In the Matter of the Application of Rose Auster, Petitioner, for a Writ of Habeas Corpus to Determine the Custody of William M. Weberman, an Infant. Myron Weberman, Respondent
[NO NUMBER IN
ORIGINAL]
Supreme Court of
New York, Special Term, Kings County
198 Misc. 1055;
100 N.Y.S.2d 60; 1950 N.Y. Misc. LEXIS 2078
September 27, 1950
SUBSEQUENT HISTORY:
[***1]
Order Affirmed February 5, 1951; See 102 N.Y.S.2d
418
PRIOR HISTORY:
Habeas corpus
proceeding.
HEADNOTES:
Constitutional law -- freedom of
religion -- (1) in proceeding by mother to acquire custody of boy from father,
it appears that boy is being educated in parochial school whose curriculum does
not comply with Education Law; regulation of curriculum of parochial school by
Legislature constitutional -- (2) if father does not comply with Education Law
by sending boy to school teaching curriculum required by Education Law, custody
of boy should be awarded to mother -- (3) court will not pass upon wearing by
child of long hair and of certain apparel, which are religious
matters.
1. In a habeas corpus proceeding by a mother seeking custody
of her son, who is of the age of seven and a half years and presently in the
custody of the father, it appears that the son is being educated in a parochial
school whose curriculum does not comply with the Education Law. The curriculum
of a parochial school may properly be regulated by the Legislature of the State
for the common good and the Legislature may provide that certain studies plainly
essential to good citizenship must be taught. Such laws are [***2]
constitutional.
2. If the father wishes to retain custody of his son he
must comply with the State Education Law (§ 3204, subds. 2, 3; § 3205) and
provide a systematic secular education in the eleven basic subjects required by
section 3204 and if he is not sent to a school which teaches the subjects
required by such law, the custody of the boy should be given to the
mother.
3. The court will not pass upon the wearing by the child of long
hair or the matter of his wearing apparel which are religious
matters.
COUNSEL: George M. Aronwald for
petitioner.
Benjamin Weberman for
respondent.
JUDGES: Murphy, J.
OPINIONBY:
MURPHY
OPINION: [*1055] [**61] There are
some judicial determinations which so closely touch the hearts and minds of
those affected that they assume extraordinary significance. Of such is this
decision, for it deals with delicate, sensitive and vital matters, arising out
of the care and education of a boy who is the product of a broken
home.
The facts are these: The petitioner is the mother of William
Mordecai Weberman, now just over seven and a half years old. She seeks his
custody in this habeas corpus proceeding. Her former husband is the respondent,
as he [***3] now has custody of the boy. The petitioner mother and
the respondent father were [*1056] divorced in 1947, and by an
agreement entered into at that time the custody of a younger child, their
daughter Barbara, was given to the mother, and that of the aforesaid boy to the
father. Both the mother and the father have since remarried. In March of this
year this court awarded custody of the daughter to the mother, but this action
has little or no bearing on the instant proceeding.
The petitioner mother
here seeks custody of her son on the following grounds:
1. That the boy
is now enrolled by his father in a Yeshiva (a Jewish parochial school) which is
not approved by the Board of Regents of the State of New York or the board of
education of the city of New York;
2. That the aforesaid Yeshiva is being
maintained in violation of article 17 of the State Education Law and does not
include in its curriculum subjects required by said law in article 65;
3.
That both the petitioner and the respondent husband are liable to prosecution
because of their failure to enroll their son in a school or Yeshiva complying
with said State Education Law;
4. That since October, 1949, the father
has [***4] refused the mother all rights of visitation and that the
father wrongfully restrains and detains the boy from seeing his mother and his
sister Barbara;
5. That as a result of such alleged detention by the
father the son does not have the companionship of other children, which a normal
child should have;
6. That the father insists upon the enrollment of the
subject son in the aforesaid school because it is almost entirely devoted to the
teaching of religion and that he is fearful that said infant, if permitted to be
in the custody of his mother, would be brought up as an agnostic or a
nonbeliever;
[**62] 7. That the said infant is clothed by the
father in a manner different from that of normal American Orthodox Jewish
children and that he wears his hair long (Payas) and is therefore subject to
ridicule on the part of other children; and
8. That the father is
fanatical in his religious beliefs and insists upon bringing up the said infant
in the same fashion.
On the basis of the foregoing charges the mother
seeks an order of this court giving her custody of the son. The father's answer
substantially denies all of the mother's aforesaid allegations.
Three
separate hearings were [***5] held by the court in this matter, 316
pages of testimony were taken from nine witnesses, including the petitioner and
the respondent, two Rabbis and two officials [*1057] of the city's
board of education. Several exhibits were introduced into evidence by each
party. Because of the nature of this proceeding and the delicate questions
involved the court purposely allowed a wide latitude to both sides in their
presentations.
The most vital charge made by the mother is that which
states that the boy is not receiving the education required by the New York
State Education Law. That law requires that "each minor from seven to sixteen
years of age shall attend upon full time day instruction" (Education Law, art.
65, § 3205, subd. 1). The subject boy does not come within any of the exceptions
of the aforesaid requirement. The State Education Law also provides that the
course of study shall provide for instruction "in at least the eleven common
school branches of arithmetic, reading, spelling, writing, the English language,
geography, United States history, civics, hygiene, physical training and the
history of New York State" (Education Law, art. 65, § 3204, subd.
3).
Subdivision [***6] 5 of the aforesaid section was added by
the Legislature of 1950 (L. 1950, ch. 135) and provides that a pupil may be
excused from the study of health and hygiene by the Board of Regents if such
study conflicts with the religion of his parents or guardian.
Section
3204 of the State Education Law also provides that a minor may attend a public
school or elsewhere but that the requirements of the section, as quoted above,
shall apply to such a minor irrespective of the place of instruction. The
section also provides that instruction may be given only by a competent teacher
and that English shall be the language of instruction and the text books used
shall be written in English. Subdivision 2 of said section provides:
"Instruction given to a minor elsewhere than at a public school shall be at
least substantially equivalent to the instruction given to minors of like age
and attainments at the public schools of the city or district where the minor
resides."
Counsel for the respondent, who, incidentally, is respondent's
father, conceded at the first hearing that of the eleven basic subjects required
to be taught to minors by the State Education Law, only arithmetic is
[**63] taught [***7] at the Yeshiva or school which the
subject boy attends. Arithmetic is taught to him only as he learns it from the
study of his religious subjects. That means that the lad has no systematic
education in reading, spelling, writing, the English language, geography, United
States history, civics, hygiene, physical training and the history of the State
of New York.
[*1058] The respondent claims that the Yeshiva
which the boy attends is a religious institution, that it does not come within
the purview of the State Education Law or the regulations of the board of
education of the city of New York; that the court has not the right to require
the boy to receive systematic secular education as that is forbidden by the laws
of the Jewish Orthodox religion. In this regard the father invokes the
provisions of the Constitution of the United States which secures to every
citizen of this country the right of religious worship and the freedom to follow
the dictates of his conscience in religious matters. As to this constitutional
question raised by the respondent father, the court feels that the great weight
of authority is to the effect that the State has the power to legislate for the
common [***8] good. In Pierce v. Society of Sisters
(268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571) the court considered an Oregon law
which provided that all children must go to public schools and held that this
interfered with the fundamental freedom of parents in selecting the type of
schools in which their children should be educated. At page 534 the court
stated: "No question is raised concerning the power of the State reasonably to
regulate all schools, to inspect, supervise and examine them, their teachers and
pupils; to require that all children of proper age attend some school, that
teachers shall be of good moral character and patriotic disposition, that
certain studies plainly essential to good citizenship must be taught, and
that nothing be taught which is manifestly inimical to the public welfare."
(Italics added.) See, also, on this constitutional question People v.
Sandstrom (279 N. Y. 523, 18 N.E.2d 840); De Lease v. Nolan
(185 App. Div. 82, 172 N.Y.S. 552); and People ex rel. Vollmar v.
Stanley (81 Col. 276, 255 P. 610).
It appears to be the plain duty of
this court to enforce the provisions of the State Education Law. This law was
enacted to [***9] protect and to strengthen the youth of our State,
to insure the adequate preparation of our children for useful and productive
lives, and to set up standards of education which the Legislature, in its
wisdom, determined to be the minimum for each minor from seven to sixteen years
of age. When this law was enacted, and from time to time since when it was
amended, the Legislature of our State was composed of members with various
religious backgrounds; some were Orthodox Jews, some were Catholics, some were
Protestants. Surely, they intentionally would enact no law [**64]
which would require a child to receive instruction that would be offensive to
his religious belief or the religious belief of his parents; nor would this
court condone such a practice were it attempted, for we all personally and
collectively [*1059] cherish the right to practice our respective
religions according to the dictates of our consciences and according to our
religious teachings.
I do not believe that it is my duty to determine in
this case whether or not the Orthodox Jewish law prohibits systematic secular
education. Both the petitioner mother and the respondent father are Orthodox
Jews, loyal [***10] to their faith and its precepts, as they
understand them to be. But they disagree on this matter, the mother contending
that the Orthodox Jewish law does not forbid systematic secular education; the
father claiming that it does. The mother produced two Rabbis as witnesses, both
of whom maintained that the Orthodox Jewish law does not forbid systematic
secular education. The father, on the other hand, introduced into evidence
quotations from profound Jewish theologians which, he contends, prove
unequivocally that systematic secular education is prohibited by Orthodox Jewish
law.
This phase of the matter, however, is an ecclesiastical question
which rightfully belongs to an ecclesiastical tribunal. In fact, the court
respectfully suggested that the parties submit this question to a Rabbinical
committee, composed of one Rabbi selected by the petitioner, one by the
respondent, and one by the court, all to be Rabbis in the Orthodox Jewish faith.
The proposal was rejected by the respondent, which, of course, was his civil-law
right. Parenthetically, it might be said that both parties to this proceeding
state that in the eyes of Orthodox Jewish law it is sinful to have a matter
of [***11] this kind placed before a civil court.
If, in its
wisdom, a Rabbinical committee were to decide that systematic secular education
is forbidden by Orthodox Jewish law, then a presentation of such findings could
be made to the State Legislature, which, in turn, would undoubtedly give the
matter serious consideration in all its aspects. In fact the aforesaid 1950
amendment to the law with respect to the teaching of health and hygiene was
passed by the Legislature and approved by the Governor at the instance of the
Christian Science Church. This court, however, must interpret and enforce the
law as it finds the law to be. Hence I reach the conclusion that the boy,
William Mordecai Weberman, must be sent to a school where he will have the
education in the subjects required by the State Education Law. There are
Yeshivas here in Brooklyn, according to the testimony, which are conducted
according to the tenets of Orthodox Jewish law and which Yeshivas also comply
with the requirements of the State Education [*1060] Law and the
rules and regulations of the Board of Education of the City of New York. In
fact, the respondent's father was at one time an active officer of such a
Yeshiva. [***12]
[**65] The testimony of the
officials of the board of education of the city of New York, including that of
Herman Rosenthal, Esq., as well as the reports of Archie H. Greenberg, acting
division supervisor, and Abraham Silverman, the attendance officer, regarding
the Ye shiva which the boy attends, leads the court to no other conclusion than
that it is not conducted as required by the State Education Law, however sincere
its religious training may be.
My decision, therefore, is that if the
respondent father wishes to retain custody of his son he must comply with the
State Education Law and provide for the boy the systematic secular education in
the eleven basic subjects required by said law. If this decision is not complied
with within two weeks after the signing of the order to be entered hereon, the
custody of the boy will be given to the mother. Meanwhile present visitation
arrangements of the boy with his mother shall be continued until
modified.
The court will not pass upon the wearing by the child of Payas
or long hair, or the matter of his wearing apparel. That is a matter which
should be decided by a Rabbinical committee. The court in all sincerity asks
both the mother [***13] and the father to relieve him of this
perplexing burden as it is delicate and theological in nature, and rightly
belongs in the realm of the theologians of the Orthodox Jewish
faith.
Regarding the other allegations of the mother, they would seem to
require no determination because they will be resolved in the process of
fulfilling the decision reached above.