A new religion and custody case

[David Cruz]

True enough about what courts do in every custody case.  But most
custody cases, I wager, are not constrained by a clause such as
Kentucky's.  Regardless of the no-longer-intact-family *reason* (and any
possible the-son-can't-practically-attend-two-schools-half-time reason)
for the compulsion, if a custodial parent is ordered by the state to
send his kid to a Catholic school against his conscientious objection
(something the actual father at issue may or may not have within the
meaning of the clause), or if the mother is ordered to send the kid to a
secular school or perhaps to pay for tuition at a secular school, that
sounds like it would fall within the Kentucky language - regardless of
whether that strikes any of us as something that should be subject to "a
constitutional objection."

 

This might have the unfortunate consequence that the only way a court
could enforce a parental schooling preference would be to grant that
parent sole custody (so the losing parent loses all ability and not just
authority to send the kid to *any* school).  But no one consulted me in
the drafting of that clause.  One could I suppose try to split hairs and
say that its parent A who "sends" the kid to school X because we have
given parent A the legal right to decide where the kid is schooled, even
if the kid doesn't live full time with parent A; so that parent B is not
compelled to "send" the kid to any school.  But I don't find that a
plausible reading of "compelled to send," not without much more specific
information about the context of the clause.

 

David B. Cruz

Professor of Law

University of Southern California Gould School of Law

Los Angeles, CA 90089-0071

U.S.A.

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Sunday, January 06, 2008 1:13 PM
To: religionlaw at lists.ucla.edu
Subject: RE: A new religion and custody case

 

Suppose the order simply said "The choice of school is for the parents,
not for the court.  These parents can't agree, so the court is forced to
decide which parent gets to exercise the parental right to choose.  The
court finds that it is in the best interest of the child for the mother
to have custody and for the mother to choose the child's school."  

The two sentences of preamble pretty much just describe what courts have
to do in every custody case.  Hard to find a constitutional objection to
that, but same result.  

Quoting David Cruz <dcruz at law.usc.edu>:

> Just looking at the text, it's not clear to me that it would be 
> violated by a state's allowing a custodial parent to send a kid to a 
> school of that parent's choosing.  A noncustodial parent would not 
> get her way (or not during the time the other parent had custody 
> under a joint arrangement), but she wouldn't be "sending" the kid to 
> an objectionable school.  (A noncustodial parent would have a 
> textually better argument if she were forced to pay some of the 
> tuition for an objectionable school the other parent sends the kid 
> to.)
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
> -----Original Message-----
> From: Ed Brayton <stcynic at crystalauto.com>
> Sent: Sunday, January 06, 2008 3:27 PM
> To: 'Law & Religion issues for Law Academics'
<religionlaw at lists.ucla.edu>
> Subject: A new religion and custody case
>
> With a bit of a spin. A father in Kentucky is arguing in court that a
> custody ruling requiring that his son continue to go to Catholic
school is
> unconstitutional under the KY constitution. Section 5 of that
constitution
> says:
>
>
>
> "Nor shall any man be compelled to send his child to any school to
which he
> may be conscientiously opposed."
>
>
>
> Very interesting case. The mother apparently wants the child to go to
> Catholic school, so it would seem that the constitutional argument
would
> apply to both sides.
>
>
>
> http://www.wlky.com/news/14981101/detail.html
>
>
>
> Ed Brayton
>


Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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