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Minor's First Amendment Rights at Issue in Orthodox Jewish Custody Dispute


October 25, 2007 - In the past, we've detailed how some Orthodox Jewish women have had much trouble getting granted a "get" or divorce decree from their husbands, and here's another interesting development concerning divorce and this religion.

Juvenile-rights groups and legal scholars have become engaged in a bitter child custody dispute between an Orthodox Jewish man and his ex-wife, with the question of the couple's 13-year-old son's First Amendment rights at the crux of the matter.

Robert Solko and his ex-wife Julie Ann Bergmann got a divorce 13 years ago. During their marriage, the couple had been strict observers of Orthodox Judaism, even living in Israel for six years.

A custodial parent of two young boys, Holland has proposed two bills and a congressional amendment that he believes would better represent fathers in custody cases.

Holland's three drafted items include:

  • The Holland Bill (also referred to as the "Father Equal Treatment Act of 2007")
  • The Paternal Protection Act; and
  • The Paternal Protection Amendment.

However, shortly after the divorce, Solko renounced the religion. For the last four years, the 49-year-old Solko has had custody of the couple's 13-year-old son Ephraim and forbid the young man to observe Jewish rites like wearing a yarmulke and keeping kosher.

Apparently upset with his father's hard stance on the Orthodox religion, Ephraim was picked up by police last month after running away from his dad's home in Kansas City, Kansas during the Tisha B'Av holiday.

His mother is now asking for changes in the child custody arrangement that would allow Ephraim to attend school in Brooklyn, where his three older brothers-all estranged from their father-live. Bergmann has stated that Ephraim could attend yeshiva day schools in Brooklyn and then live with his father during the summers.

In 2005, Solko drafted a parenting plan stating that both parents should not denigrate each other's religious beliefs in front of Ephraim and that the boy's "secular education" was second to only his health. Solko also stipulated in the parenting plan that his son not pray at the school or wear any religious garb but did say and added that he wanted his children to experience a wide range of activities.

While Solko and his ex-wife both want different religious upbringings for their son, juvenile-rights groups have said that the decision is not theirs or the courts; rather it is Ephraim's. Even the ultra-Orthodox Jewish organization, Agudath Israel of America, is sharing this liberal view that Ephraim has his own rights to freedom of religious expression.

In a friend-of-the-court brief, Agudath Israel and a half-dozen child advocates groups asserted that minors like Ephraim share the same First Amendment rights as adults under the U.S. Constitution and the Kansas State Constitution. These interested observers have said that it's Ephraim's decision to choose and practice the religion that he wants.

Some opponents of Agudath Israel's decision to enter this case have worried that such a ruling would make it harder for Orthodox parents to make religious decisions on behalf of their children, especially if those children were able to assert the rights to freedom of religious expression as a means to renounce the religion.

Agudath Israel has responded that it is willing to take this chance and enter this case featuring a boy who wants to practice its religion but is not being allowed to do so by his father.

We'll keep you updated on the latest developments surrounding this Orthodox Jewish child custody dispute and the First Amendment rights of minors.

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