Shielding child whose mother is A from father's B lifestyle/ideology/religion?

Vance R. Koven vrkoven at
Thu Jan 24 12:43:52 PST 2008

As always, Eugene finds the telling counter-example.

I would argue (just a little shamefacedly) that in America race is almost
always a special case that requires the utmost delicacy in scrutiny. The
14th amendment constrains to some extent what state court judges can do
through their orders, and fostering discrimination against racial minorities
is something states may not generally do (assuming that issuing such an
order fosters discrimination). However, since the criterion in question is
injury to the child, if the consensus of psychological evidence is that
exposure to a multi-racial environment through unmediated contact with a
non-custodial parent will cause psychological injury, then that may be a
countervailing consideration of such compelling force that might justify
some measure of restriction.

At a practical level, of course, what parent would come out in open court
and say "we're racists here, you can't let my child consort with other

Opening the door that little crack does, naturally, give every other
lifestyle interest group a chance to argue that their case is just like
race. It's a temptation worth resisting, though, if we really care about the
psychological well-being of small children *in those rare cases* where
injury might result. The fact that the social viewpoints that custodial
parents are trying to vindicate are so often religious in origin actually
does help resolving the matter, because religion is protected activity
almost irrespective of the content of its beliefs (there seems to be a de
facto exception for Christian Scientists). When this is added to the
psychological factors, the balance may tip sooner in the custodial parent's

All this said, I still don't think that religiosity *as such* is the
principal point; the child's psyche is the principal point and courts should
evaluate claims strictly on that basis.

On Jan 24, 2008 12:59 PM, Volokh, Eugene <VOLOKH at> wrote:

>      Vance's proposed approach has the merit of being, at least facially,
> viewpoint-neutral; and I take it that it would apply to all ideologies,
> religious or otherwise.  But let me probe whether it is indeed so.
>     Say, for instance, a child has been raised in a racist household.
> After the breakup, the custodial parent remains racist.  But the
> noncustodial parent changes his views, and starts telling children that
> people of other races are OK, and even exposes the child to the noncustodial
> parent's friends of another race.  This makes the child "upset and scared"
> (the only findings of "harm" that I saw in the order, so we're not talking
> about extremely serious psychological upset).
>     Under Vance's approach, I take it the court could order the
> noncustodial parent not to "expos[e the child] to any aspect of the
> lifestyle of the [noncustodial parent] which could confuse the child's moral
> and ideological formation," which is to say to the noncustodial parent's
> racially egalitarian views and lifestyle.  Likewise if the noncustodial
> parent is more open to sexual egalitarianism, religious tolerance, or
> tolerance of gays and lesbians than the custodial parent.  Is that right?
> And if in that situation the court would say "Oh, no, of course you can't
> order a parent to stop exposing the child to such good, helpful-to-the-child
> views," then doesn't that mean the standard below actually is
> viewpoint-based after all?
>     Eugene
>  ------------------------------
>  *From:* religionlaw-bounces at [mailto:
> religionlaw-bounces at] *On Behalf Of *Vance R. Koven
> *Sent:* Thursday, January 24, 2008 8:52 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Shielding child whose mother is Catholic from father's
> Wiccanlifestyle?
>  I think Steve's message illustrates exactly the point. What's in the best
> interests of *the* child is a matter to be decided with reference to the
> particular child in question and to his/her family's unique circumstances.
> It is not a matter for ideology.
> If a child is raised in a household in which differences are extolled and
> exhibited, then being exposed to them post-divorce doesn't in itself seem
> likely to harm the child. But where a family has adhered to a particular
> framework, and that framework is suddenly jolted, not only by the divorce
> but by radical changes in what had been viewed as a fundamental aspect of
> child-rearing, then it seems perfectly consistent with the legal standard,
> psychology and the still largely accepted role of the family, for a judge to
> ascertain whether harm is likely to occur, and take reasonable actions to
> prevent harm.
> Imposing a Unitarian world view on, say, a Pentecostal child who had
> consistently been reared that way, while it may seem to Steve like a "good
> thing," would be the worst kind of judicial bullying, as would an order for
> a child raised in a Unitarian household to be sent off to Catholic school,
> where in each case the judge reasonably concluded that this would create a
> cognitive dissonance that could adversely affect the child's emotional
> stability.
> Vance
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Vance R. Koven
Boston, MA USA
vrkoven at
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