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Non-Custodial Parent Can’t Be Compelled to Take Daughters to Other Parent’s Chosen Church

little boy praying with hands clasped

New Jersey case law permits parents to agree in a property settlement agreement (PSA) on the type of religious education their children will receive post-divorce. However, there are limits on the degree to which these agreements can impact the rights of the alternate parent to expose their child to alternative religious traditions. A recent New Jersey Appellate Division addressed the question of whether a non-custodial parent could take his children to a different church than the one described in the couple’s PSA. Learn about the religious case below, and contact a skilled New Jersey child custody attorney for help in your divorce or custody dispute.

Background on Case

The parents at the center of Dilisi v. Dilisi divorced in 2014 after having two daughters. In their PSA, the couple agreed that the mother would serve as the parent of primary residence, with the father serving as the parent of alternate residence. The father was awarded alternating weekend custody of the girls. The parents agreed that the children would be raised Roman Catholic, and the parents shared the cost of tuition to send their daughters to private Catholic school. The children also completed the Catholic sacraments of First Communion, First Penance, and baptism, and the older daughter was in the process of preparing for Confirmation around the time that the parents ended up in court. While he did not request a change to the PSA nor seek to remove his children from Catholic school or prevent them from attending Catholic mass, the father began taking his daughters to a non-denominational Christian church on the Sundays that he had custody of the girls.

After the mother failed to respond to the father’s requests to take his daughters on a vacation, the father sought the court’s help in enforcing his rights under the PSA. The mother responded with demands of her own, including a request for an order that prevented the father “from taking the girls to a non-Roman Catholic Church.” The judge granted the mother’s request, ordering that the father “shall only take the children to a Roman Catholic Church.” The judge explained that his decision was based on the PSA’s provision that the children would be raised Roman Catholic, which he took to mean that “if anyone’s going to take them to church, that’s the church they have to go to.”

The Argument Against Enforcing Religion

The father appealed the judge’s decision, arguing that the order was unconstitutional, and the Appellate Division agreed. The Appellate Division’s opinion explained that the parent of primary residence is the parent with the right to determine the religious upbringing of the children. “However, this rule does not prohibit non-custodial parents from taking their children to other religious services or exposing their children to other cultural practices during that parent’s visitation time. In fact . . . such a prohibition would violate the constitutional rights of non-custodial parents.” The opinion explained that a non-custodial parent may not interfere with the custodial parent’s right to raise their children in their chosen faith. However, it does not follow that the court could use its powers to impose an affirmative obligation on the non-custodial parent to raise the children in a particular faith. Forcing the non-custodial parent to attend a religious service that runs contrary to their own beliefs would violate that parent’s own freedom of religion. Without some evidence that the non-custodial parent is attempting to undo the religious training that the other parent is providing or is providing other formal religious education to the children, the court cannot prevent the non-custodial parent from exposing the children to alternate religious traditions.

If you’re a divorcing parent in New Jersey who needs skilled legal help, contact the seasoned and dedicated Union child custody dispute lawyer John B. D’Alessandro at 908-964-0102.

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