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

Thu Jan 24 10:00:06 PST 2008

I could not agree more with Steve Jamar on this. The assumption that being
exposed to different ideas is a bad thing is simply wrong. I know this from
my own experience, having been raised by a Pentecostal and an atheist (who
are still married after many decades). A judge making a custody decision
might well have looked at that and awarded custody to my mother to avoid
having me “confused” and that would have been  very bad thing indeed (there
was no custody battle, we could live with whichever parent we chose and
could change our mind at any time, and I chose to live with my father, who
remarried to my Pentecostal stepmother). Not only was it not unhealthy to be
raised in that allegedly confusing environment, I think it was a key to the
development of traits I consider immensely valuable. 

And the real problem here, as always, is just how prone this kind of thing
is to bias toward religion. Imagine a circumstance where a couple has raised
a child without any religion or church attendance, but in the course of the
divorce one of them has become a religious convert and wants to take their
child to church with them. In case after case where the circumstances are
the opposite, where the child has gone to church during the marriage but one
parent is not religious and does not intend to take them to church, judges
will consider this a strong point in favor of the religious parent getting
custody on the grounds that it will continue his previous religious
upbringing. But in this situation, where the previous upbringing was not
religious, it is highly unlikely that a judge would consider this a point
against the religious parent. Having now looked up an enormous number of
these cases, it is obvious to me that the bias is nearly always in favor of
religion and the pretenses on which that is based are applied in a highly
selective manner to reach that outcome. 

Ed Brayton

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, January 24, 2008 9:33 AM
To: Law & Religion issues for Law Academics
Subject: Re: Shielding child whose mother is Catholic from father's Wiccan
lifestyle?

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:
<mailto:religionlaw-bounces at lists.ucla.edu>
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: <mailto:religionlaw-bounces at lists.ucla.edu>
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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-- 
Prof. Steven Jamar
Howard University School of Law 

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