NY Court Awards Partial Custody of Hasidic children to OTD Divorcee, Setting Precedent

New York State Supreme Court’s “Appellate Division: Second Judicial Department” today awarded partial custody of three Hasidic children to their divorced OTD (off the derekh) mother, Chava Weisberger, overturning a lower court ruling that had awarded full custody to their observant Hasidic father on the argument that she had abrogated a 2008 divorce settlement to raise the children Hasidic.

Chava (Chavie) Weisberger

The case is unusual in that the Supreme Court’s Appellate Division –the second highest in the New York State Unified Court System– not only agreed to hear the appeal in the first place, but then decided to overturn the verdict of the lower county-level trial court. Appellate courts are generally disinclined to overturn trial court rulings unless the appeal involves a matter of legal principle.

Chava’s judicial victory is being celebrated by both the OTD sector and the LGBTQ sector, since she identifies as lesbian and her sexual orientation was pertinent in the dispute.

Background

Emunas Yisroel, 4310 16th Ave., Brooklyn, NY

The Weisberger couple, Naftali and Chava Weisberger, had married in 2002, relocating from Monsey to Borough Park, Brooklyn. The families of both are central figures in the Emunas Yisroel congregation located on 16th Avenue between 43rd and 44th streets, and the young couple were originally “Munis”.

After bearing three children together, Mrs. Weisberger revealed to her husband in 2005 that she was attracted to women. The couple attended marriage counseling to no avail and so eventually agreed to divorce. The agreement, –referred to in court documents as “stipulation of settlement”– that was drawn up in 2008, prior to their divorce, called for the children to be raised Hasidic and for the parents to observe the following shared custody arrangement:

  • Mother would be the primary custodian of the children.
  • Father has the right to a 2-hour visitation with the children once a week.
  • Father gets to have the children every other weekend from Friday afternoon until the departure of shabbos.
  • Father has continuous custody of the children for two weeks in the summer.
  • Children alternate custody between the parents on Jewish holidays.

The Three Weisberger Children Whose Custody Was in Dispute

The agreement also obligated the father to pay $600 per month in child support to the mother, which the father did not abide by according to Chava’s later testimony.

But the father soon remarried, begat children from his new wife, and did not exercise his right to alternate weekend custody of the children. Instead, the mother continued to be the the almost-exclusive caregiver as she had been during the marriage when her husband was mostly absent from home.

In the fall of 2012 Chava brought a transgender “friend”, designated “O” in court papers, in as a roommate. During the father’s short visits with the children the children related how O helped bathe them and talked to them about sexuality. In October 2012 the mother started dressing the children “goyish” and trimmed their peios shorter than usual (but did not, apparently, withdraw them from the hasidic school they were attending). She came out to her children openly as lesbian. The father alleges also that she allowed the children to violate shabbos and eat non-kosher.

Alarmed at his children’s precipitous estrangement from their native Hasidic lifestyle, the father filed suit in November 2012 to compel the mother to abide by the “religious upbringing clause” in the divorce agreement, or else relinquish custody of the children. The father argued that although he had known that she was lesbian when the stipulation of settlement that gave her shared custody was drawn up, he had expected her to keep it a secret from the children and to conduct herself in a Haredi/Hasidic fashion in their presence.

A month after the father filed suit a temporary consent order was reached between the litigants that the father would begin exercising custody over the children on extended weekends (Thursday-Monday), while the mother’s custody would be restricted to Monday thru Thursday.

In the meantime, Chava initiated a suit of her own seeking to modify the religious upbringing clause in the stipulation of settlement. She wanted to pull the children out of their hasidic schools and send them instead to “progressive, Modern Orthodox schools that are inclusive of gay individuals”. (Chava presently works for Eshel, an organization that advocates for acceptance of LGBT folk in Orthodox communities.) Her legal argument was that there had been a “change of circumstances” since the stipulation of settlement, and according to New York State law that entitles a court to revisit the agreement and modify it to accord with the best interests of the children at that time.

In return for the change-of-school concession, Chava conceded the father’s bid for custody on every shabbos and yom tov, (although she did seek visitation rights on secular holidays) and she agreed to keep kosher with the children both within and without the home.

But the Supreme Court in 2013 denied Chava Weisberger’s request. The judge declared that the change of circumstances was caused by the mother’s transition from the Hasidic lifestyle and that the mother’s conduct had violated the stipulation of settlement. Most importantly the court held that the religious upbringing of the children was “a paramount factor” in custody determination. Since both parents had agreed –at the signing of the stipulation of settlement– that a Hasidic lifestyle was in the best interests of the children, and since the mother was no longer conducting herself in a Hasidic fashion, she was therefore no longer entitled to custody over the children (according to the state’s “best interests of the children” standard applied in situations where there had been a “change of circumstances” since the time the original agreement between the parties was made).

The trial court’s ruling was not immediately carried out. It appears that the father was more interested in compelling the mother to conduct herself in Hasidic fashion in the children’s presence than in actually having sole custody, and the ruling was therefore “stayed” (=delayed). But the verdict was a defeat to Chava Weisberger and to the communities she identifies with: OTD/Footsteps and LGBTQ.

In Chava’s appeal to the Appellate Division, Chava was represented by the New York Legal Assistance Group, an organization that “provides high quality, free civil legal services to low-income New Yorkers who cannot afford attorneys”.  She also secured the aid of a bevy of deep-pocketed organizations that sought to take a stand on the case as a matter of ideological principle. The following organizations assisted her financially and/or through the filing of an “amicus curiae” (=friend of the court) on her behalf:

  • Lambda Legal Defense and Education Fund, an organization that is committed to “achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and public policy work”.
  • New York Civil Liberties Union, an organization that promotes immigrant rights, LGBT rights, racial justice, reproductive rights, and disabled person’s rights. It has pursued legal action in defense of the right to film police, against NYPD’s Muslim surveillance program, against solitary prison confinement, and more.
  • Footsteps, an organization that assists people in their quest “to explore the world beyond their insular ultra-Orthodox communities”. Chava (aka Chavie) Weisberger is both a “member” of the Footsteps community and employed as a “community engagement associate” by the organization.
  • Unchained At Last, an organization that “helps women and girls leave or avoid arranged/forced marriages and rebuild their lives”. The organization is an affiliate of and partially funded by Footsteps.

The essence of the Appellate Division’s argument today is that:

The weight of the evidence does not support the conclusion that it is 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.

In other words the father cannot force the mother to conduct herself in a Hasidic fashion when in the presence of the children. The court ruled that the status-quo shared custody arrangement in which the mother had custody of the children Monday thru Thursday cannot be challenged by the father on the grounds of the mother’s religious conduct.

But the court did not side with the Chava completely. The court upheld the lower court’s rejection of her bid to withdraw the children from the Hasidic schools and enroll them in progressive schools instead:

The weight of the evidence demonstrates that it is 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.

As to how the children should be raised, the court ruled that it is in their best interests to be raised Hasidic while in their Hasidic schools and while in the custody of the father. But the mother was only obligated to “keep a kosher home and to provide the children exclusively with kosher food”, something she had agreed to do on her own initiative in her 2013 Supreme Court motion. While the children were in her custody Chava was entitled to “exercise discretion” with regard to their religious upbringing, i.e. she need not direct them to observe all religious practices, let alone all Hasidic ones.


Key points in the Appellate Division’s ruling today:

  • It affirmed the trial court’s finding that a change of circumstances had occurred since the signing of the stipulation of settlement and that “a modification of the stipulation of settlement is therefore necessary to ensure the continued best interests and welfare of the children”.
  • It rejected the lower court’s ascription of undue weight to the “religious upbringing clause” in the stipulation of settlement, considering it a “paramount factor” in custody determination. Rather, declares the Appellate Division ruling, religion is one factor among many that courts should consider in awarding custody, so that if a child is already accustomed to a particular religious lifestyle, the court can decide to give custody to the parent that supports that religion, based on the religious factor. But the mere fact the the parties had agreed to raise the child in particular way does not make it enforceable in court since the court only looks out for the best interests and welfare of the children –not the enforcement of an agreement– once there had been a change of circumstances:

    “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[ren]’s best interest”.

  • It rejected the father’s assertion that awarding him sole custody of the children was in their best interests, since the mother had been the primary caretaker and the father was largely absent from the children’s day-to-day lives. Unsupervised visitation by the mother was not detrimental to the children, even if she comported herself in a religious manner that was inconsistent with the original stipulation of settlement:

    “The mother has been the children’s primary caretaker since birth, and their emotional and intellectual development is closely tied to their relationship with her. The record overwhelmingly demonstrates 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.”

  • It repudiated the lower court’s view that the father violated the terms of the stipulation of settlement. “To give the children a Hasidic upbringing” (stipulated in the stipulation of settlement) does not mean that the woman must “practice any type of religion, dress in any particular way, or to hide her views or identity from the children”.
  • Even if the woman did violate the terms of the stipulation of settlement by her own conduct being un-Hasidic, it would be unenforceable in court, because “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”.

Finally, the Appellate Division made a curious and somewhat puzzling statement:

“There is no indication or allegation that the mother’s feelings and beliefs are not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there has been no showing that they are inherently harmful to the children’s well-being.”

According the Appellate Division’s logic that all that matters is the welfare of the children, stipulation of settlements be damned, it is not clear why it would matter if the woman did deliberately and subversively conduct herself un-Hasidic in order to derail the children from the Hasidic path. As regards to “inherently harmful”, that is a subjective judgement. The father certainly would argue the un-Hasidic conduct is morally “inherently harmful” and there is no objective way to prove or disprove that.


Impact of the Appellate Division’s ruling

The “Appellate Division: Second Department” has jurisdiction not only within its own “department” (=region within the state) but throughout the state, so long as an appellate division in another department does not explicitly contravene it. This means that the court’s opinion can be used as a precedent in trial courts throughout the state.

In divorces within the haredi sector that involve one parent that is leaving the community, it is common for a bes din or communal expert to mediate between the parties and to bind them through a contractual agreement as to how the divorce should be settled (e.g. division of property, child custody, and child-rearing practices). Litigation in court immediately upon divorce is against halokho. The mediation/arbitration path also averts the acrimony, expense, and time that litigation in a secular court inevitably entails.

All such contractual agreements signed as part of a divorce settlement between an observant and going-off-the-derekh spouse are now in effect void. By definition, the wayward spouse is “in transition” away from the community and could therefore later claim a “change of circumstances” and seek judicial relief to nullify the contract and for the court to impose a new arrangement that is “in the best interests of the children” (according to whose standards?). Any resultant change in the status-quo –regardless of whether it is or isn’t in the best interests of the children, and regardless of which measures are used to determine that– is bound to be beneficial to the OTD spouse and detrimental to the observant one, since the status quo always favors the spouse that remains religious more so than the spouse that is departing the community and liberalizing his or her behavior.

The court’s distinction between a spouse’s own conduct and that which he or she teaches the custodial child is ground-breaking. An OTD parent may openly flout religious conduct in their own behavior while nominally being supportive of it in their children’s behavior.

Also, there is never a valid way for a divorcing spouse to ever bind oneself contractually to a particular religious lifestyle in furtherance of a stable and predictable upbringing of their child, and for such a contract to be enforceable in court. The court will automatically reject a bid to enforce such a contract citing the unconstitutionality to enforce religious conduct.


Weisberger v. Weisberger

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2 Responses to NY Court Awards Partial Custody of Hasidic children to OTD Divorcee, Setting Precedent

  1. Harotzeh B'Ilum Shemo says:

    Thank you for bringing this landmark decision to the public’s attention. It will undoubtedly transform the way in which trial courts will consider religion as a factor in child custody decisions.

    Your article makes a few statements that are inaccurate, and may serve a public disservice if not corrected.
    First, you write that:

    “The case is unusual in that the Supreme Court’s Appellate Division –the second highest in the New York State Unified Court System– not only agreed to hear the appeal in the first place, but then decided to overturn the verdict of the lower county-level trial court.”

    This assertion is false. This was not a discretionary appeal. The parties appealed as of right pursuant to Civil Practice Law and Rules section 5701(a). This means that the Appellate Division did not “agree” to hear the appeal, but was required by law to hear it.

    Second, you write that:

    “Appellate courts are generally disinclined to overturn trial court rulings unless the appeal involves a matter of legal principle.”

    This is false. As the Court noted in its decision, the “Court’s authority in custody and visitation matters is as broad as that of the hearing court.” Accordingly, the Appellate Division routinely reverses trial court decisions in matters of child custody and visitation, and does not only reverse decisions when “the appeal involves a matter of legal principle” as your article suggested.

    By contrast, the Court of Appeal’s authority is generally restricted to matters of law, and not fact, and most appeals heard there are discretionary.

    Second, you suggest that according to the Appellate Division’s logic, in the context of child custody proceedings, “stipulation of settlements be damned.” This suggestion is erroneous. The Court held that the trial court ascribed undue weight to one clause in the parties’ agreement. This is consistent with long standing precedent that in matters of child custody, the Court cannot be bound by the parties’ agreement, and must always act in accordance with best interests of the children. It does not mean that the court cannot or should not consider it.

    Third, you suggest that all Beth Din orchestrated divorce settlement agreements “are now in effect void.” This is erroneous. It is only the child custody portion of such agreements that are not binding, and this has been long standing law in New York.

    Fourth, you overstate some of the anticipated impacts that this decision will have. Contrary to your assertion, future courts will not “automatically reject a bid to enforce such a contract [to require a parent to live in accordance with a particular religious lifestyle] citing the unconstitutionality to enforce religious conduct.” Indeed, even this Court imposed some religious obligations upon the mother in that the Court ordered that she maintain a kosher home and only provide the children with kosher food.

    It is worth bearing in mind that this decision is based upon a particular set of facts. Here, the Court found that the children were not harmed by the mother’s secular conduct. This does not mean that under different circumstances, the court cannot order the secular parent to do certain things akin to keeping a kosher kitchen.

    Thank you again for bringing this decision to the public’s attention. I am confident that you will make the necessary changes to your article, to ensure that your reporting is accurate.

  2. yossi kluger says:

    Curious: You say that both sides are from prominent “Muni” families. What was the wife’s maiden name?

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