|Chavie Weisberger lost and regained custody of her children (NYT)|
A story in the New York Times highlights this issue. Although it does not really tell us how the children in this particular divorce fare, the subtext is clear. There is not a doubt in my mind that these children are at best confused about who and what they are. And that can easily lead them to stop being observant.
Briefly this is a story about a Chasidic couple - both of whom were raised in the type of Chasidus that most mainstream Orthodox Jews might consider extreme. But that is really not the issue. They had 3 children and somewhere along the way, the mother started to come to terms with her homosexuality. Having stayed in the closet for a while, she now lives openly as a lesbian.
In the meantime she and her husband agreed to get divorced. A Get was given in a legitimate Beis Din. A Beis Din’s ruling is honored by the secular courts and is by law considered binding arbitration. (This is how Dayan once explained to me how Beis Din rulings are enforced.)
In this particular instance the mother got custody on condition she would raise the children according to the religious tenets she and her husband were raised upon. She agreed to this intending to keep her word. Still living a religious lifestyle at the time – even though she had already been dealing with her own sexuality. But then things started changing. The children eventually were allowed to do things that are expressly forbidden by the Torah, Like eating Treif.
Her ex- husband (who had remarried) took his ex-wife court and sought custody based on the fact that she violated the terms of the divorce agreement. The judge (who happens to be an observant Jew – but in my view is irrelevant) granted him custody on that basis. But she challenged the verdict on appeal, and the lower court judge’s decision was reversed:
A New York State appellate court ruled that Justice Prus had erred in making religious observance the paramount factor when deciding custody. The court also said he had violated Ms. Weisberger’s constitutional rights by requiring her to pretend to be ultra-Orthodox around her children, even though she was no longer religious, in order to spend unsupervised time with them.
That, in a nutshell is the story here. The question is, what is best for the children?
The easy answer for an Orthodox Jew might be that since their souls are at stake the father should get custody. I’m sure that is at the forefront of the custody battle from the father’s perspective (as well as the perspective of his community). But I’m not so sure forcing the children to live with their father, his new wife and 5 additional children from that wife is the better option. Nor am I sure it will be the key to their salvation as religious Jews.
In my view, before we can speak about spiritual health of children, we must first assure their mental health. In cases like this, their mental health has already been compromised. And that is sometimes accompanied with a compromised spiritual health. Ripping children way from a loving and caring mother (assuming that’s the case here) - even for spiritual reasons may have an opposite effect.
It will surely sour them on their religion when that is seen as the cause of losing a parent. Visitation rights will not help that much and may make things worse. They will be reminded each time they see their mother of the fact that they were forcibly torn away form their mother.
It doesn’t really matter if their stepmother is a wonderful woman that cares for them as much as she does her biological children. The step children will not see her in the same light they see their mother. They will see their father’s new life as separate and apart from what they saw living there with their mother as a family. Living with their mother now may not be ideal, but at least they won’t see any competition for love and attention.
What about their spiritual health? It cannot be denied that living with their mother will very likely lead the children to a non observant lifestyle. One that will be maintained long after they leave their nest. As religious Jews, shouldn’t we be more concerned with that, than anything else? By allowing the children to stay with their mother, are we contributing to their almost certain downfall?
I don’t think that is even arguable. The mother has clearly abandoned observance and has allowed her children to have a taste of that too. So that even though in this case, the children will be attending the religious schools the mother has promised to send them to, that will very likely not matter that much. A parent is a far more important role model than a school.
In that regard claims made by the religious side are correct:
“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.”
I don’t see that situation as an optimal one to further the childrens’ observance. That will just give fuel to rebellion away from it.
As I started out saying, divorce is never a great option for children. It is traumatic no matter how you slice it. Observance is at risk even when both couples remain observant, let alone when one of them no longer is.
The bottom line for me, is that I am simply not sure what the right course of action is. If both parents are decent loving parents, then the choice about who gets custody needs the wisdom of Solomon. Their spiritual health is at risk either way.
As a legal matter, I agree with the lower court judge. The terms of the divorce were violated. But is granting custody to the father in the best interests of the children - spiritually or mentally? I honestly don’t know.