Before you can assign appropriate Jewish holiday schedules in custody/visitation matters, you must learn each parent’s mode of holiday observance. Conflicts in the level of holiday observance between Jewish parents, or Jewish holiday observance altogether between inter-faith couples, makes it imperative to learn some basic Jewish holiday issues.
By Alexandra Leichter, Family Lawyer
Most family law attorneys shy away from religious holiday scheduling because they incorrectly assume that courts are constitutionally prohibited from allocating religious holidays. But the case law often cited1 does not prevent courts from considering religious practices and observances in devising appropriate time-share arrangements. Those cases merely preclude, absent a showing of “harm,” courts from restraining either party from allowing children’s participation in religious activities or observances.2
Indeed, most appropriately crafted custody and visitation orders apportion Christian and legal holidays in a manner that best suits parties and their children. There is no reason the same cannot be done with Jewish (or other religious) holidays. However, Jewish holidays are not easily ascertainable from the Gregorian calendar. The Jewish calendar is a lunar one: Jewish New Year is in September or October on the Gregorian calendar, Jewish months have 28 or 29 days, and in Jewish leap years,3 an entire month is added to the calendar. Additionally, there are many Jewish holidays, which, depending on the degree of religious observance, may or may not be important to the parties. Conflicts in the level of holiday observance between Jewish parents, or Jewish holiday observance altogether between inter-faith couples, makes it imperative to learn some basic Jewish holiday issues.
How the Four Branches of Judaism Observe the Holidays
Religiously affiliated Jews in the United States are generally members of one of four branches of Judaism: Orthodox, Conservative, Reform, and Reconstructionist. The Orthodox, being most traditional, observe every holiday to the maximum extent prescribed by Jewish law. Conservative and Reconstructionist branches have more liberal observance practices, while the Reform tend to observe holidays in a less traditional manner, often adjusting observance to particular secular lifestyles.
Nevertheless, all four branches concur about the existence of each of the holidays. By way of example, Rosh Hashana, the Jewish New Year, always occurs on the first day of the first Jewish calendar month (which falls in either September or October). However, while Orthodox and Conservative Jews celebrate two days of Rosh Hashana, many (though not all) Reform and Reconstructionist celebrate only the first day.
Further, on Sabbath and most major holidays, Orthodox Jews refrain from many weekday activities, such as working, traveling in a vehicle, turning on lights, answering telephones, handling money, carrying objects outside the home, etc. Many Conservative Jews interpret no-work-on-Sabbath rule more liberally, and they may answer telephones, turn on lights, drive cars, etc. While Reform Jews attend synagogue, and may have celebratory meals on the Sabbath and the holidays, they observe very few of the other restrictions on the Sabbath and on most major holidays.
Key Issues in Assigning Jewish Holiday Schedules for Custody/Visitation
One key issue in assigning appropriate holiday schedules in custody/visitation matters is learning each parent’s mode of holiday observance. For example, Orthodox parents not living within walking distance of each other cannot split a two-day major holiday because the children cannot travel during those two days. Similarly, assigning each parent one of the two Seder evenings on Passover is meaningless if both parents are Reform Jews because they celebrate only one Seder night.
Another important consideration is that a major two-day holiday occurring on a Thursday/Friday, or a Sunday/Monday, extends that weekend for Orthodox Jews into three days because travel and work is prohibited on Saturday as well.
In interfaith marriages, consider that Christmas and Hanukkah often conflict, as do Passover and Easter. To alleviate this possible problem, and provide a guideline to the holidays, below I describe the Jewish holidays. [Ed. For a schedule of all Jewish Holidays this year, go to www.calendarlabs.com/holidays/jewish/2020. You can also download free Jewish calendar apps for your mobile at the App Store or Google Play.]
With limited exceptions, Jewish holidays (and Sabbath) begin at sunset the evening before the holiday (or Friday for Sabbath) and end one hour after sunset on the last day of the holiday (or Saturday for Sabbath). In addition, many Jewish holidays are “fast days” which require abstention from all food and liquid. Jewish females over 12 years old and Jewish males over 13 years old are considered adults and are required to fast. Except for Yom Kippur, if a fast day is on Sabbath, the fasting will take place on the Sunday following it.
Jewish Holiday Guide for Custody/Visitation Schedules
Rosh Hashana
This is the Jewish New Year. The holiday normally occurs during the month of September, but may occasionally occur in October. Rosh Hashana is celebrated by attendance at evening and morning synagogue services, and celebratory meals that include eating new fruit, as well as eating apples and challah (special bread) dipped in honey. The holiday requires abstention from all work and other normal activities. Rosh Hashana is celebrated as a two-day holiday, although Reform Jews generally celebrate only the first day.
Fast of Gedaliah
This is a fast day occurring on the day following the second day of Rosh Hashana. Fasting begins at sunrise and ends one hour after sunset. The fast day does not require abstention from work or other normal activities.
Yom Kippur
This is the most important and holiest day of the year. It normally occurs in September or October, exactly ten days after Rosh Hashana Eve. The celebration consists of fasting from sunset on the eve before Yom Kippur until an hour after sunset on Yom Kippur. It lasts one day and requires abstaining from work and other normal activities.
Succoth & Simchat Torah
This nine-day holiday begins five days after Yom Kippur. The holiday begins at sunset on the eve before the first day of Sukkoth and ends nine days later, an hour after sunset. The celebration involves building and decorating sukkah (outdoor hut) which is used during the first seven days of the holiday for all meals. Additionally, a lulav (palm branch) and an etrog (special citrus fruit) are used during morning prayers on the first seven days (except Saturdays). The first two days and last two days of the holiday are “special days” requiring abstention from work and other normal activities. The interim days are considered “half-holidays,” during which time meals are eaten in the sukkah prayers are said with the lulav and etrog, but work and normal daily activities are generally allowed (except on the Sabbath). Orthodox and most Conservative Jews observe the nine days as outlined above. Reform Jews (and Jews living in Israel) observe only the first and eighth days of the holiday as “special days,” and their observance of the entire holiday period ends on the eighth day.
Photo: A sukkah during sukkot at Temple Emanu-El in Manhattan, New York. Rhododendrites
Hanukkah
This eight-day holiday is normally in December but may start in late November. The celebration consists of lighting candles in a menorah (eight-branch candelabra), starting with one candle the first night, and adding one candle each night, so that eight candles are lit on the eighth evening. The first lighting is at sunset the evening before the first day of Hanukkah. Additional celebrations include card and dreidel (a spinning top) games for children and special foods such as latkes (potato pancakes). Gift giving is not necessary, although it has become customary to give gifts to children (this practice developed in recent history, especially in the U.S., to reduce Christmas-envy: Jewish children can boast of eight nights of gifts, versus only one night for Christian children). The holiday does not require abstention from work or other activities.
Asarah B’Tevet
The tenth day of the Jewish month Tevet is a fast day beginning at sunrise on that day and ending an hour after sunset. It occurs seven days after the last day of Hanukkah, so it would normally occur in December or January. This holiday does not require abstention from work or other normal activities, except abstention from food and drink.
Tu B’shvat
This minor holiday celebrates the first fruits of the year. It normally occurs in January or early February. Synagogues and Hebrew schools have special celebrations for the children, involving the new fruits. No abstention from work or other normal activities is required.
Fast of Esther
This fast day occurs the day before Purim, normally in late February or March, beginning at sunrise and ending an hour after sunset. Before the fast ends, the Megillah (the Scroll containing the Book of Esther) is read. This holiday does not require abstaining from work or other normal activities except food and drink.
Purim
This is a very joyous holiday, usually in late February or March, thirty days before Passover. It is normally celebrated with a costume party, a special meal in the afternoon, and the delivery of baskets of food to friends, to relatives and to the poor. Most synagogues and Hebrew schools have Purim carnivals for children during this period.
Photo: A group of children in costume for Purim in Israel. Amit Bronstein
Passover
This holiday is also known as the holiday of the Matzah (unleavened bread). It lasts eight days and occurs in April or late March (often coinciding with Easter). (For those who have forgotten their Bible, the “Last Supper” was the Seder on the first night of Passover – and yes, Jesus was Jewish.) The holiday begins at sunset on the eve before the first day of Passover. For Orthodox Jews, the first two evenings are celebrated with a Seder (a ritualized meal involving drinking four cups of wine and eating matzah, bitter herbs, a walnut/fruit/wine concoction symbolizing mortar used by Jewish slaves in Egypt, and other special foods. In the realm of holiday food consumption, Passover wins the prize for most varied, most symbolic, and most interesting). Reform Jews, and Jews who live in Israel, celebrate only one Seder. For Orthodox Jews, the first two days and the last two days of Passover (first day and seventh day for Reform and Israeli Jews) are major holidays requiring abstention from work and other normal activities. The interim days do not require abstention from work. However, all eight days require abstention from leavened bread and other grains.
Yom Hashoah
This is Holocaust Remembrance day; it usually occurs in April or May, 12 days after the first day of Passover. Memorial services are conducted by various synagogues. The holiday does not require abstention from work or other normal activities.
Yom Ha’atzmaut
Israel’s Independence Day, occuring eight days after Yom Hashoah, normally in May, but sometimes in April. The holiday involves festivities through various Jewish centers but does not require abstention from work or other normal activities.
Lag B’Omer
The 34th day after the first day of Passover, usually in May, but sometimes June. It is a joyous day but does not require abstaining from work or other normal activities.
Shavuot
The 50th day after the first day of Passover, usually in May or June. It is a two-day holiday for Orthodox Jews and one day for Reform Jews and Jews living in Israel. It celebrates the giving of the Torah, and requires abstaining from work and other normal activities.
Shiv’Asar B’Tammuz
A fast day on the 17th day of the Jewish month Tammuz, usually in July or August, 41 days after the first day of Shavuot. It begins at sunrise, ends an hour after sunset, and does not require abstaining from work or other activities except food and drink.
Tisha B’Av
A major fast day in July or August, exactly three weeks after Shiv’Asar B’Tammuz, beginning at sunset on the eve before the fast day and ending an hour after sunset on the fast day. It does not require abstention from work or other normal activities except food and drink.
1 In re Marriage of Murga, 103 Cal. App. 3d 49 (1980); In re Marriage of Mentry, 142 Cal.App.3d 260 (1983); In re Marriage of Weiss, 42 Cal.App.4th 106 (1996).
2 Weiss, supra, quotes approvingly and extensively from the Pennsylvania case of Zummo v. Zummo, which held that “[b]oth parents have rights to inculcate religious beliefs in their children. Accordingly, the trial court may constitutionally accommodate the mother’s rights with a directive of the type imposed here, which essentially carves out a time period each Sunday during which the mother has the right to custody and control of the children”; and approved of In re Marriage of Tisckos 161 Ill. App. 3d 302 (1987) “characterizing a similar order as an accommodation to the custodial parent rather than a limitation upon visitation.” 574 A.2d 1130, 1157 (Pa. Super. 1990). Zummo further states: “we emphasize the constitutional prerequisite of ‘benign neutrality’ towards both parent’s religious viewpoints. If, for example, the court entered an order which granted a Christian parent custody or visitation on all Christian holy days, but denied similar custody or visitation to the other parent on his or her Jewish holy days (without an adequate basis to encroach on the parent’s right to expose the child to that parent’s religious viewpoint as described supra), such a provision might constitute an impermissible restriction on religious and parental rights, and a violation of the Establishment Clause, albeit an indirect one.” Id. at 1157-58.
3 Leap years occur every 2-3 years, or 7 times every 19 years, to assure that Passover is in the spring, Rosh Hashana is in the fall, and certain holidays celebrating harvests, etc. occur during appropriate times of the year.
Alexandra Leichter is a California State Bar Certified Family Law Specialist, a fellow of the American Academy of Matrimonial Lawyers (AAML), a fellow of the International Academy of Family Lawyers (IAFL), and an AAML Certified Family Law Arbitrator. She is a highly sought-after consultant to other attorneys and litigants in complicated divorce cases, and she also serves as a volunteer Judge Pro Tem in Los Angeles County family courts. www.llmfamilylaw.com
Prior versions of this article were printed in L.A. County Bar Association Family Law News & Review, (Spring 1999), and in Family Law News, Official Publication of the State Bar of California Family Law Section, Vol. 29, No. 2 (2007).
Copyright © 1999-2020 Alexandra Leichter. All rights reserved.
