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

Thu Jan 24 09:24:29 PST 2008

Deciding to expose children to a variety of religious "options" is
inevitably preconditioned by a value judgment about the source of truth.
This is to say that placing the content of different religions on an equal
level, as the decision to expose children to them in this manner more or
less explicitly entails, is just as much a point of affirmative religious
dogma as any other point expressed within a single religious tradition; both
are evaluations of truth.  Thus deciding that it is wrong to determine
religious truth for a child is just as much a determination about the
character of that truth as what the first decision says is wrong.

In that sense judges forced to decide what to do for a child in
circumstances like those posited in this thread are in a double bind.  If
they affirmatively regard the contents of the religions as they affect the
child they are implicitly making a value judgment about the content of the
religions.  But also if they affirmatively dis-regard those contents they
are implicitly making a value judgment just the same, though of a slightly
different nature.

Vance Koven's post appears to recognize this and finds a solution in a
"whoever gets there first" principle.  Whatever the child was before he or
she found himself in court should become the criterion for determining what
should happen afterward; whatever scheme of truth the child was raised in
first will be the standard for the best interests of the child.  This looks
like a reasonable solution to me.

David Waddilove

Adjunct Professor, William H. Bowen School of Law,

University of Arkansas at Little Rock

On Jan 24, 2008 8:32 AM, Steven Jamar <stevenjamar at gmail.com> wrote:

> I'm quite troubled by the idea that children are developmentally harmed by
> exposure to more than one idea, religious or otherwise.  And that a judge
> can decide that only one religion is not harmful, and decide which one.
>
> How about -- step parents -- that is confusing.  Or remaining single. That
> is confusing.  Or sexual orientation.  Or one is an environmentalist
> minimalist and the other a hummer -level  consumerist.
>
> Would it be the same if one was a catholic and the other episcopalian? or
> two sects of judaism?  or two brands of evangelical christian? or mormon and
> 7th day adventist?
>
> Barring a child from knowing a parent strikes me as not in the best
> interest of the child.
>
> As with anything else, there are, of course, limits -- but merely
> practicing a garden-variety of paganism or wiccan hardly seems dangerous to
> the mental health of anyone.
>
> In our Unitarian Universalist congregation we explicitly teach the kids
> about alternative views and beliefs and emphasize the individual and
> collective search.  I guess we are harming all of our kids and they should
> be taken away from us by child protective services!
>
> No.  This one goes too far.
>
> Steve
>
>
> On Jan 24, 2008 7:18 AM, Conkle, Daniel O. <conkle at indiana.edu> wrote:
>
> >  Maybe I wasn't clear.  I wasn't suggesting how these cases should be
> > decided, but only attempting to highlight what I think to be the underlying
> > issue or problem.  (Maybe my point was so obvious that it could have gone
> > without saying.)
> >
> > I haven't studied this particular area with care, but I'm inclined to
> > agree with what Vance writes in most recent posting.
> >
> > Dan Conkle
> >
> >  ------------------------------
> >  *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 8:44 AM
> >
> > *To:* Law & Religion issues for Law Academics
> > *Subject:* Re: Shielding child whose mother is Catholic from father's
> > Wiccan lifestyle?
> >
> >   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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> > > >
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> > > > _______________________________________________
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> > > >
> > >
> > >
> > >
> > > --
> > > Vance R. Koven
> > > Boston, MA USA
> > > vrkoven at world.std.com
> > >
> > > _______________________________________________
> > > 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
> > >
> > > 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.
> > >
> >
> >
> >
> > --
> > Vance R. Koven
> > Boston, MA USA
> > vrkoven at world.std.com
> >
> > _______________________________________________
> > 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
> >
> > Please note that messages sent to this large list cannot be viewed as
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> > posted; people can read the Web archives; and list members can (rightly or
> > wrongly) forward the messages to others.
> >
>
>
>
> --
> Prof. Steven Jamar
> Howard University School of Law
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
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