Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Under New Jersey Family Law, Who Has Final Say Regarding Enrollment of A Child in a Religious School?

How many times have you heard the famous saying “separation of church and state?” Countless I’m sure. Those renowned words were spoken by Thomas Jefferson years ago yet still are deeply rooted in our nation, particularly in the first amendment to the United States Constitution. As Americans, we all know that religion and the government should be entirely separate. Yet, when it comes to children and mandating that they practice a certain religion, the waters are shakier and it is not as clear. Can a parent or court even require that a child practice a certain religion in the first place? How does New Jersey law In the recent New Jersey Appellate Division case of Rothstein v. Warschawski, the court addressed this red-hot issue. Let’s explore.

As a New Jersey divorce attorney, I handle many unique situations involving complex legal issues.  This case is an excellent example  In Rothstein, the parties were divorced and had one child born of their marriage, Yael. While the parties shared joint legal custody of the child, Rothstein, the mother, had primary physical custody. When the parties had divorced, many issues were addressed in their divorce agreement. Yet, the one that was iffier was whether or not Yael would attend Hebrew school to further study Judaism. The parties were unsure whether they wanted Yael to go to Hebrew school, but noted that if they decided to enroll Yael, they would have an equal say and split the costs accordingly.

Years after the divorce was finalized, Rothstein decided to enroll Yael in an Orthodox Hebrew day school. However, Yael’s father objected. He claimed that a secular education body did not accredit the school his former wife had chosen and therefore he did not want Yael to attend. And in March 2012, the court agreed with him. It stated that Rothstein and Warschawski had to mutually agree upon which school to enroll Yael in. Furthermore, the court compelled Rothstein to select a school that was accredited by the Middle States Association of Colleges and Schools.

Rothstein, upon the Court’s order, decided to disregard the result. She kept Yael enrolled in the Jewish school that she had chosen. This angered Warschawski and prompted him to file a motion to enforce the Court’s order. Rothstein objected, stating that her daughter was excelling in the school she had selected and didn’t think it was appropriate to remove her. However, once again, the court sided with Warschawski. The court noted, “The issue of accreditation has been addressed multiple times. Yael’s current school is not an adequately accredited educational institution and Rothstein is ordered to remove her and enroll her in a different, accredited school, agreeable to both parties.” This statement prompted Rothstein to appeal the decision.

On appeal, the New Jersey Appellate Division remanded the case. Although it did side with Warschawski, the trial court failed to apply the correct standard in its analysis. Just because Rothstein had primary physical custody over Yael did not entitle her to solely determine which religious school to enroll her in. The court reminded Rothstein of the divorce agreement as well, holding that she herself had agreed to discuss Yael’s religious upbringing with Warschawski before acting and selecting a school.

Moreover, the court stressed the importance of the best interest of the child standard. It held that the best interest standard was the one to be applied to the case, as it was crucial to take into consideration Yael’s welfare. While utilizing the best interest standard could be complicated in this area of law, it was deemed to be the correct one to ensure the child’s welfare was best looked after.

While it is not common for New Jersey family courts to intervene in religious education matters, this case’s fact made it necessary for the family court to address the issue at hand.  For more information on religious education and how the best interest of the child standard will be applied, please contact my office today. Thank you.