       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        ELIZABETH STEINMAN,
                              Appellant,

                                     v.

                         WAYNE S. STEINMAN,
                              Appellee.

                              No. 4D15-4016

                              [May 11, 2016]

  Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Howard K. Coates, Jr., Judge; L.T.
Case No. 502011DR013202XXXXNB.

  Amy D. Shield and Roger Levine of Amy D. Shield, P.A., Boca Raton,
and Charles D. Jamieson of The Law Firm of Charles D. Jamieson, P.A.,
West Palm Beach, for appellant.

   Wayne S. Steinman, Jupiter, pro se.

PER CURIAM.

   Elizabeth Steinman (the mother) appeals an order finding her in
contempt for making major decisions regarding her children’s religious
education contrary to a marital settlement agreement providing for joint
decision-making with the children’s father. Because the principal concern
of Wayne Steinman (the father) was with the scheduling of afterschool care
and there was no evidence the children are harmed by exposure to
conservative or orthodox religious beliefs or practices, we reverse.

                               Background

   The parties, who are both Jewish, divorced in 2011. They have two
minor children. The marital settlement agreement provided for shared
parental responsibility and the parties agreed that major decisions
regarding the welfare of the children, including religious upbringing, would
be made jointly whenever possible.

   In 2014, the father moved to hold the mother in contempt. He stated
that he had no objection to the mother sending the children to Chabad
aftercare instead of aftercare at public school as long as she made
arrangements to watch the children until 6:00 p.m. on Fridays. 1 However,
he explained that Chabad aftercare ends early on Fridays, and he was thus
forced to leave work early to get the children. A magistrate found the
mother had not violated a court order and recommended denial of the
father’s motion. The trial court adopted the finding and recommendation.

   In January 2015, the father again moved for contempt and to enforce
the marital settlement agreement, complaining that the mother was
unilaterally making major decisions regarding the children’s religious
practices and education. The motion alleged that she unilaterally enrolled
the children in an Orthodox religious aftercare program and was following
Orthodox Jewish law and customs without his input or agreement. He
again alleged the aftercare program was causing him problems with his
work schedule.

    At the hearing on his motion, the father informed the court that
although he believed it confused the children, he did not object to the
mother raising the children in a different aspect of the religion or the
children attending the Chabad aftercare on the days they were staying
with the mother. His concern was with aftercare on his visitation days.
His counsel noted that “[t]he issue is that it doesn’t work for his schedule,
where public school aftercare does. It’s a timing issue. If the former wife
can assist the former husband and pick the children up on his Fridays at
4:30, then he has no problem with it.” Additionally, the father complained
in general terms about the mother making decisions on her own and not
discussing them with him. According to the father, they practiced Reform
Judaism during the marriage and the children are confused by the more
strict religious and cultural differences that affect daily life. The mother
disagreed. She testified that the children had attended conservative and
Orthodox temples during the marriage. Regarding aftercare, she agreed to
pick up the children on Fridays to help with his schedule.

1 Chabad is an international Jewish religious and social institution and
organization that offers religious services as well as summer camp, preschool and
aftercare programs including youth religious education. See generally CHABAD
LUBAVITCH WORLD HEADQUARTERS, lubavitch.com (last visited Apr. 22, 2016).
Chabad is considered to offer a more “orthodox” approach to Jewish religious
practices and education “because it adheres to Jewish practice and observance
within the guidelines of Talmudic law and its codifiers.” What Is Chabad?
Frequently               Asked                Questions,             CHABAD.ORG,
www.chabad.org/library/article_cdo/aid/776104/jewish/FAQ.htm (last visited
Apr. 22, 2016).


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   The trial court granted the father’s motion in part. The court, based on
the magistrate’s previous recommendation, did not find the mother in
contempt for sending the children to Chabad aftercare, although it found
that aftercare was an appropriate subject for shared parental
responsibility. Based upon the father’s position on Chabad, the court
ordered that the children can attend Chabad aftercare as long as the
parties can agree about picking up the children on Fridays.

   However, the court found the mother in contempt for unilaterally
changing the religion of the minor children. The order provided that the
children will be raised under Reform Judaism unless the parties reach
another agreement. The court explained that “Former Wife/Mother is free
to practice any religious beliefs she wishes, but cannot unilaterally modify
the children’s beliefs and practices or have the children follow her beliefs
and practices when they are residing with her.”

   On appeal, the mother argues that, because there is no evidence that
the children are harmed by her faith, the contempt ruling impermissibly
impinges on her own religious freedom.

                                  Analysis

    We have recognized that a trial court cannot “preclude the custodial
parent of one religious faith from actively influencing the training of the
child inconsistently with the different religious faith of the other parent,
and require the custodial parent to raise the child in the other parent’s
faith and cooperate with the other parent in effecting the result.” Abbo v.
Briskin, 660 So. 2d 1157, 1158 (Fla. 4th DCA 1995). In Mesa v. Mesa, 652
So. 2d 456 (Fla. 4th DCA 1995), we explained that courts have consistently
overturned restrictions preventing one parent from exposing a child to his
or her religious beliefs and practices unless there is an affirmative showing
that the religious activity is harmful to the child. “Allowing a court to
choose one parent’s religious beliefs and practices over another’s, in the
absence of a clear showing of harm to the child, would violate the first
amendment.” Id. at 457; see also Pierson v. Pierson, 143 So. 3d 1201,
1203 (Fla. 1st DCA 2014) (citing Mesa and concluding that evidence a child
is confused about conflicting religious beliefs is not a sufficient showing of
harm to interfere with a parent’s religious freedom). Even if the parties
agreed to raise the children in a particular religion, most legal authority is
against enforcement of such agreements. Sotnick v. Sotnick, 650 So. 2d
157, 160 (Fla. 3d DCA 1995) (citing Zummo v. Zummo, 574 A.2d 1130,
1148 (Pa. Super. Ct. 1990)).


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   Here, the mother wants the children to attend Chabad a few days each
week for religious education and the father stated at the hearing that he
did not object to Chabad aftercare if the mother would accommodate his
work schedule, with his counsel stating that arranging the pickup of the
children on the Fridays on which the father has visitation “really is the
issue.” The mother offered to pick up the children each Friday, making
this issue moot. Although the father raised a general objection to the
mother making religious decisions affecting the children without his input,
he did not show any harm to the children, nor did he express much
concern about this. He alleged generally that the children were confused
by the mother’s more strict religious practices and differences in diet
between their homes, but there was no affirmative evidence of harm that
would allow the court to interfere with her religious practice or with the
children’s religious upbringing and/or exposure to religious tenets and
practices.

                               Conclusion

    Accordingly, the contempt order is reversed in part. We vacate the
portions of the order finding the mother in contempt for unilaterally
making decisions regarding the children’s religion, directing that the
children will be raised under Reform Judaism unless the parties agree
otherwise, directing that Orthodox Jewish activities be changed back to
Reform Jewish activities, preventing the mother from having the children
follow her beliefs and practices when they are with her, and requiring her
to not engage in actions designed to modify the children’s belief from
Reform Judaism.

MAY, GERBER, and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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