Chavie Weisberger was raised in an ultra-Orthodox Jewish community in Monsey, N.Y., and was forced to marry a man she barely knew when she was 19. The couple had three children, but when she began to question her faith and sexuality, she and her husband divorced – and she almost lost her children.
The case is highlighting how New York courts handle divorce and custody issues for the state's large ultra-Orthodox Jewish community. While Weisberger's case was reversed on appeal last August – she has now regained full custody of her children – it brings to light the issues that arise when secular courts decide child custody in the religious community.
People who leave the Hasidic community are often shunned by their family and friends, but they also are often forced to fight for their children, says Lani Santo, executive director of Footsteps, a social services organization that provides social and financial services for those transitioning to a secular lifestyle.
"Time and time again, the argument of best interest of the child, as interpreted as maintain the status quo in their life, is what's being upheld above all else," she tells Here & Now's Robin Young. "I think, in a lot of the cases that we're seeing, judges are favoring issues of freedom of religion, and they're not necessarily looking at the First Amendment issue of freedom from religion."
In Weisberger's case, her ex-husband, Naftali Weisberger, sued for full custody in a secular Brooklyn court after family and friends revealed that Weisberg was allowing her daughters to wear pants and called her children by English nicknames, instead of their Hebrew names. Weisberger's ex-husband filed suit even though he had rarely seen his children in the more than three years since his divorce, he testified.
The judge ruled in her ex-husband's favor, upholding a religious court document Weisberger signed at the time of her divorce. In signing the document, Weisberg had agreed to raise her children according to Hasidic customs.
The agreement Weisberger signed in the beth din — the Jewish court – was legally binding when her husband sued for full custody because New York law views that document as a legal contract. The judge, Eric I. Prus, ruled that Weisberger had violated that contract by slowly removing her children from Hasidic life.
"We see this happening in almost every case of individuals who are choosing to leave, especially in Hasidic communities," Santo says. "There's almost always a contested divorce. And I think part of what's important to understand is that people are signing things that are not explained to them."
When civil courts decide custody disputes, the goal is usually to find a resolution that upends the child's life the least. In the case of ultra-Orthodox Jews, removing the child from religious life would have the most significant impact, the judge ruled. Judges who are elected in particularly strong ultra-Orthodox strongholds, such as Brooklyn, tend to give more weight to beth din agreements than others, New York family lawyers told The New York Times.
A divorce agreement signed in the beth din is considered a binding arbitration agreement in the eyes of the law, even though it was signed in religious court, says Kim Susser, a family law attorney with more than 25 years of experience in New York State.
She says women often lack legal representation in religious court because they don't think they need it or face barriers to access. Most Hasidic women have only a high-school education, lack a strong grasp of the English language and have very limited knowledge of life outside of the community. Susser says they are often willing to give up their legal rights just to obtain a religious divorce, or "get," as it's called in Jewish religious law.
The New York appellate court that heard Weisberger's appeal concluded that Justice Prus assigned too much importance to religion in his ruling, and he should have weighed other factors such as that Weisberger was the children's primary caretaker and that the kids were easily adjusting to the changes.
"While I do agree ... that we try to minimize stress and trauma from children's lives and keep things as stable as possible, in an ideal world, people wouldn't be married off at a really young age to someone they don't know before they have a chance to explore who they are," Weisberger says. "And so ideally, we wouldn't be in this position where children are now being raised by parents who have opposing values and lifestyles."
The court also said that the judge violated Weisberger's constitutional rights because she would have had to pretend to practice a religion in order to keep her children.
"It was very clear that the original decision flied in the face of the Constitution," Susser says. "Telling her that she has to dress in a certain way or behave a certain way is not constitutional. Analyzing religion to the extent that it happens in these cases is not constitutional," as courts are limited from doing so by the First Amendment.
Etty Ausch, another former ultra-Orthodox woman whose story is told in the Netflix documentary, One of Us, also lost custody of her children after Justice Prus ordered them to be cared for by relatives. In her custody hearing, she faced a series of religiously pointed questions including one about fuzzy sucks she bought for her children: Were they related to Christmas because they were dotted with snowmen?
Ausch told The New York Times that she is still in the middle of her legal battle, but has taken a break because of the emotional toll.
"Ideally the courts should support navigating a way to support children to be living with both of their parents in their lives in as meaningful a way as possible," Weisberger says. "And children are smart, and they're resilient, and they're really capable of understanding these nuances of who their parents are."
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