Opinion
No. 54288/2012.
2013-01-11
Miriam KATZ, Plaintiff, v. Abraham KATZ, Defendant.
Harvey S. Jacobs, Esq., Brooklyn, Attorney for Plaintiff. Nicholas J. Fortuna, Esq., Allyn & Fortuna LLP, New York City, Attorney for Defendant.
Harvey S. Jacobs, Esq., Brooklyn, Attorney for Plaintiff. Nicholas J. Fortuna, Esq., Allyn & Fortuna LLP, New York City, Attorney for Defendant.
Brad Nacht, Esq., Brooklyn, Attorney for the Child.
JEFFREY S. SUNSHINE, J.
The parties posit that this application involves a long standing dispute in the Satmar Jewish Community related to beliefs of varying segments of the community regarding the State of Israel.
This is a dispute between two (2) parents, who have until now been able to recognize and resolve any differences relating to the child, who is seven (7) years old. The mother wishes to travel with the child to Israel to attend, on January 23, 2013, the wedding of Moshe Labin, the child's maternal uncle, to Miriam Yitty Teitelbaum. The mother described this wedding as a significant event within the Satmar community because Miriam Yitty Teitelbaum is “the daughter of a very famous and influential rabbi and this wedding will be a most momentous event in Israel.”
At the initial application on December 5, 2012, oral argument ensued, pursuant to 22 NYCRR 202.17, wherein the Court denied the ex parte request for permission to obtain a passport for the child, established a briefing schedule for the application, and appointed an attorney for the child who was present in court for the ex parte application.
The mother in her application seeks an order (1) awarding the mother temporary custody of the parties child born in May 2005; or in the alternative; (2) directing the father to obtain a passport for the child for the limited purpose of traveling to Israel during the month of January 2013; (3) directing the passport for the child be held in escrow by the wife's counsel prior to and on the return of the child from Israel; and (4) and such further and different relief as is just. The father opposes the application. The Court, on the record, stated it was willing to conduct an evidentiary hearing; both parties and the attorney for the child waived an evidentiary hearing on the issues presented and rested on their papers and oral argument related to the papers presented.
The father avers that the child traveling to Israel is in contravention of the express language of the parties' purported agreement, dated May 17, 2010, which the father contends requires joint decision making on all issues affecting the child's health and welfare, and which requires their agreement as to the child's moral and religious upbringing. He posits that the mother has not met her burden of demonstrating that it is in the child's best interest to travel to Israel to attend her brother's wedding as to warrant the “drastic remedy of awarding her temporary custody of the child in contravention of the parties' separation agreement”. The father affirms that any child's travel to Israel is contrary to the tenets of Satmar Hasidism, which the father claims the child has been raised to follow and the mother has agreed to raise the child to follow in accordance with their agreement dated May 17, 2010. The father contends that the “tenets of Satmar Hasidism forbid travel to Israel because it is believed that the State of Israel and the Zionist idea upon which the State is built on, is in conflict with the central tenets of the Ultra–Orthodox Satmar teachings”.
The father's counsel annexed the affirmation of Rabbi Chaskel Teitelbaum dated December 31, 2013, to his responsive papers. In Rabbi Chaskel Teitelbaum's affirmation dated December 31, 2013, he states:
1. I am a Rabbi of the Synagogue for the Synagogue for the Congregation Yetev Lev D'Satmar Inc., located at 165 Clymer Street, Brooklyn, N.Y. 11211. Our Synagogue observes the religious beliefs of the Ultra–Orthodox Satmar Community and follows the teachings of our leader, the father of pure Judaism in America Grand Rabbi Joel Teitelbaum, the founder of the Ultra–Orthodox Satmar Community in the U.S. (the “Grand Rabbi”).
2. I am familiar with [the child] because he attends my Synagogue on Clymer Street in Brooklyn, has been raised as Ultra–Orthodox Satmar (“Satmar Hasidism”) and taught to follow the teachings of the Grand Rabbi.
3. At the core of Grand Rabbi's teachings is his belief that the State of Israel (the “State”) and the Zionist idea upon which the State is built on, constitutes an absolute denial of all the central tenets of our faith in G-d and the Holy Torah. Observers of Satmar Hasidism belive as the Holy Torah says that Jews are nation, that G-d, the G-d of Israel is the King and we are His servants, His chosen nation, He took us out of Egypt, He gave us the land of Israel and then He exiled us amongst the nations because of our sins, and only He shall redeem us and gather us back to Israel through the Messianic King.
4. In Stark contrast, Zionism denies those teachings in the Torah and declares that Jewish people are like all other nations. Jews too have power to arm themselves to wage war, demand rights, and to free themselves from the exile through building the State of Israel.
5. As a result, our great Grand Rabbi opposed any travel to the State of Israel because of the spiritual influence and impression that a visit to the State would create by seeing the glory and splendor of institutions that do not follow the views of our great Grand Rabbi.
Rabbi Chasekel Teitelbaum states that it is clear that “an impressionable child being raised as Ultra–Orthodox Satmar should not be traveling to the State of Israel” because the “child is at risk of having his religious beliefs undermined by the splendor of the State, the splendor of those communities that do not follow the Grand Rabbi's approach.” Rabbi Chssekel Teitelbaum states that travel to Israel would confuse the child and “would be against [the child's] best interests because he is too young to understand the differences that he will be exposed to in Israel, which oppose the foundations of his faith and the education that the Child has received until now”.
It is uncontroverted that Rabbi Chaskel Teitelbaum is the uncle of the father.
The parties' agreement is dated May 17, 2010. It provides, inter alia, that
(3) CUSTODY. The Child will stay in the joint legal custody of the 2 parties; decisions on matters of The Child 's education, which school or Yeshiva he should attend, belongs to Party A, he will however consult and be considerate with Party B.[
] As to any change in the situation of The Child, whether on matters of health or all other matters and issues related to him, the parties must inform and consult with each other through the intermediary, and all decisions regarding The Child will be with the consent of both. As of now, The Child will stay with Party B who will look out for all of The Child 's needs in the most positive way (primary physical custody)....
The agreement provides that the father is referred to as Party A and that the mother, is referred to as Party B.
(7) JOYOUS OCCASIONS. The Child will participate in every joyous occasion of the relatives who are disqualified as witnesses, such as engagement, wedding, Sheva Bruchos, Sabbath Sheva Brochos, Bar Mitzvah, Vach Nacht, Upsherin, and the likes. On a late-night-ending wedding, he will sleep over with Party A and will go to school from there; this, obviously, is on such occasions where other children customarily go to within this family ...
(8) EDUCATION. The 2 parties are obligating themselves to raise The Child to appropriately respect the 2 parents, the grandfathers and grandmothers of both parties and their families. They will also educate and raise The Child on all matters in the traditional Jewish style and within the Hasidic framework in the spirit and level of the 2 families of the parties with no compromises whatsoever, and the parties will adhere to the regulations of the school. All matters of The Childs ' customs, clothing, and environment, in which he finds himself, etc., will be in accordance with the regime and clothing of the other children of the 2 families of the parties. No party will take The Child to any place which is incompatible with the aforementioned style and manner, not even temporarily or for the Sabbath; and as the intermediary sees fit.
The mother avers that the parties physically separated in March 2008 and both parties concede they have lived separate and apart in accordance with the terms of this agreement since it was signed on May 17, 2010.
It is evident that the agreement is not acknowledged in the form of a deed ( see Matisoff v. Dobi, 90 N.Y.S.2d 127, 681 N.E.2d 376 [1997] ) and there is also no order of custody which incorporates the agreement.
The mother posits that the wedding is a significant event in their community and that it is important that she and the child travel to Israel. The mother notes that the father himself has traveled to Israel. The father acknowledges that he has traveled to Israel on three (3) occasions, and as recently as within the last 12 months, but that each time he traveled to Israel it was in his adult life, not as a child. The mother claims that the child's educational needs will be met during the trip. She avers that the question before this Court is not a religious one, nor a political question. Rather, the question before this Court is simply, can a child travel to his uncle's destination wedding?
At oral argument, a factual dispute ensued, wherein the father claimed there is a rabbinic prohibition on children attending this wedding in Israel and the mother claimed there will be children from the Satmar community traveling to Israel to attend the wedding. The mother's counsel noted in the mother's reply papers that “[t]he limitations on the extent of the family traveling to celebrate this occasion is premised on the very young age of the children and costs associated with the trip.”
Discussion
In the case at bar there is no order or judgment of custody. The parties simply entered into an agreement in 2010 and have been living by the dictates of that agreement without court intervention. It is undisputed that their agreement is not acknowledged in the form of a deed ( see Matisof v. Dobi (90 N.Y.2d 127, 681 N.E.2d 376 [1997];see alsoDomestic Relations Law § 236[B] [3] ). The Appellate Division, Fourth Department in Lewis v. Lewis, (70 AD3d 1432, 894 N.Y.S.2d 290 [4 Dept., 2010] ) held that
We reject defendant's contention that the court erred in incorporating the oral stipulation of the parties with respect to child custody into the judgment. In support of his contention, defendant relies upon Domestic Relations Law § 236(B)(3), pursuant to which an agreement by the parties in a divorce action is enforceable if the agreement is, inter alia, in writing and subscribed by the parties ( see generally CPLR 2104). “That reliance is misplaced, however, because [t]he requirements of Domestic Relations Law § 236(B)(3) pertain to stipulations [that affect] the equitable distribution of marital property' “ (Kelly v. Kelly, 19 AD3d 1104, 1106 [2005], appeal dismissed 5 NY3d 847, 6 NY3d 803 [2005]; see Charland v. Charland, 267 A.D.2d 698, 699 [1999] ). We agree with defendant, however, that the oral stipulation concerning the distribution of certain items of personal property was improperly incorporated into the judgment. That stipulation was transcribed into the record but was not reduced to writing, subscribed by the parties or acknowledged, as required by Domestic Relations Law § 236(B)(3).
However, this court, at this juncture, need not reach that determination. Whether the agreement is valid and thereby the parties have joint custody but cannot reach an agreement on the limited issue of this child's travel to Israel or the agreement is not valid and the issue is before this court de novo, under these particular facts and circumstances, the applicable standard is the best interest of the child.
The intent of these parties cannot be gleaned from the four corners of their agreement ( Kosnac v. Kosnac, 60 AD3d 636, 875 N.Y.S.2d 5040 [2 Dept.,2009] ) because paragraphs 3, 7 and 8 of the agreement are in conflict. Even if this Court were to hold a hearing now to determine the parties intent in an attempt to resolve the conflicting paragraphs 3, 7 and 8, the decision to travel to Israel must be made not on the agreement but on the issue of is it in the child's best interest to travel to Israel?
This Court notes that in a pending matrimonial action in which no judgment of divorce has been entered, a separate plenary action is not required to seek enforcement of an agreement ( see Murphy v. Murphy, 24 AD3d 330;807 N.Y.S.2d 28 [1 Dept., 2005] )
The Appellate Division, Second Department recently held that,
[t]he paramount concern in any custody dispute is the best interests of the child ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Ramirez v. Velez, 78 AD3d 1062, 911 N.Y.S.2d 466), which requires review of “the totality of the circumstances” (Matter of Parliman v. Labriola, 87 AD3d 1144, 1144, 930 N.Y.S.2d 29;see Matter of Nava v. Kinsler, 85 AD3d 1186, 1186–1187, 926 N.Y.S.2d 310;Trinagel v. Boyar, 70 AD3d 816, 893 N.Y.S.2d 636). The court must consider various factors, ranging from the quality of each parent's home environment and ability to provide for the child financially, emotionally, and intellectually, to the determination of which parent is more likely to foster future contact with the noncustodial parent ( see Eschbach v. Eschbach, 56 N.Y.2d at 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Yearwood v. Yearwood, 90 AD3d 771, 773–774, 935 N.Y.S.2d 578;Matter of Ramirez v. Velez, 78 AD3d 1062, 911 N.Y.S.2d 466).
This court notes that the parties agreement contains a clause requiring that the parties will turn to a named intermediary who “... will settle and determine everything for the benefit and in the interest for The Child.” In the event that the intermediary does not successfully settle the issue the parties are to attend arbitration. Assuming, arguendo that this agreement is valid, the decision as to which parent decides the question on whether to travel to Israel still does not divest this Court's jurisdiction over the issue under the best interest test in the Court's authority in parens patrie (see Glauber v. Glauber, 192 A.D.2d 94, 600 N.Y.S.2d 740 [2d Dept.1993] ). This Court ultimately as part of a final determination must decide who makes the decision (Chamberlain v. Chamberlain, 24 AD3d 589, 808 N.Y.S.2d 352 [2 Dept.,2005] [“... it may be appropriate, depending upon the particular circumstances of the case, to grant some custodial decision-making authority to the noncustodial parent ( see Matter of Ring v. Ring, 15 AD3d 406, 790 N.Y.S.2d 51;Matter of Penninipede v. Penninipede, 6 AD3d 445, 446, 775 N.Y.S.2d 329).”] ). It is well established that issues of custody and visitation are not subject to arbitration ( see id. at 742). Any reliance on an “ “intermediary” as noted in the agreement is not binding on the Court. The Court will not allow another to be designated to substitute it's judgment (Schechter v. Schechter, 63 AD3d 817, 881 N.Y.S.2d 151 [2 Dept.,2009] [“ “Inasmuch as custody and visitation disputes are not subject to arbitration [citations omitted], that branch of the plaintiff's motion which was to confirm so much of the arbitration award as awarded the parties joint custody of and visitation with their 14—year—old daughter should have been denied.”] ).
This Court notes that a significant factor in determining custody is whether the parents are embroiled in a heated custody dispute, such that an award of joint custody would be ineffective. In the seminal case of Braiman v. Braiman (44 N.Y.2d 584, 378 N.E.2d 1019 [1978] ) the New York Court of Appeals rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement. The court stated, “[i]t is understandable, therefore, that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.” Braiman v. Braiman, 44 N.Y.2d 584, supra; see also Arndt v. Arndt, 100 AD3d 879, 954 N.Y.S.2d 196 [2 Dept., 2012].
Establishment Clause
The New York State Court of Appeals held that the Establishment Clause is
not violated when neutral principles of law can be utilized to resolve a dispute without reference to religious doctrine (see Park Slope Jewish Ctr. v. Congregation B'nai Jacob, 90 N.Y.2d 517 [1997] ). The First Department in Sieger v. Union of Orthodox Rabbis of U.S. and Canada, (1 AD3d 180, 767 N.Y.S.2d 78 [2003] ), held that a lawsuit that would require an examination of religious doctrine or practice was not actionable by virtue of the Establishment Clause of the First Amendment, but that the evaluations that apply of “neutral principles of law” that do not implicate matters of religious doctrine and practice, such as whether a party was a sane or fit mother, are not barred by the Establishment Clause.
This Court will not become embroiled in a religious disagreement, because to do so would violate the Establishment Clause of Article I of the New York Constitution and the First Amendment of the United States Constitution; nor will this Court become embroiled in the long standing dispute that has ensued relative to the parties views related to the State of Israel.
Like any other dispute involving parents and children the Court will limit itself to a best interest analysis (Eschbach v. Eschbach, 56 N.Y.2d 167, 436 N.E.2d 1260 [1982];Domestic Relations Law § 240[5] ).
This civil litigation has recently begun, notwithstanding the parties' purported agreement heretofore discussed and the granting and acceptance of a religious divorce.
The civil action was commenced on November 13, 2012 and the Request for Judicial Intervention was filed on December 5, 2012.
It appears that the purported agreement was signed concomitant with the granting and acceptance of a religious divorce (a Get) ( seeDomestic Relations Law § 253[6] ).
The attorney for the child, who met with his client on one (1) occasion with the assistance of a Yiddish interpreter supplied by the mother, has taken the position, on behalf of his client, that his client would miss the mother if she were to travel to Israel, but that he was experiencing serious and significant confusion and concerns about a child of his community being in Israel.
The Court need not at this juncture examine whether or not the concerns were based upon fact or not, or where the child obtained information which has led to serious confusion. Certainly, those issues can be explored during a trial after forensic evaluations of the parties and the child and an in camera interview of the child. At this juncture, it is not in this child's best interest to require him to travel to Israel for a celebration; the emotional risk to him outweighs any benefit that conceivably would be derived from the experience. Furthermore, the mother did not demonstrate any serious adverse affects that would be contrary to the child's best interests if he were to stay with the father during the time that the mother traveled to Israel for her brother's wedding from January 19, 2013 to January 30, 2013. The mother has failed to meet her burden that a temporary order of custody for the purpose of travel would be in the child's best interest.
The Court notes that the parties had chosen not to litigate the issue in a civil proceeding until now, that delay and the decision not to commence a civil lawsuit places them both in a position of first having to commence the custody issue in its present context. Parties are permitted to chart their own course when deciding to commence a civil divorce proceeding, but there are necessary delays that may ensue if that decision to litigate has been delayed by their action
Conclusion
The mother's application seeking an order awarding the mother temporary custody of the parties child born in May 2005; or in the alternative (2) directing the father to obtain a passport for the child for the limited purpose of traveling to Israel during the month of January 2013 is therefore, denied without prejudice to a final determination at trial, if necessary, on the issue of custody. The matter is adjourned to February 1, 2013, at 9:30 a.m. for a preliminary conference and selection of a neutral forensic expert.
This shall constitute the decision and order of this Court.