(CN) - A Jewish man cannot use the major holidays involved with his faith to have longer custody of his children than his ex-wife, a federal judge ruled.
Lori and Howard Rosenstein divorced in 2005 after nine years of marriage. The divorce decree allowed each parent to choose the children's religion during the time they had the children in their care.
Howard complained that Lori was not observing the Jewish holidays while she had the children. For example, he said they children were sent to school during Rosh Hashanah.
Beyond Howard's testimony that Lori does not celebrate Jewish holidays, the court notes that it does not know her religious preference. At one hearing, Howard's attorney indicated that she might "remain Jewish or become Methodist."
In 2008, a judge in Tarrant County, Texas, allowed Howard to have the children on Rosh Hashanah, Yom Kippur, Hanukkah, Passover and eight other Jewish holidays.
Lori was unsuccessful in her bid for a new trial, but the court did remove the other eight Jewish holidays from the decree.
Still, since some of the Jewish holidays last for more than one day, Lori objected that those four holidays gave Howard more time than she had on Easter, Christmas, Thanksgiving and New Year's Day.
The Fort Worth-based Second District Texas Court of Appeals agreed that the extra days for Howard violated Lori's First Amendment rights.
"Christmas and Hanukkah celebrations often overlap, as do the celebrations of Passover and Easter," Justice Lee Ann Dauphinot wrote for the three-judge panel. "We note that in any event, in year 2016, when R.D.R. is still a minor, Hanukkah begins the evening of Dec. 24. Under the divorce decree, which provides that Jewish holidays prevail over all other periods of possession, Lori would lose her Christmas possession of R.D.R. as well as her New Year's Day possession if the decree were intended to give Howard possession for the entire eight days of Hanukkah."
"Given the total absence of evidence that Lori's religious preferences or preference for no religion are illegal or immoral or otherwise present a danger to the children, we hold that the possession order violates Lori's rights under the Establishment Clause," Dauphinot added.
The case will return to court for a new trial on possession of the children.