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

[Volokh, Eugene]

	Sure, it's linked from my blog post on this (still up at
http://volokh.com).  But my error was in the case name -- it's Kik v.
Kik.

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Ed Brayton
> Sent: Friday, February 15, 2008 8:01 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Another Michigan 
> preference-for-the-more-religious-parent case
> 
> 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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