Weisberger v. Weisberger
154 A.D.3d 41, 60 N.Y.S.3d 265, 2017 NY Slip Op 6212 (2017)
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Rule of Law:
While religious upbringing clauses in divorce stipulations are enforceable, they are always subservient to the child's best interests and cannot compel a parent's personal religious observance or lifestyle in a manner that infringes on their constitutional rights to express oneself and live freely, nor can a parent's sexual orientation be the determinative factor in custody decisions.
Facts:
- The parties married on March 5, 2002.
- In 2005, the mother informed the father that she was sexually attracted to women and could not tolerate sexual relations with men.
- On November 3, 2008, the parties entered into a stipulation of settlement, incorporated into their divorce judgment, agreeing to joint legal custody, the mother having primary residential custody, and a religious upbringing clause stating: “Parties agree to give the children a Hasidic upbringing in all details… Father shall decide which school the children attend.” The stipulation also stated each party “shall be free from interference, authority and control, direct or indirect, by the other.”
- The parties divorced on March 6, 2009, having three children together who were then five, three, and two years old.
- By Fall 2012, the father learned that the mother had publicly come out as a lesbian, disparaged basic tenets of Hasidic Judaism in front of the children, allowed them to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, referred to them by non-traditional names, dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children.
- The children began speaking English in school, stopped saying blessings and nighttime prayers, ate non-kosher food, rode a train and used light switches on the Sabbath, watched movies including one about Christmas, and participated in an egg hunt.
- In March 2013, the younger daughter told the father she had read books about homosexuality.
- The mother acknowledged telling her older daughter that she was gay, after consulting with the daughter's therapist, believing it deepened the child's trust and openness with her.
Procedural Posture:
- On November 29, 2012, the father moved, by order to show cause, in the Supreme Court (the trial court) to modify the stipulation of settlement to award him sole legal and residential custody of the children, award the mother only supervised therapeutic visitation, and enforce the religious upbringing clause to require the mother to direct the children to practice full religious observance and require her to practice full religious observance during any physical custody or school appearances.
- Pending the hearing and determination of the father’s motion, the Supreme Court awarded him temporary residential custody of the children.
- On December 5, 2012, the parties entered into a temporary order of visitation on consent, modifying residential custody and requiring the mother to “encourage and practice full religious observance” and dress modestly in the Boro Park community.
- On April 10, 2013, the mother opposed the father’s motion and separately moved to modify the religious upbringing clause to a more progressive Jewish upbringing and to modify the holiday schedule.
- The Supreme Court held a hearing on both motions, hearing testimony from the father and the mother.
- The Supreme Court granted the father’s motion to award him sole legal and residential custody of the children, decision-making authority, and supervised therapeutic visitation for the mother (stayed on condition of her compliance with the religious upbringing clause).
- The Supreme Court also granted the father’s motion to enforce the religious upbringing clause, requiring the mother to direct the children to practice full religious observance and requiring the mother herself to practice full religious observance during any period of visitation or at the children’s schools.
- The Supreme Court denied the mother’s motions to modify the religious upbringing clause and the vacation/holiday schedule.
- The mother appealed the order of the Supreme Court to the Appellate Division.
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Issue:
Does a religious upbringing clause in a divorce stipulation, which originally grants the father control over schooling and a Hasidic upbringing, allow a court to compel the mother's personal religious observance and lifestyle, or to award the father sole custody, when the mother's lifestyle changes in a way that conflicts with the agreement, if doing so is not in the children's best interests or infringes on the mother's constitutional rights?
Opinions:
Majority - Per Curiam
No. A religious upbringing clause in a divorce stipulation does not allow a court to compel a parent's personal religious observance or to award the father sole custody based on a change in the parent's lifestyle if such actions are not in the children's best interests or if they infringe on the parent's constitutional rights to express oneself and live freely. The Supreme Court gave undue weight to the religious upbringing clause, erroneously deeming it a “paramount factor” rather than one of many considerations in the children's best interests. Custody agreements regarding religion are enforceable only so long as they align with the children's best interests, and no agreement can bind the court to a disposition contrary to those interests. The father failed to demonstrate that awarding him sole legal and residential custody was in the children’s best interests, particularly given the mother’s role as primary caretaker and the father’s consistent failure to fully exercise visitation rights or fulfill financial obligations. Supervised visitation is only appropriate when unsupervised visitation is detrimental, which was not established here. The plain language of the parties’ agreement was “to give the children a Hasidic upbringing,” not to compel the mother to personally practice ultra Orthodoxy, dress in a particular way, or hide her identity or views. Such compulsion violates a parent's constitutional due process right to express oneself and live freely. While acknowledging a change in circumstances, the court determined that the children’s best interests would be served by a more limited modification: permitting the father to exercise final decision-making authority over the children's education and require Hasidic religious observance when they are in his custody or at school. The mother is directed to make reasonable efforts to ensure the children’s appearance and conduct comply with these requirements while with the father or at school, and to keep a kosher home. Otherwise, each parent may exercise discretion while the children are in their care. The court also granted increased visitation to the father and modified the holiday schedule as proposed by the mother to account for the parents' divergent lifestyles. Both parents remain bound by the stipulation not to denigrate the other to the children.
Analysis:
This case significantly clarifies the limits of enforcing religious upbringing clauses in custody stipulations, firmly establishing that such clauses are always secondary to the paramount "best interests of the child" standard. It underscores that courts cannot compel a parent's personal religious adherence or lifestyle, especially when it infringes upon fundamental constitutional rights like freedom of expression and privacy, or when there's no showing of harm to the children. The decision strikes a crucial balance, seeking to maintain a child's established religious ties while respecting parental autonomy and acknowledging that a parent's sexual orientation, in itself, is not a basis for denying custody or restricting visitation. This ruling serves as a vital precedent for divorce cases involving religious disagreements and diverse parental lifestyles, reinforcing the principle that the child's well-being and a parent's fundamental rights are paramount.
