On appeal from the Superior Court, Chancery Division, Family Part, Bergen County.
Before Judges Villanueva, Wefing and Bilder.
The opinion of the court was delivered by BILDER, J.A.D. (retired and temporarily assigned on recall).
This is an appeal and cross-appeal from post-judgment custodial orders of the Family Part involving education and visitation.
Stripped of all adjectives and characterizations, the essential facts can be stated rather simply. The parties were divorced on April 22, 1991 after a 12 year marriage which produced two children, Amy born April 4, 1985 and Katherine born March 14, 1988. The Judgment of Divorce provided for joint legal custody with physical custody in the mother. Liberal visitation was provided the father in the form of alternate weekends, one weeknight per week, alternate major holidays (Christmas, Easter, Memorial Day, July 4th, Labor Day, and Thanksgiving) and birthdays, and alternate splitting of the Christmas-New Years holiday. All major decisions affecting the children's health, education and well-being were to be made by consensus of both parents. Each of the parties covenanted not to do anything to diminish the natural affection that exists between each of them and the children, and to conduct themselves in a manner so as to promote an affectional*fn1 relationship between the children and each of the parents. Specific agreements were made as to an equal division of private school tuition at the Bede School during the following three years - for both children during the 1991-1992 school year and for Katherine during the following 1992-1993 and 1993-1994 school years.
Prior to the divorce, and really for all their lives, the parties had been Protestants and raised the children in the same religion. Like many Americans, their attendance at church and participation in church activities could be described as sporadic - at times being more active, at times less active, and varying among a number of the more familiar Protestant denominations. Both children were baptized in the Presbyterian church. Christmas and Easter were celebrated.
Although they continued to share the same residence, apparently the parties physically separated some months prior to the divorce, perhaps in July 1989.*fn2 At about that time defendant Patricia became interested in Judaism. In May 1991, a month after the divorce, she moved to Teaneck, and she, in her words, "started learning about Judaism and practicing it in her home." In October 1991 she converted to Orthodox Judaism and in February 1992, over the objections of plaintiff father*fn3, converted her daughters to the same faith.*fn4 In June 1992 Patricia became engaged to Leonard Moskowitz, an observant Orthodox Jew, and August 30, 1992 they were married.
Patricia and the two girls now live in Teaneck as part of an observant practicing Orthodox Jewish family which consists of Leonard, Patricia, Amy, Katherine, and Leonard's three children from a previous marriage, 11 year old Judah, 10 year old Eliza, and 7 year old Avia.*fn5 In his testimony, Leonard described Judaism as "not just a religion" but "a culture". "We live a Jewish lifestyle in a Jewish community. And the community is very supportive although we're very active in the outside world too and part of being a Jew is maintaining your Jewish identity in the outside world." They eat kosher food, observe the sabbath, eat their sabbath meals together on Friday night, and go to synagogue together on Saturday. Judah, Eliza and Avia attend a Jewish day school in Paramus.
The critical issues between the parties came to a head in a February 24, 1992 letter from Patricia's attorney to the plaintiff father's attorney advising him of the conversion of the two girls the previous day and seeking modification of the Property Settlement Agreement as it relates to visitation and education. That letter, in relevant part, clearly sets forth the parameters of the dispute.
Visitation - As Ms. McCown and the children are practicing observant Orthodox Jews, I want to modify visitation so as to permit the children to remain with Ms. McCown on the Sabbath and religious holidays.
When the children are visiting with Mr. McCown, I would want your client's assurances that he would take no action that would compel the children to violate the requisite dietary laws (Kasruth), and milk and other tenets of the Jewish religion.
I would suggest that Mr. McCown refrain from taking the girls to church.
Education - Ms. McCown would like to enroll the children in a Hebrew Day School in the fall of 1992.
Had he acceded to the attorney's demands, the father would have ratified and endorsed the unilaterally performed conversion and forsaken his right to spend weekends with his children. He would also have abandoned any right that the children might have to continue to understand the culture of their father and their maternal and paternal forebears. Depending on the confluence of holidays, he would ...