Tuesday, October 11, 2011

Conversion Special Cases: Converting with Children from a Prior Relationship

This post is going to be a cross-over between my two main "specialties": conversion issues and law. 

NOTE: I am not a family lawyer, but I did work in a family law office as a student for half of law school. While I loved working in family law, I don't plan to practice family law and I am not a family law expert. I am not even a licensed lawyer yet. This is not intended to be either secular legal advice or halachic advice. The point of this post is to recognize some (but not all) potential issues that may arise in this situation and help you ask good questions of a rabbi or real attorney. It is also to help you realize that  you do have options in this situation and that hope is not lost. I suggest that you have BOTH a rabbi familiar with these issues and a family lawyer involved in all the kinds of cases we will discuss.

Do NOT post details about your problem/situation in the comments, as they are public and I cannot give you legal advice anyway. I will not approve any comment that does so, even if the rest of your comment is amazing. Likewise, I'm unable to answer emails about your specific case.

Who are we talking about? You are interested in converting to Judaism, but you have minor children from a prior relationship. Generally, the other parent is not Jewish and may actively be involved in another religion. You either never married or have divorced. You have some kind of child time-sharing arrangement, even if it means the other parent gets zero time with the child. You may or may not have a court order formalizing this arrangement. If you do have a court order, you may have a current arrangement that does not match that court order.

This could also create issues when the prior partner is a non-orthodox Jew and you want to become orthodox. (There should be few issues going within the liberal movements.) In this case, you would be maintaining an orthodox Jewish home, while your prior partner maintains a liberal Jewish or secular Jewish home. This can be a significant child custody issue even when conversion isn't involved! (These problems can be troublesome whether or not the children are Jewish. However, I think a beit din would  encourage the sincere conversion of a parent whose children are already halachically Jewish.)

The problem: You might not be able to convert your children when you convert. In other words, you could end up a Jewish parent with non-Jewish children. Or worse, a rabbi may refuse to convert you if your children are not able to convert with you. However, the second option doesn't seem to be very common. Granted, this issue isn't very common to begin with. I'm working on anecdotal evidence here.

Factors that may be significant, depending on your case:
  • Ages of your children
  • Their feelings about your conversion
  • The children's Jewish involvement so far
  • Whether the children want to convert
  • How young your children were when you started your Jewish life
  • Your ex-partner's involvement in the children's life
  • Your ex-partner's feelings about your conversion
  • Your ex-partner's religious affiliation/fervor 
  • The presence of a new (Jewish) partner
  • The existence of children with that Jewish partner (in other words, you have children from both the ex-partner and the current, Jewish partner)
  • Prior difficulties/inability to communicate or to make (and keep!) agreements between the parents
  • The current custody arrangement
  • The current court-ordered custody arrangement 
  • How uncomfortable your rabbi is with your situation (which may correlate to how familiar he is with these issues)
Note: Whether or not it reflects your actual arrangement now, you will need to have a copy of your current court order for an attorney to review. If there was a divorce, you will also want to bring a copy of any divorce papers referring to the children. It's a good practice to keep a binder with all your custody orders. If you don't have these papers, some courts have electronic records you can print from home. Most don't. In that case, someone will have to go in person to the presiding courthouse and copy each sheet by hand. (And like the mafia, courthouses know they have a racket on the copy machines since files can't leave the court, so expect the copying fee to be high!) If the records are sealed (some courts do, for privacy reasons), it will have to actually be a party or a party's attorney of record. If the records are public, you may be able to get any friend with a government-issued ID to go to the courthouse. Rule of thumb: Make a copy of every single sheet in the file (that you're allowed to).

As a general rule, you will want to at least have a consultation with a family law attorney (preferably a religious Jew if you can find it - saves a lot of time explaining the Jewish/halachic issues). My understanding of most markets is that family law consultations are often free. Call around. Ask your friends and rabbi for suggestions. And don't bombard some poor attorney at shul, dinner, or a party with this. This is complicated. Set up an appointment and go into their office for a proper discussion.

I suggest talking with an attorney no matter how good your relationship is with your prior partner, no matter how supportive the ex-partner is, and even if your ex-partner is deceased. Prepare for the worst, know your options, and celebrate when it is better than you know worst case scenario was. It's better to be safe than sorry. Prevent problems before they occur!

Talking to a lawyer does not commit you to pursuing a court order. Your ex-partner might never know that you consulted an attorney. You may have a consultation, and the lawyer might tell you everything is in order. If that happens, go forth and enjoy Jewish life. But the attorney may suggest seeking a court order either a) because you actually need one or b) just to provide clarity for the future.

Likewise, seeking a court order doesn't mean you'll get it. You may even want to get a second opinion from another attorney. (As always, if something seems "off" about the attorney you speak to, remember that they are human, and that there are bad lawyers out there. If you don't trust the first attorney you speak to, speak to another one.) If the attorney advises that you don't need a court order, your rabbi may want to see that in writing. The attorney can draft a letter to you stating that and that that is the reason they are not taking your case (there may still be a charge for this).

As a general rule, both parents get a say in how to raise their child. If one parent is deceased, that partner's parents or siblings may have enforceable rights to interact with your children. I hate calling this best-case scenario, but if your ex-partner has had his or her parental rights terminated, you probably won't have any legal problems. (I can't promise the conversion won't be complicated!) Similarly, you may be in a good position if the other parent is not allowed any visitation with the children.

Let's have a vocabulary lesson. If you worked with a family law attorney previously to get custody orders, you should have been told this, but maybe you don't remember or the issue hasn't come up. Generally (but I can't guarantee this is the case in all states), there are two types of "custody." This is a very simplified distinction:
Physical custody: Who the child "lives with." The other parent has "visitation." It's possible for both parents to be listed as having physical custody. Your ability to claim the child on your taxes often goes with this kind of custody, but it is not determinative. 
Legal custody: The right to make decisions about the child's life, whether it's religion, schooling, or ear piercings. A parent could potentially lose visitation rights but still have legal custody. You don't have 50/50 legal custody. You either have legal custody or you don't. 100/100. Granted, without access to the child, legal custody doesn't always mean much. This is why an attorney is important.

As you've probably guessed, legal custody is the main issue we're worried about here. You may have the right to change the child's religion over the objection of the other parent, but maybe you don't. If you've sought to move away from the other parent with the child, you've encountered this kind of problem. You might have to get a court order allowing the conversion in order for a rabbi to agree to convert your children. A rabbi may require a court order even if your attorney says you don't need one. (Remember that you might be able to get court approval on an agreement between you and the other parent if you agree. You may not even have to go to the courthouse in that case. Your attorney can help you with drafting such an agreement and the proper way to turn a written agreement into a court order. I don't recommend just writing something out on your computer because it might not be enforceable. And even if it can be enforced, it may not say what you need it to say.)

But remember, even if you are able to convert your minor children with you, they may be given the option of revoking the conversion at a later age. This revocation right should be automatic with any child converted before bar or bat mitzvah age (assuming the laws are the same as a Jewish couple adopting a non-Jewish child). If your child is over bar/bat mitzvah age, their current refusal to convert is probably sufficient.

So what happens if your ex-partner objects to converting the children and you can't overcome that legally? All is not lost. In fact, it might be easier, especially if your children have a relationship with the other parent. You can convert, run a shomer Shabbat/kashrut home, possibly even enroll your children in Jewish schools (but maybe not), but you don't have to worry if your ex-partner feeds the kids treif or has Saturday visitation. If the kids aren't Jewish, it doesn't really matter. (Yes, I know it does matter to you, but this could still be the best case scenario.) And the kids don't have to feel conflicted or caught in the middle (at least about Judaism). Even better, you won't have to force Jewish law on your ex-partner so that he or she can enforce it in the children's other home. As they get older, the children can make the decision to convert on their own. Most likely, they will have to wait until they are 18+ (depending on your state's laws and your rabbi's comfort with the situation), but they would probably be fast-tracked if they have one orthodox parent. (See Conversion Special Cases: Young Conversion Candidates.)


  1. A general halachic note, and a procedural note.

    From a halachic perspective, it is typically important to the beit din that the mother of the child agree to the conversion. Or it should be. When a case like this came up several years ago, one of America's premier rabbinic authorities confirmed that for me. A thorough beit din will not usually convert a child against the will of the mother.

    Procedurally, many or most batei din will not convert a minor in America who is still living in his non-Jewish parent's or parents' home. That is not a hard and fast rule, but it is a common position.

  2. You forgot to mention yichud issues. Most halachic authorities claim that you cannot kiss or hug your biological offsprings after you convert if they remain non-jews.

    1. I would not say "most." Given the long-overdue recognition and acceptance of infertility issues and the rise of divorce, I don't think "most" authorities by far hold this way anymore (and I don't know that was ever the normative advice in real-life situations when shailahs were asked, regardless of what theorhetical sources say/said). Adoption and fertility treatments and stepchildren have increased exponentially the number of non-biological children in our homes. Given the abundance of psychological data on parent-child relationships, even into adulthood, and our tradition's valuation of including psychological effects in halachic analysis, I think few rabbaim today actually tell parents they may not touch or be in yichud with your children, whether they are immediate biological children post-conversion, stepchildren, adopted children, adopted extended family members, or children conceived with the DNA of someone else or carried via surrogacy.

      That said, whether or not the biological children you mention are Jewish is irrelevant to the analysis. Yichud doesn't prohibit contact with non-Jews. It prohibits certain contact with non-family members, and the argument is that they stop being your halachic family members when you are "adopted" so to speak by Avraham and Sarah. I think your phrasing suggests a restriction on touching non-Jews because they're not Jews, and I think such a phrasing can easily become a chilul Hashem. Though there are certainly laymen and some rabbis who do promote the idea, consciously or not, that non-Jews are practically subhuman and shouldn't be touched or talked to, but that's not a yichud thing and is not what we're talking about here.

    2. And further, taking your analysis to the extreme, that theorhetical position severs the halachic "family" relationship of a whole family if a whole family converts. For instance: mom, dad, and 3 kids under 6 years old convert. When each of those kids hits bar/bat mitzvah age, they suddenly have to follow the laws of yichud? It's just not practical and can be incredibly damaging to the children involved. And I haven't seen it done in the families I know who converted or adoptive/relevant IVF families. I see it a little in step-families, but I think even that has become less in the 15 years I've been around.