Another Michigan preference-for-the-more-religious-parent case

[Ed Brayton]

Eugene, if you have a copy of that ruling can you email it to me? I just
checked on Lexis and didn't see it up yet. Ironically, I just finished a 3
part series on these cases for the Michigan Messenger, which drew heavily on
your NYU Law Review article on the subject.

Ed Brayton


-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, February 15, 2008 7:19 PM
To: Law & Religion issues for Law Academics
Subject: Another Michigan preference-for-the-more-religious-parent case

	Dik v. Dik, 2008 WL 376404 (Mich. App. Feb. 12):  "As to raising
Emma [age 2.5 at the time], the trial court found that this sub-factor
favored plaintiff based on the testimony that plaintiff had a stronger
religious background and was more actively involved in bringing the
minor child to church than was defendant.  Because this finding was
based on the record evidence, no error occurred with regard to this
factor."

	Let's set aside the broader First Amendment questions on when a
court may treat a parent worse because that parent's speech (religious
or otherwise) to the child seems likely to harm the child.  Here, there
was no finding remotely like this.  Rather, the court was simply
interpreting Michigan's best-interests statute -- which requires the
consideration of "[t]he capacity and disposition of the parties involved
to give the child love, affection, and guidance and to continue the
education and raising of the child in his or her religion or creed, if
any" -- as giving a preference to the more religiously active parent.

	Can that possibly be constitutional?  Isn't this an even clearer
case of religious coercion than in Lee v. Weisman, given that under this
rule (which Michigan courts seem to often apply) Michigan parents know
that, to maximize their chances of keeping custody of their children,
they need to show "a stronger religious background" (presumably
"background" would include recent religiosity as well as longstanding
religiosity) and "more active[] involve[ment] in bringing the minor
child to church"?

	Eugene
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