The court denied Father’s petition seeking a change of physical custody of daughter for lack of evidence that the Mother had violated a divorce decree with the order that the child must be raised in accordance with the Muslim faith.
Arain v. Arain, 209 A.D.2d 406, 619 N.Y.S.2d 591 (1994); Supreme Court of New York, Appellate Division, Second Department
The court denied Father’s petition seeking a change of physical custody of daughter for lack of evidence that the Mother had violated a divorce decree with the order that the child must be raised in accordance with the Muslim faith.
Appellant, Yasin Arain, and respondent, Katherine Arain, were divorced under a New Jersey divorce decree in 1992 that awarded the Mother and respondent custody of the parties’ minor daughter with the order that she would “raise the child pursuant to the Muslim faith.”
Appellant Father appealed the family court’s grant of custody to the Mother and the same court’s subsequent denial of his motion to vacate its custody order. Appellant argued that there was newly discovered evidence that the Mother was not fulfilling the order of the divorce decree regarding the daughter’s upbringing.
The appellate court affirmed the family’s court’s decision to dismiss the Appellant’s cross petition for change custody due to the absence of evidence supporting Appellant’s claims against the Mother. The court also stated that the Family Court properly considered witness testimony and the best interests of the child.
Note: the court agreed with Gluckstern v Gluckstern, 4 N.Y.2d 521 (1958), Jabri v Jabri, 193 A.D.2d (1993) and other cases that courts will enforce a contract between spouses regarding the religious upbringing of a child but disagreed with Appellant that this principle was true on the merits of this case.
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EN