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

Rip up contract 3.jpgShlomo Scholar and Shoshana Timinisky married in 2005. They had one child the next year.  The year after that they entered a stipulation of settlement to resolve their divorce action.

Included in that stipulation was the parties agreement that Ms. Timinisky would have sole custody of the parties’ child. However, the parties also agreed that custody rights be limited by an agreement to share decision-making on all issues relating to the child’s education. The parties pre-selected an arbitrator to resolve their failure to agree on such issues.

Such a disagreement arose. However, in a September 9, 2010 order, Queens County Supreme Court Justice Thomas Raffaele denied the father’s motion to enforce the parties’ stipulation. Instead, without a hearing, the mother was granted sole decision-making authority with respect to the child’s education in the event that the parties were unable to agree to a parenting coordinator (traditionally employed to facilitate parent communication and the mediation of disputes).  Justice Raffaele also disqualified “a certain individual from arbitrating issues regarding the education of the child.” Finally, on its own motion, Justice Raffaele enjoined Mr. Scholar from bringing any further motions without the permission of the Supreme Court.

In an August 9, 2011 decision of the Appellate Division, Second Department, in Scholar v. Timinisky, that Order was affirmed. The appellate court ruled that Justice Raffaele properly determined that a change of circumstances required a modification of the parties’ stipulation of settlement to protect the best interests of the child. New York’s best interest standard was to be applied to resolve a dispute regarding parental joint decision-making authority.


Continue Reading Court Avoids Parents' Agreement to Arbitrate Disputes Over Education of Child