The Volokh Conspiracy

Impermissible, holds Maxwell v. Maxwell (Ky. Ct. App. Oct. 19, 2012):

[W]e now turn to the family court’s decision to award Robert sole custody. We begin by addressing Angela’s contention that the court erred by considering factors unrelated to the best interests of the children. The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children. The family court states in its order:

The Respondent is seeking to live an unconventional life-style that has not been fully embraced by society at large regardless of whether or not same-sex relationships should or should not be considered sexual misconduct. Like it or not, this decision will impact her children in ways that she may not have fully considered and most will be unfavorable.

First, we observe that under the statutory mandate of KRS 403.270(2), the court is required to determine custody based on the best interests of the child by considering the factors discussed previously herein.... The statute’s next section states that “[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.” KRS 403.270(3). Therefore, Kentucky’s custody statute is designed to focus on conduct that disturbs the interaction between the parent and child. Here, the family court’s decision relies heavily on Angela’s same-sex relationship as problematic without demonstrating that the children were harmed or that their relationship with Angela was harmed. In fact, the evidence suggested that the children were adjusting quite well if not thriving. Thus, under KRS 403.270(2), the court is to consider all relevant factors; however, KRS 403.270(3) does not allow sexual orientation to be a determining factor unless there is a direct negative impact on the children....

[N]ot allowing a parent to have custody of a child because of a threat of private discrimination violates the due process and equal protection clauses of the federal and state constitutions. Although sexual preference has not enjoyed federal constitutional protection under the due process clause, the United States Supreme Court has said in other contexts that homosexuals may not be singled out for disparate treatment. Romer v. Evans, 517 U.S. 620 (1996). We believe that the court’s determination that because Angela is in a same-sex relationship, it is sexual misconduct is not only incorrect but also singles her out for disparate treatment. Further, the United States Supreme Court held in Palmore v. Sidoti, 466 U.S. 429 (1984), in a case involving interracial marriage that custody cannot be denied based on the private biases of others. Hence, characteristics such as race, religion, or sexual identity provide no basis for generalized court concern. Finally, in Vinson v. Sorrell, 136 S.W.3d 465 (Ky.2004), the Court said that “[p]arents of a child have a fundamental, basic and constitutional right to raise, care for, and control their own children.” Thus, it is a violation of Angela’s due process, equal protection, and fundamental right to parent her children using only her sexual orientation as a determinative factor....

The only issue specifically mentioned by the family court, which was related to future harm to the children, is that the children might be teased about their mother’s same-sex relationship and that it might cause difficulty with the parents’ communication. If the children are subject to teasing, it will likely occur whether their mother has custody or not. The harm from removing them from a positive and loving relationship with their mother seems much more consequential. As far as communication problems, most divorcing couples with children must learn after a breakup to communicate properly and deal with conflict. Angela’s sexual orientation does not seem causative or primary to these parents’ difficulties with communication. In sum, the evidence indicated that the children are thriving and that the present arrangement for physical custody of them has not hampered the parents communicating about the children’s schooling, extracurricular activities, health matters or vacations. Harm to these children must have an evidentiary basis and cannot be assumed. Here, harm has not been shown....

Finally, we deal with Angela’s argument that the family court abused its discretion by restricting the parties from cohabitating with a person that he or she is not married to during parenting time. Because we are remanding this case to the family court, the prohibition on non-family members spending the night should be retried on remand. This retrial must be done with the understanding that the cohabitation of any party, while a factor, is not dispositive on its own. It must be ascertained with the children’s best interests in mind. Clearly, changes in moral standards and the inability of same-sex couples to legally marry are also relevant. Consequently, the family court must determine the efficacy of the prohibition based on the best interests of the children.

An interesting case, S.B. v. W.A. (N.Y. trial court Sept. 26, 2012). A quick and oversimplified summary:

1. In 1998, S.B., an American professional woman, married W.A., an Egyptian immigrant who eventually became an architect. They lived until 2006 in America, where their two children were born. They then moved to the United Arab Emirates, where W.A. had gotten a new job.

2. In 2009, S.B. accused W.A. of attacking her, inflicting “severe bruises and a fractured skull.” As a result, W.A. was convicted of assault in the UAE, on the grounds that he had (according to the UAE court) crossed his legal limits to discipline his wife. “The defendant never denied using physical force against the plaintiff, but defended the charges claiming he had the right to use physical means to discipline his wife and that her injuries were not as severe as she claimed.”

The assault formed the grounds for S.B. to divorce W.A., also in the UAE; the UAE divorce court granted S.B. the divorce, awarded her the $250,000 mahr (essentially an amount provided for in the parties’ Islamic premarital agreement in the event of a divorce), ordered W.A. to pay child support and some amount of spousal support, and gave S.B. custody of the children.

3. Both parties then returned to the U.S., and S.B. moved in New York courts for recognition and enforcement of the UAE decree.

4. The short version of what the court generally ruled (setting aside some procedural complexities):

a. The court recognized the UAE divorce.

This seems right to me, given that the UAE was a natural place for the parties to divorce, especially since neither party was planning to move away immediately. (The wife had a banking job in the UAE, and wanted to abide by the terms of her three-year employment contract). Both parties had the opportunity to participate in the litigation (this wasn’t just a case where the husband and wife are living in the U.S., and the husband goes back to Pakistan to get a divorce without the wife’s participation).

Moreover, though one can imagine divorce orders that were unfair to the losing party, for instance because the divorce rules were discriminatory based on sex and religion, there is little reason to think that the party opposing U.S. recognition of the divorce — the husband — was unfairly treated in this way when it comes to the divorce itself. This is a good example of why American courts’ general willingness to recognize (usually) foreign divorce decrees makes sense.

b. The court viewed the decree ordering the payment of the $250,000 mahr enforceable (though there were procedural obstacles, which I won’t go into, with immediate enforcement). “[A]greements predicated upon religious doctrine and customs be enforced in civil courts, as long as enforcement does not violate either the law or the public policy of the state. While ‘the First Amendment severely circumscribes the role that civil courts may play in resolving [religious] disputes,’ a State may adopt ... [a] ‘neutral principles of law’ approach, which ‘contemplates the application of objective, well-established principles of secular law to the dispute,’ has been found to be ‘consistent with constitutional limitations.’ This approach permits ‘judicial involvement to the extent that it can be accomplished in purely secular terms.’” “No strong public policy would be violated by the recognition, entry, or enforcement of the foreign judgment upholding the Mahr agreement.”

This too makes sense to me here. Whatever problems there might be with American courts’ enforcing mahrs that are too vague, and that require interpretation of religious law to fill in the blanks seems absent here. American courts need merely enforce the foreign decree, something they can do without interpreting religious law. And even if UAE courts entered the decree based on their interpretation of the mahr using religious law, I don’t think that’s a problem (at least so long as the substantive terms of the decree aren’t contrary to public policy).

c. The court adhered to the UAE order awarding custody to S.B.

This, I think, might potentially be problematic in some cases. According to the court, “The decision from the Court of First Instance noted that the mother usually has the right to custody of the children unless proven otherwise. The defendant made no showing to refute the custody award to the plaintiff.” This suggests that UAE law is sex-discriminatory. That’s not shocking, I think, given that this was the formal rule in the U.S. up until about the 1970s, and apparently still remains the law (though as a presumption rather than as a firm rule) in Mississippi.

But I suspect that it is indeed contrary to modern American equal protection doctrine, and in particular to the public policy of New York. (The court suggests the father didn’t raise this challenge — “[n]either party alleges that any of the child custody laws of the UAE violate fundamental principles of human rights.” But in the very next sentence the court says, “[n]or does this Court find any such violation,” which suggests the court thinks there’s no federal or New York “human rights” difficulty with such a sex-based rule, a conclusion that I think is mistaken.)

Nonetheless, given the facts of the case — both the facts surrounding the father’s attack on the mother, and the judge’s retelling of the father’s later apparent shenanigans — it seems likely the mother would have prevailed on the custody issue even if the court had decided the custody question anew, by applying a sex-neutral best-interests standard.

In any case, this struck me as an interesting case, and I thought I’d pass it along; I’d love to hear what others, especially those familiar with New York family law, have to say about this.

There’s been some recent buzz about this court decision, In the Matter of C (Romford County Ct. May 11, 2012); see, for instance, here, here, and here. I tend to think the court decision is correct, and here’s why.

The parents were nonobservant Jews for most of their marriage, but at the very end of the marriage, the father converted to Christianity (Anglicanism, specifically). The parents seem to have what in America would be treated as joint physical and legal custody, with the daughter spending roughly equal time with each, and with each having equal authority over the daughter’s upbringing. The daughter, who is apparently a quite intelligent 10½-year-old, decided she wanted to get baptised, which in the Anglican church involves taking baptism classes as well as going through the baptism ritual. The father had encouraged the daughter’s interest in Christianity, but the court concluded that the daughter genuinely did want to go through the baptism, and had been seeking to do so for about ten months; nor did the court note anything that it saw as undue pressure by the father that would bring this about (though of course it’s very hard to figure out what counts as undue pressure in such a situation).

It seems to me that there are four key facts here:

(1) The court had to decide whether to forbid father from taking the daughter to baptism classes and letting her go through the baptism ritual. The question wasn’t whether the mother could, during her parenting time, continue to expose the daughter to Jewish rituals (which she had started doing in some measure following the breakup, though only by “lighting a candle in the home on Friday nights and explaining its significance to the children,” and which she seemed to want to do to a greater degree in the future); for my views on that, in the American legal system, see Parent-Child Speech and Child Custody Speech Restrictions. The father was not seeking to stop the mother from engaging in such rituals with the child.

(2) The court had to decide what to do when the custodial parents disagreed. This did not involve parents who agreed with each other but disagreed with the daughter’s choice, or a contest between a parent who had primary legal custody and the child plus the other parent who had only visitation rights.

(3) The daughter seemed to genuinely want to be baptised, and wanted this over the span of several months.

(4) The daughter seemed to the court to be relatively intelligent and mature, even slightly more than a normal 10½-year-old would be.

Given this, what is the court to do? The usual rule in intact families, which is that the parents have the legal authority to control their children’s actions (to the point of getting the police to bring the children back if they go off without authorization, and to using the law against those adults who help the children go off without authorization), doesn’t apply here. Nor does the usual rule with divorced or never-married parents when one parent has legal custody, which is to say the legal power to make decisions about the child’s education, the child’s religious practice, the child’s medical treatment, and the like. How then is the court to decide?

Continue reading ‘English Court Lets 10-Year-Old Girl Choose to Be Baptised, Over Jewish Mother’s Objections (but with Christian Father’s Permission)’ »

“nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant school events.” That’s the text of a judge’s oral order in Morelli v. Morelli, No. A06-04-60750-C (Diane Gibbons, J., Bucks Cty., Pa. June 6, 2011). If the father says anything about the mother in public, he could be sent to jail for contempt of court. The order isn’t limited to banning libelous statements (though I think even such a much narrower ban would itself pose constitutional problems, especially under Pennsylvania law), nor is it even limited to statements about minor children (though even that sort of order strikes me as constitutionally impermissible). Rather, the court order categorically orders the removal of a Web site, and prohibits all public statements — factually accurate or not — by one person about another person.

That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult. I’m pleased that the order is being appealed, and hope it will be quickly reversed. A relatively old (Jan. 5, 2010) archive of the web site that triggered this order, http://www.thepsychoexwife.com, is available on archive.org.

From yesterday’s Atchley v. Atchley:

The trial court addressed the following inquiry to the husband.
Q. Now, you said you attend a Morning Star Church?
A. Correct.
Q. Do you donate money to the church?
A. I don’t donate money to the church.
Q. Do you—does [husband’s girlfriend]?
A. No, she has not yet.
Q. Okay. Do either of you serve in any ministry that the Morning Star Church is involved in, whether some sort of charity work or teaching kids or anything like that?
A. No, not at this time.
Q. Do you have prayer in your home?
A. We pray at the dinner table.
Q. Bible study?
A. Not in the home, no.
Q. You’ve described yourself as a secular humanist, right?
A. Correct.
Q. Okay. How does—how does a secular humanist determine what’s right and wrong?
A. I mean, it’s a—it’s a—that’s a very deep question. I mean, I think people innately have an idea about what’s right, what’s wrong and you have to—you have to look at it from the perspective of not just, you know, what’s good for me, but what’s good for those around me, am I doing a greater good. I mean, I can have morals and make correct decisions without having a religion per se.
Q. What’s the authority though that you submit to?
A. Just my basic philosophy in life which is that I think humans can help each other solve their own problems. I don’t think we need to look elsewhere. I think if we work hard at it, then we can make a better society and we can all get along and we can solve problems and we can improve how it is we live, what the human condition is.
Q. But ultimately what you’re telling me is that the authority for what you think is right and wrong comes from you?
A. Yeah, I mean, it’s—it has to come from me. I mean, you have to think—but you have to be—you have to try to be, you know, objective about it. Yeah, I don’t have a book or a sheet of paper with a list of tenets or anything I should follow.

Continue reading ‘Judge Grilling Parent in Child Custody Case About the Parent’s Secular Humanism’ »

The Chicago Sun-Times reports:

In a divorce case that’s drawn national attention, a Chicago man who claims he has returned to his Catholic roots will be allowed to take his 3-year-old daughter to church, despite the objections of the girl’s Jewish mother, a Cook County judge [Renee Goldfarb] ruled this afternoon....

The judge said she found “no evidence ... that taking 3-year-old Ela to church during Joseph’s visitation time is or would be harmful to Ela. She is three years old and, according to Joseph, while at church she waves at the other children, looks around and giggles. This court found that testimony credible.” ...

The original order, from Judge Edward Jordan, is here (p. 5); I have read Judge Goldfarb’s opinion, and was quite impressed by the reasoning explaining the decision against interfering with the parents’ religious practices absent “proof of harm or potential harm” to the daughter. The judge had to juggle three not entirely consistent state appellate decisions, and I think did a very good job of coming to the conclusion that as consistent as possible with those decisions and with First Amendment caselaw.

UPDATE: Judge Goldfarb’s opinion is now online here.

From Stavig v. Stavig, No. 05-0464 (S.D. Cir. Ct. Aug. 28, 2008), recently affirmed by the South Dakota Supreme Court:

[Father] is a little more able to [provide for the 6-year-old son's "temporal, mental and moral welfare"] than [mother]....

• Both have the ability to give [son] love, affection, guidance, education and to impart the family’s religion or creed. [Father] is inclined to impart the family’s religion or creed, as he regularly takes the child to Sunday school and at one time enrolled [son] in a church-sponsored pre-school. Conversely, [mother] does not take the child to church or Sunday school, and without any apparent reason or explanation, removed the child from a church-sponsored pre-school to send him to an Interlakes Community Action Program.

Father gets physical custody even though mother had been the “primary caretaker since birth,” a factor that would normally cut in favor of the mother. And, as the court said, the decision was close; the father’s greater religious observance thus may well have changed the result. Note also that the court wasn’t talking about enforcing some agreement between the parties, which might have called for a particular kind of religious upbringing; the court was asking what was most conducive to the child’s “temporal, mental and moral welfare,” and apparently concluded that regular churchgoing is better for the child.

Now it might well be that regular churchgoing is indeed in a child’s best interests. Or maybe regular churchgoing is against a child’s best interests. It seems to me, though, that the First Amendment keeps the government — including courts — from taking a stand on this in deciding people’s parental rights, at least in the absence of actual evidence of imminent harm to the child (as opposed to speculation about whether religiosity is good or bad). For more examples of this happening in other states, see this set of posts. For more general thoughts on the Constitution in child custody cases, see this post. If you’re really interested, you could have a look at my article on Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006), which discusses the Religion Clauses issues as well as the Free Speech Clause issue. Finally, for cases holding (in my view correctly) that a parent’s lack of religiosity generally ought not be a factor in custody decisions, see Placencia v. Placencia, 3 S.W.3d 497, 502 (Tenn. Ct. App. 1999); In re Marriage of Oswald, 847 P.2d 251, 253 (Colo. Ct. App. 1993); Burrows v. Brady, 605 A.2d 1312, 1317 (R.I. 1992); Elbert v. Elbert, 579 N.E.2d 102, 110 (Ind. Ct. App. 1991); Eastes v. Eastes, 590 S.W.2d 405, 408 (Mo. Ct. App. 1979); Wilson v. Wilson, 473 P.2d 595, 598–99 (Wyo. 1970); Welker v. Welker, 129 N.W.2d 134, 138 (Wis. 1964); Maxey v. Bell, 41 Ga. 183, 185–86 (1870).