Leaving the Fold and Losing Custody
Posted May 26, 2018 4:22 p.m. EDT
NEW YORK — The questioning went on for days. Did she allow her children to watch a Christmas video? Did she include plastic Easter eggs as part of her celebration of the Jewish holiday of Purim? Did she use English nicknames for them, instead of their Hebrew names?
This grilling of Chavie Weisberger, 35, took place not in front of a rabbi or a religious court, but in state Supreme Court, during a custody battle with her ultra-Orthodox Jewish ex-husband after she came out as lesbian and decided to leave the ultra-Orthodox fold. The stakes could not have been higher. In fact, the judge, Eric I. Prus, eventually ruled that she should lose custody of her children, largely because she had lapsed in raising them according to Hasidic customs.
Weisberger’s case, which was reversed on appeal in August, is now reverberating through New York courts that handle divorce and custody matters for the state’s hundreds of thousands of ultra-Orthodox Jews.
A New York state appellate court ruled that Prus had erred in making religious observance the paramount factor when deciding custody. The court also said he had violated Weisberger’s constitutional rights by requiring her to pretend to be ultra-Orthodox around her children, though she was no longer religious, in order to spend unsupervised time with them.
“It’s coming up frequently,” said Kim Susser, a family law attorney, of the impact of the case. “It is being used to underscore that you have to look at the totality of the circumstances when you are determining a child’s best interests. You can’t just look at this one factor, which is what the Orthodox community tries to have you do.”
Weisberger and her husband had originally gone to a Jewish court, known as a beth din, to receive a divorce in 2008. The religious divorce agreement had granted her full physical custody of the children, who were then 5, 3 and 1.
She was raised ultra-Orthodox in Monsey as part of a family of revered rabbis — her grandfather is the founder of the Hasidic sect to which she formerly belonged, Emunas Yisroel. She fully expected to maintain traditional customs, so she barely noticed the clause requiring her to do so in her divorce agreement. “I don’t even remember seeing it,” she said.
But by 2012, she began openly identifying as lesbian and wearing more secular clothing. Shocking some religious neighbors, she had a transgender friend as a houseguest. That was when her ex-husband, Naftali Weisberger, sued for sole custody, claiming that her changed lifestyle was violating the divorce terms and traumatizing their children.
When divorce agreements inked in Jewish courts are disputed, the matter is often brought to civil court, where secular judges can be asked to enforce their terms. Sometimes, particularly when one parent has decided to leave ultra-Orthodoxy, this can lead to personal religious matters being placed under a microscope as a judge seeks to determine whether the parents are honoring their original agreement.
A civil court judge’s rationale for focusing on religious practice, family lawyers said, is that once a religious divorce agreement is signed and submitted to the secular court, it is seen as a legal contract. There is also a strong interest in custody cases in maintaining the status quo for children — meaning a divorce should not upend their lives. For the children of the ultra-Orthodox, that would favor maintaining religious customs.
Yosef Rapaport, an ultra-Orthodox rabbi who has been a litigator in Jewish courts in Brooklyn, said he feels the details of religious practice are pertinent, insofar as they relate to the well-being of the children.
“It is something that matters, be it kosher food, or the way the mother dresses,” he said. For example, he said, when “the mother has to take the child out to the bus stop in front of the house, and the whole block looks, it is something that might embarrass the kid.”
“It might look trivial for a person who doesn’t observe these things, but it’s not trivial for the friends and for the peers of the child,” he added. “You don’t want the child to be shunned in school. Children can sometimes be extremely vicious.” Rapaport said that it was only to be expected that a judge would look unfavorably on someone who reneged on an original agreement, even if that agreement was inked in a beth din. But family lawyers say they see differences in how much weight various secular judges give to the rulings of a Jewish court.
Pronounced deference to beth din agreements, they say, tends to happen in jurisdictions where judges, some of whom are familiar with Jewish customs, are elected by large populations of ultra-Orthodox Jews, like in Brooklyn or Rockland County.
“A lot depends on the judge,” Susser said. “Some are excellent, some may be biased.”
Etty Ausch, 34, a formerly ultra-Orthodox Jewish woman, saw her children placed in the custody of relatives by order of Prus. Along with general questions about her fitness as a parent, she also faced quasi-religious questions, including one about footwear: Were the fuzzy socks she bought for her children related to Christmas because they were adorned with snowmen?
Prus is an observant Jew himself, which some advocates for the formerly ultra-Orthodox believe contributes to his willingness to wade deep into the details of religious practice in his courtroom. But he hears every kind of matrimonial case, and Wednesday, he was a stern, fast-talking presence, chiding an estranged couple for relying too much on lawyers rather than working out small issues face to face.
“I can’t instill common sense in you,” he told them.
Ausch, whose story was featured in the Netflix documentary “One of Us,” began the process of leaving the ultra-Orthodox Jewish community in 2015 after alleging abuse by her ex-husband. Though her case remains open, she has taken a break in trying to regain custody of her seven children because, she said, the emotional toll has been so high.
“I didn’t foresee my family turning on me,” said Ausch, who has also since come out as lesbian. “I didn’t foresee my best friends, my family, coming to court and testifying against me.”
It is not only women who are losing access to children based on details of their religious practice. Julie F. Kay, a human rights lawyer in private practice, said she knew of at least one court that issued an order denying a formerly ultra-Orthodox father visiting rights because he showed up to a parental visit in jeans, which are not permitted to be worn by the ultra-Orthodox.
The situation is raising human rights concerns, she said, in part because U.S. case law strongly establishes that children should not be kept away from a parent just because a conservative community might disapprove of his or her identity.
“We have a strong protection of religious rights in this country, and it’s supposed to be a shield,” Kay said. “But they are using it as a sword. The government is enabling people to force their religious beliefs on others as a condition to maintain their relationships with their children.” Part of the issue, family lawyers said, flows from the guiding principle in family court: All decisions are made to serve the “best interests of the children.” A parent’s rights can quickly become secondary in this setting, where overworked judges may pressure parties to settle quickly.
“It’s almost presumed that what’s in the best interest of the child is for the parent to subsume their own personal needs,” said Anna Maria Diamanti, the director of the family law and domestic violence unit of South Brooklyn Legal Services. “Your need to not be oppressed is not more important than your child’s need to have stability.”
Some who have left the ultra-Orthodox say that in recent years, the community has become more organized in how it aids the religious parent and ostracizes the parent leaving the fold.
For the parent leaving, the trauma goes beyond the private dissolution of a marriage. “Their job gets in jeopardy, their home,” said Chani Getter, a program manager at Footsteps, an organization that offers support to formerly ultra-Orthodox Jews. “If they are renting from a religious landlord, surveillance goes up,” she said. Each child, she said, is considered by the community as a Jewish soul that cannot be lost. But Rapaport said it was conspiracy-minded to accuse the community of acting as a monolith. Instead, he said, individual parents suing for custody are relying on their large networks of relatives and friends to help make their case, as anyone would.
“It’s not that simple,” he said. “We are the most split-up community you could ever think of. It’s very rare to get people together for one cause. Everyone marches to their own drummer here; it’s like herding cats.”
Chavie Weisberger married her husband, Naftali, in 2002 when she was 19. They decided to get a religious divorce in 2008 after she came to terms with her sexuality and revealed to her husband that she was a lesbian. As she came to accept herself, she also began to reject her ultra-Orthodox upbringing, which teaches that homosexuality is forbidden.
She involved her children in her transformation. In their apartment, they made a word wall that included universal values like “perseverance” and “integrity” to guide them. She allowed the children to try nonkosher food, like a chicken kebab at a street fair, and permitted her girls to wear pants in the house. That violated the terms of her religious divorce agreement, which required her to raise the children Hasidic.
Her ex-husband, meanwhile, had remarried. He was failing to pay child support, or even to visit regularly with the three children, according to court papers. But as soon as he sued for custody in 2012, the couple’s children, then 5, 7 and 9, were removed from Chavie Weisberger’s care. A week later, Prus permitted her temporary visiting privileges for part of each week, provided that she maintain strict religious practices in the presence of the children.
It took three years for Prus to make his ruling. During that time, Weisberger acted religiously as ordered, but she was also open with the court about her sexual identity and her shift toward a secular worldview.
“I had been scrambling to find my truth and to live my truth, and it was just like, ‘I’m sorry, this is where I am,'” she said.
Prus awarded sole custody to her ex-husband, ruling that her personal transformation had caused too much turmoil for the children, who attended yeshivas and were struggling to live between two worlds.
“Given the existence of the agreement’s very clear directives,” Prus wrote, referring to the Jewish divorce agreement, “this court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination.” It is, he added, “the crux of the agreement.”
“Each party’s lifestyle is completely antithetical and antagonistic toward the other,” so no compromise was possible, he added in his ruling.
Chavie Weisberger decided to appeal. Her lawyers enlisted the help of the Lambda Legal Defense Fund, which advocates gay rights, and the New York Civil Liberties Union, both of which wrote briefs on her behalf. In August, the appeals court overturned Prus’ decision and restored full physical custody to Weisberger.
Prus, who was elected to the court in 2005 and is running for re-election this year, had given “undue weight to the parties’ religious-upbringing clause,” it ruled. And the appellate court also reminded lower court judges that requiring an adult to act religiously is unconstitutional. Prus declined to comment for this article. “It 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,” the judges of the Second Judicial Department of the Appellate Division wrote. “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.”
Chavie Weisberger now works at Footsteps, helping other formerly ultra-Orthodox men and women adjust to secular lives their upbringings did not prepare them for. Though she no longer has to pretend to be religious, she still keeps kosher at home and sends the children to ultra-Orthodox yeshivas because the appeals court granted authority over schooling decisions to the father.
But the children can now check out secular books from the public library, forbidden to them before. She recently had a Harry Potter-themed birthday party for her youngest daughter. The children, now 15, 12, and 11, are learning how to navigate both of their worlds and adjusting to more regular visits with their father.
Naftali Weisberger, who now also has five children from his second marriage, did not return a request for comment. His upstairs neighbor in the two-family house where he lives said she thought the whole situation was a shame.
“He’s very nice, he wants the children to be on a good path,” she said of Naftali Weisberger, giving her name only as Tzyve. “They are very nice children, very cute. The new wife, she takes care of them very well.”
Chavie Weisberger said she hopes her case will give other parents leaving the ultra-Orthodox community courage to be honest about their secular or gay identities in court.
“People kept telling me I was choosing nonkosher food over my own children; I was doing this to my own children. But I was that confident that I could be the person I am, and that’s what’s best for my children — that I was able to shut out those messages.”
But family lawyers and advocates say they still advise parents turning away from ultra-Orthodoxy to be cautious with their new identities because of the likelihood that access to their children could still be threatened.
“Yes, it’s really nice to come out and be honest,” said Getter of Footsteps. “But when you have kids, and you are in the court system, and have the community fighting you, I always say you need to slow it down.”