Custody decisions based partly on one parent's having had"three children out of wedlock, all wi

[Volokh, Eugene]

	Hmm; aren't there also special institutional concerns inherent
in the Free Speech Clause that generally require the government to be
impartial -- not where government speech is involved, but in other
contexts -- as between political ideologies?  Seems to me that if the
Religion Clauses generally bar the government from considering a
parent's religious teachings in the best interests analysis (even when
they may affect the best interests of the child, as John and I agree
they might), the Free Speech Clause should also generally bar the
government from considering a parent's ideological teachings (perhaps
with some narrow exceptions, but certainly as a general rule).

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of John Fee
> Sent: Tuesday, October 24, 2006 11:39 AM
> To: conlawprof at lists.ucla.edu
> Subject: Re: Custody decisions based partly on one parent's 
> having had"three children out of wedlock, all wi
> 
> I don't think it is possible to sustain a sensible "best 
> interests of the child" test without examining some parental 
> behavior that is constitutionally protected (protected in the 
> sense that the government could not mandate or prohibit the 
> behavior).  For example, the government can't normally order 
> a person to work, yet I  think a court should consider a 
> parent's refusal to work (either to provide financial 
> support, or to perform household jobs) as relevant to child custody. 
> Likewise, I think it should be relevant if a parent has a 
> habit of saying abusive and mean things to children 
> regularly, even if such speech is constitutionally protected 
> in the sense that government can't put a person in jail for it.
> 
> Just as with government employment, this is a special 
> context, in which consideration of a person's behavior, 
> including some constitutionally protected behavior, is 
> unavoidable and therefore sometimes permissible. 
> The difficulty is determining which constitutionally 
> protected decisions should be irrelevant to child custody.  I 
> believe that religion should be irrelevant, not because it 
> does not affect the best interests of the child, but because 
> of special institutional concerns inherent in the 
> Establishment Clause, and the probability that any kind of 
> religious test would be systemically misused.  I am not yet 
> convinced that a parent's speech or intimate association's 
> should be irrelevant.
> 
> John Fee
> BYU Law School
> 
> >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 10/23/2006 3:33 PM >>>
> Romans v. Fulgham, 2006 WL 2868314 (Miss. App. Oct. 10), 
> upholds a lower court decision awarding custody to father 
> Fulgham rather than mother Romans; the lower court decision 
> was based partly on the "moral fitness" factor, as to which 
> the lower court "found this factor to weigh in favor of [the 
> father], pointing to the fact that [the mother] had given 
> birth to three children out of wedlock, all with different 
> fathers."  Is this constitutionally permissible, or does it 
> impermissibly count against the mother her having exercised 
> her constitutional rights?  (Let's assume that the courts 
> would likewise hold against a father his having fathered 
> three children out of wedlock, all with different mothers.)
> 
> 	Eugene
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