Before we totally bash the courts, we don't know all of the facts of this case. (Having worked in Family Court and for Children's Services for far too many years, I can give you many examples of judicial, parental and governmental agency intemperance and excess to fill a bookshelf. From what has been posted thus far, I don't know is this is such a case.) If this couple had, for example, a valid prenuptual agreement regarding the rearing and religion of children or a validly entered into separation agreement following the break up that covered the subject of religion, then a state court could interpret such an agreement under contract law and not run afoul of any federal or state constitutional issues. In the absence of such an agreement, or in spite of it as the case may be, the overly vague "best interests of the child" clause may be invoked by a Judge if, for example the child(ren) were raised in an intact household in one faith and, after separation, the non-custodial parent took it upon him or herself, to unilaterally change the child(rens') faith.
Contract law is subject to constitutional law, a contract that addresses religious issues is invalid, ipso facto
; there simply can be no legally binding religious agreement made within the boundaries of the United States or her territories under the first and fourteenth amendments. And the 'best interests of the child' is moot, because the court would have have to rule that a certain religion, even if under a very narrowly defined set of circumstances, is the "best interest of the child", which is inherently favouring one religion over another by the court, which the court cannot do. In the relatively recent case Friedlander v. Port Jewish Center a Federal District Court in New York threw out a legally binding contract about a rabbi's employment, essentially invalidating the contract before the law, because even though no religious reasons were citing in the unilateral early termination of Friedlander's contract by the Temple and the contract provided that 'the Rabbi shall have freedom of the pulpit' (main issue seemed to be that attendance was down and the Rabbi wasn't available enough for administrative issues) and could only be dismissed for 'for gross
misconduct or willful neglect of duty'. However, since any interpretation of 'gross misconduct' or 'willful neglect of duty' could possibly require it to rule on issues that may be tangentially related to religious matters, the court ruled that it lacked jurisdiction and dismissed the case, appeal was denied by the Second Circuit Court and the SCOTUS.
Those who enter into a contract that even tangentially touches upon religious issues have no legal recourse. So whether or not there was such an agreement here is moot.
More than likely, given the reported fact that the father had 'converted' to Judaism pre-marriage, the judge probably issued a temporary restraining order to preserve the status quo ante in order to sort things out and, after another court appearance, set the case for a conference and, perhaps. a trial where the father's claim that his 'conversion' was involuntary could be a pivotal issue. The goal of a pre-trial conference ideally should be to convince the parents to work out a settlement they both can live with, rather than trust the judicial system.
If they can agree on a solution, great...but it should be kept in mind that no agreement on this matter can be regarded as legally binding and one's adherence or failure to adhere to any such agreement cannot be a factor before any court of law. This is the whole point of the separation of church and state, this is the whole point of the first amendment.
Violating a temporary order in such a high profile fashion will do the father no good in the long run in his efforts to win a say in the religious upbringing of his child. Angering your judge is rarely a sound legal strategy, except in the most egregious of situations.
Like when a judge issues a restraining order that is nothing short of insane, considering the last century of SCOTUS precedent?
I wonder if we would be so indignant and be be so instinctively sympathethic to the father if he had left an Orthodox Christian household and taken the child to an Imam in such a defiant manner. I suspect not.
I'm not sympathetic to the father, I believe that ANY form of religious instruction or indoctrination of children is child abuse; but my personal opinions aren't really the issue, are they? The issue is one of the extent of judicial jurisdiction in light of the first and fourteenth amendments. Which I am certain is exactly how the Federal Courts will see the issue if it goes any further than this trial.
Really, what's the court going to do, tell this guy that theological understanding of Judaism as being compatible with Catholicism is wrong and send him to jail for it? Perhaps the court could go on to define what theology is Jewish and which theology is Christian? Maybe it can then issue restraining orders preventing Moslems from converting to other religions and persecute those who refuse to abide by them?