How judges resolved an intractable Orthodox divorce case

Religious differences between parents - in this case, one Charedi, one modern Orthodox - was built into the judge's decision on custody


Break up, divorce, shared custody of children and breaking family apart concept. Bad parenting. Legal fight about kids. Couple ripping a paper with man, woman and child icon.

March 02, 2020 16:37

In the case of a divorce, do the courts take into account differing religious approaches of the respective parents?

Last week, a case was published which highlighted this subject.

The mother comes from a strictly-Orthodox community where they spent their married life until they divorced.

The father is modern Orthodox. Accordingly, they had different approaches to the upbringing of their children.

The original court order provided for the children to live with their mother and spend specific times with the father but, crucially, excluding key festival days.

The father had wanted to vary the order to increase the time he could spend with the children and to include some of these days.

There had been protracted proceedings over the past five years and in September 2019 the court came to a decision, which was published last week.

The decision was that the children should live with both parents and spend alternate Shabbat weekends and alternate key festival days with their father.

In reaching this decision, the judge said that “…the parents are equally important to their children” and that they “loved both of their parents”.

She went on to say that “the children must live in a home where they are supported to develop a full relationship with both of their parents”.

This decision actually reflects a profound change in family law that has taken place over time.

When I started practising as a family solicitor more than 30 years ago, mothers were ordinarily granted “custody” of their children and fathers had “access”, usually on alternate weekends.

Sometimes the children would stay over with the father, but this was not always the case. The law has changed substantially since then to reflect changes in society.

With the Children Act of 1989, the terminology changed. One parent usually had “residence” of their children and the other parent had “contact”. 

This changed again in 2014 when the Children and Families Act, came into being. The Act defined something called a “lives with” order which provides for children to live with one parent and a “spends time with” order which sets out the time they would spend with the other parent.

The reason this change came about was to stop the sense that one parent was the ‘winner’ and the other the ‘loser’.

In reality however, the situation is still not equal, as a parent with a “lives with” order has the further advantage of being able to take the children abroad for a period of up to 28 days without the other parent’s consent.

If the children spend significant periods of time with both parents, the court can order that the children live with both of them — as happened in this case.

The judge’s decision reflects the current view in the family court that both parents, irrespective of their religious or cultural beliefs and practices, bring different qualities to their children’s lives and that what is important for children is their emotional wellbeing and that their parents can support them in their love of both their mother and father.

Deborah Levy is a Solicitor in the London Family Team at Irwin Mitchell

March 02, 2020 16:37

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