WHEN RELIGION AND LIFESTYLE CONFLICT IN DIVORCE

Weichman v. Weichman, 2021 NY Slip Op 6211 - NY: Appellate Div., 2nd Dept. 2021:

"DECISION & ORDER

ORDERED that the interlocutory judgment is modified, on the law, by deleting the provision thereof directing that the plaintiff, during her periods of parental access, "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"; as so modified, the interlocutory judgment is affirmed insofar as appealed from, without costs or disbursements.

The parties were married in 2005. There is one child of the marriage, born in 2006. The child was raised in accordance with the parties' Orthodox Jewish Chasidic faith and attended an Orthodox Chasidic yeshiva from the age of two. In March 2015, the plaintiff commenced this action for a divorce and ancillary relief. The plaintiff identifies as a member of the LGBTQ community, and considers herself an Orthodox Jew. Following a trial on the issues of custody and parental access, the Supreme Court issued a decision awarding the defendant sole custody of the child, with the plaintiff to have specified periods of parental access. The court imposed certain restrictions on the plaintiff's periods of parental access, including a requirement that: "The [plaintiff] 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. Thus, the [plaintiff] shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square."

An interlocutory judgment dated February 13, 2020, was issued, incorporating the provisions of the decision after trial. The plaintiff appeals, challenging only the Supreme Court's failure to award her decision-making authority on the issue of the child's education, and the first sentence of the restriction quoted above.

Ordinarily, absent an agreement, the custodial parent has the right to make educational decisions for a child (see Matter of De Luca v De Luca, 202 AD2d 580, 581). Nevertheless, "it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent" (Matter of E.D. v D.T., 152 AD3d 583, 584 [internal quotation marks omitted]; see Cohen v Cohen, 177 AD3d 848, 851-852; Chamberlain v Chamberlain, 24 AD3d 589, 591). Here, there was a sound and substantial basis for the Supreme Court's determination to award the defendant decision-making authority on the issue of the child's education (see Matter of E.D. v D.T., 152 AD3d at 584). 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 (see Weisberger v Weisberger, 154 AD3d 41, 54).

However, we agree with the plaintiff that the Supreme Court's direction that, during her periods of parental access, she "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" must be vacated.

In the absence of a written agreement, the custodial parent may determine the religious training of a child (see Cohen v Cohen, 177 AD3d at 853; Matter of Cook v Rabinowitz, 5 AD3d 594, 594; Matter of De Luca v De Luca, 202 AD2d at 581). Consistent with the children's best interests, courts may properly direct noncustodial parents, during periods of parental access, to respect the children's religious beliefs and practices and make reasonable efforts to ensure the children's compliance with their religious requirements (see Cohen v Cohen, 177 AD3d at 853; Matter of Indig v Indig, 90 AD3d 1050, 1051; Matter of Ervin R. v Phina R., 186 Misc 2d 384, 393 [Fam Ct, Kings County]). However, as this Court explained in Weisberger v Weisberger (154 AD3d at 53), a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. "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'" (id., quoting Lee v Weisman, 505 US 577, 587; see Cohen v Cohen, 182 AD3d 545, 547). A religious upbringing provision "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" (Weisberger v Weisberger, 154 AD3d at 53, citing Obergefell v Hodges, 576 US 644, Lawrence v Texas, 539 US 558, 574, and Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 851). Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken (see Cohen v Cohen, 182 AD3d at 547; Weisberger v Weisberger, 154 AD3d at 53).

Here, the challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child's Orthodox Jewish Chasidic faith during periods of parental access. Nonetheless, we agree with the plaintiff that the breadth of the provision in forbidding her to "expose" the child to any activities which violate the child's Orthodox Jewish Chasidic faith has the same effect as the provisions this Court struck down in Cohen v Cohen (182 AD3d at 547) and Weisberger v Weisberger (154 AD3d at 53). The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child's faith during her periods of parental access, lest she "expose" the child to activities not in keeping with those religious requirements. The defendant's testimony at the trial supports this conclusion and demonstrates that he expected the plaintiff to "conduct herself in [the child's] presence according to the rules" of the child's faith. The defendant was especially concerned that the child would be exposed to people involved in a "gay lifestyle" and testified that, if the plaintiff became involved in a relationship with or married a woman, he would request that the partner not be present during periods of parental access because same-sex relationships are inconsistent with Chasidic religious principles. 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 (Weisberger v Weisberger, 154 AD3d at 53).

The plaintiff does not challenge the Supreme Court's direction that, during periods of parental access, she "shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square." That provision effectively addresses the plaintiff's obligation to ensure the child's compliance with his religious requirements during her periods of parental access (see Cohen v Cohen, 177 AD3d at 853). Accordingly, we modify the interlocutory judgment to delete the challenged restriction.

Motion by the respondent to strike stated portions of the appellant's reply brief on an appeal from an interlocutory judgment of the Supreme Court, Kings County, dated February 13, 2020, on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated June 28, 2021, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

DILLON, J.P., HINDS-RADIX, CHRISTOPHER and ZAYAS, JJ., concur."

RELIGIOUS DISCRIMINATION CLAIMS AT THE PLEADING STAGE

PATRICIA COCCA-RAU, Plaintiff, v. STANDARD INSURANCE COMPANY and STANDARD INSURANCE OF NEW YORK, Defendants., No. 19-cv-06149 (PMH). ,United States District Court, S.D. New York. July 22, 2020:

"Title VII of the Civil Rights Act of 1964 "makes it unlawful for an employer `to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-2(a)(1)). What exactly a plaintiff must allege at the pleading juncture for her Title VII case to survive a motion to dismiss has evolved, and it is appropriate for the Court to pinpoint the applicable pleading standards for a Title VII claim in the Second Circuit before turning to the merits of Plaintiff's claim.

The Supreme Court, in a 1973 landmark decision, adopted a three-stage, burden-shifting framework for analyzing employment discrimination claims under Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the first stage, a plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. at 802. A plaintiff can make such a showing by demonstrating that: "(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802). Second, once a plaintiff presents a prima facie case of employment discrimination, the burden of production shifts "to the employer to articulate some legitimate, nondiscriminatory reason for the employees'" adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Weinstock, 224 F.3d at 42 ("[T]he defendant may rebut [the plaintiff's prima facie] showing by articulating a legitimate, non-discriminatory reason for the employment action." (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981))). Third, if the defendant can articulate a legitimate, non-discriminatory reason why the plaintiff suffered an adverse employment action, the burden of production shifts back to the plaintiff "to show that [defendant's] stated reason for [plaintiff's adverse employment action] was in fact pretext." McDonnell Douglas, 411 U.S. at 804; Weinstock, 224 F.3d at 4 ("[T]he plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination.").

After McDonnell Douglas, for a plaintiff's Title VII claim to survive a motion to dismiss, a plaintiff's complaint had to allege facts constituting a prima facie case of discrimination. That pleading test was reviewed by the Supreme Court in 2002. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002). The Supreme Court, in Swierkiewicz, held that at the motion to dismiss stage "under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie [Title VII] case." Id. The Court rejected a heightened pleading standard and found that the initial phase of the McDonnell Douglas test set forth "an evidentiary standard, not a pleading requirement." Id. at 510. The Court observed:

Under the. . . heightened pleading standard, a plaintiff without direct evidence of discrimination at the time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such direct evidence. It thus seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.

Id. at 511-12.

The Court further held that this heightened pleading standard was in conflict with Fed. R. Civ. P. 8 which requires only that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 512 (quoting Fed. R. Civ. P. 8(a)(2)). When Swierkiewicz was decided in 2002, Conley v. Gibson was good law and provided the motion to dismiss standard of review for evaluating the sufficiency of claims in a complaint pursuant to Fed. R. Civ. P. 8 and 12. Under Conley's liberal pleading standards, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 355 U.S. 41, 45-46 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Apparently relying on Conley, the Swierkiewicz Court held that a plaintiff's Title VII allegations "must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512 (quoting Conley, 355 U.S. at 47). Therefore, the Court found that "conclusory allegations of discrimination" were enough for a Title VII claimant to survive a motion to dismiss. Id. at 514-15 (finding that because plaintiff "alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA" his claims could survive a motion to dismiss).

Subsequently, Conley's minimal pleading standard was reformed when the Court adopted a heightened plausibility pleading standard in Iqbal. See Iqbal, 556 U.S. at 669-70. Given that Swierkiewicz had relied on Conley to hold that a heightened pleading standard in Title VII cases was improper and in conflict with Rule 8, the continued clarity and use of Swierkiewicz's holding has become uncertain. The Second Circuit, in a pair of 2015 decisions, grappled with how to square Iqbal's heightened plausibility pleading standards with the minimal Title VII pleading standard adopted by the Court in Swierkiewicz.

The first occasion on which the Second Circuit addressed "whether Iqbal's requirement applies to Title VII complaints falling under the McDonnell Douglas framework" was in Littlejohn v. City of New York. See 795 F.3d 297, 309 (2d Cir. 2015). The Court found that Swierkiewicz's minimal pleading standard should be refined in light of Iqbal's plausibility pleading standard. The Court held:

[A]t the initial stage of the litigation—prior to the employer's coming forward with the claimed reason for its action—the plaintiff does not need substantial evidence of discriminatory intent. If she makes a showing (1) that she is a member of a protected class, (2) that she was qualified for the position she sought, (3) that she suffered an adverse employment action, and (4) can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation. . . .

Id. at 311. Therefore, in considering Swierkiewicz's minimal pleading standard and Iqbal's plausibility pleading standard, the Second Circuit kept in place the first three factors of the McDonnell Douglas evidentiary standard. However, as to the fourth McDonnell Douglas factor, the Court modified a plaintiff's pleading burden. Whereas stage one of the McDonnell Douglas evidentiary standard requires a plaintiff to present evidence showing "some minimal evidence suggesting an inference that the employer acted with discriminatory motivation," the Second Circuit in Littlejohn stated that, at the pleading stage and to survive a motion to dismiss, the facts included in a plaintiff's complaint must make it plausible that "the plaintiff. . . has at least minimal support for the proposition that the employer was motivated by discriminatory intent." Id. Stated another way, Littlejohn held that "[t]he facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation." Id.
The Court found that an inference of discrimination could arise in, at least, five circumstances including:

[1] the employer's criticism of the plaintiff's performance in ethnically degrading terms; [2] or its invidious comments about others in the employee's protected group; [3] or the more favorable treatment of employees not in the protected group; [4]or the sequence of events leading to the plaintiff's discharge. . . [5 or] when an employer replaces a terminated or demoted employee with an individual outside the employee's protected class.

Id. at 312-13 (internal citations and quotations omitted).

One month later in Vega v. Hempstead Union Free Sch. Dist., a separate panel in the Second Circuit again addressed a Title VII plaintiff's pleading requirement at the motion to dismiss stage in light of Iqbal's plausibility pleading standard. See 801 F.3d 72, 85-87 (2d Cir. 2015). In Vega, rather than apply the Littlejohn version of the four McDonnell Douglas factors at the motion to dismiss stage, the Court held that "under Iqbal and Twombly. . . in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision." Id. at 86. The Court therefore restated the McDonnell Douglas four-factor and Swierkiewicz tests at the pleading juncture in light of Iqbal.

As to whether a plaintiff's allegations are plausible, the court relied on the familiar fundamental plausibility principles: "[A] plaintiff must plead `factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,'" id. (quoting Iqbal, 556 U.S. at 678); "While `detailed factual allegations' are not required, `a formulaic recitation of the elements of a cause of action will not do,'" id. (quoting Twombly, 550 U.S. at 555); "[T]he court must assume the factual allegations in the complaint to be true, even if [they are] doubtful in fact, and a complaint may not be dismissed based on a judge's disbelief of a complaint's factual allegations," id. (internal citations and quotations omitted). Plausibility then is not probability, but rather requires only that the allegations give rise to an inference of discriminatory motivation that "nudge [the plaintiff's] claims across the line from conceivable to plausible." Id. (quoting Twombly, 550 U.S. at 570).

The Vega panel acknowledged that the minimal pleading requirement may be met by evidence of direct discrimination. Id. For example, an employer's policy that requires female employees to contribute more money to a pension fund than male employees is evidence of direct discrimination. See City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978). The panel also acknowledged that a plaintiff could satisfy her minimal pleading burden by alleging facts that create a "`mosaic' of intentional discrimination by identifying `bits and pieces of evidence' that together give rise to an inference of discrimination." Vega, 801 F. 3d 87 (quoting Gallagher v. Delayney, 139 F.3d 338, 342 (2d Cir.1998), abrogated in part on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). The court was cognizant that the discrimination a Title VII claimant faces may be elusive "because discrimination claims implicate an employer's usually unstated intent and state of mind, [and] rarely is there direct, smoking gun, evidence of discrimination." Id. (internal quotations and citations omitted). The Vega panel urged the district court to "draw on its judicial experience and common sense" to identify discriminatory motivation as "clever men may easily conceal their motivations." Id. (quoting Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir.1979)).

The Second Circuit emphasized the minimal burden on a plaintiff at the motion to dismiss stage to allege facts demonstrating discrimination and concluded:

At the pleadings stage, then, a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.

Id. at 87 (citing Littlejohn, 795 F. 3d at 310).

Since Littlejohn and Vega were decided, the Second Circuit has reviewed the sufficiency of a Title VII claim by following Littlejohn in some cases^[3] and by following Vega in others.^[4] Even assuming it were necessary, this Court need not reconcile Littlejohn and Vega and their holdings on the proper framework for analyzing whether a Title VII claimant has alleged enough facts to survive a motion to dismiss. The allegations related to Plaintiff's Title VII claim here, analyzed under the pleading standard in both cases, is insufficient and must be dismissed.

Turning to the merits of Plaintiff's claim, Plaintiff's Title VII claim alleges religious discrimination. Compl. ¶¶ 60-67. Plaintiff is a Catholic. Id. ¶ 19. Plaintiff has plausibly alleged that she suffered an adverse employment action because she alleges that she was terminated. Id. ¶ 8; see also Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (finding "termination of employment" is an example of a "materially adverse" employment action). Plaintiff also alleges that she is a member of a protected class, Catholic, see Compl. ¶ 19, and that she was qualified for the position she held, see id. ¶ 21.

The question this Court must address, then, is whether Plaintiff "can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation" or whether Plaintiff has "plausibly allege[d] that. . . [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision." Littlejohn, 795 F. 3d at 311; Vega, 801 F.3d 86. Plaintiff's allegations fail under either standard. The allegations in Plaintiff's Complaint do not give rise to a plausible inference of discrimination based on Plaintiff's Catholic religion. In fact, Plaintiff does not include a single allegation from which the Court can infer that she faced any discrimination based on her religion.

Rather, Plaintiff advances the theory that she faced discrimination "on account of her being non-Jewish" which, according to Plaintiff, is actionable "reverse discrimination." Pl. Opp'n at 6. While Plaintiff is correct that Title VII forbids "reverse discrimination," see McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279 (1976), a plaintiff still must allege that they faced discrimination because of their religion. See 42 U.S.C.A. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer. . . to discharge any individual, or otherwise to discriminate against any individual. . . because of such individuals. . . religion" (emphasis added)). A reverse discrimination claim cannot lie if the plaintiff does not allege that they faced discrimination because of a protected characteristic. Plaintiff could, of course, allege that she faced discrimination based on her Catholic religion. However, Plaintiff makes no such allegation here and the Court therefore cannot plausibly infer that her religion was a motivating factor in her termination. The Court has searched and not found any support for the proposition that a claim of religious discrimination can exist for a "non-Jewish" person.

Additionally, and separately dispositive of Plaintiff's Title VII claim, the majority of Plaintiff's allegations are based upon Plaintiff's beliefs. See, e.g., Compl. ¶ 11 ("Plaintiff was fired, in her view, because she is a non-Jew who acted appropriately regarding possible insurance fraud potentially perpetrated by an ultra-Orthodox (Hasidic) person, and as a matter of `political correctness,' the Standard feared an accusation that it was being labeled `anti-Semitic' by its examining possible fraud by one or more Jewish claimants." (emphasis added)); id. ¶ 13 ("Upon information and belief, if Plaintiff had been Hasidic herself, and pointed out the same evidence of potential fraud, she would not have been fired, or even criticized." (emphasis added)); id. ¶ 52 ("Upon information and belief, the unfounded accusations against Plaintiff are the result of religiously-motivated bias by Defendant." (emphasis added)); id. ¶ 53 ("Upon information and belief, the fact that Plaintiff was making any comment that a Jewish broker or members of a Hasidic school or community may have committed or condoned insurance fraud. . . were construed by Defendant as being `anti-Semitic.'" (emphasis added)). Even if Plaintiff had alleged that she faced discrimination because of her Catholic religion, Plaintiff's Complaint, which is based almost entirely on her beliefs would be insufficient to state a claim for relief. See Gilford v. NYS Office of Mental Health, No. 17-CV-8033, 2019 WL 1113306, at *5-6 (S.D.N.Y. Mar. 11, 2019) ("No matter what the pleading standard is, her complaint must at least contain enough factual allegations that are not made upon information and belief to `raise a right to relief above the speculative level.'" (quoting Twombly, 550 U.S. at 555)); Negrete v. Citibank, N.A., 187 F. Supp. 3d 454, 461 (S.D.N.Y. 2016), aff'd, 759 F. App'x 42 (2d Cir. 2019) ("[W]hile `a plaintiff may plead facts alleged upon information and belief where the belief is based on factual information that makes the inference of culpability plausible, such allegations must be `accompanied by a statement of the facts upon which the belief is founded.'" (quoting Munoz-Nagel v. Guess, Inc., No. 12-cv-1312, 2013 WL 1809772, *3 (S.D.N.Y. Apr. 30, 2013))). Accordingly, Plaintiff's Title VII claim is dismissed."

NO RELIGIOUS DIVORCE REQUIRED IN SECULAR MARRIAGE ABSENT EXPRESS AGREEMENT

The parties had a secular marriage. Can a husband force his wife to get a religious divorce when she never agreed to do so? Here are the facts:

"Following the execution of the Financial Stipulation, the Wife’s counsel prepared a proposed Judgment of Divorce and ancillary documents for submission to the Court. According to the Husband, his attorney then contacted Wife’s attorney to request the proposed Judgment include a provision requiring cooperation with a GET. The Husband states that he was led to believe that the Wife was willing to accept a GET, but she has since ignored his requests to cooperate with same. The Husband argues that because he is an Orthodox Jew, he cannot remarry under Jewish Law unless the Wife accepts a GET. He attaches an affirmation from a Rabbi in support of his request wherein the Rabbi states that a GET must be given by the Husband and accepted by the Wife for either party to remarry under Jewish Law. According to the Rabbi’s affirmation, the Wife’s refusal to appear before an Orthodox Beth Din and accept the GET will prevent the Husband from remarrying. The Husband asks that the Court stay his obligation to transfer the $100,000 to the Wife pursuant to the Financial Stipulation until such time as she accepts a GET. The Husband argues that the Wife swore to remove all barriers to his remarriage but her refusal to cooperate with the GET is a refusal to remove all barriers to his remarriage. The Husband argues that there is precedent for the Court to intervene and fashion an award of equitable distribution in this instance and he also seeks an award of legal fees.

In opposition, the Wife asserts that the parties were not married religiously nor was there any religious ceremony. Therefore, she argues, since there was no marriage according to Jewish Law, there is no religious divorce to be had. The Wife states that she refused the Husband’s offers for a religious wedding ceremony because she wanted to avoid any religious divorce rituals. The Wife argues that in any event, the Husband is not a practicing Orthodox Jew. She states that he regularly communicates with others during both Shabbat and Sukkot, and socializes in a manner contrary to his alleged faith. The Wife asserts that the Rabbi who offers an affirmation in support of the Husband is from a “fanatic” and “extreme” faction of Orthodox Jews which discriminates against women. Furthermore, she argues that even if the parties were religiously married, a religious divorce is never a barrier to the Husband’s remarriage. Finally, the Wife argues that the $100,000 due to her under the Financial Stipulation was without condition and that forcing her to accept a GET violates her civil rights.

The Husband offers no personal affidavit to refute her claims in reply. However, his attorney argues that the Wife fails to provide any “admissible evidence” that the Husband does not need a GET to remarry. She argues that the Wife’s sworn statement that she would remove all barriers to the Husband’s remarriage was a fraud."

Here is the case: A.W. v. I.N., NYLJ January 10, 2020, Date filed: 2020-01-02,  Court: Supreme Court, Nassau. Judge: Justice Edmund Dane:

"The issue before the Court is whether, based upon the Wife’s statement that she would remove all barriers to the Husband’s remarriage, the Wife should be directed to cooperate with the acceptance of a GET from the Husband, and/or whether the Court may condition her receipt of funds under the Financial Stipulation upon her cooperation with same.

The constitutional limitations on the Court’s ability to intervene on religious issues are deeply rooted in law and it is well established that the Court may not consider religious doctrine in rendering a decision (See e.g.: Presbyterian Church v. Hull Church, 393 U.S. 440, 449 [1969]; Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 [1976]; Jones v. Wolf, 443 U.S. 595, 603, [1979]).
Nonetheless, Courts have resolved issues of religion by relying upon secular and neutral principles of law, primarily in the context of contract law. (See e.g.: Jones v. Wolf, supra, 443 U.S. at p. 602, 99 S.Ct. at 3024; Avitzur v. Avitzur, 58 N.Y.2d 108, 114-15 (1983); Golding v. Golding, 176 A.D.20 [1st Dept., 1992]; Congregation Yetev Lev D’Satmar, Inc., v. Kahana, 31 A.D.3d 541 [2nd Dept., 2006]). Where there is a contractual agreement to cooperate with a religious divorce, Courts have routinely enforced the agreement by imposing financial sanctions and/or withholding economic relief in the event of a party’s non-cooperation with same. (See, Fischer v. Fischer, 237 A.D.2d 559 [2nd Dept.1997]; Kaplinsky v. Kaplinsky, 198 A.D.2d 212 [2nd Dept.1993]; Waxstein v. Waxstein, 90 Misc.2d 784,[Sup.Ct. Kings Co.1976], aff’d 57 A.D.2d 863 [2d Dept.1977]).

In this case, however, there is no agreement or contract between the parties regarding the GET. In fact, there exists a fully executed Financial Stipulation which is silent as to the need, or even the desire, for either party to obtain a GET. There is no contract that obligates either party to cooperate with any religious divorce, ritual or ceremony. Accordingly, this is not an instance where the Court can rely upon contract law to intervene on this religious issue.

Outside the context of contract law, the Second Department has determined that it is not an improper interference with religion for the lower court to fashion maintenance and equitable distribution awards to address a Husband’s withholding of a GET solely to extract economic concessions from the Wife. (See, e.g. Mizrahi-Srour v. Srour, 138 A.D.3d 801, [2nd Dept.2016]; Pinto v. Pinto, 260 A.D.2d 622 [2nd Dept.1999); Schwartz v. Schwartz, 235 A.D.2d 468, [2nd Dept. 1997]). Under the unique circumstances of this case, it is the Wife who is refusing to cooperate with the GET, and there is already a fully executed Financial Stipulation resolving the economic issues of the marriage.2 There is nothing in the record to suggest that the Wife’s refusal to accept a GET had any impact on the terms of the Financial Stipulation or that her non-cooperation is for the purpose of extracting further economic concessions. Therefore, there is no basis for the Court to interfere with the economic settlement reached by the parties.

It would be a violation of the First Amendment of the United States Constitution for the Court to order the Wife to participate in a religious ritual when she did not agree to do so nor may the Court impose a financial penalty against her. One party’s decision to follow a certain faith and/or faction of that faith cannot be the basis for the Court’s decision. As articulated in the recently decided Masri v. Masri, 55 Misc. 3d 487, 499 (N.Y. Sup. Ct. 2017):

To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

The Husband further argues that the Court may interfere in this instance because the Wife swore that she removed all barriers to the Husband’s remarriage, a claim the Husband asserts was false. Whether or not the Wife removed religious barriers to the Husband’s remarriage is an issue of religion, not within the Court’s purview.

While DRL §253 requires a Plaintiff to swear that she has, to the best of her knowledge, taken all steps solely within her power to remove all barriers to Defendant’s remarriage following the divorce, subsection (9) of DRL §253 states that:

[n]othing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue. The truth of any statement submitted pursuant to this section shall not be the subject of any judicial inquiry, except as provided in subdivision eight of this section.

The Wife asserts that because she was married in a civil ceremony her refusal to accept a GET is not a barrier to the Husband’s remarriage, either religious or otherwise. Because the Wife maintains that she is in compliance with DRL §253, the Court cannot grant the Husband the relief he seeks (c.f. Kaplinsky v. Kaplinsky, 198 A.D.2d 212 [2nd Dept., 1993][Husband properly held in contempt for his refusal to deliver a GET where he agreed in Stipulation, incorporated into Judgment of Divorce, to remove all barriers to the Wife's remarriage in light of the fact that he "continually acknowledged" that a GET was the only way the Wife could remarry]).

Here, the Court may not inquire beyond the Wife’s sworn statement that she has, to the best of her knowledge, removed all barriers to the Husband’s remarriage as same would constitute an impermissible decision on a religious issue. (see: e.g. Sieger v. Sieger, 37 A.D.3d 585, 586-87 [2nd Dept., 2007], rev’d on other grounds, 51 A.D.3d 1004 [2nd Dept., 2008]; DRL §253(9)). The parties are at liberty to follow whatever faith and religious beliefs they choose, but that does not mean the Court can or will interfere by imposing one party’s beliefs upon the other."

CHILD CUSTODY - GAY LIFESTYLE VERSUS RELIGION CLAUSE IN STIPULATION

In Weisberger v Weisberger, 2017 NY Slip Op 06212, Decided on August 16, 2017, Appellate Division, Second Department, the parties divorced after Father was told by Mother that she was gay. There were three children and parties agreed to joint legal custody with Mother having primary residential custody. The stipulation also provided that the  "Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families'. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided." However, after the divorce, Father moved to modify alleging "that the mother had radically changed her lifestyle in a way that conflicted with the parties' religious upbringing clause. Although the father acknowledged that at the time he entered into the stipulation of settlement he expected the mother's future intimate relationships would be with women, he expected her to keep the fact that she was gay a secret and to keep any relationship she had with a woman secret from the children. The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children." The Supreme Court granted Father's motion and Mother appealed.

The Second Department held:

"" Modification of an existing court-sanctioned custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]'" (Matter of Spencer v Killoran, 147 AD3d 862, 863, quoting Matter of O'Shea v Parker, 116 AD3d 1051, 1051; see Matter of Bodre v Stimatz, 150 AD3d 1228, 1229). "The best interests of the child[ren] must be determined by a review of the totality of the circumstances" (Matter of Preciado v Ireland, 125 AD3d 662, 662; see Eschbach v Eschbach, 56 NY2d 167, 171-172; Matter of Boggio v Boggio, 96 AD3d 834, 835). "Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child[ren], the ability of each parent to provide for the child[ren]'s emotional and intellectual development, the financial status and ability of each parent to provide for the child[ren], the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child[ren]'s relationship with the other parent" (Mohen v Mohen, 53 AD3d 471, 473 [internal quotation marks omitted]; see Matter of Moran v Cortez, 85 AD3d 795, 796). Additionally, to the extent the mother's sexual orientation was raised at the hearing, we note that courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children (see In re Marriage of Black, 188 Wash 2d 114, 130, 392 P3d 1041, 1049-1050; see also Matter of Paul C. v Tracy C., 209 AD2d 955, 956; Anonymous v Anonymous, 120 AD2d 983, 983-984; Guinan v Guinan, 102 AD2d 963, 964; Di Stefano v Di Stefano, 60 AD2d 976, 977).

Since weighing the factors relevant to any custody determination "depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence" (Trinagel v Boyar, 70 AD3d 816; see Matter of Selliah v Penamente, 107 AD3d 1004, 1004; Matter of Jackson v Coleman, 94 AD3d 762, 763). Nonetheless, this Court's [*5]authority in custody and visitation matters is as broad as that of the hearing court, "and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of a Trial Judge,' we allowed a custody determination to stand where it lacks a sound and substantial basis in the record" (Matter of Caruso v Cruz, 114 AD3d 769, 772, quoting Matter of Gloria S. v Richard B., 80 AD2d 72, 76; see Matter of James A.-S. v Cassandra A.-S., 107 AD3d 703, 706; Matter of Moran v Cortez, 85 AD3d 795, 796-797).

Here, both parties contend that there has been a change in circumstances warranting modification of the stipulation of settlement. We conclude that the record supports the Supreme Court's determination that a change of circumstances has occurred, such that a modification of the stipulation of settlement is necessary to ensure the continued best interests and welfare of the children (see Matter of Pagan v Gray, 148 AD3d 811, 812; Matter of Oyefeso v Sully, 148 AD3d 710, 712).

However, the Supreme Court's determination to modify the stipulation of settlement so as to award the father sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, with supervised therapeutic visitation to the mother, lacked a sound and substantial basis in the record (see Matter of Caruso v Cruz, 114 AD3d at 773; Matter of James A.-S. v Cassandra A.-S., 107 AD3d at 706). In pertinent part, the court gave undue weight to the parties' religious upbringing clause, finding it to be a "paramount factor" in its custody determination. "When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor" (Aldous v Aldous, 99 AD2d 197, 199). "New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other" (id. at 199; see Matter of Gribeluk v Gribeluk, 120 AD3d 579, 579). However, clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children (see Karetny v Karetny, 283 AD2d 250; Spring v Glawon, 89 AD2d 980, 981; Gruber v Gruber, 87 AD2d 246, 250; Garvar v Faltings, 54 AD2d 971). "No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child[ren]'s best interest" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see Eschbach v Eschbach, 56 NY2d at 171).

Considering all of the facts and circumstances of this case, the father failed to demonstrate that it is in the children's best interests to award him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health. The mother has been the children's primary caretaker since birth, and their emotional and intellectual development is closely tied to their relationship with her. The record overwhelmingly demonstrates that the mother took care of the children's physical and emotional needs both during and after the marriage, while it is undisputed that the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties' separation. Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother's ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children's relationship with her (see Bliss v Ach, 56 NY2d 995, 998). Furthermore, "[s]upervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child[ren]" (Matter of Gainza v Gainza, 24 AD3d 551). Here, there was no showing that unsupervised visitation was detrimental to the children and, as discussed more fully below, it was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.

Furthermore, the Supreme Court improperly directed that enforcement of the parties' stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children's schools. Although the court accepted the father's argument that the religious upbringing clause "forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools," the plain language of the parties' agreement was "to give the children a Hasidic upbringing" (emphasis added). The parties' agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views [*6]or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle (see Lee v Weisman, 505 US 577, 587; see also Lemon v Kurtzman, 403 US 602, 612-613). 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" (Lee v Weisman, 505 US at 587). 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 (see Lawrence v Texas, 539 US 558, 574 [ "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'" (quoting Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 851)]; see also Obergefell v Hodges, __ US __, 135 Sup Ct 2584). Indeed, the parties themselves agreed in the stipulation of settlement that they "shall [each] be free from interference, authority and control, direct or indirect, by the other" (emphasis added). While we respect the parties' right to agree to raise their children in a chosen religion and to seek judicial relief to enforce that right, given the change in circumstances here, the weight of the evidence does not support the conclusion that it is in the children's best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares. There is no indication or allegation that the mother's feelings and beliefs are not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there has been no showing that they are inherently harmful to the children's well-being.

This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised. Indeed, we conclude that the children's best interests would be better served by a more limited modification of the religious upbringing clause than that proposed by the mother. The evidence at the hearing established that the children have spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. "[T]he maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight" (Matter of Moorehead v Moorehead, 197 AD2d 517, 519). Contrary to the mother's contention, the weight of the evidence demonstrates that it is in the children's best interests to continue to permit the father to exercise final decision-making authority over the children's education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. To this end, the children's interests will be best served if their parents work together to surmount the challenges the children will face as they continue on their current educational path. As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal, made in both her motion papers and her testimony, to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so, and in a manner consistent with Hasidic practices. Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

We find that an increased visitation schedule with the father would be in the children's best interests. The parties' original custody agreement provided the father with, inter alia, one overnight visit with the children, every other week. In light of the change in circumstances, we conclude that the stipulation of settlement does not adequately provide the father with meaningful time with the children (see Chamberlain v Chamberlain, 24 AD3d 589, 593). Accordingly, that branch of the father's motion which was to modify the stipulation of settlement is granted only to the extent of modifying the stipulation of settlement so as to award the father visitation every other weekend from Thursday after school until Sunday at 11:00 a.m. On alternating weeks, the father shall have (as the parties provided in their stipulation of settlement) visitation from Friday after school and return them one hour after Shabbos ends during winter and two hours after Shabbos ends during summer.

Further, we find the mother's proposal to allow the father to have physical custody of the children during Jewish holidays and for the mother to have physical custody of the children during non-religious school vacations would be in the children's best interests. Accordingly, we grant that branch of the mother's motion which was to modify the vacation and holiday schedule [*7]contained in the stipulation of settlement so as to award the father visitation during all Jewish holidays and for two weeks during summer vacation, and to award the mother visitation during all non-religious school vacations, with the exception of the two weeks each summer to be spent with the father. All other provisions for visitation in the stipulation of settlement remain unchanged.

We acknowledge that both parents are sincere in their devotion to the children and, with the exception of occasional lapses in good judgment, neither parent has engaged in conduct that is contrary to the best interests of the children. And yet, the parties' religious, moral, and ethical beliefs and values with respect to raising their children, while once compatible, have now become incompatible in many important respects. While the arrangement set forth here may not fully satisfy both sides of this dispute, courts do not always have the perfect solution for all of the complexities and contradictions that life may bring—the parties must forge a way forward as parents despite their differences. We are confident that both parties will exercise their best judgment in these matters in a manner that furthers the best interests of their children.

Finally, the parties' stipulation provided, inter alia, that the parties shall "encourage the child[ren] to honor, respect and love the other party," shall not "attempt to alienate or destroy the affection of the child[ren] for the other party," and shall not "speak idly about the other party in front of the children." This provision applies equally to both parties and, therefore, neither party may, directly or indirectly, denigrate the other to or before the children for any reason, including their disagreement with the other party's identity or beliefs."

CAN SPOUSE ASK COURT FOR FINANCIAL PRESSURE TO OBTAIN RELIGIOUS DIVORCE

Masri v. Masri, 2017 NY Slip Op 27007 - NY: Supreme Court, Orange 2017:

"In view of the foregoing, this court holds that in the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment. The court accordingly declines Plaintiff's invitation to apply DRL §236B(6)(o) in determining Defendant's maintenance obligation."

A footnote in the decision notes: "On November 29, 2016, this Court gave notice to the Attorney General of the State of New York pursuant to CPLR §1012(b) and Executive Law §71 that the constitutionality of DRL §236B(6)(o), and of DRL §253(6) as incorporated therein, is at issue in this action. By letter dated December 27, 2016, the Attorney General responded that he does not intend to intervene in this action pursuant to CPLR §1012(b)."

INFORMATION ON RELIGIOUS DIVORCES

Parties to a divorce may have some concerns regarding their religions and the rules, etc. regarding a divorce recognized through their religious beliefs. Here are some resources for some (not all) of various religions:

http://www.foryourmarriage.org/catholic-marriage/church-teachings/annulments/

http://www.chabad.org/library/article_cdo/aid/557976/jewish/The-Divorce-Proceedings.htm

http://www.al-islam.org/a-summary-of-rulings-makarim-shirazi/rules-divorce

http://www.hinduwebsite.com/hinduism/h_divorce.asp

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

A recent consultation raised the issue of religious beliefs and separation from work. The general rule, according to the Appeals Board website, is that one's refusal to attend work or to perform tasks which would violate one's religious beliefs is not disqualifying, as per AB 452,775:

"The credible evidence establishes that the claimant voluntarily left her employment because the employer could not relieve her from having to serve birthday cakes to customers, which act would violate her religious beliefs. The claimant took reasonable steps to protect her employment by suggesting alternative arrangements to the employer but due to the employer's size the employer, acting in good faith, could not reasonably accommodate claimant's religious beliefs. In the absence of any compelling State interest justifying the infringement of religious liberties, the State cannot deny unemployment insurance benefits because of conduct mandated by religious belief. Accordingly, we conclude that the claimant voluntarily left her job with good cause."

The comments to this case state:

"1. Claimant in this case had advised the employer at the time of hire of her religious beliefs. Based on her beliefs, she would not perform specific tasks. When the employer advised her that it would no longer accommodate her restrictions, claimant quit her job with good cause.

2. In another case (AB 433,355, not published) claimant's continued refusal to work on Sundays because of his religious beliefs is not misconduct. Claimant need not document membership in an established religious sect to demonstrate a sincerely held religious belief.

3. See also A750-2017, regarding Refusal of Employment"

But issues can arise when the employee's religious beliefs are not explained at the time of hire, or have changed after hire. And if the employee quits, the employer may also allege incidents of misconduct that led to the voluntary separation. Thus, my suggestion to employees who are faced with this situation, consult with an attorney, consult with the EEOC, and begin their documentation early, etc. before they voluntary quit.