CHILD CUSTODY - GAY LIFESTYLE VERSUS RELIGION CLAUSE IN STIPULATION

In Weisberger v Weisberger, 2017 NY Slip Op 06212, Decided on August 16, 2017, Appellate Division, Second Department, the parties divorced after Father was told by Mother that she was gay. There were three children and parties agreed to joint legal custody with Mother having primary residential custody. The stipulation also provided that the  "Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families'. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided." However, after the divorce, Father moved to modify alleging "that the mother had radically changed her lifestyle in a way that conflicted with the parties' religious upbringing clause. Although the father acknowledged that at the time he entered into the stipulation of settlement he expected the mother's future intimate relationships would be with women, he expected her to keep the fact that she was gay a secret and to keep any relationship she had with a woman secret from the children. The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children." The Supreme Court granted Father's motion and Mother appealed.

The Second Department held:

"" Modification of an existing court-sanctioned custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]'" (Matter of Spencer v Killoran, 147 AD3d 862, 863, quoting Matter of O'Shea v Parker, 116 AD3d 1051, 1051; see Matter of Bodre v Stimatz, 150 AD3d 1228, 1229). "The best interests of the child[ren] must be determined by a review of the totality of the circumstances" (Matter of Preciado v Ireland, 125 AD3d 662, 662; see Eschbach v Eschbach, 56 NY2d 167, 171-172; Matter of Boggio v Boggio, 96 AD3d 834, 835). "Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child[ren], the ability of each parent to provide for the child[ren]'s emotional and intellectual development, the financial status and ability of each parent to provide for the child[ren], the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child[ren]'s relationship with the other parent" (Mohen v Mohen, 53 AD3d 471, 473 [internal quotation marks omitted]; see Matter of Moran v Cortez, 85 AD3d 795, 796). Additionally, to the extent the mother's sexual orientation was raised at the hearing, we note that courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children (see In re Marriage of Black, 188 Wash 2d 114, 130, 392 P3d 1041, 1049-1050; see also Matter of Paul C. v Tracy C., 209 AD2d 955, 956; Anonymous v Anonymous, 120 AD2d 983, 983-984; Guinan v Guinan, 102 AD2d 963, 964; Di Stefano v Di Stefano, 60 AD2d 976, 977).

Since weighing the factors relevant to any custody determination "depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence" (Trinagel v Boyar, 70 AD3d 816; see Matter of Selliah v Penamente, 107 AD3d 1004, 1004; Matter of Jackson v Coleman, 94 AD3d 762, 763). Nonetheless, this Court's [*5]authority in custody and visitation matters is as broad as that of the hearing court, "and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of a Trial Judge,' we allowed a custody determination to stand where it lacks a sound and substantial basis in the record" (Matter of Caruso v Cruz, 114 AD3d 769, 772, quoting Matter of Gloria S. v Richard B., 80 AD2d 72, 76; see Matter of James A.-S. v Cassandra A.-S., 107 AD3d 703, 706; Matter of Moran v Cortez, 85 AD3d 795, 796-797).

Here, both parties contend that there has been a change in circumstances warranting modification of the stipulation of settlement. We conclude that the record supports the Supreme Court's determination that a change of circumstances has occurred, such that a modification of the stipulation of settlement is necessary to ensure the continued best interests and welfare of the children (see Matter of Pagan v Gray, 148 AD3d 811, 812; Matter of Oyefeso v Sully, 148 AD3d 710, 712).

However, the Supreme Court's determination to modify the stipulation of settlement so as to award the father sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, with supervised therapeutic visitation to the mother, lacked a sound and substantial basis in the record (see Matter of Caruso v Cruz, 114 AD3d at 773; Matter of James A.-S. v Cassandra A.-S., 107 AD3d at 706). In pertinent part, the court gave undue weight to the parties' religious upbringing clause, finding it to be a "paramount factor" in its custody determination. "When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor" (Aldous v Aldous, 99 AD2d 197, 199). "New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other" (id. at 199; see Matter of Gribeluk v Gribeluk, 120 AD3d 579, 579). However, clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children (see Karetny v Karetny, 283 AD2d 250; Spring v Glawon, 89 AD2d 980, 981; Gruber v Gruber, 87 AD2d 246, 250; Garvar v Faltings, 54 AD2d 971). "No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child[ren]'s best interest" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see Eschbach v Eschbach, 56 NY2d at 171).

Considering all of the facts and circumstances of this case, the father failed to demonstrate that it is in the children's best interests to award him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health. 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 record overwhelmingly demonstrates that the mother took care of the children's physical and emotional needs both during and after the marriage, while it is undisputed that the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties' separation. Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother's ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children's relationship with her (see Bliss v Ach, 56 NY2d 995, 998). Furthermore, "[s]upervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child[ren]" (Matter of Gainza v Gainza, 24 AD3d 551). Here, there was no showing that unsupervised visitation was detrimental to the children and, as discussed more fully below, it was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.

Furthermore, the Supreme Court improperly directed that enforcement of the parties' stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children's schools. Although the court accepted the father's argument that the religious upbringing clause "forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools," the plain language of the parties' agreement was "to give the children a Hasidic upbringing" (emphasis added). 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 [*6]or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle (see Lee v Weisman, 505 US 577, 587; see also Lemon v Kurtzman, 403 US 602, 612-613). To the contrary, "[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise" (Lee v Weisman, 505 US at 587). Thus, a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent's legitimate due process right to express oneself and live freely (see Lawrence v Texas, 539 US 558, 574 [ "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'" (quoting Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 851)]; see also Obergefell v Hodges, __ US __, 135 Sup Ct 2584). Indeed, the parties themselves agreed in the stipulation of settlement that they "shall [each] be free from interference, authority and control, direct or indirect, by the other" (emphasis added). While we respect the parties' right to agree to raise their children in a chosen religion and to seek judicial relief to enforce that right, given the change in circumstances here, the weight of the evidence does not support the conclusion that it is in the children's best interests to have their mother categorically 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. There is no indication or allegation that the mother's feelings and beliefs are not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there has been no showing that they are inherently harmful to the children's well-being.

This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised. Indeed, we conclude that the children's best interests would be better served by a more limited modification of the religious upbringing clause than that proposed by the mother. The evidence at the hearing established that the children have spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. "[T]he maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight" (Matter of Moorehead v Moorehead, 197 AD2d 517, 519). Contrary to the mother's contention, the weight of the evidence demonstrates that it is in the children's best interests to continue to permit the father to exercise 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. To this end, the children's interests will be best served if their parents work together to surmount the challenges the children will face as they continue on their current educational path. As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal, made in both her motion papers and her testimony, to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so, and in a manner consistent with Hasidic practices. Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

We find that an increased visitation schedule with the father would be in the children's best interests. The parties' original custody agreement provided the father with, inter alia, one overnight visit with the children, every other week. In light of the change in circumstances, we conclude that the stipulation of settlement does not adequately provide the father with meaningful time with the children (see Chamberlain v Chamberlain, 24 AD3d 589, 593). Accordingly, that branch of the father's motion which was to modify the stipulation of settlement is granted only to the extent of modifying the stipulation of settlement so as to award the father visitation every other weekend from Thursday after school until Sunday at 11:00 a.m. On alternating weeks, the father shall have (as the parties provided in their stipulation of settlement) visitation from Friday after school and return them one hour after Shabbos ends during winter and two hours after Shabbos ends during summer.

Further, we find the mother's proposal to allow the father to have physical custody of the children during Jewish holidays and for the mother to have physical custody of the children during non-religious school vacations would be in the children's best interests. Accordingly, we grant that branch of the mother's motion which was to modify the vacation and holiday schedule [*7]contained in the stipulation of settlement so as to award the father visitation during all Jewish holidays and for two weeks during summer vacation, and to award the mother visitation during all non-religious school vacations, with the exception of the two weeks each summer to be spent with the father. All other provisions for visitation in the stipulation of settlement remain unchanged.

We acknowledge that both parents are sincere in their devotion to the children and, with the exception of occasional lapses in good judgment, neither parent has engaged in conduct that is contrary to the best interests of the children. And yet, the parties' religious, moral, and ethical beliefs and values with respect to raising their children, while once compatible, have now become incompatible in many important respects. While the arrangement set forth here may not fully satisfy both sides of this dispute, courts do not always have the perfect solution for all of the complexities and contradictions that life may bring—the parties must forge a way forward as parents despite their differences. We are confident that both parties will exercise their best judgment in these matters in a manner that furthers the best interests of their children.

Finally, the parties' stipulation provided, inter alia, that the parties shall "encourage the child[ren] to honor, respect and love the other party," shall not "attempt to alienate or destroy the affection of the child[ren] for the other party," and shall not "speak idly about the other party in front of the children." This provision applies equally to both parties and, therefore, neither party may, directly or indirectly, denigrate the other to or before the children for any reason, including their disagreement with the other party's identity or beliefs."