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

[Volokh, Eugene]

	Actually, the New York appellate court approved 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."  So the appellate court's view was not just that the child could be protected from "visual/aural stimuli" that would make her "upset and scared," but from anything that "could confuse the child's faith formation."

	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 1:44 PM
	To: Law & Religion issues for Law Academics
	Subject: Re: Shielding child whose mother is A from father's B lifestyle/ideology/religion?
	
	
	I agree with the distinction, and I agree that a judge should base a decision on more than generalized hypothetical injury. However, where there is credible evidence of a serious risk of injury, which survives rebuttal, that to me justifies some level of restriction, even on a conventional free-speech analysis. 
	
	However, the father's speech is not being totally restricted, it is only certain aspects of religious practice that were restricted. The father was not, if I recall, prevented from discussing Wicca or its beliefs; and it was the visual/aural stimuli that seemed to cause the child problems. Thus, this would be much more like a TPM restriction in the interest of the highly impressionable child. The state has *lots* more leeway in restricting speech to which children are exposed than it has with respect to older adolescents and adults. 
	
	
	On Jan 24, 2008 4:27 PM, Judith Baer <JBAER at politics.tamu.edu> wrote:
	

		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"?
		
		(Vance Koven)
		 
		No, but the present case reminds me of Palmore v. Sidoti. The father argued for, and initially got, custody on the grounds that his daughter would be subject to social stigmativation because she lived in an interracial household. This judge has justified his ruling by pointing to the child's fear of certain Wiccan practices. Actually, the present argument is the stronger, since the child has exhibited fear, whereas Melanie Sidoti's "stigmatization" was hypothetical.
		 
		Judy Baer

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	-- 
	Vance R. Koven
	Boston, MA USA
	vrkoven at world.std.com