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FAMILIES

Appeals Court Sides With Lesbian Mom In Hasidic Feud Children’s best interest overrides religious obligations in divorce settlement BY ARTHUR S. LEONARD

T

he New York Appellate Division court in Brooklyn has unanimously reversed a trial judge’s decision to take away a formerly Hasidic lesbian mother’s custody of her three children, finding, among other things, that the settlement agreement drafted by her ex-husband’s father at the time of their divorce imposed an unconstitutional requirement that she continue to observe the tenets of a Hasidic lifestyle as a condition of custody. The August 16 decision by a fourjudge bench aroused concerned comment in the Hasidic community, as it applied well-established principles of family law that the trial judge, himself an Orthodox Jew, seemed to have overlooked in giving preemptive weight to the father’s religious desires. Naftali and Chava Weisberger were married in 2002. They were brought together, according to established custom in the Hasidic community, by a professional matchmaker — called a shadchan — and were both 19 years old at the time. They moved to Borough Park from the tight Hasidic community in upstate Monsey and had three children together. The move to Brooklyn was prompted by Naftali’s desire to pursue religious studies. They raised their children according to traditional Hasidic practices and beliefs, in a home with no television or Internet, observing strict restrictions on diet and dress and speaking Yiddish. After a few years of marriage, Chava informed Naftali that “she did not enjoy sexual relations with men and that she was attracted to women.” They continued to live together, but several years later Naftali agreed to give Chava a “Get,” or Jewish divorce, and they signed a settlement agreement drafted by Naftali’s father in November 2008. Naftali married another woman a few weeks later, and has since had two children with her, prompting speculation he was finally willing to grant a religious divorce to free

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himself for this second marriage. Under the written settlement terms, the parents had joint custody of the children, with Chava having primary residential custody. They agreed that Naftali’s visitation with the children would be for a two-hour period once a week after school — which would increase for the son as he grew older, for the purpose of religious studies — overnight visitation every other Friday after school until Saturday evening for Sabbath observance, two weeks during the summer, and an alternating schedule for Jewish holidays. But, Chava testified, Naftali did not exercise his visitation rights fully for the first 18 months of his new marriage, and would not bring the children to his new home for visitation, hosting them instead at his parents’ home. The central provision in the custody dispute was the “religious upbringing clause,” which provided, “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.” The settlement also provided that each party “shall be free from interference, authority, and control, direct or indirect, by the other.” Chava agreed to waive any claim to marital assets or further financial support for herself, but the agreement obligated Naftali to pay $600 a month for support of the children. Several events appear to have led Naftali to file his motion with the court in November 2012, almost four years after the divorce. He alleged that Chava had “radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause.” For one thing, to Naftali’s consternation, Chava decided that their older daughter was mature enough to be told about her sexual orientation. He had expected that his ex-wife’s sexual orientation would be kept a secret from their children, though

that was not part of the settlement agreement. Naftali also claimed Chava had come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of their children, allowed the children to wear nonHasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by English names rather than the names by which they were known in the Hasidic community. To top things off, Chava was not dressing according to Hasidic tradition, she had dyed her hair, and a transgender man had moved in and was participating in taking care of the children, Naftali claimed. Naftali sought sole legal and residential custody of the children and final decision-making authority over their lives, limiting Chava to a few hours of supervised “therapeutic visitation” each week, with the children behaving in strict compliance with the 2008 settlement agreement’s religious upbringing clause in her presence and at school. Naftali sought an immediate order giving him temporary residential custody, which he got from Judge Eric Prus. A few days later, the parties agreed to a temporary visitation order for Chava, giving her several days a week but providing that she “encourage and practice full religious observance in accordance with the practices of [Congregation] Emunas Yisroel in the presence of the children.” She was also required to “dress in the Hasidic modest fashion” while in the Borough Park community. Chava responded with a motion aimed at modifying the original religious upbringing clause. She sought the court’s permission to raise the children in Brooklyn, but outside Borough Park, with “a conservative or progressive modern orthodox Jewish upbringing” in a community and school that are “inclusive of gay individuals.” Though she sought the right to share in making educational decisions for the children with Naftali, she proposed that he be able

to continue the children’s Hasidic education and have visitation each Sabbath and on all Jewish holidays. She promised to keep a kosher home. During Judge Prus’ hearing in the case, testimony from Naftali and Chava suggested that during the marriage Naftali left the house early in the morning and didn’t return in the evening until after the children were asleep, leaving Chava primarily responsible for taking care of them. Naftali’s testimony also made clear he did not have extensive contact with the children after the divorce, and his decision to host their visits in his parents’ home rather than his own was presumably to shield his new wife and children from being contaminated by nonHasidic influences. He filed his motion to change custody shortly after learning that a transgender man had moved into Chava’s home and was assisting in taking care of the children. He testified that in March 2013, their younger daughter told him she had read a book about children with two fathers and that Chava allowed the children to watch movies — forbidden in the Hasidic community Naftali denied, however, he was motivated in his motion by Chava’s lesbian identity. Instead, he pointed to her failure to keep it a secret from the children, and said he wanted sole custody to ensure that they would get a traditional Hasidic upbringing without “interference” from their mother. Still, the appeals court panel wrote, “The father believed that homosexuality violated the Torah.” Naftali told the court, “There’s no place for comprising in our religion.” Chava testified she had not been represented by a lawyer during the 2008 divorce and that a rabbi guided her in negotiating the settlement, and another rabbi served as mediator. Changes she had sought in the agreement had not been made when she appeared at the Beth Din, or religious court, to sign the agreement. Chava also

HASIDIC DIVORCE, continued on p.26

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