I use this a recent Brooklyn custody case to illustrate the importance of co-parenting clauses in Divorce Marital Settlement Agreements. Often certain matters may seem cause certain - such as the religion to which the children would continue to be raised under - and the extent of observance. However parents must give regard to the changes that each undergo after uncoupling and the impact of the influences of new relationships on a custodial household:
A Court reinstated custody to an ultra religious Jewish mother in Brooklyn, New York, The parent, an ex member of Hassidic Judaism, lost custody of her three children after coming out as a lesbian and finally regained her custody after more than two years of appeals.
The Appeals Court ordered that Chavie Weisberger must continue to keep a kosher home and send her kids to Hasidic schools. Their father will have weekend visitation and extra visitation on Jewish holidays, as reported by the New York Post and Times of Israel.:
"Weisberger retained custody of her children — then aged 2, 3, and 5 — when she and her husband divorced in 2009 after she told him she was attracted to women. Three years later her ex-husband returned her to court seeking custody of the kids, saying she violated their divorce agreement to raise them in a religious household.
He said his ex-wife had come out as gay to their oldest child, and that she was living with a transgender man. He also said in court filings that his ex-wife gave the children a book about having two daddies, cut their son’s sidelocks and let them watch a movie about Christmas.
A Brooklyn Appeals Court judge ruled in 2015 that Weisberger violated the requirement to raise her children in a religious environment and awarded her husband full custody.
The judge, Eric Prus, called the children’s religious upbringing the “paramount factor” in determining custody. Prus also threatened to restrict her visitation with the children to supervised face-to-face visits and ordered her not to reveal her sexuality to the younger children."
The appeals court of three judges unanimously determined that Prus’ 2015 ruling lacked a “sound substantial basis” — and that it violated Chavie’s rights.
“A religious-upbringing clause should not, and cannot, be enforced to the extend that it violates a parent’s legitimate due-process right to express oneself freely,” the judges wrote.
“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,” they added.
The mother must continue to keep a Kosher home and the children will attend Hasidic schools and practice full religious observance while with their father, the order reads. Her ex is allowed weekend visitation and additional visitation on Jewish holidays.
While I revere the notion of freedom of religion, as a divorce mediator, I understand the importance of the agreements parents mutually reach when raising their children. In divorce Marital Settlement and Parenting agreements it is not uncommon for parents to agree to sustain the religious realms within which children were raised. Often the fear of parents, that one of them would, upon divorce, veer from the ideology mutually established in the marriage, becomes the subject of intense negotiations - ultimately resulting in agreements that then become an order of Court.
This extends to ideology with regard to other issues, such as education. I recently coached a client whose ex-wife remarried someone totally opposite in socio-political thinking to him. She remarried a Trump supporter. . The children were suddenly thrust into a different ideology during the Mother's 50% custodial time share. Now the new husband began to exert his influence away from the Waldorf type ideology that the parents had agreed to sustain in their divorce agreement. Many of the agreed co-parenting ideologies were under attack. This included over supply of media, smoking such as vaping inside the home, and other influences that both parents would have outlawed in the initial marital home.
These switches, midstream, in the course of their upbringing, in religion and ideologies, can be very confusing to children, and often serves to cause conflict in co-parenting.
So in the case of Weisberger, I do believe the initial agreement must be upheld -the one concerning the religious aspects. However, for the initial Court to have taken custody away from the mother on these grounds, was unconscionable and certainly unlikely to have been in the children's best interests, the yardstick by which the court must decide.
The question of whether being a lesbian in and of itself conflicts with the religion the parents had agreed to arise their children in, is in my opinion no business of the Court. That is where the freedom of religion comes into effect.
So Co-Parents please be aware of all those issues you hold so precious to your children's best interests, noting anything can change. While one does not want to over regulate in agreements, I do believe memorializing core mutual parenting issues established in the marriage, must be seriously negotiated and not taken for granted.