child custody cases and Heller

[Theodore Ruger]

Eugene,
 
As you put the question -- may a court deny custody b/c a parent's exercise might lead the child to exercise the same right -- I agree with you, the answer must certainly be no.
 
But I don't think that's the primary question for the court in a custody case.  It is whether a parent's exercise of a constitutional right will undermine the "best interests" of the child as measured not by judicial standards of morality but (one hopes) by generally accepted social science evidence about child development.
 
To take a couple easy cases:  Imagine a child with a disease that doctors agree might require frequent medical intervention and blood tranfusions.  One parent is willing and able to see that the child receives this if necessary; the other is a Jehovah's Witness who believes that transfusions are impermissible and has said that neither she nor any of her family ought ever receive one.  Her right to believe this -- and to refuse lifesaving interventions herself -- is unassailable, but we can't possibly say it ought be ignored by a child custody judge who makes a finding that the belief with be applied to the child with the related risk of adverse health outcome.  Or imagine a parent who steadfastly exercises his "right to travel" by taking a new job in a new state every year, transferring the kids to a new school each time.  Would a judge need to ignore research suggesting that this undermines the kids' development simply b/c the parent has an abstract right to do this?
 
What do judges do, then, with population studies that show that the presence of guns in the home is an increased risk factor for homicide (slight) and male suicide (tenfold)?  It is possible, in theory, to cast doubt on the methods/findings/significance of the studies, and if so judges ought to give them little or no weight on that basis.  But to categorically exclude all consideration of firearm risk would give 2A rights more sweeping protection than courts give parental speech and religion in custody cases.
 
Best,

Ted
 

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 6/30/2008 11:18 PM
To: conlawprof at lists.ucla.edu
Subject: RE: child custody cases and Heller


    Well, I suppose that's the question:  May a court consider a parent's exercise of her constitutional rights as a reason to deny her custody, precisely because the parent's example (or teaching) may lead the child to exercise those constitutional rights?
 
    I'm inclined to say that the answer must be no, whether these are free speech rights, gun rights, abortion rights, or the rights to have children in or out of wedlock.  But it would certainly be interesting to discuss this.
 
    Eugene
 
________________________________

From: nlund at gmu.edu [mailto:nlund at gmu.edu] 
Sent: Monday, June 30, 2008 5:37 PM
To: conlawprof at lists.ucla.edu
Cc: Volokh, Eugene
Subject: Re: child custody cases and Heller



	Perhaps there aren't any that should be relevant to the judicial determination. But I suppose one could imagine that growing up in a household that's the result of multiple out-of-wedlock births could encourage a child to follow its mother's example. Whether that would be a positive externality or a negative externality, I leave others to debate. My very narrow point was simply that there could be externalities from the living evidence of this particular kind of promiscuity that would not arise from promiscuity of which the child was unaware. I'm not making any claims beyond that narrow point.
	
	Nelson
	
	
	Volokh, Eugene wrote: 

		    I appreciate Nelson's point that having sex with four different men (something that likely at least half of all American women have had) might be different from having children with four different men.  But I wonder what the externalities with respect to this particular child would be.  Why is being raised in a household with three older half-sisters, all daughters of different men, different for the young child from being raised in a hypothetical household with three older half-sisters who were children of the same man?  I suppose one could speculate that there might be more tension in the household as a result of visitation from the other girls' fathers (though I saw no reference to that).  But one could equally speculate that he'd feel less left out if everyone is a half-sibling rather than when there were three full siblings plus him.  What externalities am I missing?
		 
		    Eugene


________________________________

			From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Nelson Lund
			Sent: Monday, June 30, 2008 3:24 PM
			To: conlawprof at lists.ucla.edu
			Subject: Re: child custody cases and Heller
			
			
			I'm not sure whether this is an important distinction or not, but I thought the original question had to do with a woman who had children by four different men. For child custody purposes, that might be distinguishable from having sex with four different men because there would be more externalities with respect to the children in one case than in the other.
			
			Nelson Lund
			George Mason
			

				 

		
________________________________


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