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

[Vance R. Koven]

I'm a bit confused by Prof. Conkle's last sentence. The judges have been
explicitly ruling based on the "best interests" standard, which is the only
one they are permitted to apply. The question is not whether religion should
be exempt from the standard, but whether religion should be a favored or
disfavored component of it. In the case Eugene brought up, it seems that the
judge was very explicitly evaluating the impact of the father's religious
conversion on the child's personality formation, which is quite appropriate.
That such evaluations can serve as a subterfuge for a judge's personal
predilections is certainly a danger that should be guarded against, but not
at the cost of removing religious factors entirely from the evaluation; they
should be part of the consideration, to the same extent as anything else
that might affect the welfare of the child.

On Jan 24, 2008 8:19 AM, Conkle, Daniel O. <conkle at indiana.edu> wrote:

>  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
> *******************************************
> 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
> *******************************************
>
>
>  ------------------------------
> *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> 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] 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
>
> _______________________________________________
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-- 
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
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