A new religion and custody case

[Saperstein, David (RAC)]

forget the specifics of this for a moment.  I want to address whether religion can ever be a factor of consideration for a court.  If it would be appropriate, as courts do regularly to take into consideration consistency in a child's life in determining a child's best interest, why not consistancy of a child's religious upbringing.  We discussed this a couple of years ago.  If a parent seeking custosdy says: it is my intention to change this 11 yr old child's identity from Jewish to Catholic, why can't that be a actor forf th court's determination of best interests, where for example the kid feels committed to the religion in which they were raised.

This is not a case of the court supporting religion but of the court considering in its neutral determinations of best interest the psychological impact of changing a child's identity.

David

-----Original Message-----

From:  "Ed Brayton" <stcynic at crystalauto.com>
Subj:  RE: A new religion and custody case
Date:  Sun Jan 6, 2008 6:02 pm
Size:  2K
To:  "'Law & Religion issues for Law Academics'" <religionlaw at lists.ucla.edu>

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-bounce