This plenary hearing results from an Appellate Division remand on the issue of modification of visitation provisions in a settlement agreement which was incorporated into a 1981 judgment of divorce. The specific modification sought by plaintiff-mother is a restraint against defendant-father from causing or allowing their children to violate Jewish Sabbath and dietary laws during his visitation with them.
The parties were married for five years. The union produced two daughters, who are now nine and seven years of age.
Plaintiff-mother although born to Catholic parents and reared as a Catholic had prior to marrying defendant converted to Judaism. Nevertheless, she participated with him in a Catholic marriage ceremony. The children were baptized into and attended Catholic church services during the marriage and even subsequent to the divorce which was entered on June 15, 1981. In November 1982, when the children were just six and three years of age, plaintiff married an orthodox Jew. The mother then became a practicing observant Jewess adhering to orthodox Jewish law and tradition. From that time until the present she has reared the children according to orthodox Jewish tradition, including attendance at worship services, observance of Jewish dietary laws, Sabbath and holy day rituals and taking religious instruction at their synagogue Hebrew school.
The property settlement agreement which was incorporated into the judgment contained the following provisions with respect to custody and visitation:
1. The Wife shall have custody of the two minor children of the marriage and primary responsibility for their religious upbringing. (emphasis supplied) The parties, however, shall confer together with regard to all important decisions concerning the children's health, welfare and education.
2. The husband shall have the right to the following visitation with the children other than at wife's residence subject to his picking up the children from wife's residence and providing for them during visitation periods and returning them to wife's residence:
a) every Sunday or Saturday from 1:00 p.m. to 7:00 p.m., husband to let wife know by each Wednesday on which day said visitation right is to be exercised with the parties to cooperate so as to avoid scheduling difficulties insofar as practicable.
b) On Tuesdays or Thursdays from 3:00 p.m. to 7:00 p.m. during the school year with additional visitation to be permitted when the children are older, same to be arranged by the parties . . .
Defendant, who had temporarily left this country to work in Saudi Arabia in October 1982, first became aware that plaintiff was rearing the children in the Jewish faith in April 1983, when he returned to the United States for a visit with his children. During his then one week presence in New Jersey, he was not permitted to visit with them on the Jewish Sabbath; that is, from sundown Friday through sundown Saturday. Additionally,
the children were chastised by the mother for eating non-kosher food while visiting with their father and he was berated by ...