In OTD-Haredi Custody Disputes Courts Should Use “Marital Lifestyle Choice” as Standard

NOTICE: The following is an opinion piece prompted largely by the Weisberger v. Weisberger case. I urge you to read the HN factual report on it before you proceed, if you are not yet familiar with the case.


As the phenomenon of people leaving the their Ultra-orthodox communities increases, so does that of parental dispute over departees’ children. Many, if not most, Haredi people nowadays who make the choice to “go off the derekh (OTD)”, do so after they are married with children. This is because the custom is to marry young and bear children immediately. By the time someone is mature enough mentally established financially to consider leaving the restrictive haredi lifestyle they are encumbered by a marriage (assuming their spouse is not leaving along with them) and by children whose custody must be resolved as part of the divorce.

In recent years a number of high profile such OTD-driven custody disputes occurred, among them that of Perry Reich, Kelly Myzner, Deb Tambor, Shulem Deen, and now Chava Weisberger. OTD-driven custody disputes are more apt to become heated because of the unusually high stakes that are involved: Because the haredi sector is so staunchly dedicated to its doctrines and so exclusive of those who do not conform to its standards, it is willing to go great lengths to ensure that children born to haredi parents remain in the fold and are not compromised by a parent who has chosen to go wayward. Conversely, it is a very tall order for a wayward parent to raise their child in Haredi fashion when they themselves despise its lifestyle so much, as evidenced by their willingness to sacrifice so much for the sake of escaping its grip.

Unfortunately, when such disputes come before a court, courts are all too often at a loss about how to resolve it equitably.

The usual standard for courts to determine custody of a child when in dispute is the “best interest of the child” (heretofore referred to as BIOC) as this is the only standard specified in the statute. This is normally regarded as a fair and objective way to resolve a custody dispute. For example, if one parent has a good job, makes good money, and lives in a nice house, and the other is jobless, moneyless and shares a small apartment with roommates, the courts will consider the former as being better able provide for the best interests of the child.

But the BCIS standard doesn’t work all too well in Haredi-OTD disputes. Often, when the wayward parent first departs, custody of the children remains largely with the Haredi parent. It is only later, once the departee has established themselves in the new world and feels ready and able to provide for the child, that they contest the child’s Haredi custody. Thus, parental resources at that time are usually very evenly matched. If both parents are intelligent, both are responsible, both are emotionally attached to the child, both are willing and able to provide for the welfare of the child as they see it, how ought a court to choose between them in a situation where the Haredi-secular chasm cannot be bridged making joint custody impractical?

Not to speak of the added layer of complexity engendered by a stipulated divorce settlement. If at the time of divorce the parents “stipulate” (expressly state terms of an agreement) a settlement among themselves, without it being adjudicated by a trial judge, as to how the child should be raised, then the judge must take that stipulation of settlement (SOS) into account later when custody is disputed and decide what weight, if any, such an SOS should carry in the face of a statute that omits any mention of a contractual agreement between the parents as a basis for resolving a later dispute.

Indeed, in the recent Weisberger v. Weisberger case, the original hearing court ruled in favor of the SOS that stipulated the child be raised Hasidic, and therefore awarded sole custody to the father, Naftali; but the appellate court reversed that decision, deciding instead to ignore that SOS completely and go only with what it assessed to be the BIOC of the child at the time.


A New Standard: Marital Lifestyle Choice (MLS).

The BIOC is in my opinion clearly inadequate in Haredi-OTD disputes and courts who try to use only it are needlessly putting blinders on, while misconstruing the intent of the BIOC law and misapplying it.

What if a political dispute was at the root of a marital conflict that results in divorce and contested custody? What if one parent is a vehement Clintonian and the other a Trumpeteer? They are disgusted with each other over their political opinions, and are determined to fight for the right to raise their child according to their choice of political persuasion? Was the BIOC statute meant to resolve such a dispute? Could it even possibly be used fairly and objectively to resolve such a dispute? Wouldn’t a conservative judge be inclined to consider the BIOC to be raised conservatively and the liberal judge consider the BIOC to be raised liberally? Is such glaring subjectivity the intent of the law? Of course not.

I believe the most equitable standard in disputes that center on a diverging choice of lifestyle for the child is what I call “marital lifestyle choice” (MLC): whatever lifestyle choice the parents had agreed upon and espoused when they were happily married should trump the one being newly adopted by the dissenting parent. In other words the dissenting parent should not have the right to expose the child to his or her lifestyle choice if it radically conflicts with the one advocated by the “status quo” parent. Instead of awarding joint custody (as might happen under a BIOC standard) the judge should instead say to the dissenting parent:

I acknowledge that you’re a good parent. I acknowledge that you have the resources and will and dedication to provide for the child as much as the conservative parent. I acknowledge that in some way it is in the best interest of the child to continue to be exposed to your loving care. And yet I am denying your custody request. That’s because when you got married you engaged in an implied agreement that you will conduct yourself and raise your children in the manner that was then jointly espoused by the couple. Now you are the one breaking that implied contract. I am granting the dissolution of the marital contract since both of you agree on it and since it is untenable for you to live out the rest of your life with a person you abhor so much, but you may not drag you child with you on this journey. You had agreed for the child to be raised differently and I am now holding your feet to the fire on that.

What the BIOC tunnel-visioned judges are missing is that even according to the statute, which, unfortunately, does not include my newly devised “marital lifestyle choice” standard, it is not in the best interest of the child to be alternately exposed to two starkly conflicting ways of life. It is confusing, unstable, and detrimental to the child’s psychological welfare. All of us, especially children, crave coherence and consistency. Exposing a child to an Antifa parent one day and then to a Unite-The-Right proponent the other day is very confounding, regardless of who is right or wrong (not that the court has any mandate to make such a decision). The point is that it is always better for a child to be exposed to a single prevailing view than to two views that violently collide, and to the attendant rancor and vitriol between the views’ advocates that such exposure inevitably entails.

I suspect that the court’s indifference to the problem of conflicting messages stems from the multicultural ethos that presently reigns in our society. Our political and academic elite largely believe that exposure to multiple ways of seeing the world, be it in the way of language, religion, race, culture, nationality, etc. is beneficial both to the individual and to society at large. This idea carries over into the realm of a custody battle where the parents are staunch warriors on opposite sides: why not expose the child to both sides? I believe this is incorrect in the case of a child and in the case where the conflict is too virulent, even if we grant the premise that multiculturalism is generally a good a thing (something that is arguable in itself).


Mistakes Committed by the Appellate Court in Weisberger v. Weisberger

I believe the court made a series of mistakes in that decision (wherein it granted the OTD mother joint custody and absolved her from adhering to the religious upbringing clause she had agreed to earlier), as follows:

1. Blindly and exclusively using BIOC (best interest of children) as a standard.

As argued earlier, BIOC was never meant to be an arbiter in a custody conflict where a lifestyle choice is being contested. BIOC was meant by legislators to be applied in a case where both parents espouse more or less the same lifestyle but since they are both emotionally attached to the child they are seeking sole custody over them. In that case, the law –with the aid of a trained judge’s assessment– compels the parents to put aside their selfishness and act selflessly in the best interests of the child. We say to the poor parent, for example: “Yes, we know that you’d love to raise your child and be with them all the time. But wouldn’t you agree that the other parent has more and better resources to offer the child? Isn’t it better for the child to be with them rather than with you? Let’s go with that”.

2. Aborgating a Contract

The U.S. Constitution –a foundational document for our legal and judicial system– prohibits states from passing any laws that “impair the obligation of contracts”. For example, if a person borrows money from a bank and agrees contractually to pay 10% interest, and there is no state law prohibiting it, but the borrower then regrets it, feels aggrieved by the high rate and petitions the legislature for relief. The legislature cannot then retroactively lower the interest rate by voiding or modifying the contract. The contract stands. The state is, of course, free to make a law that prohibits the charging of a 10% interest rate going forward, and any persons entering into contract in violation of that law would not be able to sue for the enforcement of such a law-flouting contract. But legislation cannot change contracts that were legally sound when they were signed. Otherwise, people would have no faith in contracts.

The constitutional contract clause demonstrates the sanctity of contracts in American jurisprudence. The judicial system is supposed to be subservient to and merely interpretive of the legal system. If a legislator cannot impair a legally signed contract, then even more so a judge should not do so.

Judges improperly assume that the BIOC is inviolable. This assumption is unwarranted. The BIOC was meant to revolve a custody dispute in the absence of a contract. It is incorrect to interpret the statute to mean that even when the parties expressly stipulate a particular custody arrangement for the child, that they can then immediately turn around and seek judicial relief based on the BIOC standard. Such a complaint is preposterous! (Why did you agree to the contract if you intended to immediately seek to overturn it?) The only time seeking to overturn a SOS arrangement makes sense is if sufficient time has passed such that “circumstances have changed” and the complainant contends that they couldn’t have foreseen this change of circumstances at the time and are petitioning therefore for the dissolution or modification of the contract. In that case, it could be argued, legislators meant for the BIOC to –in effect– override the contract, because there is a very good and compelling reason to do so. (It would not be a violation of the Constitution, since all disputants who enter into SOS upon divorce are subject to the provisions of the then-in-effect law that allows for future modification of the contract by a judge if circumstances change unforeseeably.) Or, it could be argued, BIOC was never meant to override a contract. It was only meant to apply to custody disputes wherein neither party had yet to commit contractually to a particular solution.

Either way, applying the BIOC statute willy nilly, without any regard for the SOS, is morally improper and legally incorrect.

3. Contending that one can raise a child in Hasidic fashion when one does not personally comport oneself accordingly.

This relates to the Hasidic upbringing clause in the Weisberger SOS, which reads as follows:

“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.”

The appellate court ruled that the Hasidic upbringing clause does not “forbid the mother from living a secular way of life in front of the children or while at their schools” (quote from the hearing court’s decision):

The parties’ agreement does 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 (Weisberger v. Weisberger, August 16, 2017, p. 11).

This is in my opinion a preposterous distinction to make. How can a parent promote a particular way of life to an impressionable child without conducting oneself accordingly, at least when in presence of the child? Imagine a mother going around lying all day to people in front of their children and then instructing them “do as I say, not as I do. It’s bad to lie, don’t lie to people”. What parent or teacher has ever successfully inculcated any virtue into a child in such a way? I can imagine the sophister appellate judge smugly and contentedly saying “in my brilliant legal mind I just noticed what the obtuse untrained layfolk would never have noticed: providing a ‘hasidic upbringing’ doesn’t necessarily mean that the provider has to be hasidic herself. See how smart I am?”

No, you are not smart, judge. You are a moron! That’s not how education works. That’s not how real values and real, enduring virtues are instilled in the youth. It’s only in your perverted morally relativistic worldview that such a thing fancifully occurs. Not real values. Not in the real world. A parent’s conduct is the model of behavior for the child. It is integral to and inseparable from the child’s learned conduct.

4. Declaring that courts “may not compel any person to adopt any particular religious lifestyle” even in the enforcement of a contract.

The court writes as follows:

“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. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (ibid).

Once again, this court is making a blatant and puerile error. Of course, we all know, that the state cannot enact any legislation that infringes on our fundamental freedom of conscience. But we are not talking here of the state initiating such an action. We are talking here of a person voluntarily binding oneself in a contract to a particular course of action, one which happens to limit or surrender some constitutional right. Can that person’s feet then be held to the fire to abide by that contract or not?

What if five people purchase a parcel of land and build a condominium. The people are all Orthodox Jews and wish to establish a milieu that is conducive to their lifestyle. They pool their money and resources for the project and stipulate in a contract at the outset that “nobody may drive a car on the sabbath into or out of the building parking lot”, or “nobody may perform work that violates the sabbath in public on the premises”.

Notice here that this contract’s suppression of the members’ freedom of religion is far from universal. Members are still free to violate the sabbath elsewhere, just not on the premises. In fact, the above contract even allows the violation of sabbath in the privacy of one’s home, just not in public view. And this contract has a very legitimate purpose: the free association and socialization of like-cultured people. This isn’t even primarily, nor expressly about religion. It’s about wanting to live in an environment that is supportive and respectful of one’s lifestyle choices. I don’t think anyone would make an argument that such a contract is constitutionally invalid or that it’s unenforceable in court.

Why is the Weisbergers’ SOS contract any different then, especially since the contract does not bind one another regarding what they do when the children are not present. In fact, as the court itself noted, it protects the parents’ private actions:

“Parties shall each be free from interference, authority and control, direct or indirect, by the other” (Weisberger Stipulation of Settlement).


The lower court was more or less correct in its decision that Chava Weisberger was compelled to conduct herself in Hasidic fashion in the presence of the children or else forfeit custody over them. I also like that the court stayed removal of the children from her custody pending her compliance with the ruling: if Chava changed her behavior within the weeks following the ruling and was sensitive to the children’s Hasidic values, then the lower court and the husband were more than happy to not remove the children from her custody. In other words, the court made clear that the preferred outcome wasn’t her losing custody over the children due to her Hasidic-insensitive behavior, but that the children remain under her care during the week and the children continue to be raised in Hasidic fashion consistently, even when in her custody.

Here’s why:

1. SOS not necessary for obligation to raise children Hasidic.

Even without an SOS, using the MLS (martial lifestyle choice) standard obligates Chava to raise the children in Hasidic fashion. By the MLS standard no written contract specifying anything in particular need ever take place. The mere fact that two people commit themselves to a time-indefinite joint project called matrimony, which involves having and raising children together, is sufficient to bind them to whatever course of life they are on at the time of marriage. If two Hasidim get married, it is an implied pledge by each of the spouses to conduct a hasidic household and raise the children in hasidic fashion all the way to adulthood (at which time they are free to pursue their own path in life). No spouse may unliterally break this solemn pledge.

It is important to note here that this does not mean that the children will be permanently trapped in the Hasidic orbit in contravention of Chava’s chosen liberal lifestyle. Nobody is disputing her right to personally harbor whatever values (e.g. lesbianism/transgenderism) she desires, and conduct herself accordingly when such conduct does not substantially degrade the children’s Hasidic culture. Children are not stupid. They figure out what the their parent is up to even if the parent does not expressly teach it and practice it.

There is no question that the Weisberger children –subject to such a joint custody arrangement in which one parent is not Hasidic, as they are– are more likely to attenuate or even drop altogether their Hasidic observance once they mature. And there is nothing that the Hasidic father Naftali, nor the government, can do about it; nothing in the law and nothing practically. Adults make their own choices and they are influenced by the values and behavior of family and friends. The Weisberger children are influenced by their mother’s values to some degree, and that influence only amplifies over time, and that is perfectly fine. I am even willing to indulge the argument that Chava should not be forced to “categorically conceal the true nature of her feelings and beliefs from [her children] at all times and in all respects” (appellate decision, p. 12). In other words, Chava does not have to scrupulously tippy-toe around her lesbianism at all times.

But that’s not the same as having a carte blanche to “exercise her discretion while the children are in her custody” (ibid), i.e. Chava may allow them to profane the shabbos, watch TV, be exposed to prurient content, so long as she thinks it’s fine. The only mandate that the court imposed on her in the religious sphere was “to keep a kosher home and to provide the children exclusively with kosher food” (ibid). What about everything else that Hasidic practice requires? It seems that the judge only felt comfortable binding Chava to something that she had proposed to the court “both in her motion papers and in her testimony” (ibid).

2. SOS purpose is to pin down child-rearing behavior more precisely.

In the absence of a settlement stipulated at divorce time, the “marital lifestyle choice” standard for parents’ child-rearing practices (even after divorce) is a wide enough tent to countenance a range of possible choices within the Hasidic devoutness spectrum. The liberal parent might argue, for example, that the boy should have slightly shorter peios or that their four-year-old (but not seven-year-old!) girl should still wear socks in public. Especially in Borough Park such practices are completely normal and so there’s no implied agreement by either side to choose one way over the other. That’s where an SOS can serve the purpose of clarifying more precisely the type of Hasidic upbringing the child should receive.

3. SOS, like all contracts, are binding on the parties.

If a stipulation of settlement is made at divorce time then it trumps freedom of religion, the marital lifestyle choice, and the best interest of the child as the court may assess it to be then or at a later time. If it affirms the MLS, as is true in the Weisberger case, then it gives a judge even more impetus to rule in favor of the MLS-SOS if the agreement is later challenged. If a divorce-time SOS were to contravene the MLS, then –like all contracts wherein a later one contravenes a previous one– the SOS would supplant the MLS.

Hence, in the Weisberger case, even if not for the MLS principle, Chava would be bound by her stipulation of settlement not to do anything that is clearly incompatible with a “Hasidic upbringing”. There are grey areas, but sending them to public school, for example, isn’t one of them.

4. BIOC does not apply here. Moreover, even if it does, it can be used deny Chava custody.

The “best interest of the child” standard does not apply here. As explained above, the statute was only meant to be applied in cases where a) the custody dispute is not over a lifestyle choice and b) there is no divorce-time SOS.

The statute was not enacted sheerly out of the goodness of legislators’ hearts to promote the best interests of children in general. If that were the case, then the government would make a law to scour all homes to identify and remove children living in poor conditions and place them in better homes for their best interests. We don’t do that. That’s because the government doesn’t really care about and isn’t responsible for our children’s best interests. We, the parents, are. BIOC is merely a tool to decide between contesting parents when they both have a prima facie strong claim for custody, but one may be acting selfishly regardless of the child’s interests.

In a case where wedge dividing the parents isn’t actual custody but rather the lifestyle that the child would be exposed to MLS ought to be the deciding standard.

But even if we grant that BIOC does apply here, it is not so simple to state “since the children have been with her for so many years and she has been the primary caregiver, therefore she should continue to have joint custody”. Since it is uncontested that the children shall continue to be raised Hasidic at least half the time –on weekends when in paternal custody– apart from their school time, then a very legitimate question ought to be raised as to how psychologically wholesome it is for such children to be exposed to a Hasidism-hostile environment at other times.

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8 Responses to In OTD-Haredi Custody Disputes Courts Should Use “Marital Lifestyle Choice” as Standard

  1. Rabbi Joseph Teitelbaum says:

    Thanks for reporting first on this groundbreaking life changing court case — that will no doubt be reversed back by the conservative supreme court as they did for the other liberal activist appellate court decisions against trump hitherto.

    We are becoming a Sodom and Gemorah with this liberal judges pushing their overarching agendas. Rewarding kids to 2 moms households! Next they will give back to Abbey Stein the Hasidic Rabbi Transgender activist his kido g-d forbid?!

    Look how the liberal anti trump rag the WaPo writes a lie as if the fact that the father was never home for the kids played a role here to deem him unfit because he was all the time learning the holy Torah, that our religion teaches us we are created for it. Learning Torah is now a sin that those liberal appellate court judges will take away your kids because you somehow forlaw you responsibilities of fatherhood.

    Where have we come to that secular courts nullify the psak bes din?!

    Unbelievable!

    See you in the chambers of clarence Thomas and the new religious right wing judge Gorsich they will give footsteps and all the libs such a loss.

    All i can say to you all the Off The Derech libs: laugh laugh – we will see who has the last laugh!…

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/18/ultra-orthodox-judaism-a-wife-concluding-that-she-is-lesbian-and-child-custody/?utm_term=.d51d00001f1d

    • leonlittman says:

      I wouldn’t count it, Rabbi Teitelbaum. First of all, the next appellate court in the New York Court of Appeals, which is fairly moderate. Second, if the US Supreme Court takes the case, it will be to examine the First Amendment issue only, and conservative justices tend to be concerned about protecting the religious liberty of individuals like Chavie. Clarence Thomas has the strongest First Amendment record on the court, and judges invested in protecting individual freedom will not look kindly upon a contract that binds the government to force individuals to surrender their freedom of expression when it’s patently unnecessary and clearly not in the best interests of the children. Maybe you should get out of your community a little more. There are same-sex households raising children all over the country, and the children are doing just fine.

  2. Michael Berg says:

    It is this sentence that is the flaw in your argument: ‘whatever lifestyle choice the parents had agreed upon and espoused when they were happily married should trump the one being newly adopted by the dissenting parent.’
    The nature of marriage arrangements in the Chassidic community calls into doubt this foundational argument. When two eighteen year olds are informed by their parents who they are meeting for ‘Bshoh’ with all that implies, there marital lifestyle is less about agreement than presumption. The parties barely have time to make small talk, let alone enter into an agreement regarding religious lifestyle, with all that the term agreement implies – a comprehensive discussion of beliefs and mores and a mutual conclusion. The basing of marriages on presumption – which admittedly is successful in the majority of Chassidic marriages, is often at the fore of divorces with one spouse going OTD and creates a faulty premise for the MLS the author speaks of.

  3. Chaya F says:

    Let’s not forget that one of the main components in this case is that the mother was entirely devoted to the children from birth. In her marriage. Outside of her marriage. While the father did not exercise his custodial rights and also never paid child support. I think that was a huge factor in the decision.

    • Jacob Gluck says:

      I am very sensitive to that. I am not against her having custody of the child SO LONG as she adheres to the SOS and the MLS. All I am saying is that she should not do something flagrantly or fundamentally in violation of Hasidic norms in the children’s presence.

      I want her to continue to have joint custody, as the arrangement in their family has been until now. I don’t want her to have the licence to flout Hasidic norms based on this court’s ruling.

  4. BP342 says:

    The flaw in the argument is more basic. It is the duty of both parents individually owed to the child to act in his or her’s best interests. They are in effect like trustees. An agreement between trustees to ignore the terms of a trust is unenforceable since since such an agreement in itself is a breach of a prior existing trust. So it must always be open to a parent to challenge any arrangement that is not in the child’s best interest EVEN IF the parent had agreed to it earlier. You cannot make a contract to break an existing civil liability! So SOS is out.

    Second there is no such thing as marital lifestyle choice. Everyone has the same rights and liabilities in law and the most fundamental value in American law is the right to change your mind in matters of faith. Would you argue that a woman who married and lived as a Catholic should not be able to divorce if she lost her faith and even if it was in her childrens’ interest!

    • Jacob Gluck says:

      get divorced? sure! drag your children with you? no! divorce is a personal choice. Child custody affects the child over whom your spouse ALSO has a say in the child’s upbringing.

      If there were three parents, I’d be happy to go with the majority opinion on how to raise the child. Absent that what should break a tie? Hence the MLS. When getting married and starting a family there is virtually ALWAYS agreement on how to raise the children, namely in the same culture as the parents are practicing AT THAT TIME. If someone wants out of the system later, that’s fine. But the agreement on the child’d upbringing stands.

  5. BP342 says:

    The point I am trying to make is that choosing to get married is in itself a lifestyle choice. A Catholic married in church can later defy any MLS Canon Law and seek a civil divorce notwithstanding. A Jew married in Shul can seek a civil divorce without bothering with a get. A spouse who seeks a divorce is doing so because he/she things it is in her interests and any MLS is irrelevant. Why should a spouse be entitled to ignore an MLS if he/she considers it to be in his/her interests but not be allowed to ignore MLS and involve a court when he/she considers it to be in the childrens interest?

    The problem which arises is when parents cannot agree what the best interests of a child and are deadlocked. This was the basis of a famous English Appeal Court decision in 2012 in which a mother left her Satmar background and wished to send her children to a Modern Orthodox School. The father wished his children to remain in Satmer institutions. The judges took the view that both parents were acting in good faith in what they each thought was in the best interest of their children but they had such different values that they could never reach agreement. The court took the view that it should never on its own initiative interfere in such value judgements as to whether Hareidi education or Modern Orthodox education is in a child best’s interest unless because of deadlock, a parent invites the court to do so and if so invited it must not decline to do so and will have to make a value judgement according to the prevailing moral and religious tenets of the society as a whole, if there is no way of reconciling the tenets of the parties involved in the case. The court then found for the mother on that basis as the prevailing tenets of society as a whole find reject Satmar’s educational philosophy .

    The case which is a long but interesting read is here

    http://www.bailii.org/ew/cases/EWCA/Civ/2012/1233.html

    A shorter summary is

    https://suesspiciousminds.com/2012/10/10/ultra-orthodox-or-orthodox-which-is-best-only-one-way-to-find-out/

    I do not think an American court would act differently

    It is interesting that you mentioned three parents because the judge in that case referred to himself as a ‘judicial reasonable parent’.

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