If you have kids under 18 (or the age of majority in your country), you will have some special issues during the conversion process. This is a cross-over between my two main “specialties”: conversion issues and law.
Disclaimer: 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 have never practiced family law, and I am not a family law expert. And as you probably know, family law depends very heavily on location, as there are significant differences between the states. I am not a practicing attorney. This is not intended to be either secular legal advice or halachic advice. The point of this post is to recognize some (though probably not all) potential issues that may arise in this situation and help you ask good questions of a rabbi or your 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? There are three different possible situations: your co-parent is either Jewish or not Jewish, and your children are either halachically Jewish or not. The analysis is slightly different for each case.
- Ex-Partner Is Not Jewish: You are interested in converting to Judaism, but you have minor children from a prior relationship. Usually, 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-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.
- Ex-Partner Is Jewish: You could also have issues when the prior partner is a non-orthodox Jew and you want to become orthodox. (There should be few issues in this situation if you convert through the liberal movements.) In this case, you would have an orthodox Jewish home, while your prior partner maintains a liberal Jewish or secular Jewish home. This can cause some confusion at best and significant halachic violations at worst for children over bar or bat mitzvah age. There can also be problems with judging or perceived judgment. No parent wants to hear “you’re a bad Jew” or “you need to be Jewish” from their child or worry that the child thinks that. Thankfully, “you’re going to hell because you’re not Jewish” isn’t a thing! Religion can be a significant child custody issue even when conversion isn’t involved! The biggest problem is this: if the other home doesn’t keep kosher or Shabbat, the children won’t either when they’re there. They may try, but kids don’t have total control over their surroundings. Your former partner could even rebel, purposely tempting your kids with bacon and TV on Shabbos. So once the child is bar or bat mitzvah, they would likely violate halacha each time they visit the other parent. This is a situation the rabbis generally want to avoid. Have rabbis made an exception and converted kids like this anyway? Yes. Is an exception a good idea? Probably not, if you’re honest with yourself. You may wish the situation were different, but that doesn’t mean your child will never become a Jew. We’ll talk more below.
- The Children Are Halachic Jews: If your children were born of a Jewish mother, you’re sort of in luck! One less hoop to deal with. Most of these issues can be troublesome whether or not the children are born-Jews, but at least conversion for the children is one less thing you need to do. I think a beit din would encourage the sincere conversion of a father whose children are already halachically Jewish and encourage you to infuse as much Jewishness as possible into their lives, particularly if the other parent is not orthodox. They would want to counteract the fact that the other home is not kosher or shomer Shabbat, which is a different situation than the one described above for children who currently are not Jewish. The rest of this article will focus on people whose children are not (yet) halachically Jewish.
The problem if your children are not already Jewish: You may 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. As a practical note, even if you do all convert, you may not all convert at the same time. Your teens may convert before you, and maybe you’re converted before your kids!
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 in your life
- 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!) custody agreements between the parents
- The current court-ordered custody arrangement
- The current actual custody arrangement
- How uncomfortable your rabbi is with your situation (which may correlate to how familiar he is with these issues)
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. However, just because your former partner doesn’t have visitation, that doesn’t mean they don’t still have parental decision-making rights (effectively only a veto right when there is no visitation).
Gather Your Paperwork: Whether or not it reflects your actual arrangement now, you will need to have a copy of your current court order when you meet with your rabbi. 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 regardless 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, your lawyer should be able to give you a copy or someone will have to go in person to the presiding courthouse and copy each page 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), the person doing the photocopying 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 copy. Some pages may be marked “do not photocopy” or may even be removed before allowing you to photocopy.
Talk to a lawyer: You should at least have a consultation with a family law attorney about your conversion and how it might affect your custody arrangement. It’s preferable to find a religious Jewish family lawyer if you can find one – saves a lot of time explaining the Jewish/halachic issues. A non-orthodox lawyer may not understand the gravity of the issues. (“Ok, so your kid eats pork at the other house. Big deal. Vegetarian parents have this issue all the time.”) My understanding of most markets is that family law consultations are usually free. Call around. Ask your friends and rabbi for suggestions. But do not 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 and have all the relevant papers in hand.
I believe you should talk 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 if things turn out better than the worst case scenario. It’s better to be safe than sorry. Prevent problems before they occur!
Talking to a lawyer does not mean you have to go to court and ask for a court order (or make a contract with your ex-partner and get it attached to your custody case). Your former 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, count your blessings and enjoy a 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 and an enforcement mechanism. A written agreement or order that can be enforced by the court will be helpful if later your partner claims there was a misunderstanding or he changed his mind.
On the other hand, seeking a court order doesn’t mean you’ll get it. In a weird case like this, you may 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 you don’t need an order and that that is the reason they are not taking your case (there will probably be a charge for this but it shouldn’t be expensive).
How the Different Types of Custody Affect Your Case. 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 that alone 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. At best, it’s a veto. 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 tried to move away from the other parent with the child (out of state, for example), 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 the two of 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 and signing it together because it might not be enforceable. And even if it can be enforced, it may not say what you need it to say.)
Revoking the Conversion of a Child. 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 when a converted child reaches 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, you’ll need to ask your rabbi whether the child can repudiate the conversion before the age of legal majority. Few children revoke their conversions, and going through with a bar or bat mitzvah is usually assumed to be consent. At that point, the conversion will be permanent, whether or not the child continues to live as a Jew as an adult.
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 it’s less problematic halachically.) 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, the rabbis will wait to convert them 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.)