Weisberger v. Weisberger - 2017 NY Slip Op 06212, 154 A.D.3d 41, 60 N.Y.S.3d 265 (App. Div. 2nd Dept.)

Rule:

Modification of an existing court-sanctioned custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the children. The best interests of the children must be determined by a review of the totality of the circumstances. Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent. Additionally, to the extent a parent's sexual orientation is raised at the hearing, courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children.

Facts:

The parties were married on March 5, 2002 and had begotten three children. In 2005, the mother told the father that she could not tolerate having sexual relations with men, and that she was sexually attracted to women. The parties were divorced by a judgment of divorce dated March 6, 2009. In a stipulation of settlement dated November 3, 2008, which was incorporated but not merged into the judgment of divorce, the parties agreed to joint legal custody of the children with the mother having primary residential custody. It was further stipulated that the parties agreed to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families'. In 2012, the father sought to modify the stipulation of the settlement so as to award him sole legal and residential custody of the children, alleging that the mother had radically changed her lifestyle in a way that conflicted with the parties' religious upbringing clause. The mother opposed the father's motion and separately moved to modify the religious upbringing clause. The trial court granted the father’s motion.

Issue:

Under the circumstances, was there a sufficient justification for the modification of the stipulation of the parties’ settlement?

Answer:

No.

Conclusion:

The Court held that although a change of circumstances had occurred, such that a modification of the stipulation of settlement was necessary to ensure the continued best interests and welfare of the children, the trial court’s determination to modify the stipulation of settlement so as to award the father sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, lacked a sound and substantial basis in the record. The trial court gave undue weight to the parties’ religious upbringing clause rather than what was in the children’s best interests. The mother had been the children's primary caretaker since birth, and their emotional and intellectual development was closely tied to their relationship with her. She took care of the children's physical and emotional needs both during and after the marriage, while the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties' separation. According to the Court, the plain language of the agreement was to give "the children" a Hasidic upbringing, and it did not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. A religious upbringing clause should not, and cannot, be enforced to the extent that it would violate a parent's legitimate due process right to express oneself and live freely.