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Decades Of Litigation Experience

Validity of Religious Upbringing Clauses

by | Jan 22, 2021 | Family Law |

In an interesting recent article in New Yorker Magazine, (“When One Parent Leaves a Hasidic Community, What Happens to the Kids?”), writer Larissa MacFarquhar delves into what happens to children who have grown up in the Orthodox Jewish community after parents divorce and one parent decides to transition to a less Orthodox lifestyle. This article (link below) provides uniquely personal insights into several individuals personal struggles with the break from the Orthodox Jewish lifestyle, and references Weisberger v. Weisberger (60 N.Y.S.3d 265 [2017]: Case), an Appellate Division, Second Department case in which the Court overturned the Supreme Court’s Decision to change custody from the Mother to the Father based largely on the lower court giving “undue weight” to the parties’ religious upbringing clause (which required the mother to direct the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy at all times).
The Weisberger matter is instructive on the enforceability of religious upbringing clauses. The Court held that “[w]hen 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 …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…[h]owever, 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.” The Weisberger Court reaffirmed that  “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.”