child custody cases and Heller

Mon Jun 30 15:24:21 PDT 2008

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

kbergin at stcl.edu wrote:

> I may be restating points raised by others, but I would think that 
> "how" one exercises a right is certainly different than "whether" one 
> exercises it.  It would seem inappropriate in a custody determination 
> to take into account the fact that an adult woman exercised a 
> constitutional right to have sex with four different men 
> (gasp!) unless the surrounding circumstances indicate some risk, 
> beyond mere moral disaproval, to the child.  Sexual conduct in the 
> presence of the children would create an obvious risk of harm.  
> Private, adult, consensual conduct would not.  Same is true when 
> sexual orientation is the issue, as mentioned previously. 
>
> And as much as I would like to conclude otherwise, the same would be 
> true for guns, no?  Doesn't a pro-gun, anti-regulatory decision take 
> off the table any argument (as a legal matter) that guns 
> are inherently condemnable, and if so, how can a court say that the 
> presence of a gun in a household with children is against their best 
> interests?  On a personal level, Im one who considers "gun safety" to 
> be an oxymoron so I'd never have or allow one in my house - children 
> or no children - but many of the students in Texas where I teach would 
> argue with equal vigor that lessons of responsible ownership and use 
> provide the better policy.  Which circles back to the difference 
> between "whether" one exercise the right, versus "how" one exercises 
> the right.  Post Heller, I'm not sure how the "mere" fact of 
> ownership, without more, is relevant.   But I too am curious what 
> others think.
>
> Kathleen A. Bergin
>
> Associate Professor of Law
> South Texas College of Law
> 1303 San Jacinto Street
> Houston, TX 77002
> p: 713-646-1829
> f: 713-646-1766
>
> ----- Original Message -----
> From: Kermit Roosevelt <krooseve at law.upenn.edu>
> Date: Monday, June 30, 2008 3:46 pm
> Subject: RE: child custody cases and Heller
> To: Theodore Ruger <truger at law.upenn.edu>, William Funk 
> <funk at lclark.edu>, conlawprof at lists.ucla.edu
>
> > I would think (I'm not familiar with the cases) that there's a
> > difference between penalizing someone for protected conduct
> > (impermissible) and considering all relevant facts in a custody
> > determination (necessary). Sometimes there's going to be an
> > argument about whether the facts really are relevant, I think, or
> > whether what's going on is really government disapproval (consider
> > sexual orientation) and also maybe harder questions where the
> > "relevant" facts are disapproval by other private parties, which
> > the state can't take into account without effectively endorsing
> > (sexual orientation again), but if the point is just that guns in
> > a home pose a safety risk, statistically speaking, I can't imagine
> > why a court wouldn't be able to consider that.
> >
> > Kermit Roosevelt
> > Professor of Law
> > University of Pennsylvania Law School
> > 3400 Chestnut St.
> > Philadelphia Pa 19104
> > 215.746.8775
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Theodore Ruger
> > Sent: Mon 6/30/2008 3:16 PM
> > To: William Funk; conlawprof at lists.ucla.edu
> > Subject: child custody cases and Heller
> >
> >
> > 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 . . . .
> >
> > Best,
> >
> > Ted
> >
> >
> >
> >
> >
> >
> >
> > ________________________________
> >
> > 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
> > judicialdecision 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
> > fathersis 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.
> > Bill Funk
> >
> > > -----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
> > > wants?
> > >
> > > Eugene
> > > _______________________________________________
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> > _______________________________________________
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>
>------------------------------------------------------------------------
>
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