Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes

Fri Apr 20 13:39:45 PDT 2012

                I take it that any attempt to force someone to marry at 13 would be a serious felony in all states; indeed, the column doesn't allege anything like that, and the one Satmar woman whose age was mentioned in the column (the author) was 19 when she married.

Rather, the question raised by any proposed legal weight against stability in "an extremist religion" - as applied to the NJ.com column -- is what the legal system should do when there's a culture that teaches children viewpoints about legal behavior that the majority sees as harmful to the young adults whom the children will become, and then reinforces this teaching through social pressure on adults.  (There's a related question that arises when the culture teaches viewpoints about the propriety of possible illegal behavior in the future, such as of civil disobedience by adults, or violent jihad as adults.)  Should the legal system conclude that such teachings are harmful to the child, and thus consider the viewpoints of parental teachings in custody decisions - or even (if this is really analogous to education and health) constrain parental teachings within intact families?  I don't think that analogies to forced marriages at age 13 are particularly illuminating as to that question.

                Eugene

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of hamilton02 at aol.com
Sent: Friday, April 20, 2012 1:03 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes

The alternative is to focus on what is in the best interests of the child, e.g., education, health.  Not being forced to
get married at 13 and have children...

Marci

The religious status quo could also be a non-observant or explicitly atheistic

or agnostic household, which would also have to be respected under the rule that

Eugene supports. The alternative is for the courts to determine which religions

are "extremist," a questionable role for the judiciary.

Richard T. Foltin

Director of National and Legislative Affairs

Office of Government and International Affairs

p: 202-785-5463,  f: 202-659-9896

foltinr at ajc.org<mailto:foltinr at ajc.org>

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilton02 at aol.com<mailto:hamilton02 at aol.com>

-----Original Message-----
From: Richard Foltin <foltinr at ajc.org<mailto:foltinr at ajc.org>>
To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu<mailto:religionlaw at lists.ucla.edu>>
Sent: Fri, Apr 20, 2012 8:32 am
Subject: RE: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes

The religious status quo could also be a non-observant or explicitly atheistic

or agnostic household, which would also have to be respected under the rule that

Eugene supports. The alternative is for the courts to determine which religions

are "extremist," a questionable role for the judiciary.

Richard T. Foltin

Director of National and Legislative Affairs

Office of Government and International Affairs

p: 202-785-5463,  f: 202-659-9896

foltinr at ajc.org<mailto:foltinr at ajc.org>

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-----Original Message-----

From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu?>]

On Behalf Of Marci Hamilton

Sent: Friday, April 20, 2012 9:24 AM

To: Law & Religion issues for Law Academics

Cc: Law & Religion issues for Law Academics

Subject: Re: Mothers leaving ultra-religious groups, and religious upbringing as

a factor in custody disputes

I don't think it is a difficult question but disagree that the rule is sound.

The standard should be the best interest of the child.  Stability in an

extremist religion is often not in the child's best interest, especially if the

child is a girl.

For example, the FLDS.  The best interest of the child can also trump mainstream

religions depending on the facts of the case.  The focus must be the child.

This sort of assumption that religious status quo is a social good is an

unconstitutional preference for religion.

This is a good example of when the application of a neutral generally applicable

principle can serve the greater good more directly than a religious preference.

Marci

Marci A. Hamilton

Paul R. Verkuil Chair in Public Law

Benjamin N. Cardozo School of Law

Yeshiva University

New York, NY 10003

On Apr 20, 2012, at 9:09 AM, "Volokh, Eugene" <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:

> There's an interesting op-ed at http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html

that faults the child custody law preference for stability of religious

upbringing:  When women leave arranged marriages in the ultra-Orthodox Jewish

community -- and leave ultra-Orthodoxy more general -- they may sometimes lose

custody of their children on the grounds that the person who remains within the

community is more able to provide stability of religious upbringing.

>

> I'm inclined to say that this rule (which of course could equally apply to

fathers who leave a religious community as well, though I don't know how

relatively frequent such departures are) is a sound one, for children who are

old enough to have some experience with the religion and thus some stake in

stability of religious upbringing.  To be sure, the rule does create some

pressure against departing the faith, since often someone who leaves the group

can no longer raise the children in the same religious environment even if she's

willing to, because the group might no longer accept her; but this seems in this

situation to be an acceptable and denominationally neutral rule (especially if

it is equally applied to a parent who moves into a ultra-religious community

which disrupts the stability of the children's nonreligious, or only mildly

religious, upbringing).  But I still thought I'd mention the op-ed, in case

people think it's a difficult and interesting question.

>

> Eugene

>

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