A new religion and custody case

[Ed Brayton]

I don't think there's a constitutional problem with a court saying that the
custodial parent gets to decide where to send the child to school. But is
there a constitutional problem with a court saying, "I'm giving custody to
this parent because they'll send the child to a Christian school"? I
recognize that this is usually couched in terms of one factor among many,
but I've also come across many custody rulings where the judge made it quite
clear that this was the primary reason, even cases where that one factor
outweighs incredibly serious factors against giving that parent custody. And
I've found very few cases where an appeals court overrules such a ruling. It
seems clear to me that there is at least some degree of constitutional
problem with such a ruling.

 

Ed Brayton

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Sunday, January 06, 2008 4:13 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
>
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>


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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