Hiring An Experienced Queens Divorce And Custody Attorney
In a case that evoked shades of Margaret Atwood’s “A Handmaid’s Tale,” a Brooklyn mother in 2015 was ordered by a New York judge to “practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period” in which she had physical custody of her three children, whose father she was divorced from, or any time she was at the children’s Hasidic school.
The order was rooted in the terms of her divorce settlement, which included a religious upbringing clause that stated “Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families’.”
The 2015 court found that this religious upbringing clause should be interpreted as literally as possible and was of paramount importance in the matter, regardless of the mother’s wishes or the fact that she had adopted a more secular approach Judaism than her Hasidic upbringing – and former marriage – would have suggested.
Essentially, Chavie Weisberger was told by a judge that her ex-husband Naftali’s vision of how their children should be raised were controlling, and that in spite of having divorced him and moved on with her life, she should be subject to his demands.
These types of conflicts aren’t unusual during and after a divorce, but having a court make such a sweeping, and frankly unconstitutional ruling, is something else entirely.
Some background might help bring the story into focus.
Chavie and Naftali were introduced to each other by a shadchan (matchmaker) when they were both 19.
During their seven year marriage, Chavie gave birth to their children and Naftali pursued religious studies, which kept him out of their house from morning until evening, usually long after the children had been put to bed.
At some point during the marriage, Chavie came to the realization that she is a lesbian, and after telling Naftali, the couple agreed to divorce.
They worked with their rabbi rather than lawyers, and according to Chavie, the final settlement that was entered didn’t include changes that she had requested.
Still, she was left with custody of the children and $600 a month in child support (though apparently Naftali never paid it), and in 2009, Chavie was a single adult exploring a life outside of her Hasidic community for the first time.
Over the next three years, her life took on a form of her choosing, with a career, friends, and eventually a roommate who happened to be a transgender man.
She gave her children a similar measure of openness, allowing them to dress in modern clothing outside of school, foregoing mealtime blessings, and even experiencing non-kosher foods.
In October 2012, she cut her son’s payos (sidelocks), and according to court records, the children began speaking English in school, and not adhering strictly to the sabbath.
Chavie allowed the kids to watch movies, including a Christmas movie, and participate in an egg hunt at a Purim party.
Perhaps most distressingly to Naftali, Chavie had begun to suspect that her oldest daughter was wondering about Chavie’s sexual orientation.
She spoke to the girl’s therapist about it, who suggested that Chavie come out to her daughter, and she did.
These circumstances seemed to infuriate Naftali, who returned to court at the end of 2012 and demanded full custody of the children on the grounds that Chavie was continually violating the religious upbringing clause that the couple had agreed to three years earlier.
He also wanted all decision-making related to their medical, dental, and mental health care, as well as to limit Chavie’s contact to the children – who were then five, seven, and nine years old – to supervised therapeutic visitation.
He said that while he understood and expected that Chavie’s relationships after their divorce would be with women, he also expected her to keep her sexual orientation, and any romantic relationships she might have, a secret from their children.
The court awarded him temporary residential custody, and soon thereafter the couple agreed that the children would stay with Chavie from Monday to Thursday and with Naftali from Thursday to Monday.
The temporary order also stipulated that Chavie would “encourage and practice full religious observance in accordance with the [Hasidic] practices of Emunas Yisroel in the presence of the children” and that when she was in the Boro Park community where Naftali lived, she would dress in the modest fashion of Hasidic women.
Chavie responded months later with a motion to modify the religious upbringing clause, offering to provide the children with a conservative or progressive modern orthodox Jewish upbringing, to have them attend an appropriate school for this upbringing, to consult with Naftali on their choice of schools, to keep a kosher home and only let the children to eat kosher food outside the home, and to expand Naftali’s visitation to every weekend, beginning one hour before sundown on the Friday and ending Sunday mornings at 10 a.m.
In the meantime, she lived up to the terms of the temporary agreement, but expressed that she felt hypocritical for going through the motions of Hasidic living and was frustrated at having to hide who she is from her own children.
She appealed the ruling, and in September the appellate court finally ruled on the appeal, freeing Chavie from the unconstitutional strictures placed on her by the judge, but also granting Naftali more time with the children, so he can help guide them in Judaism.
The appeals court found major flaws with the lower court’s ruling, zeroing in on two areas where the judge had overreached or focused on the wrong priorities.
First, the appeals panel found that the lower court’s emphasis on making the religious upbringing clause paramount was misguided.
New York law mandates that judges rule in custody matters on the standard of what is in the children’s best interest, writing that the mother’s preeminent caretaking role since the children were born, and the harm that would come from severing that bond, outweighed the provisions of the religious upbringing clause.
Further, the panel reaffirmed Chavie’s constitutional right guarantees to freely practice, or not practice, her faith in the way she saw fit, without state interference.
Chavie and Naftali obviously won’t have a simple road when it comes to co-parenting their children in their different visions of their faith, but the court was confident in both parents’ devotion to their children, and tried to find a middle path that gave each an opportunity for a full and robust relationship with the children, and the opportunity to impart what is most important to them.
Deciding Religious And Other Custody Disputes In A Queens Divorce Case
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