Shielding child whose mother is Catholic from father's Wiccan lifestyle?

Conkle, Daniel O. conkle at indiana.edu
Thu Jan 24 05:19:05 PST 2008


Ordinarily, the government, including judges, properly has little or no say in parental decisionmaking, lifestyle choices, etc., even if those parental choices or activities might not (in the view of the government, including judges) be in the best interests of the child.  It seems to me that the difficulty in the particular context of custody and visitation is that the government, through judges, necessarily involves itself in these matters.  The question then is whether or to what extent the religious aspects or elements of particular parental choices or activities should render them immune from the "best interest" evaluation that otherwise would be applicable in this specific corner of the law.

I think Carl Schneider has written helpfully on these questions.

Dan Conkle
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Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Thursday, January 24, 2008 7:53 AM
To: Law & Religion issues for Law Academics
Subject: Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle?

Shouldn't the issue be framed as whether the judge is granting greater solicitude to religious aspects of the child's upbringing than to non-religious ones of comparable influence? If the father had suddenly developed an extreme interest in, say, raucous rock concerts (weird people, drums, dancing), contrary to the household ambiance when the parents were married, would an order such as this seem so exceptional?

I think in a lot of these cases, where post-divorce one parent undergoes a lifestyle transformation (in either direction--harking back to the original case of the father who became ultra-Orthodox or the mother who recanted orthodoxy), the court is saving the parent from him- or herself by limiting the child's exposure while the child could develop a strong aversion to the wayward parent. Older children, of course, are well-versed in rolling their eyeballs at their parents' idiosyncrasies (though I wonder if that too is a feint).

Vance

On Jan 23, 2008 7:14 PM, Ed Brayton <stcynic at crystalauto.com<mailto:stcynic at crystalauto.com>> wrote:
The more I dig into cases similar to this the more I think that judges
should not be allowed to consider religion at all. It's just too ripe for
abuse, too open for a judge to be prejudiced against one party to the case
because of their religion or (more commonly) their lack of it. I am
astonished at the fact that appeals courts have refused to overturn such
rulings even when they've been outrageously wrong.

Ed Brayton

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu>
[mailto: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu>] On Behalf Of Volokh, Eugene
Sent: Wednesday, January 23, 2008 4:22 PM
To: Law & Religion issues for Law Academics
Subject: Shielding child whose mother is Catholic from father's Wiccan
lifestyle?

       A recent New York state appellate court decision upheld a father's
petition for overnight visitation, but stressed that this was done only
because the father and his fiancee "agreed to refrain from exposing the
child to any ceremony connected to their religious practices," and because
the Family Court could mandate, in the visitation order, "protections
against her exposure to any aspect of the lifestyle of the father and his
fiancée which could confuse the child's faith formation."

       I tracked down the trial court decision, and it turns out the
father's and his fiancée's "lifestyle" and "religious practices" were
Wiccan.  The trial court concluded that the child (age 10 at the time of the
appellate court's decision) "is too young to understand that different
lifestyles or religions are not necessarily worse than what she is
accustomed to; they are merely different.  For her, at her age, different
equates to frightening.  So when her father and her father's fiancé[e] take
her to a bonfire to celebrate a Solstice, and she hears drums beating and
observes people dancing, she becomes upset and scared."  There was no
further discussion in the trial court order of any more serious harm to the
child, though of course there's always the change that some evidence was
introduced at trial but wasn't relied on in the order.

       Given this, should it be permissible for a court to protect the
child from becoming "upset and scared" by ordering that a parent not
"expos[e the child] to any aspect of [the parent's] lifestyle ... which
could confuse the child's faith formation"?

       Eugene
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--
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com<mailto:vrkoven at world.std.com>
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