The New York Appellate Division court in Brooklyn has unanimously reversed a trial judge’s decision to take away a formerly Hasidic lesbian mother’s custody of her three children, finding, among other things, that the settlement agreement drafted by her ex-husband’s father at the time of their divorce imposed an unconstitutional requirement that she continue to observe the tenets of a Hasidic lifestyle as a condition of custody.
The August 16 decision by a four-judge bench aroused concerned comment in the Hasidic community, as it applied well-established principles of family law that the trial judge, himself an Orthodox Jew, seemed to have overlooked in giving preemptive weight to the father’s religious desires.
Naftali and Chava Weisberger were married in 2002. They were brought together, according to established custom in the Hasidic community, by a professional matchmaker — called a shadchan — and were both 19 years old at the time. They moved to Borough Park from the tight Hasidic community in upstate Monsey and had three children together. The move to Brooklyn was prompted by Naftali’s desire to pursue religious studies. They raised their children according to traditional Hasidic practices and beliefs, in a home with no television or Internet, observing strict restrictions on diet and dress and speaking Yiddish.
Children’s best interest overrides religious obligations in divorce settlement
After a few years of marriage, Chava informed Naftali that “she did not enjoy sexual relations with men and that she was attracted to women.” They continued to live together, but several years later Naftali agreed to give Chava a “Get,” or Jewish divorce, and they signed a settlement agreement drafted by Naftali’s father in November 2008. Naftali married another woman a few weeks later, and has since had two children with her, prompting speculation he was finally willing to grant a religious divorce to free himself for this second marriage.
Under the written settlement terms, the parents had joint custody of the children, with Chava having primary residential custody. They agreed that Naftali’s visitation with the children would be for a two-hour period once a week after school — which would increase for the son as he grew older, for the purpose of religious studies — overnight visitation every other Friday after school until Saturday evening for Sabbath observance, two weeks during the summer, and an alternating schedule for Jewish holidays. But, Chava testified, Naftali did not exercise his visitation rights fully for the first 18 months of his new marriage, and would not bring the children to his new home for visitation, hosting them instead at his parents’ home.
The central provision in the custody dispute was the “religious upbringing clause,” which provided, “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 settlement also provided that each party “shall be free from interference, authority, and control, direct or indirect, by the other.”
Chava agreed to waive any claim to marital assets or further financial support for herself, but the agreement obligated Naftali to pay $600 a month for support of the children.
Several events appear to have led Naftali to file his motion with the court in November 2012, almost four years after the divorce. He alleged that Chava had “radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause.” For one thing, to Naftali’s consternation, Chava decided that their older daughter was mature enough to be told about her sexual orientation. He had expected that his ex-wife’s sexual orientation would be kept a secret from their children, though that was not part of the settlement agreement.
Naftali also claimed Chava had come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of their children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by English names rather than the names by which they were known in the Hasidic community.
To top things off, Chava was not dressing according to Hasidic tradition, she had dyed her hair, and a transgender man had moved in and was participating in taking care of the children, Naftali claimed.
Naftali sought sole legal and residential custody of the children and final decision-making authority over their lives, limiting Chava to a few hours of supervised “therapeutic visitation” each week, with the children behaving in strict compliance with the 2008 settlement agreement’s religious upbringing clause in her presence and at school.
Naftali sought an immediate order giving him temporary residential custody, which he got from Judge Eric Prus. A few days later, the parties agreed to a temporary visitation order for Chava, giving her several days a week but providing that she “encourage and practice full religious observance in accordance with the practices of [Congregation] Emunas Yisroel in the presence of the children.” She was also required to “dress in the Hasidic modest fashion” while in the Borough Park community.
Chava responded with a motion aimed at modifying the original religious upbringing clause. She sought the court’s permission to raise the children in Brooklyn, but outside Borough Park, with “a conservative or progressive modern orthodox Jewish upbringing” in a community and school that are “inclusive of gay individuals.” Though she sought the right to share in making educational decisions for the children with Naftali, she proposed that he be able to continue the children’s Hasidic education and have visitation each Sabbath and on all Jewish holidays. She promised to keep a kosher home.
During Judge Prus’ hearing in the case, testimony from Naftali and Chava suggested that during the marriage Naftali left the house early in the morning and didn’t return in the evening until after the children were asleep, leaving Chava primarily responsible for taking care of them.
Naftali’s testimony also made clear he did not have extensive contact with the children after the divorce, and his decision to host their visits in his parents’ home rather than his own was presumably to shield his new wife and children from being contaminated by non-Hasidic influences. He filed his motion to change custody shortly after learning that a transgender man had moved into Chava’s home and was assisting in taking care of the children. He testified that in March 2013, their younger daughter told him she had read a book about children with two fathers and that Chava allowed the children to watch movies — forbidden in the Hasidic community
Naftali denied, however, he was motivated in his motion by Chava’s lesbian identity. Instead, he pointed to her failure to keep it a secret from the children, and said he wanted sole custody to ensure that they would get a traditional Hasidic upbringing without “interference” from their mother. Still, the appeals court panel wrote, “The father believed that homosexuality violated the Torah.” Naftali told the court, “There’s no place for comprising in our religion.”
Chava testified she had not been represented by a lawyer during the 2008 divorce and that a rabbi guided her in negotiating the settlement, and another rabbi served as mediator. Changes she had sought in the agreement had not been made when she appeared at the Beth Din, or religious court, to sign the agreement. Chava also testified that Naftali never provided the monthly child support payments which the agreement obligated him to make.
Her decision to tell her older daughter about her sexual orientation, Chava testified, came in 2012 on the advice of the girl’s therapist at the Jewish Board of Family and Children’s Services. She testified that her transgender friend came to live with them in September 2012 and got along well with the children. When the older daughter returned from a visit with her father, however, she was confused and upset because some of his family had “teased her about her level of religious observance” and told her that Chava’s friend was “really a woman.”
When the children’s custody arrangement was ordered changed by Judge Prus, with them spending half of each week with Naftali’s family, Chava “found the children would often be upset and confused,” according to the appeals panel opinion. Feeling hypocritical about obeying religious observance requirements only so that she could continue to have the children without supervision, Chava described Naftali’s custody proposal as “devastating, as she had been the most present parent in the children’s lives since they were born.” She also said she was concerned about their emotional well being in their father’s custody.
Prus, saying he might have considered the case “differently” in the absence of the settlement agreement, found that its “very clear directives” obligated him “to consider the children’s religious upbringing as a paramount factor in any custody determination.” He ruled largely in favor of Naftali, awarding him sole legal and residential custody and final decision-making authority for the children. Denying Chava’s motion to modify the religious upbringing clause, Prus ruled that she would only have limited supervised visitation if she did not comply fully with the religious upbringing clause.
Chava appealed this draconian ruling, represented by attorneys from Seward & Kissel LLP and the New York Legal Assistance Group, which has a dedicated LGBTQ assistance practice. Lambda Legal, the New York Civil Liberties Union, Footsteps, Inc., which assists women seeking to leave the Hasidic community, and Unchained at Last, Inc., an organization assisting women who seek to leave arranged marriages, all filed amicus briefs in support of Chava.
Chava’s appeal was argued before the Appellate Division last November, and it took nine months for the court to compose its opinion.
While acknowledging that a trial court’s determinations in a custody case are normally given great weight, the appeals panel decided to discard much of Prus’ ruling. The decision to give Naftali sole legal and residential custody and decision-making power over the children “lacked a sound and substantial basis in the record” because Prus gave “undue weight to the parties’ religious upbringing clause.”
New York courts do not consider settlement agreement provisions as “paramount factors” in deciding a custody dispute, with the best interest of the children taking priority. The court quoted earlier decisions holding that “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.”
Naftali had fallen short, the appeals panel found, in showing that it was in their best interests to put him in total control of the children’s lives.
“The mother has been the children’s primary caretaker since birth,” wrote the court, “and their emotional and intellectual development is 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 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.”
Aside from his objections to Chava exposing the children to viewpoints he objects to, Naftali “expressed no doubts whatsoever about the mother’s ability to care and provide for the children,” the panel found. And it held that “it was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.”
The appeals panel also pointed out that the settlement agreement itself was focused on giving the children an Hasidic upbringing, and “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.” Citing the US Supreme Court’s 2003 decision striking down the Texas sodomy law, the panel said that “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.”
The court concluded that it was not in the children’s best interest “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.”
The appeals panel, however, was not ready to completely grant Chava’s motion to modify the religious upbringing clause in the settlement agreement. Since the children had spent their lives in the Hasidic community, attended Hasidic schools, and visited with extended family who were observant Hasidic Jews, the court decided that Naftali should continue to exercise final decision-making authority about their education, and that he could continue to require that, at least while they were in his custody or attending their Hasidic school, they “practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.”
The court said it would be best for the children if the parents “work together to surmount the challenges the children will face as they continue on their current educational path.”
Though the panel ruled that Chava should “make all reasonable efforts” to ensure the children dress appropriately for their Hasidic school, it also stated, “we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion when the children are in his or her custody.”
The court also decreed more visitation time for Naftali than was provided in the original settlement, and accepted Chava’s proposal that he have the children for all Jewish holidays and that she get the non-religious holidays and vacation time.
The court acknowledged that neither party would be fully satisfied with its disposition of the case, but, it said, “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.”
It would not be surprising if one or the other of the parents seeks appeal at the state’s highest court, especially since Naftali testified he could see “no compromise” on his religious demands. We may not have heard the last about this case.