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

Thu Jan 24 13:22:47 PST 2008

I appreciate Vance's kind words, and the response.  But I'm not sure it
quite works:

1.  Can it really be that the First Amendment rule is "no viewpoint
discrimination in custody decisions, except that viewpoint
discrimination is OK against racist parents"?  The Court has not
accepted "race is almost always a special case" where it comes to free
speech, I think.

2.  But let's even set aside race.  Say the custodial parent is teaching
the child sexist views about women, or views hostile to certain
religions, or views sharply condemning homosexuality.  The noncustodial
parent exposes the child to views in favor of sexual equality, religious
tolerance, and gay rights.  The child ends up "upset and scared" by this
tension.  Should the court then bar the noncustodial parent from
exposing the child to these egalitarian or tolerant views?  (After all,
they don't involve the "special case" of race.)  If the answer is no,
and the noncustodial parent should be free to teach the child this way,
then haven't we admitted that the proposal isn't viewpoint-neutral after
all.

3.  Now if the restrictions only came into play with some showing of
imminent "psychological injury" -- as some courts have done with regard
to contrary religious teachings -- that would be one thing (though, as I
noted in an earlier e-mail, there are problems even with that).  But
nothing in this order suggests that the judge found a risk of
"psychological injury," or saw it as necessary that he make such a
finding.  All he said was that the child was "upset and scared" --
something that all children will be at some point or another in their
childhoods, and that need not always be psychologically injurious.
(Many a child might, for instance, be "upset and scared" by being told
about a grandparent's or family friend's death, or by being exposed,
even at age 10 -- the child's age involved here -- even to
age-appropriate discussions of crimes and atrocities; but such upset and
fear need not yield lasting harm, and they may even be an important part
of one's learning.)

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 12:44 PM
	To: Law & Religion issues for Law Academics
	Subject: Re: Shielding child whose mother is A from father's
Blifestyle/ideology/religion?

	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 races"?

	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 favor. 

	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 law.ucla.edu>
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 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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