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.

The father alleged that at the time of the settlement, while he expected the mother’s future intimate relationships would be with women, he also expected her to keep the fact that she was gay a secret and to keep any relationship she had with a woman secret from the children. (The stipulation of settlement did not explicitly require her to do so.)The father also alleged that after the settlement, the mother 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 referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children.

The mother opposed the father’s motion and separately moved to modify the religious upbringing clause to allow her to provide the children with a conservative or progressive modern orthodox Jewish upbringing compatible in all details, in home or outside of home, with a Jewish community that was inclusive of gay individuals. She proposed that father would continue to teach the children all aspects of a Hasidic upbringing. The mother agreed to keep a kosher home.

Kings County Supreme Court Justice Eric I. Prus held a hearing.

In reporting the facts below, the Second Department noted that after marrying, the parties moved to Boro Park, Brooklyn, so that the father could pursue religious studies. The extended families of both parties were integrally involved in the founding of the Emunas Yisroel branch of Orthodox Hasidic Judaism.

They parties raised their three children according to traditional Hasidic practices and beliefs. During the marriage, the father left the house in the morning and generally returned after the children were in bed. The mother was primarily responsible for taking care of the children’s needs, and the father was satisfied with her care of them. The parties kept a strictly kosher home, spoke Yiddish, observed the Sabbath, and always wore traditional clothing. According to the father, Hasidic children never wear T-shirts, jeans, or shorts, boys do not have their hair cut until the age of three, and there is no television or Internet in the home.

At some point during their marriage the mother disclosed her homosexual feelings. However, notwithstanding her feelings, the mother continued to live a Hasidic lifestyle. The father acknowledged that the stipulation of settlement required him to make child support payments to the mother in the total amount of $600 per month, which sum was to cover his total monthly obligations with respect to all three of the parties’ children.

Within the month following the parties’ divorce, the father remarried. The father and his new wife had two children together. Despite the parties’ agreement that the father would have visitation with the children every other Sabbath, the father testified that during the first 18 months of his new marriage, he would not permit the children to come over to his house, he did not fully exercise his biweekly right to visitation during the Sabbath, and he did not take their son for Yom Kippur in 2009 through 2011. The father testified that when he did visit with the parties’ children, he did so at his parents’ house.

The father learned that in fall 2012 a transgender man (“O.”) moved into the mother’s home, and that a curtain was installed to separate the adult bedrooms from the children’s bedrooms. According to the father, his children informed him that O. assisted in bathing them and told them about sexual parts of the human body. In October 2012, the mother began dressing the children in secular clothes and cut their son’s payos (sidelocks). The father testified that the children began speaking English in school, stopped saying blessings at meals and nighttime prayers, and were eating non-kosher food. Further, the father testified that the mother had allowed the children to ride a train and use light switches on the Sabbath. The father also testified that the mother allowed the children to watch movies, including a movie about Christmas, and participate in an egg hunt at a Purim party. The father 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.

The father denied that the mother’s sexual orientation was the motivation behind his request for a change in custody; however, he had expected the mother to keep her sexual orientation a secret from the children. Rather, he sought custody so that he could give them a traditional upbringing according to his religion without interference from the mother. The father objected to the children being exposed to anyone who was openly non-religious, or to any intimate relationship that was not sanctioned by Jewish law. The father believed that homosexuality violated the Torah. The father also believed that the mother’s visits with the children should be limited to one or two hours per week and supervised by a family member. When asked whether he could reach a compromise, the father testified, “There’s no place for compromising in our religion.”

For her part, the mother noted that the father had not made a single child support payment to her since their separation, notwithstanding the explicit terms of the stipulation of settlement.

After the divorce, the mother brought the older children to therapy at the Jewish Board of Family and Children’s Services, and later enrolled the older daughter in group therapy for children from divorced families, which she believed had positive benefits on the children. The mother testified that even while married she was never as strict as the father regarding blessings, washing rituals, prayers, and exposure to secular books and ideas. For a number of years, the mother never told the children about her sexual orientation.

However, the mother testified that, in 2012, she learned that the older daughter was beginning to suspect the mother was gay. The mother testified that she consulted with the older daughter’s therapist about the issue, and then told the older daughter that she was gay, which she believed deepened the child’s level of trust and openness with her. In September 2012, the mother’s friend, O., came to live with her. The children and O. got along well with each other. However, in October 2012, after the older daughter returned from a visit with the father, she was confused and upset because the father’s family had teased her about her level of religious observance and had told her that O. was really a woman.

The mother testified that she carefully obeyed the order’s provision requiring her to behave religiously with the children, but felt hypocritical for doing so and for hiding parts of herself. She believed the father’s custody proposal was devastating, as she had been the most present parent in the children’s lives since they were born, and she worried about the children’s emotional well-being while in the father’s custody. The mother believed the children would be better served by attending a school that was more accepting of diversity, and she offered to continue to keep a kosher home and let the children spend religious holidays with the father. The mother wanted the children to continue with therapy to help them resolve the differences between their two parents’ households.

Following the hearing, Justice Prus determined that there had been a change of circumstances caused by the mother’s transition from an ultra Orthodox Hasidic lifestyle to a “more progressive, albeit Jewish, secular world.” Justice Prus noted that the mother’s conduct was in conflict with the parties’ agreement, which “forbade living a secular way of life in front of the children or while at their schools.” He posited that had there been no agreement it might have considered the parties’ arguments differently. However, “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.”

Justice Prus awarded the father 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, with supervised therapeutic visitation to the mother. The court stayed supervised therapeutic visits, conditioned upon her compliance with the religious upbringing clause contained in the stipulation of settlement.

In addition, Justice Prus enforced the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy at all times. During any period of visitation or during any appearance at the childrens’ schools “the [mother] must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.” The mother appealed.

The Second Department concluded that there had been a change of circumstances and that a modification of the stipulation of settlement was necessary to ensure the continued best interests and welfare of the children. However, the appellate court concluded that Justice Prus’s award to the father of 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, with supervised therapeutic visitation to the mother, lacked a sound and substantial basis in the record.

In pertinent part, the Second Department opined that Justice Prus, finding the religious upbringing clause to be a “paramount factor” in its custody determination, gave undue weight to the clause. When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other. However:

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. No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child’s best interest.

Additionally, to the extent the mother’s sexual orientation was raised at the hearing, the appellate court noted that courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children.

Here, the appellate court noted the mother had been the children’s primary caretaker since birth, and their emotional and intellectual development was 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 was 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.

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 the mother. Furthermore, supervised visitation is appropriate only where it is established that unsupervised visitation would be detrimental to the children.

It was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.

It was held that Justice Prus improperly directed that enforcement of the parties’ stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. The goal of the parties’ agreement was “to give the children a Hasidic upbringing.” The parties’ agreement 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. To the contrary, it is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise. Thus, 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.

Here, the weight of the evidence did not support the conclusion that it was in the children’s best interests 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. There was no indication or allegation that the mother’s feelings and beliefs were inherently harmful to the children’s well-being.

On the other hand, the Second Department did not think it would be in the children’s best interests to become completely unmoored from the faith into which they were born and raised. Taher, the children’s best interests would be better served by a more limited modification of the religious upbringing clause than that proposed by the mother.

The children spent their entire lives in the Hasidic community, they attended Hasidic schools, and their extended families were Hasidic. Maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight. It was in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices.

The Court stated that the children’s interests would be best served if their parents worked together to surmount the challenges the children will face as they continue on their current educational path. As such, the court deemed 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. Further, the Court ordered the mother, as she offered, to keep a kosher home and to provide the children exclusively with kosher food in a manner consistent with Hasidic practices. Except for those specified matters, the Second Department otherwise modified the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

The Court also concluded that the stipulation of settlement did not provide the father with adequate, meaningful time with the children. The father was awarded visitation every other weekend from Thursday after school until Sunday at 11:00 a.m.; and on the other weeks, from Friday after school until one hour after Sabbath ends during winter and two hours after Sabbath ends during summer.

The court acknowledged that both parents were sincere in their devotion to the children and, with the exception of occasional lapses in good judgment, that neither parent engaged in conduct that was contrary to the best interests of the children. And yet, the parties’ religious, moral, and ethical beliefs and values with respect to raising their children, while once compatible, had now become incompatible in many important respects.

The court concluded by noting the parties’ stipulation also provided that the parties shall “encourage the child[ren] to honor, respect and love the other party,” shall not “attempt to alienate or destroy the affection of the child[ren] for the other party,” and shall not “speak idly about the other party in front of the children.” The court noted that this provision applied equally to both parties and, therefore, neither party may, directly or indirectly, denigrate the other to or before the children for any reason, including their disagreement with the other party’s identity or beliefs.
Mark D. Kotwick, Benay L. Josselson, Julia K. Tebor, and Tamara Rozina of Seward & Kissel LLP, of Manhattan and Kim Susser and Amanda Beltz of the New York Legal Assistance Group, of Manhattan repressented the mother.

Franklyn H. Snitow and Alan V. Klein of Snitow Kanfer & Holtzer, LLP, of Manhattab represented the father.

Cheryl S. Solomon, of Brooklyn, served as Attorney for the Children.

Karen L. Loewy of the Lambda Legal Defense and Education Fund, Inc., of Manhattan filed an amicus curiae brief.Erin Beth Harrist and Arthur Eisenberg of the New York Civil Liberties Union Foundation, of Manhattan, also filed an amicus curiae brief.

(Jennifer L. Colyer and Jesse R. Loffler of Fried, Frank, Harris, Shriver & Jacobson LLP, of Manhattan, filed an amici curiae brief for Footsteps, Inc., and Unchained at Last, Inc.