A new religion and custody case

[Douglas Laycock]

  I agree that the court cannot order either parent to send the child
to Catholic school.  The court apparently did that here; it may be an
error of form rather than substance, until and unless the custodial
parent changes her mind.

  I also agree the court cannot award custody to the parent who will
choose Catholic school because she will choose Catholic school. 

  The problem with either of these is not just the very specific
Kentucky clause, but the basic principles of religious liberty; the
court cannot choose the child's religion. All the court can choose is
which parent will be empowered to decide in the event that divorced or
never married parents can't agree.

  Quoting Ed Brayton <stcynic at crystalauto.com>:

> 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[1]
>>
>>
>>
>> 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
>
>

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

Links:
------
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