231
* Julie F. Kay is the Senior Legal Strategist for Footsteps, an organization providing
services and support to people leaving the ultra-Orthodox community. See Footsteps, https://
www.footstepsorg.org/. Kay’s work with nonprot organizations includes litigation and policy
initiatives to advance gender equity and human rights in the United States and worldwide. In
2018 she launched a legal reform initiative at Footsteps that works to protect the parenting
rights of people leaving ultra-religious communities. She is also known as the lead attorney who
designed and litigated the landmark abortion rights case ABC v. Ireland before the European
Court of Human Rights on behalf of the Irish Family Planning Association and as the co-author
of Controlling Women: What We Must Do Now to Save Reproductive Freedom (Hachette
Books 2021; 2d ed. 2024). Kay received a B.A. cum laude from Harvard University and a J.D.
cum laude with a focus on public interest law from Brooklyn Law School.
Kay is grateful to the many Footsteps members and clients who shared their difcult
experiences as parents in highly contested divorce cases upon leaving ultra-Orthodoxy and
their hopes for the best for their children, and for the insight devoted Footsteps staff members,
consultants, and allies have contributed to the author’s understanding of the unique challenges
faced by those who leave ultra-Orthodoxy. Kay has been fortunate to work with dedicated
and talented attorneys from the nonprots the New York Legal Assistance Group (NYLAG),
Legal Services of Hudson Valley, and Her Justice on the cases that form the core of this work.
Particular gratitude is owed to Her Justice’s Anna Maria Diamanti and NYLAG’s Amanda Beltz
for their review and feedback on this article, and to the Family Law Quarterly student editors at
New York Law School, including Alexandra Ogunsanya, Chelsea Ryan, Nicole Keegan, Grace
Shim, and Elaine Villaneuva, and faculty editor Professor Lisa F. Grumet.
Pro bono attorneys from several top law rms, too many to mention here, have been key to
helping parents preserve the bond with their children and protect their parental rights. Pro bono
attorneys at Davis Polk and Quinn Emanuel provided excellent legal research and representation
that the author has relied upon for signicant parts of the supportive case law underlying this
article. Attorneys from DLA Piper, Jenner & Block, Kramer Levin, Morrison Foerster, Schulte
Roth & Zabel, Sheppard Mullin, and Willkie Farr & Gallagher provide extensive, invaluable
legal research and pro bono representation for Footsteps members. The author has relied on
collaboration and thought partnership with these attorneys and others in crafting the underlying
legal arguments, but any errors are her own.
Prioritizing Children’s Educational
Interests When One Parent Leaves an
Ultra-Orthodox Community
JULIE F. KAY*
“Miriam” was forced to leave the ultra-Orthodox community of her
birth after her brother-in-law exposed her as a lesbian to the local rabbi.
Published in Family Law Quarterly, Volume 57, Numbers 2&3, 2024. © 2024 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
232 Family Law Quarterly, Volume 57, Numbers 2&3, 2023–2024
Miriam decided she would never again pretend to be heterosexual, or
religious. She was dedicated to her two young children and feared being
estranged from them; she had seen it happen many times to parents who
had left New York’s ultra-Orthodox religious communities. Miriam knew
that the choice of which school her children attended would determine not
only whether they received basic instruction in English, science, math,
social studies, and other secular subjects required by New York State,1 but
also how they were taught to view her, their secular, LGBTQ+ mother.
Representing Miriam in her protracted custody dispute, I became aware
of a pattern of injustice occurring in the New York State court system.
What I witnessed was already well known to individuals who had left
the ultra-Orthodox community. There exists a practice of secular courts
prioritizing religious adherence over a child’s right to a basic secular
education2 and ignoring how religious schools can undermine parental ties
when one parent is no longer ultra-Orthodox.3
As a human rights attorney, I had litigated in varied forums worldwide
but was stunned by the trampling of rights I observed less than two miles
from my home as Miriam fought to maintain custody of her children in
Kings County Supreme Court in Brooklyn, New York. I soon learned
that Miriam was just one of the many formerly ultra-Orthodox parents—
or “O.T.D.” parents4—facing tremendous barriers and bias in custody
1. See infra Part III.
2. Cf. Campaign for Fiscal Equity, Inc. v. State, 655 N.E.2d 661, 666 (N.Y. 1995); see infra
Part III.
3. In this article “ultra-Orthodox,” or Haredi, refers to a sector of the Orthodox Jewish
community that is “more stringent in observance of” Jewish law (halacha), and “resistant to
interactions with secular society.” maRk tRenCheR & david n. myeRs, et al., a sURvey oF
oRthodox Jewish PolitiCal attitUdes and BehavioRs: haRedi and modeRn oRthodox
seCtoRs 3 (Nishma Rsch. 2023), https://nishmaresearch.com/assets/pdf/REPORT%20-%20
Orthodox%20Jewish%20Political%20Attitudes%20and%20Behaviors%20September%20
2023.pdf. This article focuses on those who are members and former members of New York’s
ultra-Orthodox communities.
4. At Footsteps and elsewhere, many formerly ultra-Orthodox Jews refer to themselves as
being “off the derech,” or O.T.D., essentially a reclaiming of the maligned labeling of people
who have left the religious community and wandered off the path (or, in Hebrew, the “derech”).
Author Taffy Brodesser-Akner describes it as “how their ultra-Orthodox families and friends
refer to them when they break away from these tight-knit, impermeable communities, as in: ‘Did
you hear that Shaindel’s daughter Rivkie is off the derech? I heard she has a smartphone and has
been going to museums.’ So even though the term is burdened with the yoke of the very thing
they are trying to ee, members remain huddled together under ‘O.T.D.’ on their blogs and in
their Facebook groups. . . .” Taffy Brodesser-Akner, The High Price of Leaving Ultra-Orthodox
Life, n.y. times mag. (Mar. 30, 2017), https://www.nytimes.com/2017/03/30/magazine/the-
high-price-of-leaving-ultra-orthodox-life.html.
Published in Family Law Quarterly, Volume 57, Numbers 2&3, 2024. © 2024 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Prioritizing Children’s Educational Interests 233
disputes in the Kings County and Rockland County courts, particularly
when it came to decisions around education.5
Seeing Miriam’s case and learning of many other similar situations
inspired me to create a legal reform initiative with the organization
Footsteps, the only nonprot in the United States that offers comprehensive
services to people who have left ultra-Orthodoxy.6 Footsteps began in
2003 and has served over 2,300 members since then. A signicant portion
of our members are parents, and we provide support for them through
parenting groups, parent-child events, counseling services, and provision
of legal representation and strategic legal consulting. In the ve years
since our legal reform initiative was launched, I have provided direct
legal consultancy for more than 40 members engaged in custody disputes.
The number of individuals assisted by Footsteps has grown over the past
20 years, as has the number of parents deciding to leave ultra-Orthodox
communities. Throughout this time, my work to preserve the parenting
rights of people leaving ultra-Orthodox communities has documented and
exposed some disturbing trends and injustices. We also have had some
heartening victories addressing these challenges.
5. In New York, custody cases are heard in Supreme Court (for divorce proceedings) and
in Family Court. Overall, very few matrimonial law cases have written decisions or orders that
get published in New York, making it exceedingly difcult to formally document legal trends
in cases involving a formerly ultra-Orthodox parent or to create clear precedent. Additionally,
condentiality laws governing matrimonial and other custody proceedings restrict access to
legal lings for nonparties. See N.Y. dom. Rel. law § 235.
Nonetheless, parties to the litigation can and do disseminate the lings of their own case to
other individuals without running afoul of the condentiality provisions. An individual litigant
can release everything in the record except the forensic report, but parents appropriately have a
strong desire to protect the privacy of their minor children and their personal details from public
view. Many Footsteps members have privately shared their court lings with the author of this
article over the past ve years, with the goal of seeking justice for themselves and other O.T.D.
families. Other Footsteps clients self-censor out of a legitimate fear that opposing counsel in
a pending case will call the judge’s attention to advocacy work or media coverage to retaliate
against a parent who speaks to the press. In the author’s experience, custody cases where one
parent is formerly ultra-Orthodox may stay actively in contested litigation until the youngest
child turns 18 years old.
Our Footsteps members value their own privacy and especially that of their children and,
therefore, in this article, all potentially identifying information has been redacted or changed.
The two exceptions concern opinions published by the Appellate Division, Second Department,
for which information is publicly available. Although identifying information is redacted, the
author has also received the permission from one litigant in each case that is discussed.
6. See Family Justice Initiative, FootstePs, https://www.footstepsorg.org/family-justice-
initiative/; FootstePs, navigating divoRCe and CUstody when leaving UltRa-oRthodoxy
(2020), https://www.footstepsorg.org/wp-content/uploads/2023/10/Footsteps_LegalManual_
November-2020-3.pdf.
Published in Family Law Quarterly, Volume 57, Numbers 2&3, 2024. © 2024 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
