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

The same-sex spouse of an artificially-inseminated biological mother is entitled to seek custody and visitation of “their” child in the the parents’ divorce action. Such was the holding of the Appellate Division, Second Department, in its November 6, 2013 decision of in Counihan v. Bishop.

In May 2009, Ms. Counihan and Ms. Bishop traveled to Connecticut to be married. They then returned to live in their home in New York. Subsequently, they decided to have a child. Ms. Bishop was artificially inseminated, and, in September 2010, Ms. Bishop gave birth to a child.

Ms. Counihan was listed as the second mother on the child’s birth certificate. The child’s last name is the hyphenated last names of Ms. Counihan and Ms. Bishop. In 2012, the parties separated, and Ms. Bishop and the child lived apart from Ms. Counihan for several months. However, Ms. Counihan continued to see the child a few times per week, which included overnight visits. The parties briefly lived with each other again at the end of 2012, but their attempt to reconcile failed, and Ms. Bishop again moved with the child to another residence.

In January 2013, Ms. Counihan commenced this action for a divorce and ancillary relief. She sought custody of the child, or in the alternative, visitation. Ms. Bishop cross-moved, inter alia, for sole custody of the child.

In the order appealed from, Suffolk County Supreme Court Justice John C. Bivona determined that Ms. Counihan lacked standing to seek custody or visitation because she was not the child’s biological or adoptive parent. Without a hearing, Justice Bivona had denied Ms. Counihan’s motion and granted Ms. Bishop’s cross-motion for sole custody.

Continue Reading Same-Sex Spouse of Biological Mother May Seek Custody and Visitation

Mom with daughter homework.jpgThe November/December issue of Scientific American Mind magazine presents the article, What Makes a Good Parent? A growing body of research conducted over the past 50 years shows fairly clearly that some parenting practices produce better relationships between parent and child and happier, healthier, better functioning children.

A new study by the article’s author, Robert