Mother Loses Custody of Son Because She Violated an Agreement to Raise the Child As an Orthodox Jew

A Manhattan Supreme Court justice has ruled that a Jewish mother could not have continued custody of her eight-year-old son because she had violated an agreement with her former husband to bring up the child as an Orthodox Jew. The ruling Tuesday by Justice Irving Kirschenbaum applied a 1980 decision by an appeals court which legal experts described as the first of its kind.

The five-member Appellate Division, First Part, in a unanimous decision, ruled in 1980 that the terms of the separation agreement between the parents, both Hasidic Jews, are contractually enforceable and that a breach of those terms could be the basis for a change in custody.

Justice Kirschenbaum ruled that Rae Perlstein, 31, violated the agreement to raise Thomas Perlstein as an Orthodox Jew. The agreement specified particular schools, camps and a kosher diet for the boy. His mother was raised as a member of the Bobover Hasidic group.

MOTHER FLED WITH HER SON

However, the custody transfer could not be enforced immediately because Mrs. Perlstein fled from Manhattan with the boy and their whereabouts are not known. George Osbome, who acted as attorney for Mrs. Perlstein, said he expected the court to issue an order declaring her in violation of the ruling that the son be returned to the father, Isaac Perlstein, also 31.

The father was represented in the appeal and in the trial before Justice Kirschenbaum by Nathan Lewin, a leading Washington attorney.

Detectives hired by Perlstein have been unable to find the mother and the son, and Osborne said he had been unable to locate them.

BACKGROUND OF THE CASE

The Perlsteins were married in 1971 and the son was born in 1973. Differences developed between the parents and they reached a separation agreement which gave custody of the child to the mother. After a Jewish divorce (Get) was agreed to, a civil divorce judgment was obtained in 1975, which included the separation agreement, which specifically provided that violation of the Orthodox upbringing requirements could result in transfer of custody of the boy to his father.

According to court findings, the mother, after a time, stopped observance of Orthodox rituals, ceasing to comply with the religious requirements of the separation agreement. In August, 1978, the father petitioned for custody on grounds the mother had breached terms of the separation agreement.

After a trial, a Manhattan Supreme Court dismissed the father’s petition, holding that while the mother was admittedly not abiding by the requirements of Jewish religious law, the child was being raised as a Jew and there was no evidence of “potential harm” in the fact that the child was not receiving an Orthodox rearing. The basic issue in custody cases is the need to determine what is best for the child’s welfare.

In reversing the lower court ruling, the Appeals Court ruled in 1980 that the fact that the child was being raised by the mother as a nominal Jew did not settle the issue because that ruling ignored the father’s contention that the mother had failed to adhere to the religious requirements of the separation agreement.

The Appeals Court also overruled the lower court’s finding that the father would have to demonstrate that the custody change was warranted by the welfare of the child. The Appeals Court declared that it was the mother who was obliged to show that adherence to the separation agreement was detrimental to the child, since it was the father who had sought to make sure the religious requirements of the separation agreement were upheld.

DETERMINING WHAT WOULD BE BEST FOR THE CHILD

During the 31-day trial before Justice Kirschenbaum, Mrs. Perlstein admitted she had not kept a kosher home from 1975 to 1980 but she testified she had resumed a kosher home in 1980 after the lower court dismissed the attempt by the father to regain custody. When the father appealed that decision, an appellate court ordered Kirschenbaum to determine what would be best for the child’s welfare.

In his decision, Kirschenbaum said Mrs. Perlstein’s “admitted failure to observe dietary laws at home from 1975 to 1980 constituted a violation of the agreement of sufficient magnitude to support a transfer of custody.”

In regard to the impact of a transfer of the boy from the mother’s custody to that of the father, Justice Kirschenbaum said the change “will not be a difficult adjustment” for the boy because he would enter “the close-knit nuclear family” of the father.

Perlstein, a member of the Munkacz Hasidic group, has since remarried and has a son and daughter by his second marriage. The second Perlstein family lives in the Boro Park section of Brooklyn.