Special to the JTA Unprecedented Custody Battle: Court Orders That Religious Rights of Children Invo

A custody battle in Manhattan Supreme Court in which a court order has been issued which specifically requires that the religious rights of the affected children be protected in resolving the custody dispute was reported today by the National Jewish Commission on Law and Public Affairs (COLPA).

Howard Zuckerman, COLPA president, said this appeared to be the first time such a stipulation has been made in a custody hearing. He said Manhattan Supreme Court Justice Martin Stecher has ordered appointment of a special guardian for the two Jewish children, boys aged 12 and 13, with that stipulation.

He said COLPA had submitted a friend of the court brief in the case and that Dennis Rapps, COLPA executive director, argued Nov. 17 before Justice Stecher in support of the appointment.

BACKGROUND OF THE COURT ORDER

The unique court order emerged in the reopening of the issue of which parent should have custody of the children. After the parents were divorced in 1975, the mother, a resident of the Boro Park section of Brooklyn, agreed to a grant of custody to the father, a research chemist now living in East Orange, N.J.

Rapps said the names of the parents and the children were being withheld to protect their privacy pending the forthcoming re-hearing of the custody issue. He said the two boys ran away from their father to rejoin their mother. The father reclaimed the younger boy but the older one remained with the mother.

When the mother refused to surrender the older child, the father moved before Stecher to regain custody of the older child and to have the mother held in contempt of court for refusing to obey the original custody agreement.

THE ISSUE OF PRINCIPLE

The mother came to COLPA, declaring that the father had become non-observant since the divorce, and was not adequately providing for the religious rearing and education of the boys in accordance with the parental separation agreement.

Rapps said the mother, in contesting the father’s effort to regain custody of the older boy, submitted a statement to the court from the boys in which they objected to their inability to practice their religion as observant Jews and asked the court to grant them status as parties to assert this right, independent of the wishes of their parents.

Rapps said COLPA entered the case, not in support of either the father or the mother, but in support of the principle that where there is a custody dispute, children of mature age are entitled to standing to assert this right in a litigation which will affect their education and upbringing, and ability to observe their religion.

Zuckerman said there have been a number of recent court decisions which have recognized and applied the principle that a child’s interest in a custody proceeding may require individual child representation on the premise that the parents cannot be relied on to put aside their partisanship for the welfare of their children.

But, Zuckerman said, the Manhattan hearing appeared to be the first instance in which a guardian appointment has been ordered in which religious practice is the basic issue.

Under New York State Surpeme Court procedure, the appellate division with jurisdiction is sent the names of two or more volunteer attorneys from which to choose the special guardian. Rapps said Justice Stecher has sent to the Manhattan Appellate Division the names of two attorneys he recommends in this case.

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