Consequences of an Interfaith Divorce

Few experiences are more draining and painful than divorce. Few topics engender as much emotion and rancor as arguments over religion. And few acts of government become more emotionally charged than court decisions about how parents can raise their children. So, for a really nasty fight, what could be better than combining all of these into one big mess?

Recently, local news reports have covered the divorce of Joseph and Rebecca Reyes. Joseph was raised Catholic and Rebecca is a Jew. After the marriage and the birth of the couple's daughter, Joseph underwent a conversion ceremony and joined the Jewish faith. When one of the parties filed for divorce (the Clerk's site has two separate case numbers listing each of the parties as a petitioner for divorce), Joseph apparently decided that he wished to return to his Catholicism and bring his daughter (now about three years old) with him. The trial judge ordered custody of the child to Rebecca. When Joseph took the child to be baptized and sent pictures to Rebecca, the trial judge issued a restraining order barring Joseph from involving the child in any religion other than Judaism.

Joseph, who is a law student at John Marshall Law School in Chicago, not only defied the court's order, but brought a camera crew with him when he again took the child to a Catholic church. The wife's lawyers, predictably, asked the court to hold Joseph in criminal contempt of court. Joseph, now represented by Joel Brodsky (Drew Peterson's lawyer), moved to have the case transferred from the trial judge, Judge Jordan, and it was reassigned to Judge Loredo-Rivera. One cannot help but wonder whether Judge Jordan's Jewish-sounding last name was at least part of the impetus for the transfer request.

The case, despite what some pundits seem to think, does not really present any particularly complicated legal issues. Joseph claims that he defied the court's order to challenge the constitutionality of a restraining order barring him from exposing his daughter to Catholicism. Although he had already challenged this in the appellate court and lost, perhaps he believes that a criminal contempt conviction will get a greater degree of review. Various legal commentators have opined on TV news that Judge Jordan's actions were “unprecedented,” “exceeded his authority” and inappropriate because the child is too young to appreciate the significance of any particular religious ceremony. This is pure nonsense.

The Illinois Marriage and Dissolution of Marriage Act (which controls child custody in these situations) quite clearly gives judges the authority to make decisions regarding a child's religious experiences. The Act allows a court to issue a joint parenting order and requires that such order specify “each parent's powers for major decisions such as education, health care and religious training.” 750 ILCS 5/602.1(b). In cases of sole custody, the judge maintains a supervisory authority over whether “the custodian may determine the child's upbringing, including...religious training." §608(a); see also In re Marriage of Nuechterlien, 225 Ill. App. 3d 1 (4th Dist. 1992) (upholding custodial parents power to decide religious upbringing of children even when a pre-nuptial agreement gave that decision to the other party). Thus, Illinois law quite clearly contemplated a situation where parents did not agree on religious observance for a child, and gives judges authority to make those determinations when a child is split between two parents.

The likely Constitutional arguments are easily dismissed. The restraining order in this case is not state sponsorship or establishment of religion; it is the enforcement of a custodial parent's right to make decisions for the child regarding religious upbringing. In fact, Illinois courts have upheld orders that mandated a non-custodial parent bring a child to worship services of a religion different from his own. See In re Marriage of Tisckos, 161 Ill. App. 3d 302 (4th Dist. 1987) (upholding against 1st Amendment challenge an order compelling a non-custodial father to bring his child to catholic services when the father was a baptist).The courts reason that the such an order does not favor a religion, but affirms the power of the custodial parent. Nor does such an order suppress Joseph's religious freedoms; he can go to church all he wants, so long as he does not bring his daughter.

It does not take great legal scholarship to understand why the courts must affirm the decisions of custodial parents in these situations: the alternative would be anarchy and could result in tremendous harm to a child. For example, a child goes to a church where he learns that those who do not accept Jesus as their savior will burn in hell, while simultaneously attending a synagogue with the other parent that explicitly rejects the notion of Jesus as the Messiach. Needless to say, a bit of a contradiction.

Adults have a difficult enough time navigating a world with contradictory religious beliefs, to expect a child of divorced parents to do so is absurd. Unfortunately, this sort of contested situation becomes a zero-sum game: the right of a parent to control a child's religious training necessarily implies a limitation on the non-custodial parent's ability to expose the child to his or her faith. There is really no other option; to allow a non-custodial parent to do as he or she wishes would render the custodial parent's authority meaningless in these situations.

It may be tempting to suggest that perhaps that perhaps Joseph should not be subjected to criminal contempt sanctions. After all, what harm could a trip to a church do to a little girl who hardly understands any sort of religious practice? The answer, of course, is that it is irrelevant. Criminal contempt sanctions exist precisely to vindicate the authority and dignity of the court. The harm to the child or the custodial parent is not the issue. By openly defying the restraining order, Joseph challenged the power of the court, and a system of justice cannot abide such actions on the part of litigants. Judge Loredo-Rivera should absolutely impose a sanction on Joseph to set an example for other contentious divorce litigants.

While Joseph may contend that he wishes to challenge the judge's legal authority to impose the restraining order, the proper way to do so is by appeal to a higher court. As a law student, he should certainly be aware of this. Indeed, he has already challenged the ruling and lost at the appellate court level. Instead of appealing to the Illinois Supreme Court, he defied a court order and now must face the possibility of jail time. This may come back to haunt him when he applies to the Character and Fitness Committee for permission to sit for the bar exam.

While it is doubtless galling for a divorced parent to lose the right to raise a child in his or her faith-tradition, a decision must be made when the parents cannot agree. Should Joseph receive a punishment for his actions, I have no doubt that all manner of idiots will come out of the woodwork to claim that the government is stuffing religion down people's throats—or worse, that ill-defined Jewish machinations control the court system to oppress Christians. Some in the Jewish community will no doubt use this case to trumpet the evils of intermarriage. Many will have something to say, few will have anything useful to tell the little girl trapped in the middle.