Weisberger v. Weisberger, 154 A.D.3d 41

Background

Parties divorced after a 2002 marriage; three children. A 2008 stipulation (incorporated into the divorce judgment) gave joint legal custody, mother primary residential custody, and contained a clause requiring the children "a Hasidic upbringing in all details," with father to choose schools.
After divorce the mother publicly embraced a non‑Hasidic/progressive lifestyle and disclosed her sexual orientation to the children; father alleged she violated the religious upbringing clause and exposed the children to non‑Hasidic practices and persons.
In 2012 the father moved to (1) modify the stipulation to obtain sole legal and residential custody and final decision‑making authority, (2) limit mother to supervised therapeutic visitation, and (3) enforce the religious upbringing clause to require the mother to practice and compel full Hasidic observance while with the children.
The Supreme Court (trial court) found a change of circumstances and granted father sole custody, final decision authority, supervised visitation for the mother (stay conditioned on the mother's compliance with the religious clause), and ordered the mother to practice full Hasidic observance when with the children or at their schools.
The Appellate Division reversed those primary custodial changes, held the trial court gave undue weight to the religious clause, limited enforcement of the clause to the children’s time in the father’s custody or in schools requiring adherence, preserved and expanded father’s visitation, and adjusted the holiday/vacation schedule.

Issues

Issue	Father (Weisberger) — Argument	Mother (Weisberger) — Argument	Held
Whether father should be awarded sole legal and residential custody and final decision‑making authority	Mother abandoned Hasidic lifestyle; change warrants sole custody to protect children’s religious upbringing	Mother is primary caregiver; father failed to exercise visitation and support; sole custody not necessary	Reversed: sole custody and final decision authority denied; change lacked sound basis
Whether mother’s visitation should be restricted to supervised therapeutic visits	Mother’s conduct threatens children’s religious upbringing; supervised visits needed	No showing unsupervised visits would harm children; supervision inappropriate coercion	Reversed: supervised visitation not imposed; mother entitled to unsupervised visitation per modified schedule
Whether the religious upbringing clause may compel mother to practice full Hasidic observance at all times with children	Clause requires Hasidic upbringing "in all details"; mother must be compelled to comply when with children	Clause does not and cannot force a parent to adopt or conceal religious beliefs; constitutional freedoms protect mother’s expressive liberty	Modified: father may require full Hasidic observance only while children are in his custody or in schools requiring it; mother must make reasonable efforts to conform children’s appearance/conduct when with father and keep a kosher home for children; otherwise each parent may exercise discretion while children are in their care
Whether holiday/vacation schedule should be adjusted	Father sought more meaningful time and greater religious holiday custody	Mother sought non‑religious vacation time and two summer weeks for father	Modified: father awarded all Jewish holidays and two weeks in summer; mother awarded non‑religious school vacations except father’s two summer weeks

Key Cases Cited

Eschbach v. Eschbach, 56 N.Y.2d 167 (discussion of best‑interest factors in custody determinations)
Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (court not bound by parental agreement when contrary to children's best interests)
Caruso v. Cruz, 114 A.D.3d 769 (appellate review limits and when custody findings lack sound basis)
Lee v. Weisman, 505 U.S. 577 (government may not coerce religious exercise)
Lemon v. Kurtzman, 403 U.S. 602 (Establishment Clause principles)
Lawrence v. Texas, 539 U.S. 558 (liberty to define personal relationships and identity)
Obergefell v. Hodges, 135 S. Ct. 2584 (constitutional protection for relationships and dignity)