A compelling drama is being played out almost under the radar in a Brooklyn-based state appeals court involving the question of how far a court can go in ordering that a child in a divorce proceeding be raised according to the Jewish religion.

In 2016, a NYS Supreme Court judge awarded sole residential and legal custody of the son of an Orthodox Jewish chasidic couple to the husband on the grounds that, for a variety of reasons, that was in the best interest of the child.

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However, while the father maintained his chasidic Orthodoxy, the mother came out as a member of the LGBT community and took the child to LGBTQ events. So the court issued an order which included the following provisions:

“The Mother shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child’s Orthodox Jewish Chasidic Faith. Thus, the Mother shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement….”

The New York Civil Liberties Union filed a friend of the court brief arguing that these provisions were unconstitutional because they forced the mother to closely relate to specific activities of the Orthodox Jewish faith.

Lawyers for the father responded with a reply brief arguing that the court order is addressed to parental control of the child’s conduct, not to the parent’s own personal religious freedom, and is clearly constitutional. That is, it does not address what the mother may or may not do personally and independently of her son. The reply brief noted that “New York courts have repeatedly and consistently upheld custody provisions that require a parent to abide by specific religious standards when that parent controls the daily life of a child.”

The reply brief was filed by the father’s attorney, Martin Friedlander, a leading New York matrimonial lawyer. He collaborated with the noted constitutional lawyer Nathan Lewin, who developed constitutional and other arguments countering the NYCLU brief. Lewin had been requested by national Orthodox organizations to draft the reply to the NYCLU, in which they also joined. Lewin was an attorney of record in several of the cases cited by the NYCLU.

It should also be noted that the NYCLU”s argument conflicts with, and if accepted would destroy, an important precedent that Lewin achieved in another case – that an agreement or court order directing that the child of divorcing parents be raised in an Orthodox Jewish lifestyle is enforceable.

The following organizations joined in the reply to the NYCLU, which is testament to the importance the Jewish community attaches to the issue in the case:

National Jewish Commission on Law and Public Affairs (COLPA), Agudath Israel of America, Agudas Harabbanim of the United States and Canada, National Council of Young Israel, Orthodox Jewish Chamber of Commerce, Coalition for Jewish Values, Rabbinical Alliance of America, Rabbinical Council of America and Torah Umesorah (National Society of Hebrew Day Schools.

The case will soon be scheduled for oral argument before the appellate court. Stay tuned.

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