Snitow Kanfer & Holtzer LLP

At times, a court must delicately balance the best interests of the children and their parents with contract rights, religious matters, ethical and social values, and constitutional principles and individual rights. That balance is remarkably reflected in the August 16, 2017 decision in Weisberger v. Weisberger, of the Appellate Division, Second Department. There, the Court concluded:

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.

The Weisbergers were married in 2002. In 2005, the mother told the father that she could not tolerate having sexual relations with men, and that she was sexually attracted to women. The parties were divorced in 2009. The judgment incorporated a stipulation of settlement under which the parties agreed to joint legal custody of the two daughters and one son of the marriage, with the mother having primary residential custody. The father would be with the children for a two-hour period once per week after school (to be increased to twice per week for the son when he turned eight years old, for the purpose of religious study). The father would also have overnight visitation every other Friday after school until Saturday evening for the observance of the Sabbath; for two consecutive weeks every summer; and an alternating schedule for holidays.

Central to the issues raised on appeal, the stipulation contained the following religious upbringing clause:

“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.”

In 2012, more than three years after the divorce, at which time the children were nine, seven (the son), and five years old, respectively, the father moved (1) for sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health; (2) limiting the mother to supervised therapeutic visitation with the children; and (3) to enforce the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Jewish Hasidic practices of ultra Orthodoxy at all times and to require the mother, herself, to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.Continue Reading Balancing the Best Interests of Children with Religious, Contract, and Individual Rights

Among the challenges for the matrimonial bench and bar is the need to become instantly familiar with any type of business and any family situation. Applying the ever-changing New York family law to matters routine and novel is a Herculean task, worthy of  Dwayne “the Rock” Johnson’s IMAX 3D movie opening this weekend.

New York’s cosmopolitan population often presents still another layer of law and fact through which our judges must navigate. Four decisions this month reveal the breadth and complexity of those international issues.

In a July 21, 2014 decision in J.R. v. E.M.New York County Supreme Court Justice Ellen Gesmer decided to apply New York law to set aside a marital agreement for its failure to meet New York formalities, although the procedure followed in the Spanish Consulate where it was signed may have been far better able to achieve the goals New York’s formalities were designed to achieve.

On March 3, 2004, the day after they were married in New York City, the parties signed a “Matrimonial Property Agreement” before the Spanish Consul at the Consulate in New York City.

The wife is a Peruvian citizen; her husband is a Spanish citizen. Justice Gesmer noted that both parties are well-educated and accomplished native Spanish-speaking professionals, both currently employed by the United Nations.

After commencing her divorce action in 2013, the wife moved to set aside the marital agreement. She claimed that although the Agreement had been drafted before the parties went to the Consulate, she did not first see it until arriving at the Consulate on March 3, 2004.Continue Reading New York: The Divorce Melting Pot (Part 1 of 4)