“Who decides our child’s religion following divorce?” A review of the decision in DiLisi v. DiLisi

Reaching an agreement about the religious upbringing for your children is a personal and serious decision for any family.  That decision is made even more difficult by divorce.  Even when parties agree to raise their children in a certain faith as part of a divorce settlement, the courts are careful to consider that agreement in light of each parent’s constitutional rights.

This point was illustrated in a recent, unpublished Appellate Division case DiLisi v. DiLisi. The DiLisi’s were divorced in 2014.  The parties shared joint legal custody of their two daughters, with Ms. DiLisi designated as Parent of Primary Residence and Mr. DiLisi designated as Parent of Alternate Residence. The Property Settlement Agreement specifically addressed the children’s religion, providing “The parties acknowledge that the children shall be raised in the Roman Catholic faith.”

Consistent with that agreement, both daughters received all of their Roman Catholic Sacraments.  However, during Mr. DiLisi’s parenting time, the children would accompany him to Sunday services at a non-denominational Christian Church.

Ms. DiLisi filed an application with the court requesting that Mr. DiLisi be restricted from bringing their daughters to non-Catholic services.  The trial court agreed with Ms. DiLisi’s argument and interpreted the Property Settlement Agreement to preclude Mr. DisLisi from taking the girls to a non-Catholic church.

The New Jersey Appellate Division reversed. Unless there is a written agreement between the parties, the custodial parent has the right to determine the religious upbringing of the children consistent with the Appellate Division’s decisions in Feldman v. Feldman and Brown v. Szakal.  However, even if there is a specific contractual agreement addressing the children’s religion, the other parent is not prohibiting from “exposing” the children to other religions and cultures during their parenting time. The court noted that unlike in Feldman, Mr. DiLisi was not seeking to enroll the children in a non-Catholic class or educational institution.  Instead, the situation was more akin to Brown, where the court found the non-custodial parent was not required to abide by strict Kosher and Sabbath rules during his parenting time just because the custodial parent had chosen to raise the children in the Jewish faith, and in fact requiring him to do so would be a violation of his constitutional rights.

The court noted that in determining religious disputes between parents, it must carefully weigh the custodial parent’s right to decide the children’s religious upbringing, or the parents’ agreement to raise the children in a certain faith, in light of the other parent’s religious freedom.  Permitting one parent to bring the child to religious services of their choice does not necessarily violate their previous agreement to raise the child in another faith.

Religious upbringing is an important issue for many families. Not only should parties consider specifically addressing the faith of their children in a written agreement, they must also understand the limitations of that agreement for both parents. These issues are often fact sensitive and should be discussed with experienced matrimonial counsel.