N.Y. Court Narrows Religious-Upbringing Divorce Clause

(CN) – A divorced Jewish mother cannot be forced to hide her lesbianism from her children or adhere to the Hasidic faith, a New York appeals court ruled Wednesday.

Naftali and Chava Weisberger married in 2002. Three years later, Chava told her husband that she did not like sex with men and that she was attracted to women, according to court records.

When they divorced in 2009, they had three children under the age of 6. Chava took primary custody in the divorce, which included a “religious upbringing clause” saying the children must be raised in accordance with the Hasidic Jewish faith.

Naftali married another woman less than a month after the divorce.

In 2012, he tried to gain full custody of the children and sought to enforce the religious upbringing clause. This would include Chava’s practice of the religion when she was with the children.

Naftali complained that Chava had radically changed her lifestyle since the divorce. He allegedly expected her to keep any relationships with women secret from the children.

Instead, according to Naftali, Chava had come out as lesbian, disparaged the Hasidic Jewish faith, and allowed the kids to violate the Sabbath and use non-Hasidic names and clothing.

He also claimed she had dyed her hair, dressed immodestly and allowed a transgender man to live with her and the children.

The trial court agreed with Naftali and imposed a temporary order for Chava to practice the religion around her children and dress modestly in Brooklyn’s Borough Park community.

Chava countered with a proposal that would allow the children to attend a school that accepted diversity. She also offered to keep a kosher home and allow the children to be with Naftali on Jewish holidays.

The trial court denied her motion, and she appealed the custody change.

On Wednesday, the New York Supreme Court Appellate Division’s Second Department reversed the decision in an unsigned opinion.

“The court gave undue weight to the parties’ religious upbringing clause, finding it to be a ‘paramount factor’ in its custody determination,” the justices wrote.

They added that Naftali did not prove that giving him full custody was in the children’s best interest.

“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 18-page ruling states.

In addition, the appeals court said it is not in the children’s best interest for their mother to “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.”

The four-judge panel also found that Naftali did not fulfill all of his financial obligations or fully exercise his visitation rights.

However, the judges said that the father shouldexercise 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.”

But, the court ruled, Naftali cannot dictate Chava’s religious practices.

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,” the opinion states. “Nor may the courts compel any person to adopt any particular religious lifestyle.”

The appeals court’s panel of judges was comprised of Justices John Leventhal, Jeffrey Cohen, Robert Miller and Francesca Connolly.

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