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

Newsom Michael mnewsom at
Thu Jan 24 15:18:31 PST 2008

Marty puts the matter in the right analytical framework.  

Arrangements regarding important child rearing issues are made, where
the family is intact, by the parents (typically) and the parents are
free, within fairly broad limits to be as "unreasonable" as they wish to
be.  They are constrained by few to no legal rules or standards in
deciding how to present (or not to present) "difference" to their

When the family unit is no longer intact, because of divorce (more
precisely, because of the entry of a decree of divorce), the state acts
in loco parentis.  And here is where the problem lies.  The typical
answer is the impossibly vague "best interests of the child" standard.
But conceptually, the problem is virtually incapable of defensible
solution.  Parents are entitled to be "unreasonable" precisely because
of considerations of autonomy and privacy, neither of which makes much
sense when applied to the state acting in loco parentis: hence something
unmanageable, like "best interests of the child."

I think that many family court judges are trying -- to one degree or
another -- to act like "reasonable" parents.  Of course they fail
miserably at that endeavor time and time again because, at least in
part, it is not clear that anybody knows what a "reasonable" parent is.
But the stubborn fact remains that few are likely to defend the notion
that the state, acting in loco parentis, can be "unreasonable."

I recall a report that I ran across a couple of years ago that
contrasted child raising practices of upper income professionals and low
to middle income working class members.  The differences were like night
and day.  This is not the place to debate the relative merits of the
different approaches that the report highlighted, but it is the place to
note that deciding which approach is best, or most "reasonable"
ultimately turns on a series of value judgments which are, I think,
highly contestable.

I am sure that there is a place in all of this for careful consideration
of constitutional norms, but I must confess that I am not sure whether
nice judgments about those norms tell us much about "reasonable"
parenting, and I think that, in the final analysis, we are stuck with
debates about "reasonable" parenting, debates which may be both futile
and unedifying.  I disagree with Marty, I think, on the salience of the
EC in thinking through or trying to construct a defensible notion of the
"reasonable" parent -- the state acting in loco parentis.  There are
situations where the state gets to advance religion, or particular
religions, is ways that, on the surface would appear to violate the EC:
the military, the prison system, and other institutions where the state
functions like a parent given the control that the state has over
military personnel, prisoners, and other "institutionalized" persons.
These are cases where it could be said that the state is acting in loco

Two final points:

Children who were raised by "unreasonable" parents may have a dickens of
a time adjusting to "reasonable" parents.  (The reverse is also
something to worry about, even if no solutions easily come to mind.)

One could say a lot about the institution of divorce, but it suffices to
note that divorce is, probably, unsettling, if not traumatic, for both
parents and children, in ways that we perhaps can never fully come to

-----Original Message-----
From: religionlaw-bounces at
[mailto:religionlaw-bounces at] On Behalf Of
marty.lederman at
Sent: Thursday, January 24, 2008 5:06 PM
To: Law & Religion issues for Law Academics; Law & Religion issues for
Law Academics
Cc: Volokh, Eugene
Subject: Re: Shielding child whose mother is A from father's

I don't think Eugene's test case helps us see the problem clearly in
these religion 
disputes.  In deciding the "best interests of the child," it is
inevitable that a court will eventually be required to evaluate the
to which the child will be exposed -- a philosophy that can be conveyed
words or deeds.  I forget how Eugene's article came out on this, but I
tend not 
to think there's much of a free speech problem here:  It's not a penalty
the disfavored parent so much as it is the state acting in a sort of
patriae context, making the child a ward of the state in a sense for
purposes of 
the custody decision.  The state is permitted to itself teach the child
prefer certain viewpoints -- such as that racism is bad -- and is
permitted to favor certain "viewpoints" to which the child will be
exposed, as a 
virtual necessity of deciding what is "best" for the child.  It would be
almost perverse not to consider what the child will be taught, and
exposed to, in making such a determination.  (Think of our own 
children:  yes, of course we care for their material well-being; but
most of us are fortunate enough to be able to spend much more time
worrying about the values and beliefs, and modes of thinking, that our
will develop -- and that's a central component of what we think about
when we 
consider their "best interests.")

In any event, such viewpoint discrimination is virtually inevitable in
these decisions, no matter 
how much it might be difficult to square with formal free speech
We can assume, at the very least, that viewpoint neutrality would never
be enforced in this 
area -- or not in any robust way, anyway.

*Even so* -- indeed, even if viewpoint discrimination is entirely
legitimate in 
such decisions -- the Establishment Clause categorically prohibits the
from evaluating whether the child would be better or worse off learning
learning to reject) certain religious truths.  That's simply not a
subject on which the 
state can take any view whatsoever (for various reasons, including
The state can strongly espouse the view that it's bad for children to be
to racism; but it can't take the view that children would be better off
going to 
church or believing in God.

Or, at the very least, the EC problem is a serious and distinct one,
one thinks about the broader free speech problem.  Thus, if Ed is right
that in these cases 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, it's a serious EC problem, even if there's
no (remediable) free speech violation.

Original message ----------------------
From: "Volokh, Eugene" <VOLOKH at>
>     Vance's proposed approach has the merit of being, at least
> viewpoint-neutral; and I take it that it would apply to all
> 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
> 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
> 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
> Is that right?  And if in that situation the court would say "Oh, no,
> course you can't order a parent to stop exposing the child to such
> 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.
> 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
> in itself seem likely to harm the child. But where a family has
> 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
> fundamental aspect of child-rearing, then it seems perfectly
> with the legal standard, psychology and the still largely accepted
> of the family, for a judge to ascertain whether harm is likely to
> 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
> "good thing," would be the worst kind of judicial bullying, as would
> order for a child raised in a Unitarian household to be sent off to
> Catholic school, where in each case the judge reasonably concluded
> this would create a cognitive dissonance that could adversely affect
> child's emotional stability. 
> 	Vance

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