On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-504-01.
The opinion of the court was delivered by: Newman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Newman, R.B. Coleman and Holston, Jr.
This appeal involves the issue of the primary caretaker's authority post-divorce to decide the religious upbringing of the children and the secondary caretaker's limitation upon religious training and education when exercising visitation which includes overnight stays where the parties have joint legal custody. We hold that the primary caretaker has the sole authority to decide the religious upbringing of the children and the secondary caretaker shall not enroll the children in training and education classes for programs in a different religion over the primary caretaker's objections when exercising visitation rights. The secondary caretaker is not barred from having the children exposed to religious services or holidays.
The pertinent facts are the following. Plaintiff Howard Feldman (plaintiff) and defendant Bridget Howell (formerly known as Bridget Feldman) (defendant) were married on June 8, 1996. Prior to their marriage they already lived together and had two children, a daughter, Shawn, born October 9, 1994 and a daughter, Hannah, born November 26, 1995. Their third child, a son, Jacob, was born after their marriage on April 22, 1998. Plaintiff is Jewish and defendant is Catholic.
Subsequent to her birth, Shawn was both baptized in the Catholic Church and given a Hebrew name in a Jewish naming ceremony. Subsequent to Hannah's birth, she was only baptized in the Catholic Church. She was not given a Hebrew name until after the parties' divorce and after this appeal had been filed.
Jacob was both baptized in the Catholic Church and was circumcised in a bris, a Jewish ceremony representing a covenant with God.
Initially, while drafting the divorce agreement, it was contemplated that the children would remain in the primary physical custody of defendant. However, before the end of the day on October 10, 2001, the parties agreed that defendant was not capable of caring for the children due to her lack of stable employment, residence, and transportation and that plaintiff would be the temporary primary residential caretaker with visitation for defendant in accordance with a schedule set forth in the Property Settlement Agreement (PSA). The PSA is silent on the subject of the religious upbringing and education of the children. However, it provides each parent with custody of their children on their respective religious holidays and the parent's birthdays. When a Jewish and Catholic holiday conflict, as could be the case with Chanukah and Christmas at times, priority was given to the Catholic holiday. On November 12, 2001, the children went to live with plaintiff and remain with him to this day.
There have been numerous court proceedings involving financial issues, mainly support payments by defendant and arrearages accumulated for not making payments. The issue of religious upbringing has also been brought up. Defendant indicated that she would like to take the children to Confraternity of Christian Doctrine (CCD) classes in place of her weekly Wednesday or Thursday dinner visit. Following the September 12, 2002 hearing, Judge Rand ordered defendant's visitation with her children to continue as it had been and must take place at the home of her mother; that the three children of plaintiff shall be raised in the Catholic Church "as is consistent with their baptisms"; that the children shall be exposed to Jewish culture and traditions; and that the two older children, Shawn and Hannah, shall attend CCD as appropriate, with defendant being responsible for their transportation.
On October 3, 2002, defendant secured an Order from another judge, while Judge Rand was on vacation, restraining plaintiff from interfering with the children's attendance at the (CCD) education classes every Sunday from 9am to 7pm.
On October 18, 2002, Judge Rand held another hearing. It is unclear which party filed a motion and for what purpose. However, the issue of religion was primarily discussed. Judge Rand clarified that he never intended that the CCD classes interfere with plaintiff's weekends with the children.
The same day, following the hearing, Judge Rand ordered plaintiff to inquire about CCD programs during the week near his home and to transport the children to CCD. Defendant was ordered to pay all fees associated with the CCD program.
On October 23, 2002, plaintiff filed an Order to Show Cause why the children should be raised in the Catholic religion.
On October 24, 2002, plaintiff appeared before Judge Rand on his motion for an Order to Show Cause. Plaintiff requested a stay of the September 12, October 3, and October 18, 2002 orders because compelling him to take his children to CCD classes was a violation of his constitutional rights as a Jewish person.
On the same day, following the hearing, Judge Rand ordered: a plenary hearing to decide how and by what method the children will be raised and educated in a religious manner; that all other issues raised in plaintiff's October 23, 2002 Order to Show Cause will be considered at the plenary hearing; and [a]ll Orders previously issued by the Court relating to the children's religious education and/or religious childrearing will be stayed pending the decision of the Court in the pending Plenary Hearing.
On November 1, 2002, a plenary hearing commenced on the issue of the religious upbringing of the children. At the hearing, defendant claimed that the PSA gives preference to the Catholic religious holidays, which is proof that they agreed to raise the children Catholic. Plaintiff testified that he did not agree to raise his children only as Catholic and that he expected them to also be raised in the Jewish faith.
On November 15, 2002, the plenary hearing on the issue of religious upbringing continued. At the end of that day, Judge Rand ordered, among other things, that Dr. Lee Monday of Hackettstown Psychological Associates conduct an evaluation of both parties in regard to the nature and extent of their religious upbringing of their children; that the initial cost of Dr. Monday shall be borne by plaintiff with the understanding that the ultimate allocation will be determined pending the decision on the plenary hearing; that the children shall not be interviewed by independent experts; that pending the report by Dr. Monday, each party shall be free to instruct the children in whatever religious belief or education they feel appropriate during their own visitation or custody time; and that the plenary hearing will continue at a later date.
On February 3, 2003, and March 18, 2003 the plenary hearing regarding the religious upbringing of the children continued. It was then adjourned and reconvened on May 14, 2003.
At the end of the hearing, plaintiff changed his position and argued that defendant should not be allowed to educate the children formally in the Catholic religion (i.e., no more CCD classes, even on her own time) because, as the primary caretaker of the children, he had the right to raise his children Jewish without any interference from anyone, even the non-custodial parent. Judge Rand discontinued any further testimony because he believed it would be merely cumulative and requested that plaintiff's attorney provide a memorandum on the law on his new position within two weeks.
On August 13, 2003, plaintiff filed another motion alleging seventeen separate counts including violations of previous orders by defendant and updated requests for expenses and child support.
On August 15, 2003, defendant filed a cross-motion demanding, among other things, (1) transfer of physical custody of the children to her; (2) enforcement of divorce decree where it states that all disputes should be handled outside of court first; (3) that plaintiff cease using the court system to harass defendant and thereby making it impossible for her to gain employment, permanent residence and a vehicle; (4) to enforce divorce decree establishing that either parent must notify the other if taking children traveling out of town; (5) to continue the children's religious education in the Catholic church; and (6) to require Sussex County Probation Division to adjust its records on child support issues.
On September 12, 2003, the motion and cross-motion were heard again by Judge Rand. Judge Rand denied defendant's motion for a custody change. He also refused to address the religious upbringing issue:
I'll tell you one thing I'm going to not do, I am not going to touch the issue of religious upbringing with a ten-foot pole from this -- from this vantage.
You each have your own point of view on the children's religious upbringings. I'm going to skip over and get right to that point. I did rule at some point, and I continue to rule on that point, that as for religious upbringing this is joint legal custody still, as I understand it, joint legal custody still --. . . .
It's joint legal custody, and until and unless it becomes sole legal custody the parties will raise the children as they deem fit in regard to their own religious upbringings and until -- in their own traditions, hopefully respecting the other, hopefully respecting the other, and until I can see these children are being harmed in some way, in this regard, harmed, I mean really , seriously harmed, there has to be some evidence, I am not going to interfere with it.
So the status quo will continue on that.
Later the same day, Judge Rand issued an Order which is the subject of this appeal requiring in pertinent part that:
1. The Court orders that the religious upbringing of the parties' children will continue in ...