The proverbial “third rail” is actually a rail that provides electric power to trains. This rail, although necessary for public transit, threatens electrocution of anyone who stumbles into or intentionally touches the rail. That’s why, in politics, the third rail has come to mean any issue or subject which politicians consider to be too controversial to discuss.
In custody disputes the third rail is religion. Family court judges know intuitively that touching the issue of religion in custody proceedings is likely to set off an emotional charge which will induce an appeal or, worse, land them in the media.
In New York last year, a family court judge was not afraid to touch the third rail. In awarding custody of the children to the father in the case Gribulek v. Gribulek, the judge considered Mrs. Gribulek’s decision to leave the Hasidic Jewish faith. While the judge stated that the court passed no judgment on either parent’s religious beliefs, the judge found that the children’s need for stability, and the potential impact of uprooting them from the only lifestyle which they have known, were important factors in making a custody determination.
Notwithstanding the free exercise clause of the U.S. Constitution, the New York Supreme Court, Appellate Division, upheld the judge’s decision. While religion alone may not be the determinative factor, family courts are free to consider religion as one of the factors in determining the best interests of children. Specifically, the 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.
There were other additional factors which the family judge considered in awarding custody to Mr. Gribulek, but the judge’s incorporating religion as part of the overall best interest analysis demonstrated a certain boldness on the judge’s part as well as a recognition that religion, while often divisive, still plays a significant role in the lives and well being of children.