When courts think a custody-seeking parent's constitutionallyprotected behavior is against the "best interests of the child"

[Volokh, Eugene]

    Well, let's say that instead of "a racist organization" it's "an
atheist organization," and the judge sincerely believes -- and perhaps
even accurately believes -- that a religious upbringing is better for
the child and the teenager and adult he will become than is an
irreligious upbringing.  Constitutionally permissible?


________________________________

	From: John Bickers [mailto:bickersj1 at nku.edu] 
	Sent: Tuesday, July 01, 2008 1:33 PM
	To: Volokh, Eugene; conlawprof at lists.ucla.edu
	Subject: RE: When courts think a custody-seeking parent's
constitutionallyprotected behavior is against the "best interests of the
child"
	
	
	Should the fact there is a zero-sum aspect to custody disputes
affect the analysis?  I certainly understand skepticism of discretion by
judges in the area of protected liberties, and quite agree with the
comments below in the abstract.  Life isn't all that abstract, though,
and family court judges in contested custody settings are deciding not
whether parent A's membership in a racist organization makes A bad
generally, but whether it makes A a worse parent than B, who isn't in
such an organization.  Understanding the risks we run as a society when
use a "best interests" standard, the risk that judges will elevate taste
to morality, isn't it nonetheless a risk we have to take if we are to
avoid simply assigning children randomly among parents in broken
families?
	
	John Bickers
	Salmon P. Chase College of Law
	Northern Kentucky University

________________________________

	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.  
	 
	...
	 
	    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.  

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