The New York Appellate Division court in Brooklyn has unanimously reversed a trial judge’s decision to take away a formerly-Hasidic lesbian mother’s custody of her three children, finding, among other things, that the settlement agreement drafted by her ex-husband’s father at the time of their divorce imposed an unconstitutional requirement that she continue to observe the tenets of a Hasidic lifestyle as a condition of her custody of their children. The August 16 decision, issued “per curiam” by a four-judge bench, aroused concerned comment in the Hasidic community, as it applied well-established principles of family law that the trial judge, himself an Orthodox Jew, seemed to have overlooked in giving preemptive weight to the father’s religious desires. Weisberger v. Weisberg, 2017 WL 3496090, 2017 N.Y. App. Div. LEXIS 6174, N.Y. Slip Op. 06212.
Naftali and Chava Weisberger were married in 2002. They were brought together, according to established custom in the Hasidic community, by a professional matchmaker (called a shadchan), and were both 19 years old at the time. They moved to Boro Park, Brooklyn, from the tight Hasidic community in Monsey, N.Y., and had three children together. The move was prompted by Naftali’s desire to pursue religious studies. They raised their children according to traditional Hasidic practices and beliefs, in a home with no television or internet, observing strict restrictions of diet and dress and speaking Yiddish at home.
After a few years of marriage, Chava informed Naftali that “she did not enjoy sexual relations with men and that she was attracted to women.” They continued to live together, but after several years Naftali agreed to give Chava a “Get” (a Jewish divorce), and they signed a settlement agreement (which was drafted by Naftali’s father) on November 3, 2008. Naftali married another woman a few weeks later, and has since had two children with her, prompting the speculation that he was finally willing to grant a religious divorce to free himself to marry somebody else.
Under the written settlement terms, the parents had joint custody of the children with Chava having primary residential custody. They agreed that Naftali’s visitation with the children would be for a two-hour period once a week after school (which would increase for the son as he grew older, for the purpose of religious study), overnight visitation every other Friday after school until Saturday evening for Sabbath observance, two weeks during the summer, and an alternating schedule for Jewish holidays. But, Chava testified, Naftali did not exercise his visitation rights fully for the first 18 months of his new marriage, and would not bring the children to his new home for visitation, hosting them instead at his parents’ home.
The central provision in the custody dispute was the “religious upbringing clause,” which provided: “Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided.” The settlement also provided that each party “shall be free from interference, authority and control, direct or indirect, by the other.” Chava agreed to waive any claim to marital assets or further financial support for herself, but the agreement obligated Naftali to pay $600 a month for support of the children.
Several events appear to have contributed to lead Naftali to file his motion with the court on November 29, 2012, more than three years after the divorce. He alleged that Chava had “radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause.” For one thing, she had eventually decided that the older daughter was old enough to be told about Chava’s sexual orientation, to the consternation of Naftali, who expected Chava to keep this a secret and to keep any relationship she had with a woman secret from the children. Naftali claimed that Chava had come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and had referred to them by English names rather than the names by which they were known in the Hasidic community. To top things off, Chava was not dressing according to Hasidic tradition, she had dyed her hair, and a transgender man had moved in and was participating in taking care of the children.
Naftali sought sole legal and residential custody of the children and final decision-making authority over their lives, limiting Chava to a few hours of supervised “therapeutic visitation” each week, and to require strict compliance with the religious upbringing clause when the children were in her presence, either for visitation or at school.
Upon filing the lawsuit, Naftali sought an immediate order giving him temporary residential custody, which he got from Judge Eric Prus. A few days later, the parties agreed to a temporary visitation order for Chava, giving her several days a week but providing that she would “encourage and practice full religious observance in accordance with the practices of Emunas Yisroel in the presence of the children” and “in the Boro Park community, the mother shall dress in the Hasidic modest fashion.”
Chava came back with her own motion, seeking to modify the religious upbringing clause. She wanted permission from the court to bring up the children with “a conservative or progressive modern orthodox Jewish upbringing” in a community that “is inclusive of gay individuals.” She wanted permission to locate them outside of Boro Park, but within the borough of Brooklyn, and to attend a “conservative or progressive modern orthodox Jewish school that is similarly inclusive.” She wanted educational decisions to be made jointly, not dictated solely by Naftali. She proposed that the father be able to continue the children’s Hasidic education by having visitation each Sabbath, and she would promise to keep a kosher home and insure that the children go to school and have their needs provided. She was also willing for Naftali to have the children for all Jewish holidays.
Judge Prus held a hearing at which Naftali and Chava testified about their marriage and relationship with the children. It seemed that during the marriage Naftali left the house early in the morning and didn’t return in the evening until after the children were asleep, leaving Chava primarily responsible for taking care of them. They had a strictly Hasidic kosher home. Naftali testified that upon the divorce he had expected that Chava would keep her sexual orientation a secret from the children and the community, even though the written settlement did not state this.
It was clear from Naftali’s testimony that he did not have extensive contact with the children after the divorce, and even when he resumed some contact, he had visitation in his parents’ home rather than his own home, presumably to shield his new wife and children from being contaminated by non-Hasidic influences. He filed his motion to change custody shortly after learning that a transgender man had moved into the mother’s home and was assisting in taking care of the children. He had also recently noticed the children wearing non-Hasidic clothing and learned they were eating non-kosher food. Chava had even allowed them to see movies – forbidden in the Hasidic community. Naftali also testified that “in March, 2013, the younger daughter told him that she had read a book about children with two fathers and other books about homosexuality.”
Naftali denied that the motivation behind his request for a change in custody was Chava’s lesbian identity. Instead, he pointed to her failure to keep it a secret from the children, and said he wanted sole custody to ensure that they would get a traditional Hasidic upbringing without “interference” from their mother. He objected to them being exposed to non-religious people, or to intimate relationships that were against Jewish law. “The father believed that homosexuality violated the Torah,” wrote the court, and when asked if he was amenable to some compromise, he said, “There’s no place for comprising in our religion.”
Chava testified that she was not represented by a lawyer during the divorce process, and that a rabbi guided her in negotiating the settlement. A rabbi served as mediator. She was under the impression that various changes she sought would be made in the settlement agreement, but when she appeared at the Beth Din (religious court) to sign the agreement, it did not include her changes. Under the settlement, she agreed to waiver her right to support for herself or any of the marital property, leaving as Naftali’s only obligation the monthly support payments, which she testified she never received from him, although the obligation was spelled out in the settlement agreement.
She testified that she had never been as strictly observant as Naftali, even before the divorce, and that she had taken the children for counseling at the Jewish Board of Family and Children’s Services and enrolled the older daughter in group therapy for children from divorced families. She never told the children about her sexual orientation until in 2012 she learned that the older daughter suspected that Chava was gay, so Chava consulted with the daughter’s therapist and then confided in her daughter. She testified that her transgender friend came to live with them in September 2012, got along well with the children, but then the older daughter returned from a visit with her father apparently confused and upset, because some of father’s family had “teased about her level of religious observance” and told her that Chava’s friend was “really a woman.”
After the temporary custody arrangement was ordered by the court and the children were spending half of each week with Naftali’s family, Chava “found the children would often be upset and confused.” She said that she felt hypocritical for continuing to obey the religious observance requirements of the court’s order so that she could continue to have the children without supervision, and she found Naftali’s custody proposal to be “devastating, as she had been the most present parent in the children’s lives since they were born,” and she was concerned about their emotional well-being in their father’s custody. She wanted to raise the children as Jewish, but not according to strict Hasidic requirements and rather in the context of a community that respected and accepted diversity.
Justice Prus, finding that Chava’s conduct had been in conflict with the settlement agreement, said that had there been no such agreement, he might have considered the parties’ arguments “differently,” but “given the existence of the Agreement’s very clear directives, the Court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination.” He ruled largely in favor of Naftali, awarding him sole legal and residential custody and final decision-making authority for the children, and decreed that Chava would only have limited supervised visitation if she did not comply fully with the religious upbringing clause. Denying Chava’s motion to modify the religious upbringing clause, Prus made clear that if she wanted unsupervised visitation with the children several days a week, she would have to “practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy” whenever the children were with her, and she would have to direct the children “to practice full religious observance in accordance with Hasidic practices of ultra Orthodoxy at all times.”
Chava appealed this draconian ruling. She was represented by attorneys from Seward & Kissel LLP and the N.Y. Legal Assistance Group, which has a dedicated LGBT assistance practice, and she had amicus brief support from Lambda Legal and the NYCLU, as well as two organizations particularly concerned with her situation: Footsteps, Inc., which assists women seeking to leave the Hasidic community, and Unchained at Last, Inc., an organization assisting women who seek to leave arranged marriages. According to a Hasidic website commenting on the case, Chava actually works with Footsteps, Inc. An amicus brief by the prominent firm of Fried, Frank, Harris, Shriver & Jacobson LLP represented the views of these two organizations.
The case was argued before the Appellate Division on November 14, 2016, and it took nine months for the court to compose its opinion, released on August 16.
While acknowledging that a trial court’s determinations in a custody case are normally given great weight, the Appellate Division panel wrote that its authority in such a case is “as broad as that of the hearing court,” and in this case the court decided to discard much of the trial court’s ruling. To begin with, it found that Justice Prus’s decision to award Naftali sole legal and residential custody and decision-making power over the children, while consigning Chava to brief supervised visitation unless she adhered to strict Hasidic practice, “lacked a sound and substantial basis in the record,” as the court had given “undue weight to the parties’ religious upbringing clause.”
New York courts do not consider the parties’ settlement agreement provisions as a “paramount factor” in deciding a custody dispute. The court’s determination of what is the best interest of the children takes priority over any private arrangement the parents have made. The court quoted earlier decisions holding that “clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children,” and Naftali had fallen short in showing that it was in their best interests to put him in total control of their lives in the way suggested by the trial court’s order.
“The mother has been the children’s primary caretaker since birth,” wrote the court, “and their emotional and intellectual development is closely tied to their relationship with her. The record overwhelmingly demonstrated that the mother took care of the children’s physical and emotional needs both during and after the marriage, while it is undisputed that the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties’ separation. Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother’s ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children’s relationship with her.”
The court found no evidence that unsupervised visitation would be detrimental to the children and “it was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.”
The court pointed out that the settlement agreement itself was focused on giving the children a Hasidic upbringing, and “did not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle.” Citing, for example, the U.S. Supreme Court’s 2003 decision striking down the Texas sodomy law, Lawrence v. Texas, the court said that “a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely.” The court particularly noted the provision in the settlement agreement that each party “shall be free from interference, authority and control, direct or indirect by the other.”
The court concluded that it was not in the children’s best interest “to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.” However, the court was not ready to completely grant Chava’s motion to modify the religious upbringing clause in the settlement agreement. Since the children had spent their lives in the Hasidic community, attended Hasidic schools, and visited with extended family who were observant Hasidic Jews, the court decided that Naftali should continue to exercise final decision-making authority about their education, and that he could continue to require that, at least while they were in his custody or attending their Hasidic school, they “practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.”
The court said it would be best for the children if the parents “work together to surmount the challenges the children will face as they continue on their current educational path. As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children’s appearance and conduct comply with the Hasidic religious requirements of the father and of the children’s schools while the children are in the physical custody of their father or their respective schools.” Also, it noted that Chava intended to keep a kosher home and to provide the children exclusively with kosher food. However, “we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion when the children are in his or her custody.” The court also decreed more visitation time for Naftali than was provided in the original settlement, and accepted Chava’s proposal that Naftali have the children for all Jewish holidays and that she get the non-religious holidays and vacation time. For two weeks in the summer the children will be with Naftali, as had been provided in the original settlement agreement.
The court acknowledged that neither party would be fully satisfied with its disposition of the case, but, it said, “courts do not always have the perfect solution for all of the complexities and contradictions that life may bring – the parties must forge a way forward as parents despite their differences. We are confident that both parties will exercise their best judgment in these matters in a manner that furthers the best interests of their children.” The court reminded the parties that their original settlement provided that neither would seek to alienate the children from the other, or “speak idly about the other party in front of the children.”
As neither party got everything they were seeking, it would not be surprising if one or try to appeal this ruling to the Court of Appeals. The Appellate Division has left them to negotiate over issues as to which Naftali, at least, testified that there could be “no compromise.” Since the divorce, Chava has come out of the Hasidic community and sought to raise her children in a progressive modern Orthodox community. How these concerns will be reconciled is anybody’s guess, and the idea that these children will shuttle back and forth each week between two very different worlds will pose an extraordinary challenge to them. We may not have heard the last about this case.