When courts think a custody-seeking parent'sconstitutionallyprotected behavior is against the "bestinterests of the child"

[Mark Tushnet]

A note of Heller and trigger-locks, etc.:  I don't quarrel with the predictive judgment about how a trigger-lock, etc., requirement would fare.  But Heller itself doesn't say that such a requirement is unconstitutional.  The relevant sentences are these:  "the District's requirement ... that firearms in the home be rendered and kept inoperable **at all times.**  This makes it **impossible** for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional."  (Slip op. p. 58)  A trigger-lock, etc., does not make a handgun inoperable at all times, only when the trigger is, well, locked.  And, if you really want to get into this, Justice Scalia's analysis of the Boston gunpowder storage law can be read to support various safety-related requirements (they wouldn't have enforced the law "against someone who **temporarily**loaded a firearm to confront an intruder, and "fire-safety laws ... do not remotely burden the right of self-defense as much as an absolute ban on handguns").  And that paragraph (slip op. p. 60) ends:  "Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accident."

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Theodore Ruger
Sent: Tue 7/1/2008 4:06 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: When courts think a custody-seeking parent'sconstitutionallyprotected behavior is against the "bestinterests of the child"
 
Like you, Eugene, I don't think it appropriate for a judge to consider category "b" affects -- in my earlier posts I was concerned with your category "a" risks to children as children.   And our general views on judicial consideration of risks in that category don't vary much (though we may disagree on the specific risks of guns in the home).
 
On your discussion of risks to children from firearms in the home, a quick response.  You mention storage requirements as a way to mitigate this risk, but the Heller opinion disables government imposition of some measures (trigger locks, unloaded storage rules) that might enhance in-home safety.   So this might still be a factor  -- "how do you store your guns?" -- that is fair game for individualized family court analysis but off limits to generic legislative mandate after Heller.  
 
Ted
________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Tue 7/1/2008 3:19 PM
To: conlawprof at lists.ucla.edu
Subject: When courts think a custody-seeking parent's constitutionallyprotected behavior is against the "best interests of the child"


    A few thoughts on this question:
 
    1.  It might be helpful to distinguish two ways that behavior may be against a child's best interests -- (a) when it jeopardizes the child's health when the child is still a child, or (b) when it teaches the child to engage in similar behavior when the child is an adult.  
 
    Examples of category (a): teaching a child that he should beat up other children; refusing to provide a child with medical care; storing guns in ways that create a serious risk that the child will have a deadly accident; bringing potentially dangerous people into the home (whether as lovers or as friends); having multiple sexual partners who spend time with the child and whose going in and out of the child's life causes the child psychological problems (assume this is factually true); habitually driving the child around on a motorcycle.
 
    Examples of category (b): teaching a child that he should, as an adult, become a political activist who is willing to use violence when necessary; teaching a child a religion or a philosophical or scientific belief system that will lead the child to refuse medical care as an adult; possessing a gun so that the child will eventually want to do the same; hanging out with dangerous people who don't come into contact with the child, when such hanging out may lead the child, as an adult, to do the same; having multiple sexual partners whom the child rarely meets, when such behavior may lead the child to grow up into an adult who likes to have multiple sexual partners; habitually riding around on a motorcycle, so that the child thinks that's cool and becomes more likely to end up riding motorcycles as an adult.  This category may in some measure also relate to what parents teach children during early childhood about how children should behave during adolescence (e.g., whether the children should have sex before they're 18, whether they should hitch rides on friends' bicycles, how they should behave around friends' guns, and so on).
 
    I'm not sure quite what the right rule should be as to category (a), when the behavior is constitutionally protected -- I'm inclined to say some restraints on the constitutional rights are permissible, but not all such restraints, and the restraints should be imposed under a clearer and more demanding standard than just the all-things-considered best-interests test.  But as to category (b), it seems to me that the courts should generally not consider such risks, at least where constitutional rights are involved.  I don't deny that learning to think bad thoughts, and to like dangerous behavior, may be harmful for the child when the child grows up to be an adult.  But it seems to me (as to free speech, for reasons that I have developed in very great detail in my NYU piece, at http://www.law.nyu.edu/journals/lawreview/issues/vol81/no2/NYU203.pdf) that courts generally may not rely on the long-term harm caused by such teachings.
 
    I should note, by the way, that the thread started from a decision in which a mother's having children by multiple men was seen as relevant to the "moral fitness" factor, which strikes me as chiefly something going to category (b) (not necessarily entirely, but likely chiefly).  Likewise, I took the most recent discussion of gun ownership as chiefly focused on the supposed harms to "child development" in the sense of the child's learning good habits for adulthood.  If the concern is about physical safety for the small child around the gun, that (as I mentioned in my earlier post) is a different matter, which would chiefly be dealt with through storage requirements rather than general possession bans.
 
    2.  We should also be careful, I think, not to assume that the rule for constitutional rights should be as deferential to judges as the rule for constitutionally unprotected but legal behavior.  In particular, the failure-to-treat example strikes me as something of a red herring.  Under Smith, there is no general constitutional right to religious exemptions; and even under Sherbert, the failure to treat a child -- even by parents within an intact family, where the "best interests" standard doesn't apply -- would be outside the parents' Free Exercise Clause rights.  Adults do have a constitutional right not to treat themselves (see, e.g., Cruzan and Glucksberg, which acknowledged this), but not a constitutional right not to treat their children.
 
    3.  The right to travel is also not quite analogous here, because when a custodial parent moves, this inherently restricts the noncustodial parent custody rights.  You can't have both parents be near the child when they live in different cities.  But there is no such physical limitation when a parent is teaching a child beliefs that the other parent disagrees with, or is raising the child to accept guns as a normal part of life.
 
    4.  I don't think that we should just assume that "judges may consider any behavior, including constitutionally protected behavior, under the 'best interests' standard" is the basic rule, and any protection for gun rights would give those rights "more sweeping protection than courts give parental speech and religion."  In fact, the courts are split on the subject.  Palmore v. Sidoti holds that exercise of the right to engage in interracial marriage may *not* be considered in the best interests analysis.  Many, though not all, lower courts hold that exercise of the right to teach children one's own religion may not be considered in the best interests analysis unless there's evidence of imminent risk of physical or psychological harm (a materially higher standard than best interests).  Courts may accept this in some measure as to the right to teach children one's own nonreligious ideologies, though there are very few cases on that right now.  So I would ask how courts should act here, without assuming that there's already a settled (highly unprotective) rule that courts should simply adhere to for gun rights as well as speech and religious teaching rights.
 
    5.  Finally, I mentioned in a separate message why the claim of vastly heightened suicide risk for men stemming from household gun ownership is unsupported.  I should also note that the odds ratio for suicide by dentists is 5.43; would we support courts' concluding that a parent's counseling a child to become a dentist (or some other high-suicide-risk or high-death-risk adult occupation, such as a logger, fisherman, or truck driver [which have much increased occupational accident risks]) should be a factor against awarding custody to that parent?  If the claims about a correlation between abortion and suicide risks prove to be accurate, would courts be able to rely on them to deny custody to women who have had abortions, and who are likely to model such behavior to their daughters?  (I should say that I'd be highly skeptical about such correlation claims, because there are so many confounding factors; a suicide, for instance, might stem not from an abortion but from the abandonment or other problems that might have led the woman to choose the abortion.  But I'd be equally skeptical about such correlation claims for gun ownership as well, for reasons I'd mentioned in the earlier message.)
 
    Eugene
 
    Eugene
 
Ted Ruger writes:
 

	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
				

					 

			
________________________________


			_______________________________________________
			To post, send message to Conlawprof at lists.ucla.edu
			To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
			
			Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.


-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20080701/f762c05b/attachment.htm