The “Un-Orthodox” Divorce: Who Decides the Children’s Religious Upbringing?

(Weisberger v. Weisberger, ___ AD3d ___, 2017 NY Slip Op 06212 [2017].)

Today, culturally diverse and “interfaith” households are commonplace. While religious acceptance can raise some questions even within intact families, tensions may grow deeper when a parent’s individual religious values evolve over time. What if parents once had an understanding as to the role of religion in their children’s lives, but their previous belief system comes in conflict with their current lifestyle? When parents divorce, who makes the ultimate decisions about their children’s religious upbringing and education where their views are at odds? Can one parent be forced to adhere to specific religious tenets in furtherance of the children’s religious upbringing? A recent decision by the New York Appellate Division emphasized that the “best interests of the children” remains the paramount concern of the Family Court.

At the time of the Weisberger divorce, the parties agreed to joint legal custody of their three children, with the mother maintaining primary residential custody and the father having visitation with the children on alternating weekends. Importantly, the parties’ agreement contained a religious upbringing clause, requiring the children to be raised in adherence with Hasidic Judaism. The agreement allotted decision-making authority regarding the children’s education to the father. Three years after the parties’ divorce, the father moved to modify their custody arrangement to award him sole custody. His request was prompted by his ex-wife’s having come out publicly as lesbian and permitting the children to violate various traditional tenets of Hasidic Judaism, including dress and diet. It was also revealed that the mother began living with a transgender man, who maintained extensive contact with the children.

                After temporarily expanding the father’s parenting time, the trial court held a hearing. 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 mother testified that as a result of the temporary expansion of the father’s parenting time, the children would often return from their father’s home upset and confused regarding his lack of tolerance for her level of religious observance.

As a result of the hearing, the court determined that the mother was primarily responsible for taking care of the children’s needs throughout their lives. Nonetheless, the trial court granted the father’s motion, in part, by awarding him sole legal and residential custody. In conjunction with a shift of custodial rights, the court enforced the religious upbringing clause, requiring the mother to direct the children to practice full religious observance. Additionally, it directed the mother to practice full religious observance in the presence of the children, although the parties’ agreement did not call for this.

                On appeal, the appellate court analyzed whether there had been a change in circumstances warranting modification of the custody arrangement. It concluded that the trial court’s custody analysis was improper due to its emphasis upon the parties’ religious upbringing clause within their divorce agreement, rather than looking to what was in the children’s best interests. The appellate court reasoned that religion may be considered in a custody dispute where the child’s “actual religious ties” are better served by one parent. Additionally, the court articulated that the provision of specific religious upbringing for children within a custody agreement will be enforced, but only to the extent that it remains consistent with the best interests of the children.

                Furthermore, the Appellate Division held that the trial court had erred in requiring the mother to practice full Hasidic religious observance while in the presence of the children. Although the parties have a right to agree to raise their children within a particular religion, a court may not compel a person to adopt any particular religious lifestyle. As the evidence did not support the conclusion that it was in the children’s best interests to have their mother conceal her true beliefs and to force her to adhere to practices which do not comport with her beliefs, the Court refused to compel her to do so.

                Ultimately, the court determined that the father should be permitted decision-making authority regarding the children’s education and religious instruction. This arrangement was deemed to be in the children’s best interests since the children spent their entire lives strictly observing Hasidic Judaism and they were fully immersed within the religious community. While the court directed that the parties were to make reasonable efforts to ensure that the children’s religious requirements were met, each parent was permitted to exercise his or her personal religious discretion while the children are in his or her custody.

                This case shines light upon the ever-evolving family dynamic within the context of current societal norms. Although sexual identity and religious practice are personal concerns related to the individual, parties may agree to a certain set of “rules” as they apply to their children. Nevertheless, these “rules” may not impinge upon personal freedoms and must correspond with the children’s best interests in order to remain enforceable by the court.

              Natalie Diratsouian is an associate with the firm and practices family law.  To contact her click here.