A new religion and custody case

Sun Jan 6 20:31:32 PST 2008

  No. The court cannot prefer the religious parent because the court
thinks religion is a good think. If I was not clear about that, the
defect was in my prose and not in my view of substance.

  I also take David Saperstein's point:  continuity can be in the
best interest of the child, especially when the child is old enough
to have knowledge and preferences.  But for any pair of views about
religion, a change in either direction is a break in continuity. The
judicial preference would be for continuity, or for the child's own
views, not for either of the pair of religious views.

  Quoting Ed Brayton <stcynic at crystalauto.com>:

> 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[1]
>>>
>>>
>>>
>>> Ed Brayton
>>>
>>> _______________________________________________
>>> To post, send message to Religionlaw at lists.ucla.edu
>>> To subscribe, unsubscribe, change options, or get password, see
>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[2]
>>>
>>> Please note that messages sent to this large list cannot be
viewed as
>>> private.  Anyone can subscribe to the list and read messages that
are
>>> posted; people can read the Web archives; and list members can
>>> (rightly or wrongly) forward the messages to others.
>>>
>>>
>>>
>>
>>
>> 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
>
>

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:
------
[1] 
/horde/services/go.php?url=http%3A%2F%2Fwww.wlky.com%2Fnews%2F14981101%2Fdetail.html
[2] 
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20080106/767726df/attachment.htm 