Representing Miriam in her protracted custody dispute, I became aware of a pattern of injustice occurring in the New York State court system. What I witnessed was already well known to individuals who had left the ultra-Orthodox community. There exists a practice of secular courts prioritizing religious adherence over a child’s right to a basic secular education and ignoring how religious schools can undermine parental ties when one parent is no longer ultra-Orthodox.
As a human rights attorney, I had litigated in varied forums worldwide but was stunned by the trampling of rights I observed less than two miles from my home as Miriam fought to maintain custody of her children in Kings County Supreme Court in Brooklyn, New York. I soon learned that Miriam was just one of the many formerly ultra-Orthodox parents—or “O.T.D.” parents—facing tremendous barriers and bias in custody disputes in the Kings County and Rockland County courts, particularly when it came to decisions around education.
Seeing Miriam’s case and learning of many other similar situations inspired me to create a legal reform initiative with the organization Footsteps, the only nonprofit in the United States that offers comprehensive services to people who have left ultra-Orthodoxy. Footsteps began in 2003 and has served over 2,300 members since then. A significant portion of our members are parents, and we provide support for them through parenting groups, parent-child events, counseling services, and provision of legal representation and strategic legal consulting. In the five years since our legal reform initiative was launched, I have provided direct legal consultancy for more than 40 members engaged in custody disputes. The number of individuals assisted by Footsteps has grown over the past 20 years, as has the number of parents deciding to leave ultra-Orthodox communities. Throughout this time, my work to preserve the parenting rights of people leaving ultra-Orthodox communities has documented and exposed some disturbing trends and injustices. We also have had some heartening victories addressing these challenges.
Yet, one of the biggest remaining hurdles for parents leaving ultra-Orthodoxy is the practice of courts requiring their children to attend religious schools that not only fail to provide a basic secular education but also stigmatize and deliberately ostracize the less religious parent. There is a surge of new evidence confirming that many of New York’s ultra-Orthodox Hasidic yeshivas fail to meet state educational standards, and a growing recognition of the parenting rights of parents leaving the ultra-Orthodox community. It is time now for the courts to ensure that they are applying the best interest of the child standard when one parent asserts that their child is in a school that fails to fully embrace that child’s right to a sound basic education as mandated by the state, and to insist that any school a child attends be welcoming and inclusive of both parents, regardless of religion.
This article first presents the challenges formerly ultra-Orthodox parents frequently face in these highly contested custody disputes and the central role educational decision-making plays. Next it considers the assessment used for determining which parent is awarded educational decision-making authority in custody cases and how that aligns with the rights that state educational laws grant to the child. Although the legal standards and precedent in New York are clear, courts regularly mismanage them in cases where one parent no longer follows an ultra-Orthodox religious lifestyle, particularly if that parent is LGBTQ+. Too often judges have overlooked or failed to properly weigh longstanding custody law precedent concerning education, misapplied the best interest of the child standard, perpetuated conflicts with state policies requiring the provision of a basic education, and ignored federal constitutional law.
This article argues that it can never be in a child’s best interest to attend a yeshiva that stigmatizes one parent and/or does not provide a sound basic education. It calls upon courts to reform and realign their approaches to resolving educational decision-making child custody disputes in this context. Next, it calls for an adjustment to the burden of proof to favor awarding custody to the parent who selects a school that offers a sound basic education and fosters a cooperative relationship between both parents and the child’s school. It presents ways for practitioners to encourage this approach in individual cases. Acknowledging the urgency of the current situation, and recognizing that implementation through individual litigation is arduous, it concludes that a legislative approach also may be needed.
Ultimately, the goal is for widespread adoption of a revised approach that best serves the interest of the child by encouraging their intellectual development while preserving the bond with each parent.
I. Background: Ultra-Orthodoxy and Education
Many people in New York and nationwide are not familiar with the ultra-Orthodox communities clustered in Rockland County and Brooklyn, New York. Because of the insularity of the community, even some of their closest neighbors do not understand the customs or practices of New York’s Hasidic community. An estimated 200,000 Hasidic Jews reside in New York. New York’s Hasidic communities started after World War II following the devastation of the Holocaust. These religious communities offer many benefits to those who choose to live in them and may thrive there throughout their lifetimes. However, when an individual, particularly a parent, chooses to leave or is pushed out of the community, one consequence may be the severing of their relationship with their children. Far too many secular courts’ rulings have established or exacerbated this separation of parent and child.
For those born and raised in an ultra-Orthodox Hasidic community, leaving and adjusting to life on the outside can be an enormous transition. Religious practices and authorities define practices that seek to control every aspect of life for those born into this population—ranging from daily activities such as what they eat (kosher) to the religious dress codes that prescribe their attire (suits for men and wigs or scarves, skirts, and thick tights for women) to more significant life decisions including whom they marry (arranged by families starting at age 18) and the expected size of their family (multiple children). Exposure to television, the internet, secular newspapers, museums, or public libraries is prohibited. Strict definitions of gender roles are enforced and LGBTQ+ thoughts or behaviors are not widely recognized or considered permissible.
Many children in ultra-Orthodox communities attend religious schools—yeshivas—which prioritize religious education to the near-exclusion of secular studies and teach mostly in Yiddish or Hebrew. As a result, in these schools the vast majority of students fail to learn English or math beyond a very basic level. The New York Times recently published results of its investigation into the Hasidic yeshiva system in New York, concluding that “generations of children have been systematically denied a basic education, trapping many of them in a cycle of joblessness and dependency.”
The schools form the religious heart of the Hasidic community. Yeshivas frequently impose a set of school rules that govern the family life at home, which for most schools include requiring kosher food, banning access to television, the internet, or secular books and severely restricting any activities or contact with secular individuals. The school curriculum and community reject a secular lifestyle and individuals who do not follow ultra-Orthodox religious practices are disparaged and face social exclusion. As discussed below, this creates enormous challenges for formerly ultra-Orthodox parents and their children to maintain a relationship without stress.
Ultra-Orthodox yeshiva education is segregated by gender. Once past eighth grade, boys receive no secular studies. Girls’ schools provide slightly more secular education but also perpetuate negative gender stereotypes, emphasize strict “modesty,” and envision girls’ futures as predominantly focused on bearing and rearing children. Yeshiva teachers, for the most part, do not have advanced degrees, and in some schools, women or girls with advanced degrees are prohibited from teaching. Prescribed gender roles, distrust of secular society, and homophobia are taught as the religion’s tenets and reinforced by the school curriculum.
Despite the pressure for religious conformity, and lacking the tools to assimilate into modern society, nonetheless, individuals make the decision to leave for a life outside the community’s insularity. Many Footsteps members cease following religious orthodoxy out of a strong desire to pursue an education or intellectual life because they realize that they are LGBTQ+, to escape an abusive relationship, or to give their children opportunities they never had. Some, like Miriam, are pushed out by family or community members if they refuse to enter or consummate a marriage, or because of repeated dress code violations or other acts of nonconformity.
These individuals often have very few transferable academic or professional skills, and, in some cases, predominantly speak Yiddish with only a very limited command of English. Most Footsteps members start off living in poverty, and many remain in precarious financial circumstances for years. For Footsteps members, the lack of an adequate secular education can have significant and enduring negative effects on their economic security and full participation in society. There are remarkable success stories of individual Footsteps members who have obtained a secular education after leaving the community or sometimes doing so secretly before leaving; however, it takes enormous determination and resources to overcome the gaps left by attending a yeshiva that does not provide secular education or provide a high school diploma or equivalency, particularly for those who wish to attend and succeed at college or graduate school.
Upon leaving the community, Footsteps members have reported being cut off from communication with their family and friends, and their housing and employment within the community have been jeopardized. Without a basic secular education, Footsteps members who have been rejected by the community that formerly employed them can find it extremely difficult to find meaningful employment in the secular world.
Parents who leave and seek sole or joint custody of or visitation with their children may face additional obstacles. They frequently experience punitive reactions from their own family and friends who seek to ensure that the children do not leave the religious practice, even if it means creating a distance with the parent. In addition, the community has its own court system, the beit din, which controls issues such as separation and divorce. In Footsteps’s experience, this religious forum heavily favors maintaining the children’s religious orthodoxy and so, regardless of the individual child’s needs or beliefs, often the religious parent retains custody or extensive visitation regardless of whether that parent is the primary or most fit parent. Far too frequently Footsteps members have been pressured to go to the beit din for a religious divorce, or “Get,” and once there have felt forced to sign an agreement that includes custody arrangements, which secular courts may later hold binding. Finally, because reporting incidents of domestic violence or sexual abuse of women or children to “outside” secular authorities is strongly discouraged, documentation of such matters is extremely rare. As a result, incidents go unrecognized by the beit din and are not addressed by secular courts.
II. Best Interest of the Child Standard
New York courts consider several interrelated factors in determining which parent will have legal and/or physical custody. The determining factors fall under the umbrella of the “best interests of the child” standard that assesses factors such as which parent was the primary caretaker; who can best maintain the child’s stability, provide for the child’s emotional, social, educational, and intellectual development, foster a friendly relationship with the other parent and the extended family, and meet the child’s material needs; the child’s preference; and evidence of domestic violence.
Religion may be considered one factor in determining the best interest of a child. However, religion “alone may not be the determinative factor.” Even when the parties have a settlement agreement dictating religious upbringing in a certain manner, it is enforceable only as long as it remains in the best interest of the child overall.
To assess these best interest of the child factors, the court may rely on testimony by court-appointed forensic evaluators, expert witnesses, in camera proceedings with the children, and the input of attorneys for the children. If the parents have participated in religious court or beit din proceedings prior to entering secular court proceedings, the court may regard a signed beit din agreement as a binding settlement agreement, considering it determinative of the parties’ intent, and defer to it as the basis for the court’s custody ruling absent a showing of harm to the child. Frequently, Footsteps members have conveyed to their attorneys that they have been placed under enormous pressure to attend the beit din and to sign divorce agreements that address custody without understanding the language, scope, or permanence of the agreement. Nonetheless, some judges are reluctant to recognize the inherent unfairness of the beit din setting for the more secular parent and, even then, hesitate setting aside an agreement on the ground that doing so would result in further proceedings or disrupt a long-standing agreement even though the children may no longer be religiously observant.
In Footsteps’s experience, it is not uncommon for a court, over one parent’s objection, to order a child to remain in an ultra-Orthodox yeshiva even when there is evidence that the school fails to provide an adequate secular education and/or denigrates a secular or LGBTQ+ parent.
As discussed in the next section, allowing one parent to choose a school that denies the child a secular education not only contravenes well-established matrimonial law precedent but conflicts with New York’s educational and matrimonial laws.
III. A Child’s Right to Education Is Clear Under New York Law
New York Education Law provides specific requirements for the minimum education that all schools, whether public or private, must meet for children between ages 6 and 16. A private or religious school does not have to provide the same education as that of the local public school, but to be considered adequate, it must provide educational instruction that is “substantially equivalent” to that provided by the state.
In the matrimonial law realm, the controlling precedent is captured in In re Auster, a case from the 1950s that is often overlooked. In Auster, New York’s highest court, the Court of Appeals, affirmed the trial court’s holding concerning a Hasidic father who had placed his son in a yeshiva that had failed to meet the Education Law’s minimum standards. The court held that the father must “comply with the State Education Law” by placing the child in an alternative school that would “provide for the boy the systematic secular education in the eleven basic subjects required,” or otherwise surrender custody to the child’s mother. The court gave the father two weeks to comply with its decision, a period of time that seems short for a school transition but that underscores the grave importance of not letting time pass without the child receiving a basic secular education.
Despite this holding, in the author’s experience it is unusual for lower courts to rule in line with Auster by explicitly factoring in compliance with the Education Law when determining which custody arrangement serves the child’s best interest. Unfortunately, custody decisions are rarely published. Far too often in individual cases of Footsteps members leaving ultra-Orthodoxy, judges have failed to give adequate weight to the value of a secular education or to educational law requirements in conducting the best interest of the child analysis.
One noteworthy case published in 2004 has facts substantially similar to those frequently faced by Footsteps parents. In Pinches O. v. Florence P., the trial court rejected the father’s choice of yeshiva upon finding it was “woefully below the state standard.” The yeshiva at issue in Pinches was typical of what is seen in failing yeshivas today. The yeshiva provided only a minimal amount of secular education, consisting of approximately one hour of secular instruction, four times a week until the end of sixth grade, and even then only a quarter of the teachers had college degrees and teaching certificates. In contrast to this school, the noncustodial mother had proposed that the child attend a yeshiva that had “a broader secular studies program,” which the court found would be in her son’s best interest because the child would have “much greater options”: “He would be prepared to attend a yeshiva with a secular high school program and could attend college, if he chooses to do so.”
Other relevant published case law concerning educational decision-making concerns inadequate homeschooling where courts have found it in a child’s best interest to award educational decisions to a parent who proposes a program that complies with educational standards.
New York State’s child neglect case law is also consistent with Auster in upholding neglect findings when parents fail to show that their homeschooling complies with Education Law requirements. If failing to meet the Education Law requirements constitutes child neglect, then similar conduct in child custody matters cannot be in the best interest of the child.
Moreover, aligning the best interest of the child standard with the state’s education and child neglect law requirements is consistent with statutory interpretation principles that require courts to “harmonize the various provisions of related statutes” to construe them to be as consistent as possible. Such alignment is particularly important when, as here, the well-being of a child is at stake and when the state has conferred a right to education upon all children. While a religious constancy is also a factor to consider in the child’s well-being, the courts should favor alternative means to preserve religious observance without sacrificing the child’s education and intellectual development.
Making sure that children receive an education is a matter of public importance and a “paramount State concern.” The New York Constitution contains an education article that further supports the idea that every child has a right to a basic education. The state has an obligation to provide “the opportunity of a sound basic education,” which includes “basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” The core purpose of this education is to ensure “meaningful civic participation in contemporary society,” which includes the ability to compete for jobs that “require a higher level of knowledge, skill in communication and the use of information, and the capacity to continue to learn over a lifetime.” For this reason, neither parent should be permitted to hinder their child’s access to education.
Federal law similarly supports the importance of a child receiving a basic education as necessary for the common good, and courts have held that this requirement does not conflict with the fundamental freedom of parents to select the type of schools that will educate their children. In Wisconsin v. Yoder, the Supreme Court held that the Amish parents’ First Amendment right to free exercise of religion outweighed the state’s interests in compelling school attendance beyond the eighth grade. The Court’s ruling rested in part on uncontradicted expert witness testimony that the Amish order’s religious devotion to farm life conflicted with the values of intellectual development and competitiveness taught in high school and that “an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve” the state’s interest in preparing individuals to be “self-sufficient participants in society.” The scenario in Yoder is easily distinguished by the fact that in the cases at issue here, one parent is requesting a secular education and, moreover, the ultra-Orthodox yeshivas discussed here do not prepare their students to be equipped to “reject public welfare in any of its usual modern forms,” as the Yoder court found of the Amish “informal vocational education” program.
New York’s failure to implement its own educational standards or even minimally inspect and regulate religious yeshivas has been the subject of increased investigation and public attention. In June 2023, after an eight-year, much-stalled, frequently impeded, and often politicized investigation, New York City officials determined that more than a dozen private Hasidic schools had broken the law by failing to provide their students with an adequate secular education. As a result of this investigation, the state Education Department will pursue these findings while the city continues to investigate the vast number of similarly situated schools. The state education commissioner has also increased enforcement efforts to ensure that yeshivas comply with state law, while the New York State Board of Regents approved new regulations in 2022 with consequences for schools that fail to provide a basic education. Historically, there has been political allyship between religious school leaders and past and present New York City mayors and state officials, and enforcement of educational standards has been noticeably weak. Reforming these failing yeshivas to meet educational standards will take significant community will and efforts, as well as considerable government support and oversight.
Regardless of the extent of widespread reform of yeshivas, in custody disputes when an individual parent brings the court’s attention to their child’s school’s failure to meet the educational standards or a child’s academic or socio-emotional needs, such allegations should be given the utmost priority. Unfortunately, in Rockland County and Kings County custody disputes, this is rarely what has happened.
IV. Educational Decision-making in Practice
The applicable legal standards and precedent are clear and unequivocal. The hitch is how, in practice, judges regularly overlook these standards and, over the objection of one parent, assign or leave children in religious schools that fail to adequately educate them and that disparage the parent who has left ultra-Orthodoxy. While political influence may be one factor in these determinations, considering it determinative would be far too oversimplified an answer, and an analysis of that issue is beyond the scope of this article.
Generally, in our experience, in a custody dispute, if a judge orders a child to remain in a failing yeshiva, it is a result of one of three different scenarios. First, if educational decision-making is awarded to the ultra-Orthodox parent, the court will not disrupt that parent’s choice when the parent prioritizes religious learning to the exclusion of an adequate secular education. Second, when the parents have joint custody and the child has been attending a yeshiva prior to the demise of the marriage, the court will order the child to remain in that school or a similar ultra-Orthodox one based on maintaining consistency in the child’s life, including avoiding disrupting relationships with childhood friends and classmates. Lastly, when the secular parent has custody, the court acquiesces to the noncustodial religious parent’s assertion that the child’s extended religious family or community will reject any child who attends a public or Modern Orthodox school that does not require strict adherence to religious orthodoxy.
All three of these scenarios may seem sensible on the surface—but they ignore the reality of the inadequacies of the education provided at some ultra-Orthodox schools and the impact of those inadequacies on the child. In practice, the outcomes in these scenarios ignore established Family Law and Education Law precedent, contravene public policy, and fail to appreciate the detrimental, life-long harm to the children. All three of these scenarios regularly play out in Footsteps members’ cases.
Weichman v. Weichman, a case in which I served as co-counsel, involved a Footsteps mother who sought to move her son into a school where he could obtain a basic secular education. The religious father wanted the child to remain at a yeshiva that was not providing one. The Brooklyn trial court agreed with evidence that the son’s yeshiva fell substantially below the New York State Education Law Standards, noting that:
The course of study at the Yeshiva consists primarily of Judaic studies with one and [a] half hours per day devoted to reading and math. The school does not provide many of the courses required under the New York Education Law. There are no Regents level courses, and there was no proof adduced at trial to show that the teachers are board-certified. After the eighth grade, [the son] will not receive instruction in any secular courses at his current Yeshiva, and he will not attain a state-recognized high school diploma.
Nonetheless, the court awarded the father sole custody, including educational decision-making authority, over the mother’s objections. Its decision rested in part on the fact that the parents had initially agreed that the son would attend this school and the mother’s tutoring of her son in math and English at home had “diminished the effect of any perceived deficiency” in his education. The court opined that the evidence showed the son had “received an excellent foundation for learning up to now,” had received strong grades from the yeshiva, and “presented at the in camera interview as a disciplined, thoughtful, confident and articulate young man” with many friends, who “thoroughly enjoys the Yeshiva he currently attends.”
Despite the strong evidence presented concerning the inadequacy of the school’s secular educational program, the court concluded that it was in the son’s best interest to remain in the religious school. The court found that the mother had not presented sufficient information “of a particular school with a program, or course of study, that presents benefits that outweigh the risks involved with transitioning [the son] to a different school environment” and that “[a]t nearly thirteen (13) years of age, [the son] presents as a happy, thoughtful and well-adjusted young man.” There was no discussion of the state’s responsibilities or the child’s right to receive a sound basic education as New York State has codified in its Education Law, and no suggestion of providing an opportunity for the mother to present alternative, qualified religious or secular schools to the court. Furthermore, the court directed that 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.”
Working with pro bono counsel from Davis Polk, we appealed the case to the Appellate Division of the Second Judicial Department. The appellate court struck as unconstitutional the part of the trial court ruling that sought to restrict the mother’s activities with her son because:
Such restrictions on a parent’s ability to “express oneself and live freely” go beyond requiring a noncustodial parent to support and enable the child’s religious practices, and impermissibly infringe on the noncustodial parent’s rights.
However, it left the religious school holding intact with only minimal scrutiny—and without serious consideration of the New York State Education Law and policies, which we had briefed extensively. The entirety of the Appellate Court’s consideration of the son’s educational needs was contained in a single paragraph:
Ordinarily, absent an agreement, the custodial parent has the right to make educational decisions for a child. Nevertheless, “it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent.” Here, there was a sound and substantial basis for the Supreme Court’s determination to award the [religious father] decision-making authority on the issue of the child’s education. The child had been enrolled in the same yeshiva since he was two years old, where he was doing well socially and academically, and the plaintiff failed to establish that her desired plan of enrolling the child in a different type of yeshiva or a public school would be in the child’s best interests.
The fact that the son appeared to be doing well socially and academically at a failing school overrode any real consideration of New York State Education Law and standards.
This failure to value secular education as mandated by state law over maintaining the status quo of religious education is typical of what we see in Footsteps members’ cases. We next partnered with pro bono lawyers from Quinn Emanuel and sought to have the Appellate Division’s ruling reviewed by New York’s highest court, the Court of Appeals. Unfortunately, that court denied leave to appeal, and the son will soon complete his yeshiva education without having ever learned basic math, geography, scientific principles, or how to write an essay.
In Weichman, the trial court had noted that the mother did not present as strong an alternative plan for her son’s schooling as the court thought necessary. However, even when Footsteps members have presented substantial evidence of alternatives to yeshivas, the courts have not always been receptive. Footsteps regularly provides our members with the service of educational consultants who can assess an individual child’s educational needs, identify and review individual schools, and collaborate with families to come to find a solution where the child can obtain a basic secular education.
While this has given formerly ultra-Orthodox parents some assistance in identifying and offering several school options, it often does not result in the courts allowing a parent to move their child out of a failing yeshiva, even when that parent has primary custody.
Esther is another Footsteps mother whose case represents such a scenario. She worked extensively with an educational specialist who identified several alternative religious and secular schools that would be appropriate for her preteen child, had space to admit her, and would offer affordable tuition and/or financial aid. Switching her child out of a failing Brooklyn yeshiva and into one of these schools would not only give the child a stronger secular education but would enable Esther to move into subsidized housing in Manhattan that was nearer to the university where she was pursuing an advanced degree. Esther’s child would still be able to maintain visitation with the noncustodial father who earlier had largely removed himself from her life.
In an order issued just two weeks before school would begin, the Brooklyn Supreme Court judge stated that the court had considered several options that the mother had offered, noting that the educational expert had described them each as “superior academically, technologically, in their enrichment and afterschool programs than” the child’s yeshiva. The court also recognized that:
It is alleged that these schools offer more diversified curriculums and opportunities for learning for [the child]. This is in sharp contrast to [the] current school where they allegedly employ unskilled teachers who lack college degrees, have very limited technology for the students and do not permit internet access.
Despite all this expert testimony, the court held that it lacked enough information to make “a very important and perhaps life changing decision for the child” before the start of the school year. Although the child was preteen age, the court afforded heavy weight to the child’s view; as conveyed by the Attorney for the Child’s statement, the child was “adamant that [the child] does not want to leave [the] current school, teachers and friends at [the school] where [the child] feels a sense of community and security.” At no point did the decision discuss the importance of having a strong secular education, New York’s Education Law, nor applicable legal precedent. Ultimately, the court ordered a forensic evaluation and further argument, and ordered the child to continue to attend the failing yeshiva in the interim. The child remained in the ultra-Orthodox school for another year while the mother ultimately settled the case in a way that left open a potential pathway forward to a more sufficient secular education in the future when the child finished elementary school at the yeshiva.
While considering a child’s opinion and desire for stability is important, as is promoting settlement between the parties, the complete disregard for precedent and the value of secular education is contrary to the child’s best interest. A child is often not able to adequately comprehend their own need for a basic education and, moreover, the child’s desire for continuity and/or to please adults in the religious community means that their expressed preference to stay at a failing yeshiva should not be given substantial weight.
Frequently the delay in resolving highly contested matrimonial cases can mean a loss of years of education for children ordered to be kept in failing schools. Factor in that the courts’ heavy docket load often means a several month lag time between hearings, as well as trial dates that do not align with the school calendar, and real harm is done to children who miss key educational years.
Additionally, harm is done by yeshivas’ school rules that enforce religious tenets at home. In Footsteps’s experience, school rules for Hasidic yeshivas typically order parents to abide by ultra-Orthodox religious tenets themselves, in their own home, and regardless of the parent’s own religious beliefs. This often includes a requirement that each parent sign a form attesting to such practices as not having a computer with internet accessibility in the home, or that if there is a computer for business purposes, it has a religious-authorized filter for the parents and is never used by the children. School rules generally forbid students from having access to any secular books, disallow pets or certain secular toys in the home, and always require compliance with ultra-Orthodox religious norms in order to maintain school enrollment. When a court orders a child to remain in a religious school, both parents must follow the school rules or risk the child being expelled. The result is either infringement upon a secular parent’s constitutional rights or school disciplinary action against the child.
In our experience, school officials as a general practice limit or entirely avoid communication and cooperation with a secular parent. Children with one secular parent may be pulled out of class for one-on-one religious counseling as an effort to compensate for a parent’s lack of conformity with the ultra-Orthodox religion.
For example, in Miriam’s case, the stigmatization of her being a lesbian was exacerbated by her son’s school rules that considered homosexuality a “sin.” Miriam’s son’s ultra-Orthodox yeshiva was typical in that it promulgated religious tenets that denounced secular life and homosexuality. This created severe tension in his relationship with his mother, the custodial parent.
Furthermore, the school rules required Miriam to dress “modestly” at all times, which would include specific lengths for skirts, sleeves and collars, head coverings, and shoes. Because she was not ultra-Orthodox, Miriam would not be welcome to attend parent events and celebrations at her son’s school. When Miriam’s son was struggling in school, religious authorities there rebuffed her efforts to work with them, ultimately expelling her son without directly informing her.
If the best interest of the child is paramount, allowing the school rules to enforce religious norms upon the non-Orthodox parent or to create a conflict with the child-parent relationship does not achieve that goal. Not only was Miriam’s son’s school’s attitude toward his mother contrary to his best interest, it also conflicted with legal precedent that holds it is against children’s best interests to have a parent be forced to “categorically conceal the true nature of her feelings and beliefs from [her religious child] at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.”
These rules also may infringe upon the constitutional rights of the less-religious parents; indeed, the appellate courts have been clear that a parent may not be forced to follow religious norms as a precondition of maintaining custody or visitation with their child and that anti-LGBTQ+ bias by a religious parent or community may not be used to justify interference with the parental relationship.
Weisberger v. Weisberger was a significant ruling in 2017 in which the Second Department overturned a trial court order that had abruptly removed three children from their lesbian, secular mother after the father complained about, among other things, her “com[ing] out publicly as a lesbian” and having a transgender friend stay in her home. The parents’ divorce settlement had included a beit din agreement to raise the children religiously. The appellate court found it unconstitutional to “compel any person to adopt any particular religious lifestyle” and protected the mother’s constitutional Due Process rights, stating:
To the contrary, “[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise”. Thus, a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely.
However, the appellate court then carved out educational decision-making and awarded it to the religious father. The court’s rationale was that it may not be in a religious child’s best interest “to become completely unmoored from the faith into which they were born and raised.” The court inappropriately sought to enforce the children’s ultra-Orthodox religious practice by allowing the father to send them to a yeshiva even while the mother who was the primary custodian had less Orthodox practices in the home. The court also ignored the impact of its decision on the children’s access to secular education. Because the father chose to keep the children in ultra-Orthodox schools, their secular education suffered significantly; however, upon becoming a teenager, the eldest daughter “personally asked a state judge for permission to attend a Manhattan public school.”
“[T]he Constitution guarantees that [the] government may not coerce anyone to support or participate in religion or its exercise. . . .” Yet some courts are allowing school rules to force religious norms onto a secular parent through requiring a parent to maintain their child’s religious upbringing in accordance with yeshiva rules that conflict with the parent’s own values and identity. By doing so, the court “violates a parent’s legitimate due process right to express oneself and live freely.”
Ordering a child to remain in the religious school that the child had attended prior to the parents’ divorce may give the impression of being the least disruptive solution in contested custody cases. However, it may do lifelong harm by denying the child a basic secular education and, moreover, by putting a wedge between that child and the less religious parent, who is stigmatized by the religious school authorities and by the curricula taught.
There is no denying that divorce is disruptive in a child’s life, but that disruption does not warrant requiring a child to remain in a failing religious school. Maintaining consistency in a child’s life cannot override the child’s, parent’s, and state’s long-term interest in education. A far better approach is needed.
V. Steps for Reform
Correcting the current situation does not require a major overhaul of custody law. However, it does require judges to recognize and appropriately enforce existing legal standards in child custody cases involving disputes around educational decision-making when one parent has left ultra-Orthodoxy.
First, as discussed above, case law already clearly supports every child’s right to a “sound basic education,” and the state’s obligation to ensure that education is attainable. New York’s law and policy concerning education, child custody, and child neglect standards protect and promote children’s educational opportunities and intellectual development. When one parent is availing upon the courts to remedy a situation where their child is being denied an adequate secular education, the state’s obligation to assist in meeting that goal is particularly acute.
The reforms discussed here concern how courts decide educational decision-making on behalf of individual children in custody disputes, as opposed to the question of how to address the quality of education at ultra-Orthodox yeshivas that fail to meet state educational standards (which is beyond the scope of this article). In child custody cases, the court is solely being asked to determine which parent is better able to make educational decisions that are in the best interest of the child.
What is most urgently needed, and perhaps the most difficult hill to climb, is a change in judges’ approach to analyzing the educational component when performing a best interest of the child analysis. In custody cases involving formerly ultra-Orthodox parents, the reform needed is for courts doing a best interest of the child analysis to weigh heavily access to secular education, and to award educational decision-making to the parent whose educational choices most closely align with state educational, child neglect, and matrimonial laws.
One common fallacy is that ultra-Orthodox children need to have religious education but that secular knowledge is extraneous for them if they are going to spend their adult lives in the religious community. This myth has been harmfully perpetuated by religious leaders who see no need for secular education and has even been adopted by judges who fail to take steps to enforce the child’s right to an education. Moreover, in the long term, the lack of exposure to the minimum educational requirements established by the state locks children into ignorance and does not prepare them for their “place in society.” Judges must recognize that a secular education is both mandated by law (even for the most religiously observant Orthodox families) and essential for free decision-making upon reaching adulthood. This right vests in the child and must be rigorously protected by the courts when the parents fail to do so.
Whether a child’s private religious school is meeting substantial equivalency standards and providing that child with an adequate secular education can be easily measured in custody cases. Courts must put the burden on the parent with educational decision-making authority to demonstrate that the school they have chosen is providing an adequate secular education for their child, in line with New York’s educational requirements. If the other parent disputes this claim, the parent with educational decision-making authority should be required to provide substantial evidence concerning curriculum, teacher qualifications, and the pathway to higher education. The other parent then may submit testimony to rebut this evidence and to suggest alternatives that would better meet the child’s best interest.
The court’s role is not to pick a school but to determine which parent is better able to be the custodial parent who ensures the child gets a basic secular education in line with state law. Courts must conduct these proceedings with due haste because the timeline of judicial proceedings frequently means that children can miss an entire year of schooling, if not more, while waiting for a court’s decision.
In addition to providing a basic secular education, a child’s school must be shown to be cooperating with both parents. Judges need to take seriously a secular parent’s claim that a particular religious school curriculum, school staff, or other members of the school community berate or otherwise demean those who do not strictly conform to religious tenets. In our experience, it is all too common for yeshivas to teach curriculum that equates a lower level of religious observance or LGBTQ+ identity as a “sin.”
As discussed above, this bias echoes through the school community. In Footsteps members’ experience, too frequently, classmates’ parents will not allow their ultra-Orthodox children to attend playdates at the secular parent’s house. Incidents of schoolmates bullying or harassing children with secular or LGBTQ+ parents are not uncommon. Secular parents are not permitted to attend or welcomed at school events; women who do not dress according to religious traditions are not permitted inside buildings for parent-teacher conferences or school celebrations.
Often courts will accept the religious parent’s assertion that if the child does not attend a yeshiva, then the child’s extended family and community will reject the child. Even a child who maintains religious orthodoxy while attending a public or Modern Orthodox school will be rejected by the religious community. However, it should never be a child’s burden to maintain religious compliance simply to win acceptance from his or her own parent or extended family.
Furthermore, the best interest of the child standard rewards the parent who is best able to foster a friendly relationship with the other parent and the extended family; this puts an obligation on the religious parent to welcome their child whether that child maintains a strict Orthodox upbringing or is more secular. A child should never be pressured to maintain religious norms as a precondition to being accepted by their religious parent or extended family.
While continuity of ties with the religious community certainly is a factor to weigh in the determination, it cannot come at the expense of the relationship with a secular parent. Far too often, courts have treated religion as a “third parent” and preserved the child’s religious upbringing at the cost of that child’s relationship with the more secular parent. This not only harms the child but also infringes upon a secular parent’s constitutional rights.
In sum, courts must avoid over-valuing maintaining the status quo at the expense of harm to children’s education and their relationship with the less religious parent. At Footsteps, we have seen children thrive when families work together to create a pathway for children to transition between two parents with vastly differing values and beliefs. As all children of divorce do, these kids do their best to navigate between two worlds successfully. It is the court’s role to do what they can to make it possible for all such children to succeed at this and to preserve relationships with both parents to the greatest extent possible.
For Practitioners
What the courts must do is straightforward; however, getting there will take strong advocacy from practitioners representing parents who have left ultra-Orthodoxy. This section provides suggested steps intended to be helpful at the trial court level.
First, practitioners can invoke the state educational requirements that are cited here. Cases such as Auster and Pinches demonstrate how these standards have been implemented successfully in contested custody cases.
Next, an educational expert can be extremely useful to evaluate the individual educational needs of each child in the litigation and to assist in identifying appropriate school options. In our experience, it can be exceedingly difficult to gain access to visit inside an ultra-Orthodox yeshiva and/or to obtain information about curriculum or teacher qualifications. In New York, most ultra-Orthodox yeshivas do not have even basic websites or other publicly available information. In such situations, judges must place the burden of providing this information on the parent who is advocating for the child to attend the yeshiva. If a school will not let a parent and/or their educational consultant inside the facility or answer questions about curriculum, it should be argued that the school cannot be considered appropriate for the child because it is not welcoming to the less-religious parent. The less religious parent also may present evidence of an alternative yeshiva, Modern Orthodox school, or public school that meets educational standards, including evidence about curricula, teacher credentials, and where students go upon graduating.
Judges understand that children of divorce move between two different homes and lifestyles all the time, often with changes in levels of religious observance. Practitioners can submit testimony from therapists and other specialists showing that it may be far more harmful for a child to lose a relationship with a secular parent rather than experience a change of religious observance. At Footsteps, we have too often seen noncustodial parents driven away from their children by religious leaders or extended family who view the parent’s secularity as a harmful influence on the children. Once a child is age 13, the religious pressure increases dramatically after a bar or bat mitzvah ceremony, and restoring the relationship with the less Orthodox parent is even more challenging.
Children who have been attending an academically failing school may need a period of slow transition, supported by both parents, to successfully transfer to a school providing an adequate secular education. Practitioners can encourage the court to assist parties in reaching this goal and acknowledge that this transition may come at the cost of some yeshiva friendships and school familiarity, but the long-term benefits are vital. This may be one of the more difficult challenges to the current thinking and will require coordination with anyone who serves as an Attorney for the Children and any forensic psychologist assigned to the case.
Therefore, practitioners must alert the Attorney for the Children and forensic psychologist to the role that schools and community members may play in pushing for the child’s continued religious observance at all costs, and the enormous pressure this places upon children. This requires a greater recognition of the negative impact on a child when a school or extended family member stigmatizes or ostracizes a child’s parent. In Footsteps’s experience, often when a divorce commences, a religious parent has become more compliant with religious tenets than previously. It’s important to provide evidence of a child’s experience with their less religious parent, who may not have been strictly observant for a period of time prior to the divorce commencing. For example, presenting family photographs has helped Footsteps parents to combat the impression that during the marriage, a family maintained a strictly religious lifestyle if, as in many cases, the family was less strictly religious when in the privacy of their own home. Credit card and bank receipts of both parties have been used to demonstrate this, for example, showing that a family ate nonkosher food or did not observe Sabbath regularly or while on vacation and contradicting a religious parent’s assertions about the family’s lifestyle during the marriage.
Finally, practitioners must highlight their client’s and the children’s constitutional rights that are at issue in these cases, as discussed earlier in this article. While Kings County and Rockland County courts have not always been welcoming of such arguments, the Second Department has enforced these constitutional rights in recent Footsteps cases and, in some instances, an appeal may be necessary.
If courts cannot evolve quickly enough, it is possible that the legislature will need to step in. One proposed solution is a bill introduced by Senator Hoylman-Sigal in January 2024 that would amend New York’s Domestic Relations Law. The bill is a very positive step in the right direction. It requires a court determining the child’s best interests in custody matters to consider evidence that a child is enrolled in a nonpublic school that fails to meet the “substantial equivalence” requirements of New York’s Education Law. Moreover, in this circumstance, the bill creates a non-rebuttable presumption that it is in the best interest of the child for the parent who chooses a school that meets state Education Law requirements to have educational decision-making authority. To avoid a child’s education being further compromised by a delay in judicial proceedings, the proposed law would also require a court to issue its order within 30 days of any evidence of noncompliance with the Education Law requirements being presented to the court.
The bill, advocated for by Yaffed and named “Beatrice’s Law” after its Executive Director Beatrice Weber, who faced protracted custody litigation over her son’s access to a secular education, is supported by Footsteps. Because, as discussed above, the investigation into yeshivas and the implementation of the regulations have been lacking, a parent may need to engage an educational expert and request a hearing from the court to establish that the child’s yeshiva is not compliant. While there is much resistance among judges and attorneys for legislating standards around custody determinations, the harm being done to children in these cases may make this an exception.
Regardless of whether this bill passes, it underscores the need for judicial reform in child custody proceedings around educational decision-making when one parent has left ultra-Orthodoxy. First, when judges conduct their best interest of the child analysis, they must give substantial weight to whether there is significant evidence that the child’s school complies with the academic requirements of the Education Law. This analysis must be conducted while bearing in mind the deficiencies in Hasidic yeshivas that have been well documented in recent years, as well as the individual child’s needs. Next, in addition to the academic standards, the court must consider whether a religious school is able to welcome and be inclusive of a less religious or secular parent.
Conclusion
Consistent with the state’s requirement to provide an opportunity for children to receive a “sound basic education,” judges presiding over custody disputes must be proactive in insisting that parents select a school that provides any child with a sufficient secular education. Rather than engaging in selecting a particular school for a child to attend, the court’s role is more appropriately to award educational decision-making to the parent who is best able to ensure that the child attends a school that provides a basic secular education that meets state education standards and that fosters friendly relationships with both parents.
In sum, the courts must first prioritize ensuring that all children in contested custody cases are getting an adequate secular education. Furthermore, the court must consider whether the selected school is welcoming of both parents and does not disparage either parent’s life choices. Finally, where appropriate, the court can enforce ways for the child to maintain ties to the religious community and practices, but not at the expense of the child’s education or when it harms their relationship with their secular parent. Doing so is not just the law, but is in the life-long best interest of the child.
