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

[Volokh, Eugene]

	Well, I like to think that the key question here isn't whether
one is a lawyer or an academic, but rather the strength of one's
arguments and the backing they have in caselaw.  As it happens, many
courts have held that a party's constitutional rights will sometimes
stop a court from acting based on a mere "best interests of the child"
standard, which is to say that even a decision that a court thinks is in
the "best interests of the child" may sometimes be impermissible if it
violates a parent's constitutional rights.  For examples, see:

	1.  The Equal Protection Clause blocking application of a
best-interests-of-the-child standard in a situation where a court
considered a parent's interracial relationship as part of the inquiry:
Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

	2.  The Free Exercise Clause blocking application of a
best-interests-of-the-child standard as to orders based on a court's
judgment that a noncustodial parent's teaching a child religious views
contrary to the custodial parent's is against the child's best
interests:  E.g., Zummo v. Zummo, 574 A.2d 1130, 1140 (Pa. Super. Ct.
1990), plus many other cases (though there are also contrary cases from
state courts).

	3.  Substantive due process parental rights principles blocking
application of a best-interests-of-the-child standard as to certain
kinds of grants of third-party (including grandparent) visitation, even
when the lower court concludes that such visitation is in the child's
best interests:  Troxel v. Granville, plus many lower court decisions
that go even further in this direction that does Troxel.

	Naturally, if the parents' actions are so egregious as to make
them unfit parents, the situation may be different; likewise if the
parents' actions are found to be likely to cause imminent serious
psychological or physical harm to the children.  But no such findings
were made, to my knowledge, in the case that prompted this thread.  The
only question there is whether a judge's findings as to a child's best
interests is enough to trump all constitutional claims, or whether
constitutional claims may in some situations (such as this one,
involving religious speech) bar even some orders that are supposedly in
the child's best interests.  It's pretty clear that some courts have
taken the latter view, though others have taken the former.

	I cite many of these cases (among many other arguments) at
http://www.law.nyu.edu/journals/lawreview/issues/vol81/no2/NYU203.pdf;
but the important thing for purposes of this thread is that some courts
are indeed quite willing -- as, in my view, they should be -- to
conclude that the "best interests of the child" standard does *not*
trump all constitutional claims.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Susan Freiman
> Sent: Monday, January 28, 2008 2:41 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Shielding child whose mother is A from father's 
> B lifestyle/ideology/religion?
> 
> For sure I'm not going to slap you down.
> 
> What I understand from the discussion here is that 
> Constitutional issues trump the child's welfare, but that 
> can't be right.  Or am I responding as a lawyer who has 
> handled custody cases, and that's different from the approach 
> of academic scholars of the Constitution?
> 
> Susan
> 
> Will Linden wrote:
> > At 03:27 PM 1/24/08 -0600, you wrote:
> >   I know I will probably be slapped down on the ground that 
> it is not 
> > a legal consideration, but isn't judges deciding what will 
> "confuse" 
> > the poor dears, well, patronizing? I had problems with my parents' 
> > pseudo-solution to interfaith issues, but I am sure I would have 
> > resented a court telling me whether I was confused or not.
> >
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> 
> 
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