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

[John Bickers]

This is, admittedly a tougher hypothetical (which, of course, is why I didn't raise it).  I could see your "atheism" and raise you a "a pro-pedophilia" organization...but I think we all realize the slopes slip away in pretty much every direction.
 
I stick with my original question, at least for now.  As I understand it, we let the judge consider parenting abilities, emotional stability, work history...in short, everything that the court can possibly know about two people.  We do this so that the judge can decide, as between them, where a child is better reared.  Within that decision, how can we require the court to be blind to critical aspects of character, whether they are constitutionally protected (speech, faith, guns, etc.) or not (smoking, drinking, pool-owning, etc.)?   How can we say to parents who aren't in racist groups that courts are not allowed to view that fact in their favor when deciding which of the two is better for the child?
 
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 4:54 PM
To: conlawprof at lists.ucla.edu
Subject: RE: When courts think a custody-seeking parent'sconstitutionallyprotected behavior is against the "bestinterests of the child"


    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.  

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20080701/88d1610e/attachment.htm