child custody cases and Heller
truger at law.upenn.edu
Mon Jun 30 12:16:23 PDT 2008
Beyond the "morality" debate, this thread raises a different general question: to what extent does (or ought) the existence of a constitutional right to do something render such conduct out of bounds for judicial consideration in a subsequent child custody proceeding applying the "best interests of the child" standard? As Eugene wrote about a couple years ago in an NYU article, family courts routinely treat certain kinds of negative speech about the other parent as an adverse factor in best interests determinations. I'm probably less troubled than Eugene by this differential treatment of such speech or conduct -- particularly where there is valid social scientific evidence (and not mere judicial bias) that an otherwise protected behavior is harmful or risky for children, there are good arguments for its admissibily in child custody cases, where the state's primary role is to assess the optimal living situation for the children at issue.
Here is another point on which last week's Heller decision is interesting and the lower ct response is important. Litigants in child custody cases occasionally have asserted that the other parent's home gun possession is a negative factor in the judicial best interests balancing. (It's not clear to me how this played out in actual cases, but I don't think before Heller there's been a categorical exclusion of such evidence). There are epidemiological studies that support the view that guns in the home present a relative risk factor.
Certainly Heller will loom over all of these cases in the future, making it harder to make such claims against a gun-possessing ex-spouse. Certainly also Heller will not preclude admission of evidence of actual indivualized carelessness in the handling or storage of one's guns. But does Heller mean that absent proof of individualized negligence family court judges can never consider the mere fact of gun possession by the other spouse? The free speech cases would seem to say "no", but I can imagine Heller leading family court judges to take a more categorically exclusive approach. I'm curious what others on the list think . . . .
From: conlawprof-bounces at lists.ucla.edu on behalf of William Funk
Sent: Mon 6/30/2008 2:15 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Mother's having "four children by four different fathers" asfactorin "moral fitness" analysis in child custody case
I don't think we should conflate a constitutional right to do something and
the moral legitimacy of doing the thing. It seems to me that modern rights
(and particularly First Amendment rights) protect certain activities
(including speech) from legislative restriction, even while accepting that
the morality of the activity may be open to question.
That said, I don't mean to be seen as speaking in favor of the judicial
decision in question. "Moral fitness," when applied by courts, is usually
just a cover for the judge's prejudices. It may be that there is a link
between having children by multiple fathers and harm to the interests of the
children, but it should be that empirically supported link that should be
the basis for the decision, although my guess is that the multiple fathers
is but the tip of the iceberg for the lady in question (revealing my
prejudices), which viewed in its entirety might make her lack of fitness for
raising children more clear.
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Monday, June 30, 2008 10:10 AM
> To: conlawprof at lists.ucla.edu
> Subject: Mother's having "four children by four different fathers" as
> factorin "moral fitness" analysis in child custody case
> Klink v. Brewster, 2008 WL 2498244 (Miss. App. June 24), upholds a
> decision giving custody to a father. In the process, in discussing the
> "moral fitness" factor of the "best interests" analysis and concluding
> "that there was sufficient evidence to support the chancellor's
> findings," the court of appeals notes that the mother "has four children
> by four different fathers." Should that be permissible, given that
> presumably the mother has a constitutional right to have children --
> including, as here, apparently out of wedlock -- with whatever men she
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