Weisberger v. Weisberger

Appellate Division of the Supreme Court of New York, Second Department · Family Law

Family LawChild CustodyVisitationReligious Upbringing Clausescustody modificationbest interests of the childreligion in custody disputesreligious upbringing clause

Facts

The divorced parties had three children and a stipulation giving them joint legal custody, primary residential custody to the mother, and a clause agreeing to give the children a Hasidic upbringing, with the father deciding schooling. After the divorce, the mother openly changed from an ultra-Orthodox Hasidic lifestyle to a more secular life, and the father claimed that she exposed the children to non-Hasidic practices and views inconsistent with the agreement. The father sought sole custody and strict enforcement of the religious clause, including requiring the mother herself to practice full Hasidic observance during her parenting time and at the children's schools. The record also showed that the mother had been the children's primary caretaker since birth, while the father had not consistently exercised visitation or paid the child support required by the stipulation.

Issue

After a post-divorce change in the mother's lifestyle and beliefs, could the court award the father sole custody and enforce the religious-upbringing clause by requiring the mother to practice ultra-Orthodox Hasidic observance in the children's presence? More broadly, how should a court weigh a religious-upbringing agreement in modifying custody and visitation consistent with the children's best interests?

Rule

Modification of a court-sanctioned custody or visitation arrangement requires a change in circumstances such that modification is necessary to ensure the children's continued best interests and welfare, assessed under the totality of the circumstances. Religion may be considered as one factor when relevant to the children's actual religious ties, but it may not be the determinative factor, and no parental agreement binds the court contrary to the children's best interests. A religious-upbringing clause may be enforced only to the extent consistent with the children's best interests, and it cannot be used to compel a parent to adopt a particular religious lifestyle, dress, or suppression of sincerely held views or identity.

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Nina Feld and Aaron Feld divorced in Cleveland, Ohio. Their decree gave Nina primary residential custody of their two children and included a provision that the children would be raised in a strict religious tradition, but three years later Nina began practicing a different, less observant form of the same faith and exposing the children to secular media during her parenting time. Aaron petitions for sole legal and residential custody, arguing that Nina breached the religious-upbringing provision.

How should the court rule on Aaron's request for sole custody?

Explanation. A custody modification requires a change in circumstances and a showing that modification is necessary to ensure the children's continued best interests and welfare. Religion may be considered, but it is only one factor and cannot be determinative. Even with changed circumstances, sole custody is not warranted absent a best-interests showing based on the totality of the circumstances, including caretaking history and the children's emotional and intellectual development. (Derived from Weisberger v. Weisberger (n.d.).)