Child custody and religion often conflict. But can a family court judge ban a parent from feeding their child “fish, meat, or poultry” without the other parent’s consent? What if it is in the child’s best interest to eat vegetarian? A New York court had to answer that question, and the decision may leave a bad taste in your mouth.

Nobu, Katz’s Deli & Carbone? Fuhgeddaboudit

In a New York custody case, the parents, who were represented by counsel, agreed to jointly determine all major matters with respect to their child, including “religious choices.”

The parenting coordinator on the case recommended that each parent be free to feed their child as he or she chooses during his or her parenting time, and that neither party shall feed or permit any other person to feed fish, meat or poultry to the child without the other party’s consent.

In their parenting agreement, however, the 24-page agreement did not otherwise mention the child’s religious upbringing and makes no reference at all to dietary requirements.

Although the parenting coordinator found that the child’s diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child’s diet was a religious choice, and dictated the child’s diet by effectively prohibiting the parties from feeding her meat, poultry or fish.

Florida Custody and Vegetarians

I’ve written about child custody issues before, in fact, I have an article on the intersection of religion and custody, especially when that intersection relates to harm to the child.

Knowing whether the dietary impasse between the parents is about the child’s health or religion is an important distinction. The New York dietary ban sounds very much like a religious dispute between the two parents. New York, like Florida, is a melting pot of religions and ethnic backgrounds where kosher, halal and a number of other religious dietary restrictions are common.

Of course, New York is facing another issue involving children and religion: vaccinations. With the recent outbreak of vaccine preventable diseases, such as the New York measles outbreak, lawmakers in New York voted last week to end religious exemptions for immunizations.

Usually, religion is used by the objecting parent as a defense to vaccinating children. In the New York case, the dispute was what to feed the child. Whenever a court decides custody, or issues relating to the child’s upbringing, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

There is nothing in our custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution. So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge.

Ironically, that may not be the rule all over Florida. Different appellate courts in Florida have slightly different takes on the issue, and the question of whether a trial court can consider a parent’s religious beliefs as a factor in determining custody has been allowed.

Custody and the Big Apple

The New York appellate court found the family judge abused its discretion with the ban on feeding certain foods. To the extent mother promised the father, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding.

The court felt this was particularly in view of the parenting agreement, which omits any such understanding. Nor was there any support in the trial record for a finding that a vegetarian diet is in the child’s best interests.

Recall that in Florida, whenever a family judge has to decide custody, or issues relating to the child’s upbringing, the sine qua non is the best interests of the child. The Mother’s argument that she should have been granted final decision-making authority with respect to the child was improperly raised for the first time in her reply brief.

In any event, the appellate court found that the record does not support her contention that the totality of the circumstance warrants modification in the child’s best interests.

The New York Court of Appeals declined to hear the case. The opinion is here.