Ultra-Orthodox Judaism, a wife concluding that she is lesbian, and child custody

A very interesting decision handed down Wednesday by a New York appellate court (Weisberger v. Weisberger). Note that, of course, though this case involves ultra-Orthodox Judaism, similar stories could happen in Muslim communities, and for other religions as well.

First, the facts and procedural history, which are long but which I think need to be given in detail to do the matter justice:

The parties were married on March 5, 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 by a judgment of divorce dated March 6, 2009. They have three children together, a son and two daughters. At the time of the divorce, the parties' older daughter was five years old, their son was three years old, and their younger daughter was two years old.

In a stipulation of settlement dated November 3, 2008, which was incorporated but not merged into the judgment of divorce, the parties agreed to joint legal custody of the children with the mother having primary residential custody…. [T]he 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.

The stipulation of settlement further provided that each party "shall be free from interference, authority and control, direct or indirect, by the other."

On November 29, 2012, more than three years after the divorce, at which time the children were nine, seven, and five years old, respectively, the father moved, by order to show cause:

1. to modify the stipulation of settlement so as to award him 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. to modify the stipulation of settlement so as to award the mother only 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 require her to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children's schools ….

In support of the motion, the father alleged that the mother had radically changed her lifestyle in a way that conflicted with the parties' religious upbringing clause. Although the father acknowledged that at the time he entered into the stipulation of settlement he expected the mother's future intimate relationships would be with women, he expected her to keep the fact that she was gay a secret and to keep any relationship she had with a woman secret from the children.

The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children.

Pending the hearing and determination of the father's motion, the [trial court] awarded him temporary residential custody of the children…. The temporary order also provided, [among other things], that the mother would "encourage and practice full religious observance in accordance with the [Hasidic] practices of Emunas Yisroel in the presence of the children," and "in the Boro Park community, the [mother] shall dress in the [Hasidic] modest fashion."

The mother opposed the father's motion and separately moved, by notice of motion dated April 10, 2013, [among other things], to modify the religious upbringing clause and for such other and further relief as the court deemed just and proper. The mother proposed that the religious upbringing clause be modified to provide as follows:

Mother agrees to provide the children with a conservative or progressive modern orthodox Jewish upbringing compatible in all details, in home or outside of home, with a conservative or progressive modern orthodox Jewish community that is inclusive of gay individuals. Such community shall be as near to Borough Park, Brooklyn, New York, as possible, and in [sic] under no circumstances outside of the Borough of Brooklyn. The children will attend a conservative or progressive modern orthodox Jewish school that is similarly inclusive. Mother and Father shall consult with one another on selecting the Children's schools.

Father shall continue to teach the Children all aspects of a Hasidic upbringing, and in furtherance of this shall have visitation rights with the children every Shabbos, beginning Friday night one hour before sundown through Sunday morning at 10 am. Mother will keep a [k]osher home and shall only provide the Children kosher food outside of her home. Mother to insure that the children arrive in school in a timely manner and have all their needs provided.

… The father testified that his and the mother's extended families were integrally involved in the founding of the Emunas Yisroel branch of Orthodox Hasidic Judaism, and their families were neighbors in Monsey, New York. When the parties were both 19 years old, they were introduced through a shadchan (matchmaker). Shortly thereafter, they became engaged and, in 2002, they were married.

After marrying, the parties moved to Boro Park, Brooklyn, so that the father could pursue religious studies. They had three children, and raised them according to traditional Hasidic practices and beliefs. During the marriage, the father left the house in the morning and generally returned after the children were in bed. The mother was primarily responsible for taking care of the children's needs, and the father was satisfied with her care of them. The parties kept a strictly kosher home, spoke Yiddish, observed the Sabbath, and always wore traditional clothing. According to the father, Hasidic children never wear T-shirts, jeans, or shorts, boys do not have their hair cut until the age of three, and there is no television or Internet in the home….

The parties were divorced on March 6, 2009, and the father married a different woman later that same month. At the time of his testimony, the father and his new wife had two children together. Despite the parties' agreement that the father would have visitation with the children every other Shabbos, the father testified that during the first 18 months of his new marriage he would not permit the children to come over to his house, he did not fully exercise his biweekly right to visitation during Shabbos, and he did not take their son for Yom Kippur in 2009 through 2011. The father testified that when he did visit with the parties' children, he did so at his parents' house. [Text moved: [T]he mother [testified] that the father had not made a single child support payment to her since their separation, notwithstanding the explicit terms of the stipulation of settlement.]

The father learned that in fall 2012 a transgender man (hereinafter "O.") moved into the mother's home, and that a curtain was installed to separate the adult bedrooms from the children's bedrooms. According to the father, his children informed him that O. assisted in bathing them and told them about sexual parts of the human body. In October 2012, the mother began dressing the children in secular clothes and cut their son's payos (sidelocks).

The father testified that the children began speaking English in school, stopped saying blessings at meals and nighttime prayers, and were eating non-kosher food. Further, the father testified that the mother had allowed the children to ride a train and use light switches on the Sabbath. The father also testified that the mother allowed the children to watch movies, including a movie about Christmas, and participate in an egg hunt at a Purim party. The father testified that in March 2013, the younger daughter told him that she had read a book about children with two fathers and other books about homosexuality.

The father denied that the mother's sexual orientation was the motivation behind his request for a change in custody; however, he had expected the mother to keep her sexual orientation a secret from the children. The father testified that he sought custody of the children so that he could give them a traditional upbringing according to his religion without interference from the mother. The father objected to the children being exposed to anyone who was openly non-religious, or to any intimate relationship that was not sanctioned by Jewish law. The father believed that homosexuality violated the Torah. The father also believed that the mother's visits with the children should be limited to one or two hours per week and supervised by a family member. When asked whether he could reach a compromise, the father testified: "[T]here's no place for compromising in our religion." …

The mother testified that … [s]he never spoke with a lawyer during the divorce process. Her father-in-law gave her an agreement to review and make notes. She met with a rabbi, who guided her as to which issues she should negotiate. She negotiated the financial aspects of the agreement and, according to her testimony, Rabbi Glassman—the parties' designated mediator—was supposed to incorporate her changes into the agreement. When she appeared at the Beth Din to sign the agreement, it did not include her changes. She inquired why the agreement did not include the changes and the mediator said he would take care of it, so she signed the agreement.

The stipulation of settlement provided that the father would pay the mother $600 per month in child support. The mother waived her right to, among other things, maintenance and to the distribution of marital property. The mother testified that she believed the custody arrangement provided for in the stipulation of settlement was good for the children….

[The mother testified that, f]or a number of years, the mother never told the children about her sexual orientation. However, the mother testified that, in 2012, she learned that the older daughter was beginning to suspect the mother was gay. The mother testified that she consulted with the older daughter's therapist about the issue, and then told the older daughter that she was gay, which she believed deepened the child's level of trust and openness with her. In September 2012, the mother's friend, O., came to live with her. The children and O. got along well with each other. However, in October 2012, after the older daughter returned from a visit with the father, she was confused and upset because the father's family had teased her about her level of religious observance and had told her that O. was really a woman….

The mother testified that she carefully obeyed the order's provision requiring her to behave religiously with the children and in Boro Park, but felt hypocritical for doing so and for hiding parts of herself. She believed the father's custody proposal was devastating, as she had been the most present parent in the children's lives since they were born, and she worried about the children's emotional well-being while in the father's custody. In connection with her motion to modify the religious upbringing clause, the mother believed the children would be better served by attending a school that was more accepting of diversity, and she offered to continue to keep a kosher home and let the children spend religious holidays with the father. The mother wanted the children to continue with therapy to help them resolve the differences between their two parents' households.

In the order appealed from, the [trial court] determined that there had been a change of circumstances caused by the mother's transition from an ultra Orthodox Hasidic lifestyle to a "more progressive, albeit Jewish, secular world." The court noted that the mother's conduct was in conflict with the parties' agreement, which "forbade living a secular way of life in front of the children or while at their schools." The court posited that had there been no agreement it might have considered the parties' arguments differently; however, "given the existence of the Agreement's very clear directives, [the] Court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination" (emphasis added).

The [trial court] … modif[ied] the stipulation of settlement so as to award him sole legal and residential custody of the children …. The court stayed the provision of the order limiting the mother's visitation to supervised therapeutic visits, conditioned upon, [among other things], her compliance with the religious upbringing clause contained in the stipulation of settlement. The court directed that, while the stay was in effect, the mother was entitled to unsupervised visitation every Monday after school or camp until Thursday morning.

In addition, the [trial court] granted that branch of the father's motion which was 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 Hasidic practices of ultra Orthodoxy at all times. Further, the court ordered that during any period of visitation or during any appearance at the childrens' schools "the [mother] must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy." The court denied those branches of the mother's motion which were to modify the religious upbringing clause and to modify the vacation and holiday schedule contained in the stipulation of settlement. The mother appeals.

Now, the legal analysis: The court concluded that the decision had to be based on "the continued best interests and welfare of the child[ren]," and that the trial court's decision "gave undue weight to the parties' religious upbringing clause":

[Under New York precedents,] 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. "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."

Considering all of the facts and circumstances of this case, the father failed to demonstrate that it is in the children's best interests to award him 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. 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. Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother's ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children's relationship with her….

Furthermore, the [trial court] improperly directed that enforcement of the parties' stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children's schools. Although the court accepted the father's argument that the religious upbringing clause "forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools," the plain language of the parties' agreement was "to give the children a Hasidic upbringing" (emphasis added).

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. Nor may the courts compel any person to adopt any particular religious lifestyle. To the contrary, "[i]t 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 (see Lawrence v Texas; see also Obergefell v Hodges). Indeed, the parties themselves agreed in the stipulation of settlement that they "shall [each] be free from interference, authority and control, direct or indirect, by the other" (emphasis added).

While we respect the parties' right to agree to raise their children in a chosen religion and to seek judicial relief to enforce that right, given the change in circumstances here, 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. 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.

This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised. Indeed, we conclude that the children's best interests would be better served by a more limited modification of the religious upbringing clause than that proposed by the mother. The evidence at the hearing established that the children have spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. "[T]he maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight."

Contrary to the mother's contention, 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. To this end, the children's interests will be best served if their parents work together to surmount the challenges the children will face as they continue on their current educational path.

As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal, made in both her motion papers and her testimony, to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so, and in a manner consistent with Hasidic practices. Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

We find that an increased visitation schedule with the father would be in the children's best interests. The parties' original custody agreement provided the father with, [among other things], one overnight visit with the children, every other week. In light of the change in circumstances, we conclude that the stipulation of settlement does not adequately provide the father with meaningful time with the children. Accordingly, that branch of the father's motion which was to modify the stipulation of settlement is granted only to the extent of modifying the stipulation of settlement so as to award the father visitation every other weekend from Thursday after school until Sunday at 11:00 a.m. On alternating weeks, the father shall have (as the parties provided in their stipulation of settlement) visitation from Friday after school and return them one hour after Shabbos ends during winter and two hours after Shabbos ends during summer….

We acknowledge that both parents are sincere in their devotion to the children and, with the exception of occasional lapses in good judgment, neither parent has engaged in conduct that is contrary to the best interests of the children. And yet, the parties' religious, moral, and ethical beliefs and values with respect to raising their children, while once compatible, have now become incompatible in many important respects. While the arrangement set forth here may not fully satisfy both sides of this dispute, courts do not always have the perfect solution for all of the complexities and contradictions that life may bring ….

Finally, the parties' stipulation provided, [among other things], that the parties shall "encourage the child[ren] to honor, respect and love the other party," shall not "attempt to alienate or destroy the affection of the child[ren] for the other party," and shall not "speak idly about the other party in front of the children." This provision applies equally to both parties and, therefore, neither party may, directly or indirectly, denigrate the other to or before the children for any reason, including their disagreement with the other party's identity or beliefs.

Thanks to Michael Krupen for the pointer.