In Weisberger, the Supreme Court was asked to enforce a religious upbringing clause in the parties’ separation agreement that required to the mother to practice full religious observance in accordance with the Hasidic practices or be relegated to supervised therapeutic visitation.
Plaintiff Naftali Weisberger and Defendant Chava Weisberger married in 2002 and divorced I 2009. They had 3 children. In a stipulation of settlement dated November 3, 2008, the parties agreed to joint legal custody of the children with the mother having primary residential custody. They agreed that the father’s visitation with the children would consist of a two-hour period once per week after school; overnight visitation every other Friday after school until Saturday evening for the observance of the Sabbath; for two consecutive weeks every summer; and an alternating schedule for holidays. The stipulation also contained a religious upbringing clause that the children would be raised Hasidic and that Naftali would choose the children’s school. It further provided that Naftali would pay child support. However, Naftali never paid child support and did not fully exercise his visitation rights.
Three years after the divorce, Naftali filed a petition asking for a modification of the agreement on the grounds that Chava caused the children’s to violate the practices of Hasidic Judaism in many ways. Naftali sought custody and specific enforcement of the religious clause in their agreement.
Pending the hearing and determination of the father’s motion, the Supreme Court awarded him temporary residential custody of the children and awarded only supervised visitation to Chava. The temporary order also required that the mother practice full religious observance in accordance with Hasidic practices in the presence of the children and that in the Boro Park community, the Chava would dress in the Hasidic modest fashion.
Chava appealed. She also submitted a proposed changed to the religious upbringing clause be modified to provide that she agree 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.”
Will a court enforce a custody agreement that provides for a specific religious upbringing for a child if the agreement is not in the best interests of the child?
No. A court will enforce a custody agreement that provides for a specific religious upbringing for a child only so long as the agreement is in the best interests of the child. While individual parties can negotiate a shared-parenting agreement, the court can still determine that such an agreement is not in the best interests of the child.
In this case, the Appellate Division agreed with the Supreme Court’s determination that a change of circumstances had occurred such that a modification of the stipulation of settlement with respect to religious upbringing was necessary to ensure the continued best interests and welfare of the children. However, the Appellate Division disagreed that the changes the Supreme Court made to the stipulation of settlement and custody were sound in that it gave undue weight to the religious upbringing clause in the stipulation agreement. It did not focus properly on the best interests of the children.
Chava has always been the children’s primary caretaker and has the closest relationship with the children, as evidenced by not only testimony at trial but also Naftali’s failure to fully exercise his visitation rights. Further, Naftali has failed to adequately support the children financially as required by the parties’ agreement.
The judgment is modified to maintain Chava’s legal and residential custody of the children, but Chava is required to make all reasonable efforts to raise the children under the teachings of Hasidic Judaism.