent run counter to the spirit of the provision that neither parent shall "alienate the child's affection for the other party."

Meredith attended a private, nonsectarian school on the nursery school and kindergarten level. Her father wanted to have her enter first grade at a nearby private school. He contends that enrolling Meredith at a Catholic parochial school "with explicit and implicit religious teachings and peer group pressures" would have the "inevitable" effect of directing her away from the religion into which she was born and would tend to weaken his relationship with her.

Defendant contends that she "is not sending Meredith to [the Catholic school] in order to obtain religious instruction * * *." She has expressed an educational basis for preferring the Catholic school over the private school chosen by plaintiff. Her additional reasons are that the Catholic school is within two blocks of their home and she wants Meredith to attend the same school that her other daughter and her husband's sons attend. Supporting her nonreligious purpose she has asserted, without contradictory proofs in the record:

The School has a fairly large percentage of nonCatholic children attending and has many more lay teachers on its faculty than it does Catholic nuns. There are, at present, only lay teachers instructing the first and second grades at the School. Religious instruction is not required and those children who do not choose to be instructed in religion have the choice, at that time, of going to the library, attending a study or receiving extra help, in any area it is needed during the time that the other children are receiving religious instruction.

Defendant has explained her reasons for not enrolling Meredith in the public school, and plaintiff does not insist upon her attending that school. Defendant has further certified that she and her husband "are presently seeking a new home in another town * * * where all the children can attend public school," and she anticipates moving "shortly." Her certification was dated July 25, 1978.

This is not a case in which we are asked to choose between religions. Cf. Donahue v. Donahue , 142 N.J. Eq. 701 (E. & A. 1948). Defendant does not seek to raise Meredith in the Catholic faith, and the agreement for "joint custody" connotes that neither parent would interfere with their original choice of religion for their daughter without the consent of the other.*fn1 On parents' rights to educate their children in religious practices and beliefs, see Wisconsin v. Yoder , 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Pierce v. Society of Sisters , 268 ...


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