The Volokh Conspiracy

I just ran across the Tennessee statute, Tenn Code Ann. § 36-6-404, that provides the factors that courts are to consider in determining physical custody as between two parents. Many states have such lists of factors, but the bold text seems to me to be unique to Tennessee:

(b) ... The court shall make residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child’s residential schedule shall be consistent with this part. If the limitations of § 36-6-406 [which basically deal with abusive, neglectful, criminal, or otherwise unfit parents] are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

[Other factors, which are much more common in such statutes than factor 1 is, omitted. -EV]

(16) Any other factors deemed relevant by the court.

Now I know that Tennessee is the Volunteer State, but preferring parents who can inspire and encourage the child “to prepare for a life of service” strikes me as an improper judgment on the government’s part, and an interference with the parental rights of those parents who don’t favor “a life of service,” or whose vision of “a life of service” is different from the court’s. And a recent case, Wood v. Wood (Tenn. Ct. App. May 16, 2013) (nonprecedential) (emphasis added), suggests that this isn’t just an empty phrase that would be equally satisfied by all reasonable educational plans:

Mother argues that this factor favors her because she values education more than Father as she has a college degree whereas Father was suspended from college for failing grades. In addition, Mother argues that she cares more about the child’s education because she enrolled the child in a college preparatory school. While we agree that Mother appears to care substantially about the child’s education, even Mother agreed that the proposed school in Union City is a good school for the child to attend. In addition, while Father’s own college endeavors proved unsuccessful, nothing suggests that Father does not value education for the child. Further, beyond school, Father testifies that he exposes the child to a church environment, which may help the child prepare for a life of service. Accordingly, we conclude that this factor favors neither parent.

Yet preferring more religiously observant parents over less observant ones, whether because “a church environment” promotes “a life of service” or for some other reason, strikes me as a violation of the First Amendment; see also Part I.D of my NYU Law Review article on the First Amendment and child custody.

The origin of the phrase in Tennessee law seems to be Bevins v. Bevins (Tenn. Ct. App. 1964); the Tennessee statute seems to, among other things, codify part of the Bevins court’s analysis. Here’s the relevant passage:

The real matter to be considered is what is the best thing to do with these children that they may be left in a home where they are nurtured, loved, appreciated and where the environment is such that is conducive not only to the physical welfare of the child, but to its emotional and moral welfare, and where it can have the instructions from those who have control over it to inspire it to activities so as to develop a personality prepared for a life of service, and to successfully compete in the society which the child faces when an adult. Stated in a few words, it surely could be said that if there is a supreme rule to follow, that the consideration to be given determinative significance is in “respect to its temporal, and its mental and moral welfare” of the child as such, and the personality that it is expected to be when it becomes an adult.

For an earlier reference to the term in another state, see In re Hock, 88 N.E.2d 597 (Ohio. Ct. App. 1947): “It is difficult to conceive of any justiciable subject upon which courts may be required to pass which assumes the grave importance incident to the determination of what shall be the environment of a human life, especially when such determination is made shortly after such life has come into existence. The decree of disposition may result in a happy life of service, or it may be permanently calamitous in its effect upon all concerned.”

If anyone can elaborate further on whether “life of service” has any meaning other than the one I gathered from some quick search — a life of service to the community (or to some other higher cause, such as God) — I’d love to hear it.

Jonathan posted earlier today about Romeike v. Holder (6th Cir. May 14, 2013), which reject German homeschoolers’ asylum claim. The opinion is quite readable and persuasive, and I recommend it to those interested in the subject. But here’s my general thinking (reprised from 2010 post on the original immigration judge decision in the case), and stressing that I’m not an expert on asylum law:

It’s not clear that homeschooling (as opposed to private schooling) is constitutionally protected in the U.S. There appears to be no such general constitutional right, though there might be such a right under the Free Exercise Clause, at least as to children 14 and above, if the parents feel a religious obligation not to send their children to any school, private or public.

But even if the U.S. Constitution is read as securing such a right, can that be enough to secure asylum to everyone who wants to exercise the right, and can’t do so in their home country? Everyone who wants to own a handgun, but can’t do so under his or her home country’s law? Everyone who wants the ability to have an abortion should she get pregnant, but is not allowed to do so under her home country’s law? If the U.S. Constitution is read as recognizing a right to same-sex marriage, everyone who wants the ability to live in a recognized same-sex marriage, but is not allowed to do so under his or her home country’s law? That seems like an odd way of rationing the right to come to the U.S. (whatever one may think more generally about how open or closed our borders ought to be).

I should note that my family and I did come here as refugees from the Soviet Union. But whether or not that policy was sound (and the fact that it helped me, and that I’m grateful that it did, doesn’t tell us that much about whether it was sound), it seems to me that asylum from a country where a vast range of human rights is pervasively denied is quite different from asylum where the right at stake is solely the right to home-school, important as that is for many people.

From today’s Massachusetts Supreme Judicial Court decision in E.C.O. v. Compton:

This case concerns whether a parent may seek an extension of an abuse prevention order under G.L. c. 209A to prevent his daughter, who was sixteen years of age [and thus above the age of consent in Massachusetts] from voluntarily engaging in a sexual relationship with an adult.

The answer, the court said, was “no,” reversing such an order that had indeed been issued:

General Laws c. 209A enables a person “suffering from abuse from an adult or minor family or household member” to obtain a protective order directing the defendant, among other things, to refrain from abuse or contact.... [F]amily or household members include persons who “are or have been in a substantive dating or engagement relationship.” “Abuse” is defined as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” The issuance of an abuse prevention order is a civil procedure, and abuse need only be proved by a preponderance of the evidence. A violation of an order to refrain from abuse or contact, however, is a crime, punishable by a fine or imprisonment in a house of correction, or both.

Here, as conceded by the father, the defendant has neither physically harmed nor attempted physically to harm the daughter. In addition, because she is over the age of sixteen, she is legally capable of “consenting” to sexual intercourse, and as admitted by the father, the defendant has not caused the daughter to engage involuntarily in sexual relations by force, threat, or duress. Thus, there was no basis for the judge to issue the extension order under G.L. c. 209A, § 1 (a) or (c).

The father contends that the defendant’s actions placed the daughter “in fear of imminent serious physical harm” under G.L. c. 209A, § 1 (b), because in suggesting that he was going to supply the plaintiff with alcohol, the defendant essentially offered to supply alcohol to a minor in violation of G.L. c. 138, § 34 (“whoever furnishes ... alcohol for a person under 21 years of age shall be punished by a fine ... or by imprisonment for not more than one year or both”). We disagree.

The definition of “abuse” under G.L. c. 209A, § 1 (b), closely approximates the common-law definition of the crime of assault, and we are guided by our definition in considering whether the defendant’s conduct rose to such level of “abuse” under the statute. We consider whether the defendant’s conduct placed the daughter in “reasonable apprehension that [the defendant] might physically abuse her.” The defendant’s passing references in his electronic communications with the daughter implying that he might furnish her with alcohol, while understandably reprehensible to the father, is not evidence suggesting physical abuse or evidence that the defendant planned to give alcohol to her in order to have involuntary sexual relations with her, certainly a form of physical abuse. We conclude that this conduct does not meet the definition of “abuse” under G.L. c. 209A, § 1 (b), and thus fails to serve as a basis for issuing the extension order. [Footnote: Were the defendant actually to furnish alcohol to the daughter, such conduct would violate G.L. c. 138, § 34 (furnishing alcohol to minor) and G.L. c. 119, § 63 (contributing to delinquency of minor), and would present a different circumstance than existed here.] Because the judge had no basis to issue the extension order, it must be vacated.

Unsurprisingly, given the pace of the civil justice system, the one-year order had already expired by the time of the decision; indeed, since the daughter was 16 in July 2011, when she met defendant, she must be either 18 or very nearly 18 now. But the court concludes the appeal isn’t moot, quoting an earlier case: “Notwithstanding that both the ex parte and the extension orders have expired, the appeal is not moot. The defendant ‘could be adversely affected by [the orders] in the event of future applications for an order under G.L. c. 209A ... [and] has a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record.’”

Mohamed Aly, born and raised in Egypt, lives in Canada. Amal Aden, born and raised in Somalia, lived in Minnesota until she and Aly met on a Muslim dating site and she moved to Canada. They married, and have a daughter, born in 2011. But Aden left Aly, taking the daughter back with her to Minnesota. Aly then petitioned under the Hague Convention (a treaty) and the International Child Abduction Remedies Act, “alleging that Aden wrongfully removed their child to the United States. Aly contends that the child is a habitual resident of Canada within the meaning of the Convention, and accordingly seeks an order from the Court directing the prompt return of the child to that country. Aden opposes the petition, alleging that Aly has not met the requirements under the Convention and raising affirmative defenses to the return of the child — including that there is a grave risk of harm should the child be returned to Canada.”

The court (Aly v. Aden (D. Minn. Feb. 14, 2013)) went through a lot of details, including the various factual allegations and cross-allegations, and I can’t do all those details justice here. Here, though, is an interesting discussion of the mother’s (Aden’s) argument that returning the daughter to the father would put the daughter at risk for female genital mutilation (some paragraph breaks added):

58. Aden alleges that Aly approves of the practice of female genital mutilation (“FGM”). Aden also alleges that Aly asked Aden to take [daughter] to Aden’s mother, who lives in Kenya, to have the child undergo FGM. Aden testified that Aly then stated that if Aden’s mother would not do the procedure, Aly would take [daughter] to his mother in Egypt to have the procedure done.

59. Aly denies that he approves of FGM or that he would subject [daughter] to FGM and instead alleges that Aden’s mother and Aden herself have been advocates of subjecting [daughter] to the procedure.

60. Aden has undergone FGM, and Aden’s mother had the procedure performed on Aden’s younger sister despite Aden’s protests. None of Aly’s female family members have undergone FGM, and Aly alleges that none of his family members support the practice.

61. Ms. Roundtree [one of Aly’s ex-wives] also alleges that Aly believes in FGM. Ms. Roundtree alleges that she and Aly had a daughter together and Ms. Roundtree gave her daughter a different last name to protect her from Aly. Aly denies that he is the child’s father.

62. Aden presented expert testimony from Elizabeth Boyle about the practice of FGM. Aly presented expert testimony from Mr. Abed Awad, an expert on Islamic law, about the practice of FGM....

64. Boyle testified that a number of factors specific to Aly put [daughter] at risk of being subjected to FGM. These factors include that Aly is a Salafi Muslim from Egypt, that Aly “apparently said he wanted to have [[daughter]] circumcised,” that Aly “has shown an interest ... in women’s chastity,” and that Aly has demonstrated a conservative approach toward Islam as evidenced by his belief in polygamy for males and his history of serial divorces. Boyle alleges that the most likely cause of harm to [daughter] would be if Aly took her to Egypt, where “it’s easy to get the practice performed.”

65. Mr. Awad testified that many variables enter into whether a child is subjected to FGM. FGM is less likely as the level of education and economic status of the child’s parent’s increases, and is also less likely where parents were raised in a metropolitan area and currently live in a country where the practice is not prevalent.

66. FGM is not a practice mandated by Islam. And the mainstream Islamic organizations’ position is that the practice is unIslamic. Additionally, FGM is not an accepted or prevalent practice in North America and is illegal in both Canada and the United States....

Aden argues that returning [daughter] to Canada would put the child at a grave risk of physical and psychological harm because of Aly’s history of abuse and desire to subject [daughter] to FGM. Under the Convention, the Court is not bound to order the return of the child if the person who opposes the return establishes that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, art. 13(b). Aden has the burden of proving a grave risk of harm by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A). As an exception to operation of the Convention, the grave risk of harm defense is narrowly construed....

[T]he Court finds the allegations that Aly will subject [daughter] to FGM to be too speculative to demonstrate a grave risk of physical and psychological harm by clear and convincing evidence. Although subjecting [daughter] to FGM would clearly constitute a grave harm, the grave risk inquiry focuses on “immediate” risks. [Footnote: In making this determination, the Court gives little weight to the testimony of Ms. Boyle and Mr. Awad. Both experts testified to the statistical probability of Aly subjecting [daughter] to FGM based on Aly’s background and religious beliefs. Although these factors are not entirely irrelevant, the Court finds that the heart of this case turns on whether Aly actually would subject [daughter] to FGM and whether this threat is immediate — not whether his background suggests he may be statistically more or less likely to do so.]

At most, the record contains allegations that Aly believes in the practice and has expressed a desire to subject his daughter to the procedure, potentially by taking her to Egypt. None of the female members of Aly’s family have undergone the procedure, suggesting that immediate family pressure is not an issue.

The record does not reflect that Aly would be able to obtain this procedure in the United States or Canada, which the Court finds mitigates any immediate risk to [daughter]. Aly is not currently in possession of [daughter]‘s passport, and the Court finds no reason the passport cannot be kept in the possession of a neutral party pursuant to a Canadian court order during the duration of the custody proceedings. Should Aly’s alleged desire to subject [daughter] to FGM manifest itself into actual plans to carry out the procedure, the Court believes that the Canadian court is equipped to prevent this occurrence. Finally, Aden’s family history — having undergone the procedure herself and having a mother who subjected Aden’s younger sister to the procedure despite Aden’s protests — suggests that it is possible that [daughter] may face just as great of a risk of undergoing the procedure while under her mother’s custody as she would face if she was returned to Canada....

The Court stresses that under the Convention, it is not charged with resolving this custody dispute between Aden and Aly, determining which party is a better parent, or inquiring into the best interests of [daughter] The Court is constrained to determining whether Aden has demonstrated by clear and convincing evidence that [daughter] would be subjected to a grave risk of physical or psychological harm if returned to Canada. Here, the Court finds that Aden has failed to make such a showing....

Last week, I blogged about a letter sent by the principal of North Great Neck High School, a public high school on Long Island:

We write this letter to inform you of a situation in our community about which we have deep concerns. There is a store front temple that serves kids free food and then while they are eating, preaches to them. They only permit Jewish kids to enter. They separate boys from girls. Girls are offered free food and religious instruction Tuesdays from 11:00 a.m. to 1:00 p.m. and boys are offered free food and religious instruction on Thursday and Friday from 11:00 a.m. to 1:00 p.m.

As you know we have an open campus and students are allowed to leave campus on their free periods or lunch periods to walk to town and get lunch. They are not allowed to drive so their choices are constrained to the immediate general area. The Torah Ohr Temple at 575 Middle Neck Road believes it is perfectly okay for them to entice our students with free lunch in order to give them orthodox religious instruction, or what many would frankly call proselytizing children. We don’t agree. We have consulted many other local clergy, and they don’t agree with the practice either. These are children, not adults.

Upon hearing about the situation, we visited the Temple ourselves. The visit was unsettling. There were at least several dozen of our students sitting at long tables in a room that had to be entered through a side door. They were quietly eating while a man was instructing them in orthodox religious beliefs. There is no sign on the building even identifying it as a Temple.

We entered into conversations with Rabbi Kohan, the man in charge who clearly believes that what he is doing is perfectly okay. He is sincere and sure in his belief system and, while he says he wants to “cooperate,” so far he is unwilling to take the simple steps that we have asked him to take which is simply to create with us parent permission slips and notification so that we are sure that parents understand and approve of their children attending religious instruction during the school day, religious instruction that is in no way at all supervised or approved by the Great Neck Public Schools or by anyone close in supervisory authority other than this Rabbi and his Temple.

At first the Rabbi agreed to set up a permission letter with us but then called and said he had to consult with lawyers. We asked him to desist in his lunches and lectures until the matter is settled. He refused.

We have contacted the police and the local authorities who up to now say that there is nothing they can do. We have discussed the matter with our P.T.S.A. leadership and concerned parents. We are contemplating further steps and actions, but at this point thought it important to inform all of you of the situation.

We will continue to press the Rabbi to institute, at the very least, parent notification and permission, and we will keep you informed of developments.

Now The Jewish Week reports:

[I]n a second letter to parents mailed Friday, Kaplan wrote that “upon reflection, my letter of Jan. 31 ... was an unintended infringement on students’ rights. The principal of a public school cannot cannot interview with religious practice conducted outside of the school’s purview.”

Kaplan apologize[d] to those who “were affronted by my letter” and urged parents to discuss lunchtime activities with their kids.

Sounds right to me, and I’m glad the principal admitted his mistake and apologized for it — just the thing we try to teach our children to do, as it happens.

[UPDATE: A week later, the principal said he had erred, and apologized.]

Here’s a letter from the principal of Great Neck North High School, on Long Island:

January 31, 2013

We write this letter to inform you of a situation in our community about which we have deep concerns. There is a store front temple that serves kids free food and then while they are eating, preaches to them. They only permit Jewish kids to enter. They separate boys from girls. Girls are offered free food and religious instruction Tuesdays from 11:00 a.m. to 1:00 p.m. and boys are offered free food and religious instruction on Thursday and Friday from 11:00 a.m. to 1:00 p.m.

As you know we have an open campus and students are allowed to leave campus on their free periods or lunch periods to walk to town and get lunch. They are not allowed to drive so their choices are constrained to the immediate general area. The Torah Ohr Temple at 575 Middle Neck Road believes it is perfectly okay for them to entice our students with free lunch in order to give them orthodox religious instruction, or what many would frankly call proselytizing children. We don’t agree. We have consulted many other local clergy, and they don’t agree with the practice either. These are children, not adults.

Upon hearing about the situation, we visited the Temple ourselves. The visit was unsettling. There were at least several dozen of our students sitting at long tables in a room that had to be entered through a side door. They were quietly eating while a man was instructing them in orthodox religious beliefs. There is no sign on the building even identifying it as a Temple.

We entered into conversations with Rabbi Kohan, the man in charge who clearly believes that what he is doing is perfectly okay. He is sincere and sure in his belief system and, while he says he wants to “cooperate,” so far he is unwilling to take the simple steps that we have asked him to take which is simply to create with us parent permission slips and notification so that we are sure that parents understand and approve of their children attending religious instruction during the school day, religious instruction that is in no way at all supervised or approved by the Great Neck Public Schools or by anyone close in supervisory authority other than this Rabbi and his Temple.

At first the Rabbi agreed to set up a permission letter with us but then called and said he had to consult with lawyers. We asked him to desist in his lunches and lectures until the matter is settled. He refused.

We have contacted the police and the local authorities who up to now say that there is nothing they can do. We have discussed the matter with our P.T.S.A. leadership and concerned parents. We are contemplating further steps and actions, but at this point thought it important to inform all of you of the situation.

We will continue to press the Rabbi to institute, at the very least, parent notification and permission, and we will keep you informed of developments.

It’s hard for me to see what the high school can do here, at least as a matter of law rather than social pressure. The school lets students go out during lunch, and students can go to a restaurant, go to a bookstore, talk with people on the street, or whatever else. Conversely, adult residents can try to sell students food or books, can try to get them to take leaflets, can engage them in political arguments, or can try to lecture them about Judaism (whether on its own or in exchange for food).

Nor is the lack of parental permission legally significant, I think. Stores don’t need parental permission slips to sell high school students food or books. Likewise, a synagogue doesn’t need parental permission slips to talk to high school children or feed them. Indeed, requiring permission slips of religious institutions but not of others would itself violate the Free Exercise Clause, by discriminating against religious practices (see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)).

Indeed, the violent video game case — Brown v. Entertainment Merchants Ass’n (2011) — is powerful precedent against any such permission requirement. There the Court struck down a ban on selling video games to children, even though parents (and some other relatives) could distribute the games to the children. (To be sure, the exception was for direct delivery by parents, and not for parental permission slips, which is what’s suggested to hear; but it seems pretty close.) In the process, the majority stated,

At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].”

If that’s what the Justices thought about limits on conveying violent videogames to children, I would think that limits on conveying religious ideas to children would be even more troublesome. And the fact that the ideas are combined with the provision of free food strikes me as not changing the analysis.

None of this means that this practice is proper, effective, or neighborly. But it seems to me that it’s indeed legally protected, and the school can’t do anything about it, at least so long as it has a policy of letting high school students leave campus during the day.

The Center for Law and Religion Forum had a post a couple of weeks ago about a talk by Erwin Chemerinsky (dean of the new UC Irvine law school), in which he made a rather striking proposal. Indeed, Dean Chemerinsky has made the proposal in print several years ago, in an article titled Separate and Unequal: American Public Education Today, so I thought I’d quote that article and put the matter in Chemerinsky’s own words, because I think it more broadly illuminates the danger that excessive equality arguments pose to liberty:

My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, and no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.

How could this happen? One possibility would be through the Supreme Court, though of course not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection for their students, and order the creation of a unitary system as a remedy. Another way to achieve a truly unitary system is by legislative action. Congress could adopt a law to achieve these goals or state legislatures could do so within the states’ borders.

I do not minimize the radical nature of this proposal, but this may be the only way that equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools. Currently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools. Moreover, as described above, desegregation can be meaningfully achieved only through metropolitan school systems, which include suburbs and cities, because white students could not flee to private schools.

The most significant objection to this proposal is that it is unconstitutional under current law. In Pierce v. Society of Sisters, the Supreme Court held that parents have a fundamental right to send their children to parochial schools. The Court based this on the right of parents to control the upbringing of their children. This right, however, like other fundamental rights, is not absolute. I would argue that strict scrutiny is met and therefore interference with the parents’ right to control the upbringing of their children is justified. There is a compelling interest in achieving equality of educational opportunity and the means are necessary because no other alternative is likely to succeed.

Parents desiring religious education for their children would claim a violation of their free exercise of religion. Of course, under the Supreme Court’s decision in Employment Division v. Smith, such a neutral law of general applicability would not violate the free exercise clause. Also, as explained above, strict scrutiny would be met by the proposal. I do not minimize the interests of parents in providing religious instruction for their children. Parents, however, could still do this through after-school and weekend programs. This is not the same as education where religion permeates instruction, but it does provide a way in which parents can provide religious education for their children.

Perhaps the Court would need to reconsider Wisconsin v. Yoder as well, to the extent that it is read as creating a right of parents to isolate their children from the influences of public education. In Yoder, the Court held that Amish parents had the right to exempt their fourteen- and fifteen-year-old children from compulsory school requirements so as to preserve the special Amish culture. Read broadly, parents could invoke Yoder to justify a right to home schooling if parents wanted to insulate their children from the influences of public education. Simply put, the courts should hold that the compelling need for equal schooling outweighs this parental right.

A clearer example of how an excessive focus on equality undermines liberty is hard to find. And the implications of this argument, if it were accepted, are striking. After all, the argument that “[i]f wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools” and that “[c]urrently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools” could apply to many things. For instance, if wealthy people know that, if they or their family members prosecuted, they will have to use public defenders, then they will be more likely to ensure adequate funding of public defenders; currently, they have no incentive to care about funding of public defenders as long as they can hire pricey private criminal defense lawyers. There goes the right to choose your own lawyer, together with the right to choose a school for your child.

Likewise, one can argue that public libraries are underfunded, too. Maybe people should be limited in the number of books they can own, so that they will have to go to the public library instead, and thus have an incentive to vote to fund the libraries. Naturally, private provision of medical care would have to be forbidden, too, since only that will give rich people an incentive to vote for more funding for medical care for the poor.

And of course people in poor, high-crime neighborhoods often don’t get enough police protection, especially given the greater needs for protection in those neighborhoods; and the housing stock in those neighborhoods is often quite undermaintained. How about this: Let’s bar people from buying private housing, and instead require people to live in housing units run and randomly assigned by the government. After all, if wealthy people must live in public housing in rough neighborhoods, then they will ensure adequate funding of that housing and of policing of those neighborhoods. Currently, the rich have no incentive to care about public housing and public policing of poor parts of town as long as they and their children are in private housing in safer parts of town.

Think also of the other ways that some people find themselves “separate and unequal” — how about in the ability to reach the public? If you are a highly educated and credentialed law professor, reporters call you, talk shows want to have you on, people are more likely to read your blog, and newspapers are more likely to run your op-eds. If you are poor and not very knowledgeable or eloquent (often through no fault of your own), obviously you don’t have equal access to an audience. Sounds like a good reason to limit the free speech rights of those whose circumstances have unfairly provided them with extra credibility and status, so as to at least reduce this inequality.

To be sure, some people (Justice Scalia is one) have indeed argued against parental rights, on the grounds that they — like abortion rights and sexual autonomy rights — aren’t mentioned in the Constitution, though I expect that many of those people would nonetheless say that limits on private schooling (or requirements that children go to government-run school 30 hours a week) would violate the freedom of parents to hire people to speak to their children. But Chemerinsky is not taking this view. He is acknowledging that there is a constitutional right to control the upbringing of one’s children, but is saying that this right, “like other fundamental rights, is not absolute,” and can be trumped by a “compelling interest in achieving equality of educational opportunity.” It follows that other fundamental constitutional rights, such as the right to counsel, the freedom of speech, and the right to choose where one lives (to the extent that it’s recognized as a constitutional right) would likewise have to yield to the “compelling interest in achieving equality.”

I agree with Dean Chemerinsky is that this proposal is “unrealistic at this point in American history.” But I think it’s worth thinking about it, and understanding what its implications are, and what is unsound about it. This, I think, will help us better evaluate other proposals to restrain constitutional rights in the name of equality; and I hope it will help keep the proposal unrealistic at future points in American history as well.

From Souratgar v. Fair (S.D.N.Y. Dec. 26, 2012):

Petitioner Abdollah Naghash Souratgar, an Iranian citizen, petitions this Court for the return of his son, Shayan, to Singapore. Shayan, who will soon be four years old, was born in Singapore and has Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore. She traveled to the United States where neither petitioner, respondent, nor the child has any meaningful ties or connections.

The father sued in American court, seeking return of the child to Singapore. The relevant American legal rule is that provided by the Hague Convention treaty, and the federal statute — the International Child Abduction Remedies Act — that implements it:

The Hague Convention seeks to “secure the prompt return of children wrongfully removed to or retained in” signatory states. The United States has ratified the treaty and implemented its terms through ICARA. Singapore acceded to the treaty in May 2012.

Under the Hague Convention, a child’s removal from a signatory state is wrongful when “[ (a) ] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [ (b) ] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The treaty applies to children under the age of 16....

In order to prevail, petitioner must establish by a preponderance of the evidence ... that “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” ...

Based upon the record as a whole and the Court’s assessment of the credibility of the witnesses, this Court finds by a preponderance of the evidence that petitioner has established each required element under the Hague Convention: (1) the child was a habitual resident of Singapore; (2) the child’s removal was in breach of petitioner’s custody rights; and (3) petitioner was exercising those rights at the time of the child’s removal. The Court further finds that respondent has failed to prove by clear and convincing evidence either of her affirmative defenses (1) that the child will be subjected to a grave risk of harm if he returns to Singapore, or (2) that fundamental principles of the United States relating to the protection of human rights and fundamental freedoms do not permit repatriation of the child....

The court concluded that there was no “grave risk of harm if [the child] returns to Singapore,” despite husband’s abuse of the wife, because the spouses would no longer be living together and because the Singapore legal system would likely provide sufficient protection to the wife and the child. The court then turned to the question whether the “fundamental principles of the United States relating to the protection of human rights and fundamental freedoms” should preclude return of the child, given the potential application of Islamic law in Singapore to Muslim family law disputes. (Muslims are a minority in Singapore, but Singapore, like some other countries, including Israel, Lebanon, and India, provides that in some situations family law disputes are routed through the religious courts of the religion to which the family belongs.) Here was the court’s reasoning:

[Wife] argues that returning the child is not permitted by the fundamental principles of the United States because the custody determination in Singapore will be made in a Sharia Court. [Singapore law] grants the Sharia Courts in Singapore considerable discretion in considering evidence from non-Muslims. Ms. Hassan testified that a woman’s testimony is worth less than a man’s in the Sharia Courts. Moreover, she testified that Sharia Law applies presumptions favoring fathers and disfavoring non-Muslim parents in custody determinations. These rules, [wife] urges, ought shock the conscience and offend notions of due process.

The Court concludes, however, that it need not reach the issue of whether the procedural and substantive rules in Sharia Courts “shock the conscience” or “offend all notions of due process” because the Court finds that [wife] has failed to prove that it is more likely than not that the Sharia Court will make a final custody determination in this case.

As noted, Singapore is a predominantly non-Muslim country with about 15 percent of the population as Muslim. Singapore has a dual legal system in which civil and Sharia Courts function concurrently. [Singapore law] sets out guidelines for the Sharia Courts in Singapore and vests them with limited jurisdiction. For instance, a Sharia Court does not have jurisdiction to consider domestic violence matters, including applications for protective orders. The Sharia Courts have exclusive jurisdiction in divorce actions where both spouses are Muslim or where the parties were married under the provisions of the Muslim Law. Unless a spouse commences a divorce action in the Sharia Court, the Sharia Court is “divested of any authority or jurisdiction in [a custody] matter.” However, when a divorce action is pending in Sharia Court, the Sharia Court also has jurisdiction to decide ancillary matters of custody and division of property.

Still, [Singapore law] provides procedural mechanisms for a litigant in Sharia Court to commence or continue custody proceedings in the Singapore civil courts. A civil court would be able to decide the issue of custody if both parties “consent to the commencement of the civil proceedings” or “consent to the continuation of the civil proceedings,” and obtain a certificate of attendance, which is issued after a counseling session. If the parties do not consent, the Sharia Court may still, in its discretion, grant an application for leave to commence or continue civil custody proceedings, if “every party who will be affected by such leave has been notified of the application at least 7 days before the grant of such leave,” and the parties “attend counseling provided by such person as the Court may appoint.” The frequency with which these provisions are invoked in practice is unknown, in part because there is no system of recorded judgments.

True, the order of February 16, 2012 of the Singapore family court contemplates that the issue of custody will be determined by the Sharia Courts. But that order was entered into after a mediation session and was “BY CONSENT” of the parties, each of whom was represented by counsel and neither of whom challenged the order. If [wife] had objected to the Sharia Court acting on the custody matter, one would expect her counsel to have documented the client’s desire or intent to have the Sharia Court stand down in favor of the Singapore Court.

The Court rejects the [wife]‘s after-the-fact claims that she never consented to the matter proceeding in the Sharia Court. The [husband]‘s expert set out plausible grounds why she may have rationally thought such a path was in her interest. Thus, any unfairness in the process in Sharia Court is, in this case, a self-inflicted wound.

But in any event, circumstances have evolved which make it likely that the Singapore family court where [wife]‘s original custody petition and [husband]‘s cross-petition remain pending will exercise jurisdiction over the custody dispute. First, the Court finds that there is no divorce action currently pending between the parties in the Sharia Courts in Singapore.

Second, in an affidavit dated December 7, 2012, [husband] affirmed that he “undertake[s] not to pursue any action in the [Sharia] Court of Singapore in relation to the custody, care and control of [his] son” and “commit[s] to the custody proceedings being continued and adjudicated upon in the Family Court of Singapore within the realm of civil proceedings.” The affidavit was sworn to at the Singapore Consulate in Manhattan, and Ms. Gomez [husband’s lawyer] filed the document as an affidavit in the Subordinate Courts of Singapore on December 11, 2012.

Ms. Gomez testified before this Court that [husband]‘s undertaking, if given to the Family Court of Singapore, is binding and enforceable. According to Gomez, it will require a judge to enter a court order for it to be punishable by contempt. [Husband] has familial ties and significant business interests in Singapore. He has been substantially compliant with court orders during the pendency of the Singapore proceedings and these proceedings. [Wife] has failed to prove that custody will be determined by the Sharia Courts rather than the civil courts.

[Wife] also urges that there are insufficient protections against domestic violence in Singapore, and thus, Article 20 bars the child’s repatriation. But the Court finds that Singapore has reasonable procedures to ensure the safety of the child during the pendency of the custody proceedings including supervised visitation. Moreover, [wife] was able to obtain two expedited orders, and had the opportunity to proceed to trial on each application in order to obtain permanent [protection orders].

It may be the case that [wife] was barred in the second proceeding from bringing up evidence relating to the first application, which she voluntarily dismissed, due to the court’s evidentiary rules. However, this does not rise to the level of shocking the conscience or offending all notions of due process. [Footnote: Article 20 is silent as to whether it applies only to the human rights and fundamental freedoms of the child, or to the parties in the case as well. The Court concludes that Article 20 is broad enough to encompass the rights of the parties but only insofar as they relate to the exercise of custody rights of the child.] Accordingly, fundamental principles of the United States regarding the rights and freedoms of domestic violence victims do not prohibit the return of the child under Article 20.

The court was thus able to duck the question whether American courts should refuse to send children back to countries where Sharia law likely would be applied in considering their cases. What do people think should be the right answer there? Again, focus on a situation where the parents and the child have no prior relationship with America — they aren’t American citizens, and they weren’t living in America when the dispute arose — but one parent brings the child to America in order to keep the other parent from having custody or visitation with the child.

Should American courts refuse to send the child back to the country of origin, because the judicial system in that country is biased against women and non-Muslims? (This could be either the overall judicial system, in a country that applies Sharia broadly, or the Islamic family law judicial system in a country that provides that family law disputes are to be decided by religious courts of the family’s religion.) Or should they say that, when the parties have no prior contact with America, the custody of the child should be decided under the laws of the home country, even if such laws would be seen as unacceptably discriminatory under American standards?

Relatedly, I take it that there’s a reciprocity dimension here: If America refuses to send back children who are taken from Country X to America, then Country X might well do the same when an American parent flees to that country, seeking to deny the other parent’s custody or visitation rights. (Assume that country X is otherwise a friendly country, which would normally be willing to send the American children back so that their parents’ rights could be effectively decided by American courts.) How should that affect the analysis, if at all?

I was too swamped yesterday to blog about this, but Prof. Howard Friedman (Religion Clause) has a characteristically excellent summary:

This week, two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of California’s new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age. In Welch v. Brown (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:

Especially with plaintiffs in this case, it is ... difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message.... Duk is a Catholic and, with patients that share his faith, he discusses [tenets] of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” ... Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

However, in Pickup v. Brown (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect. She wrote in part:

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct.... As SOCE therapy is subject to the state’s legitimate control over the professions, SB 1172′s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.

The Pickup opinion also rejected parents’ parental rights claims, as well as children’s right-to-hear-speech claims. Go to the Religion Clause post for the links to the opinions.

Both cases seem likely to be appealed, and the Ninth Circuit should decide on the question within several months. For more on the deeper underlying First Amendment question — what restrictions may the government impose on professional-client speech? — see this post; for the Ninth Circuit precedents, see Conant v. Walters (9th Cir. 2002) and National Ass’n for the Advancement of Psychoanalysis (9th Cir. 2000).

I’m inclined to think that Judge Shubb’s opinion, which holds that the law is unconstitutional, is more consistent with the Ninth Circuit precedents, and that Judge Mueller’s opinion is mistaken in concluding that SOCE therapy — which may include not just physical actions such as electric shock therapy, but also “attempting to alter thought patterns by reframing desires [and] redirecting thoughts” — was not “speech.” This having said, the broader question of when the government, whether through the legislature, through professional licensing boards, or through malpractice decisions, may restrict and impose liability for professional-client speech on the grounds that the relevant government agency thinks it’s harmful (or even just not helpful) remains open. And that’s especially so if the case goes beyond the Ninth Circuit to the Supreme Court, which it well might.

The problem? The parents wanted to change the children’s last name to a name other than either the mother’s or the father’s, plus (and it’s not clear how relevant this ended up being) they had changed one child’s name three years before. From In re Kobra, 2012 WL 5373490 (N.Y. City Civ. Ct. Oct. 26):

The Petitioner, Tamannatul Kobra, the mother of two children, seeks leave of the court through the submission of two petitions to change the names of her children: Heemika Hossian, a four year old female and Siratul Muntaha Hossain, a nine year old female. The two petitions involve the consent of both parents, Tamannatul Kobra and her husband, Mosharaf Hossain....

On January 20, 2009, Mosharaf Hossain, with the consent of his wife, Tamannatul Kobra, submitted a petition to the Civil Court in Kings County to change the name of his daughter, Sidratul Muntaha, then six years of age, to Sidratul Muntaha Hossain. On that same date, the Hon. Dawn Jiminez was satisfied that the petition was true and that the interest of the child was substantially promoted by the infant child assuming the surname of her biological father and issued an order granting the name change.

In this case, on May 10, 2012, Tamannatul Kobra, petitioned the Court for approval to change her eldest daughter, Sidratul Muntaha Hossain, to a new assumed name of Oporajita Neeladri and her youngest daughter, Heemika Hossian to a new assumed name of Himika Himadri. In paragraph 9 of both petitions, Tamannatul Kobra states that “I do not like the name” as the reason for the name change.

When the application was first presented to the undersigned judge in Special Term II on May 10, 2012, the Applicant stated that she wanted to change the children’s name for passport purposes. Subsequently, in a teary eyed and uncontrolled emotional appeal to the undersigned, the Applicant exclaimed that she was desperate to change the names of her children because the neighborhood children laughed at them and made fun of them because their surname is commonly referred used by Muslims.

OK, what’s wrong with that, according to the court?

Both children would not have any name that would identify them as the children of either parent — not the surname of either parent or any name that would identify them as relatives or even sisters for that matter.

Notwithstanding the applicant’s assertions that in Bangladesh, India, it customary for everyone in “a typical household” to have completely different names, both of these children are American-born citizens and have adapted, embraced and are a part of our American culture. It is certainly not common on the shores of this nation that the “typical household” members have completely different names. To the contrary, even in non-traditional families or families with single heads of household in which children maybe born out of wedlock, the children customarily have the surname of the custodial parent....

This court, in reliance on case authority in both judicial departments, will not deviate from that which is deeply rooted in the American Diaspora which definitively supports our social customs and long standing accepted practices in New York as well as many other states for family members to share in one of the custodian’s parents name. This common practice is to “alleviate confusion in the child’s day to day life and obviate the need to explain to school administrators and teachers, doctors, insurance companies and government agencies” why the children have completely different names from their parents and from each other.

This court can only imagine the confusion and hardship that these children would have as they grow older and interact with other children and others if this petition were granted. In the current climate in this state and the nation where children harass each other, both physically and mentally, and bully each other in person and in cyberspace, it is the view of this court that this proposed name change will make the lives of these young girls absolutely miserable and unreasonably [vul]nerable to all kinds of probing questions, embarrassment, ridicule, and humiliation.

This court wishes to express even greater concern for the nine year old child. She has been in school for the past three years and is known by her friends, teachers, classmates, doctors, dentists and other professionals as Siratul Muntaha Hossain. The first name change was reasonable under those circumstances which only added the surname of her biological father and was approved by the court. This name change is clearly a deviation from customary practices that are recognized by the courts. More importantly, this young girl has a vested interest in her present name. At this influential pre-teen stage of her personal and social development, it is crucial for her to have stability and to maintain a strong self-identity. To change her name now will cause her harm that is truly immeasurable.

Furthermore, this court finds that this proposed name change is not based on truth. The Applicant has proffered three completely different explanations for the request to change the names of her children. This court does not find the Applicant credible or trustworthy. The court further finds that the proffered explanations for the name changes are disingenuous and leaves the court only to speculate as the actual reason for the name change; it appear to be to deceive or perpetuate a fraud on some third parties including the avoidance of legal obligations which is condemned by the courts.

Even though the Petitioner claims that her children were made fun of because their surname is “Hossain”, this court has serious doubts as to the truth of this assertion. Even if it were true, such a claim is not a legal or factual basis to change the names of her children. Therefore, this court concludes that this name change application does not promote the best interests of the children particularly since it seeks to change their names to completely different names from their respective parents and from each other as siblings.

I understand that under New York law, people don’t have a categorical right to change their names or their children’s names; but the decision still strikes me as quite mistaken, and in a way that badly shortchanges what should be the parents’ discretion. As the court noted, “in the absence of a demonstrable reason, an application for a name change should be granted by the court,” and “in the absence of any objection and in compliance with the statute, a child’s parent should be better judges than the courts in determining what is in the best interests of their children.” Why then does the court substitute its judgment for the parents’?

1. Public confusion: I agree that the interests of third parties (see, e.g., the ChristIsKing case) can sometimes justify denying a name change petition. But here the court’s argument about possible public confusion is very weak. School administrators, doctors, and others have long had to deal with children whose names differ from any of the parents’.

Indeed, that’s nothing new — even when married parents with the same name were more common than today, you might have Jane Smith and John Smith producing Junior Smith, John Smith dying, Jane Smith marrying Paul Jones and becoming Jane Jones, and Junior Smith now being raised by Jane Jones and Paul Jones. (Sometimes, the child might be adopted by the stepfather, and acquire the stepfather’s name, but sometimes the child’s name wouldn’t be changed, perhaps because of respect for the father, or because of the child’s wishes, or what have you.) With the increase in women’s not changing their last names, the increase in divorce, and the increase in unmarried parents, such situations multiplied. At this point, families with unmatched last names don’t really pose much difficulty.

2. Threat of bullying for the child: I suspect that having a last name that doesn’t match your parents’ isn’t top on the list of reasons for bullying. Indeed, the parents’ claim that having a visibly Muslim name, or in particular having the name “Hossain,” will lead to more social problems for the child seem much more plausible than the judge’s conjectures.

3. The nine-year-old’s self-identity: Again, I would think that the parents would have a better sense of what’s best for their nine-year-old daughter’s self-identity than the judge would. Obviously, there are limits to that; if they were proposing something that really seemed likely to be harmful, I could see why the court might not want to allow it. But the concerns about the harm to the daughter seem to be highly speculative.

4. Alleged dishonesty: Maybe I’m missing something, but just how would changing two little girls’ name help “deceive or perpetuate a fraud on some third parties including the avoidance of legal obligations which is condemned by the courts”? And even if this is so, why not just focus on this, rather than on conjecture about the supposed psychological needs of these particular girls, needs that the judge is extremely unlikely to have a good grasp of?

5. Tradition: Finally, I agree that traditions and customs of our society are important. But I don’t see a basis in New York law to allow those traditions and customs to trump the parents’ presumptively “better judg[ment]” about what is best for their children in the context of their family.

Veronica Goudreau and Andrew Lemieux conceived a child, Alexander. (As it happens, they were minors, in high school, but that needn’t matter for the legal analysis.) They then broke up, but Lemieux wants to help raise the child.

When the child was born, Goudreau named the child Alexander Bailey Goudreau. But when the child was a year old, the father (represented by his parents as plaintiffs) asked that the child’s name be changed to Alexander Bailey Lemieux. The court renamed the child Alexander Goudreau Lemieux, reasoning,

The court makes it[s] decision based on the best interests of Alexander. Alexander has two parents who both care for him and love him. Andrew Lemieux’s commitment to Alexander should be demonstrated in Alexander’s name, as should Veronica Goudreau’s.

And on appeal, the New Hampshire Supreme Court (In re Name Change of Alexander Goudreau (N.H. Oct. 30, 2012)) agreed:

[W]e hold that the trial court sustainably exercised its discretion in changing the child’s name to Alexander Goudreau Lemieux. The record supports the trial court’s findings that, at the time of the petition’s filing, both mother and father cared for, loved, and were committed to Alexander — findings which mother does not challenge on appeal. Accordingly, we conclude that the trial court had an objective basis sufficient to sustain its conclusion that Alexander’s full name should include both parents’ surnames. On appeal “[w]e consider only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made, and we will not disturb the trial court’s determination if it could reasonably have been made.” Although additional fact finding might have aided our review of the trial court’s order, we conclude that the trial court could reasonably have found that the name Alexander Goudreau Lemieux was in the child’s best interest.

But, accepting the value of maintaining a connection in the name to both parents, why does it follow that the child should be named Alexander Goudreau Lemieux, rather than Alexander Lemieux Goudreau?

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)’ »

Utah law, like the law of many states, bans the distribution to minors of “harmful-to-minors” material (for more on this, see this post). The Utah statute reads,

“Harmful to minors” means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it:
(i) taken as a whole, appeals to the prurient interest in sex of minors;
(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(iii) taken as a whole, does not have serious value for minors.

Defendant, with the unlikely last name of Butt, was in jail on a theft charge, and wrote two letters to his wife — letters that were read by jail officials pursuant to a jail random interception policy — with drawings that he asked the wife to pass along to their 5-year-old-daughter:

The first letter was addressed to Defendant’s wife. The envelope had a large pink heart drawn on it, and inside the heart were three letters: C, K, and S, presumably standing for his wife Cammy, his eight-year-old son K.B., and his five-year-old daughter S.B. Defendant enclosed individual letters to his wife and children. At the bottom of the letter for S.B., he drew a picture of himself naked with a speech bubble stating, “I love you [S.B.]” coming from his mouth. Next to the nude drawing of himself, he wrote, “Love you, Dad” and “I have no idea why she wanted me to draw my w[ie]ner. But she insisted. Scary!!” Corporal Black, the prison guard on duty, intercepted this letter. After inspecting it, he took it to Deputy Alan Freestone, the deputy sheriff for the San Juan County Jail. That same day, Deputy Freestone met with Defendant to discuss the drawing; Defendant freely admitted that he drew the picture as a joke because his daughter had asked him to do so.

A few days later, Defendant mailed a second letter to his family. This letter was also addressed to his wife and also contained a drawn heart on it, with C, K, and S inside the heart. This envelope also contained three letters: one each to his wife, son, and daughter. On the bottom of the letter for S.B., Defendant drew another picture of himself naked. This drawing depicted him holding his daughter’s buttocks up to his mouth. A speech bubble from her mouth said, “Oouch! Daddy don’t Bite so hard Giggle giggle .” A speech bubble from his mouth said, “Oh your butt taste so good.” Above the drawing, Defendant wrote, “[S.B.], Hi beautiful girl. I miss you so much. I can’t wait to bite your butt cheek. This is what it will look like. I love you.” A prison guard also intercepted this letter and turned it over to Deputy Freestone. Deputy Freestone met with Defendant in the booking area of the jail to let him know that he did not think the drawing was appropriate. Defendant explained to Deputy Freestone that the drawing depicted a game that he played with his daughter where he bites and tickles her....

Defendant testified that he wrote both letters and drew both pictures. He acknowledged that although the letter was addressed to his wife, he intended his daughter to see his drawings. In his testimony, he stated that his daughter was five years old. He stated that he did not find the drawings offensive because his daughter had watched a documentary about cave drawings and asked him to draw a picture of himself naked like those in the documentary. With regard to the second letter, Defendant testified that his drawing depicted a game he played with his daughter involving biting and tickling.

The jury convicted defendant on two counts of attempting to distribute “harmful to minors” material to his daughter; the jury convicted on both counts; and the Utah Supreme Court upheld the convictions (see State v. Butt (Utah June 8, 2012)), reasoning:

Defendant argues that we should adopt the “‘hard core’ sexual conduct” rule to the case at hand and determine that the pictures in this case were not “hard core.” We decline to do so [in a case involving harmful-to-minors material, as opposed to pornography distributed to adults –EV]....

The language of the statute plainly indicates that the legislature has relinquished its ability to define the scope of words like “harmful,” “prurient,” and “patently offensive,” and delegated that responsibility to the jury. To be clear, a jury may not deem material to be proscribed by section 76–10–1201 without limit. At some point, the Constitution will step in to mark the outer limit of what a jury may find to be criminally actionable. Just as Miller v. California recognizes that the Constitution will not permit a jury to find all material obscene for adults, likewise, the Constitution will inevitably block a jury’s impulse to criminalize certain material as harmful to minors. However, Defendant has not presented a viable argument that the statute under which he was convicted exceeds the bounds set by the Constitution, and we therefore do not define those parameters today....

Because the assessment of whether the evidence is “harmful” is a question for the jury, we cannot conclude that the evidence was insufficient to support a conviction. Instead, the State presented the pictures and asked the jury to decide whether they were harmful. The jury, acting within its discretion, decided they were.

Here’s my question: Can a reasonable jury conclude that the defendant’s drawings appealed to a minor’s prurient (defined as “shameful or morbid”) interest in sex, and especially a 5-year-old girl’s interest in sex? I’m not asking whether parents should actually bite their 5-year-olds on their butts, or whether parents should send nude drawings of themselves to their children — or for that matter whether fathers should be nude in front of their 5-year-old daughters. Rather, I’m asking whether the defendant could reasonably have been found guilty of this crime, which requires that the drawing appeal to a minor’s prurient interest in sex.

(There’s also a separate question of whether and when parents have a right to provide even material that fits the statutory decisions to their own kids, something that the Supreme Court expressly set aside in the case, Ginsberg v. New York (1968), that upheld a general ban on the distribution of “harmful-to-minors” material to children: “[T]he prohibition against sales to minors [in the New York statute] does not bar parents who so desire from purchasing the magazines for their children.”)

An interesting Virginia Supreme Court decision, Wyatt v. McDermott (Va. Apr. 20, 2012), recognizes this right. An excerpt (paragraph breaks added):

John M. Wyatt, III, is seeking monetary damages for the [alleged] unauthorized adoption of his baby, herein referred to as E.Z. E.Z. is the biological daughter of Wyatt and Colleen Fahland, who are unmarried residents of Virginia. [Wyatt claims the following happened:] Prior to E.Z.’s birth, Wyatt accompanied Fahland to doctors’ appointments and made plans with Fahland to raise their child together. Without Wyatt’s knowledge, Fahland’s parents retained attorney Mark McDermott to arrange for an adoption. While Fahland informed Wyatt of her parents’ desire that she see an adoption attorney, she assured Wyatt that they would raise the baby as a family. During a January 30, 2009 meeting with McDermott, Fahland signed a form identifying Wyatt as the birth father and indicating that he wanted to keep the baby.

Fahland offered to provide Wyatt’s address, but McDermott told her to falsely indicate on the form that the address was unknown to her, which she did. She also signed an agreement in which she requested that the adoptive parents discuss adoption plans with the birth father. Wyatt was “purposely kept in the dark” about this meeting, and Fahland continued to make false statements to Wyatt at the urging of McDermott, indicating that she planned to raise the baby with Wyatt, with the purpose that he would not take steps to secure his parental rights and prevent the adoption.

To facilitate an adoption, McDermott contacted “A Act of Love” (Act of Love), a Utah adoption agency, and Utah attorney Larry Jenkins with Wood Jenkins LLP, a Utah law firm representing Act of Love.

Approximately one week prior to E.Z.’s birth, Fahland and her father met again with McDermott. At McDermott’s urging, Fahland spoke to Wyatt briefly on the phone and then sent him a text message informing him that she was receiving information about a potential adoption. Later that day and throughout the week prior to E.Z.’s birth, Fahland continued to assure Wyatt that she still planned to raise the baby with him.

Fahland concealed the fact that she was in labor during conversations with Wyatt, at the direction of McDermott and on behalf of the other defendants. E.Z. was born two weeks early, on February 10, 2009, in Virginia, and Wyatt was not informed of the birth. The next day, Fahland signed an affidavit stating that she had informed Wyatt she was working with a Utah adoption agency and an affidavit of paternity identifying Wyatt as the father. Despite her full knowledge of his address, she placed question marks as to his contact information on the notarized documents at the urging of McDermott. Thomas and Chandra Zarembinski, Utah residents who retained Act of Love to assist them in adopting a child and planned to adopt E.Z., signed an agreement stating that they were aware that E.Z.’s custody status might be unclear. On February 12, Fahland signed an affidavit of relinquishment and transferred custody to the Zarembinskis, who had travelled to Virginia to pick up the child. Wyatt claims all defendants induced Fahland to waive her parental rights knowing that Fahland did not want to relinquish rights to the baby and that Wyatt believed he would have parental rights....

The Court is now left to determine what elements are essential to the tort as it exists today, consistent with the original writ, but in line with equal protection and modern law. Kessel [a West Virginia case] succinctly lays out the elements of this cause of action, consistent with Virginia law:

(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and (4) damages resulted from such interference.

Continue reading ‘Intentional Tortious Interference with Parental Rights’ »

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds.