Shielding child whose mother is Catholic from father'sWiccanlifestyle?

Volokh, Eugene VOLOKH at law.ucla.edu
Thu Jan 24 13:15:12 PST 2008


    Enforcing the parties' express agreement is one thing (cf. Cohen v.
Cowles Media in the free speech context).  But restricting the speech of
a parent -- whether religious or political -- without an express
agreement is quite another.
 
    Also, if the rule applied by the New York court was that the speech
can be restricted if there's "trauma" in the sense of some serious
psychological damage, I could understand that (though, as I've written,
http://www.law.nyu.edu/journals/lawreview/issues/vol81/no2/NYU203.pdf,
PDF pp. 69-73, that has its own problems).  But here the court was
acting simply based on a conclusion that the speech caused the child to
become "upset and scared," which might refer to something considerably
less than serious "trauma."
 
    Eugene


________________________________

	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 1:03 PM
	To: Law & Religion issues for Law Academics
	Subject: Re: Shielding child whose mother is Catholic from
father'sWiccanlifestyle?
	
	
	In a situation where the child has *already* been exposed to
differences in outlook between the two parents (as in Ed's personal
example or in Alan's), then it seems highly unlikely that anyone could
show psychological injury by the child's continuing to be so exposed
following a divorce. 
	
	Nobody here seemed to take great exception to the New York case
cited earlier that required a "lapsed" mother to continue raising her
child in orthodox Judaism. She and her husband had agreed on this before
the divorce, and the evidence showed it was the child's strong
preference. Suppose the mother hadn't just lapsed, but had a "Road to
Damascus" conversion and was now an evangelical Christian. I don't think
that would change the result in the case. If the mother really wanted
the child to attend Christian worship, and the child balked or started
wetting the bed or gave other evidence of trauma, I doubt a court
would--or should--have any hesitation in ordering her not to do it. 
	
	In these cases, with such constraints in place, it becomes the
constrained parent's responsibility to maintain the kind of relationship
with the child that will not traumatize the child. Is there a Jewish or
Christian or Wiccan way to ride a Ferris wheel? This doesn't seem to be
such a hard thing to grasp, though I have no doubt such things are
beyond the ken of many a person. 
	
	
	On Jan 24, 2008 1:12 PM, Brownstein, Alan
<aebrownstein at ucdavis.edu> wrote:
	

		I have no clear answer to this problem - but I think
part of what is troubling to me about the potential scope of these
constraints on visitation orders is that they may make it difficult for
the child to have any meaningful relationship with one parent. A devout
individual may make his or her religious practices a regular part of
life. Could the court prohibit one parent from saying a prayer before a
meal if the child was present? If a Christian parent wants the child to
be home on Sunday (to attend Church and to observe the Sabbath) and the
other parent is an observant Jew so that if the child visited that
parent on Saturday the child would necessarily be exposed to Jewish
religious practices, how should a court resolve that tension. Would it
be appropriate for the court to rule that only one parent could ever be
with the child on weekends?

		 

		Alan Brownstein 

		 

		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 8:52 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 world.std.com 

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