A new religion and custody case

[Ed Brayton]

But I guess the real question is, can the court choose that parent based on
the fact that they are religious and the other is not. That's really the
crux of the issue. 

 

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 5:30 PM
To: religionlaw at lists.ucla.edu
Subject: RE: A new religion and custody case

 

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
>>
>>
>>
>> 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

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