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Parent-Child Speech and Child Custody Speech Restrictions:

My post on the jihadist father case led to various responses about what the right result should be, and more broadly about what the right First Amendment rule should be. Let me ask you folks this: Keep in mind the following (real) cases -- for citations and more details, see my NYU Law Review article on the subject -- and think about what First Amendment rule you would advocate, not just for the jihadist case but for those cases as well. Would it be "judges may impose whatever speech restrictions they think are in the best interests of the child, and allocate custody in whatever way they think best serves the interest of the child" (pretty much the current family law rule)? Would it be something else?

I'm not just asking which conceptual lines can be drawn; I'm asking which rule you think is likely to operate in our legal system, in which judges will often have different views from you, and will often apply fuzzy rules in ways differently than you would. (Of course, some judges will evade even clear rules, but let's assume that rules have at least some power to constrain judges in some cases.)

Here is the test suite:

  1. A parent is denied custody based partly on his "not regularly attend[ing] church and present[ing] no evidence demonstrating any willingness or capacity to attend to religion with [his children]," or having a "lack of religious observation." Another parent is given custody but only on condition that he "will agree to present a plan to the Court of how [he] is going to commence providing some sort of spiritual opportunity for the [children] to learn about God while in [his] custody." A court orders a mother to take her child to church each week, reasoning that "it is certainly to the best interests of [the child] to receive regular and systematic spiritual training." Another court does the same, partly on the grounds that weekly church attendance, rather than just the once-every-two-weeks attendance that the child would have had if he went only with the other parent, provides superior "moral instruction."

  2. Parents have custody rights limited or denied based on racist speech.

  3. ... based on advocacy of Communism (during the 1930s and 1950s).

  4. ... based on advocacy of polygamy (we're back to today, as we are on all the examples that don't have dates labeled).

  5. ... based on their defense of the propriety of homosexuality.

  6. ... based on their advocacy of (or inadequate condemnation of) nonmarital sex.

  7. ... based on their teaching of fundamentalism.

  8. ... based on their teaching of "non-mainstream" religions.

  9. ... based on their teaching of religious intolerance.

  10. ... based on their exposing their children to R-rated movies.

  11. ... based on their allowing their children unfiltered Internet access.

  12. ... based on their exposing their children to photos of men in women's clothing.

  13. ... based on their exposing their children to music with vulgar sexual content.

  14. Parents are ordered not to say bad things about the other parent generally.

  15. When the other parent is homosexual, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic."

  16. When the parents are of different religions, a parent is ordered not to say that people who don't share the speaker's religion are damned to hell.

  17. When the other parent is a racist, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered harshly condemning of racists" (this is the one pure hypothetical in the whole list).

  18. When the parents are of different religions, a court orders "that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise."

It's a long list, so don't feel obligated to discuss in detail each item -- but think about which rule you think would reach the right results not just in one case but in the whole range of cases.

Dan Hamilton:
The Judge should only make his decision based on if the parent has been convicted of a felony. If the other parent hasn't been then that parent gets to decide if the other parent can have visitation. If both have been convicted of a felony then the court should remove the child from bad parents.

I am sorry but criminals have proven that they are bad parents. PERIOD.

The rest of the stuff is BS. Parents have the right to teach their children whatever they want. It doesn't matter how much society hates what they are being taught. If you do it any other way then the STATE decides what all children are taught everyplace, not just in school. Down THAT road is a VERY DARK and dangerous place. Death and revolution is not to far down that road.
2.6.2007 3:35pm
Ken Arromdee:
Well, as a first try, judges should be able to decide that the parent's belief harms the child if the belief is one that's universally condemned. Most of the beliefs we'd label "racist", and some of the beliefs we'd call "religious intolerance" fall under that category.

Of course, you need to be wary of slippage: Parent rejects affirmative action, that's racist, racism is universally condemned. Show that the specific belief is condemned, not just some category that it falls into.

Here's another rule: something should *not* be considered if it involves religious or political beliefs. Because these beliefs are inherently controversial, and people disagree on what harm they cause, the judge has no business deciding which do and which don't (unless they're universally condemned).
2.6.2007 3:40pm
Oren (mail):
First off, I am utterly baffled at this question. I don't think that I could, for the life of me, craft a set of rules that works. The best I could do was vest discretion in the judges and hope that they will do a good job. Appellate review also seems like a good idea.


Well, as a first try, judges should be able to decide that the parent's belief harms the child if the belief is one that's universally condemned.


Condemned in the nation as a whole? In the state? In the municipality? If it's the latter, according to which parent. For instance, consider a couple one of which lives in San Fransisco and one is Sacramento. In the former, non-acceptance of gays is universally condemned while in the latter, homosexuality is nearly universally condemned (or, go further north to serious conservative territory).



Here's another rule: something should *not* be considered if it involves religious or political beliefs. Because these beliefs are inherently controversial, and people disagree on what harm they cause, the judge has no business deciding which do and which don't (unless they're universally condemned).


This contradict your first premise. Take gays for example. Opposition to homosexuality could fall under religious exemption or it could be "universally condemned" (in some places) and therefore suspect. Excepting religious anything because they are universally condemned does not solve the problem, it just pushes it back.

Consider another hypothetical. Assume, arguendo, that one parent is a 7th day adventist that would require the child to be a vegetarian. Assume also that such a diet is not healthy for a child (perhaps because the child is still young or finicky about eating the wide variety of leafy greens required to get enough calcium and iron without meat). Does your religious exemption trump the better interest analysis?

Again, I don't mean to throw stones but I'm seriously doubtful that you could craft rules to cover these sorts of things.
2.6.2007 4:00pm
Cato (mail):
Well, I'm not sure I could craft a general rule appropriate to all cases, but I do think that the advocacy of jihad, a belief that says that the highest and best use of a child's life is to kill innocents and be killed in turn in order to enter paradise, is not in the best interests of the child. If the child kills himself, it is bad enough, but if he doesn't and that is the cause of guilt, it is even worse, in liberal ideology at least.
2.6.2007 4:06pm
Brian Church (mail):
Maybe something defining "harmful" beliefs/actions as those which actively and explicitly advocate violence? This would leave several of your examples in the grey-- depending on the veracity of intolerance/racism, they may be considered "violent". But in any case, it would leave considerable latitude for free speech of parents on most religious and moral issues, while still protecting kids from the seriously crazy (advocating jihad against infidels, for example).
2.6.2007 4:09pm
Dan Hamilton:

Maybe something defining "harmful" beliefs/actions as those which actively and explicitly advocate violence?


you really want to trust people that brought us ZERO Tolerance for Violence in Schools and expell children for bringing dinner knives (the kind with rounded points and no sharp edges) to school? Or who use ZERO Tolerance for Drugs to expell a child for having an asprin?

NO NEVER. It doesn't matter WHAT they are teaching THEIR child. To do anything else leads to death and revolution. Just think of the PR an OPPRESSED MINORITY would have. NO we should not go anywhere near this.
2.6.2007 4:27pm
Sean M:
Let me try a rule:

First, let's draw a distinction between /awarding custody/ and /awarding visitation/. In the former, we decide who shall have primary control over the child's upbringing and so forth. In the latter, we decide who can visit and have access to the child.

Let's also define a "fit parent." A fit parent is one who has not committed any felonies or taken any actions to directly harm the child or family (abuse, neglect, and so on). We can import a more technically precise definition from child welfare laws.

In the case where there are two fit parents and custody is contested, there should be a presumption in favor of joint custody. In joint custody arrangements, the parents must jointly make all major decisions (long-term health, education, so on) regarding the children, but one parent is a primary custodian. Primary custodian decisions, in turn, may be made "in the best interests of the child." In this case, the Court is being asked to decide who is the "better" parent among two parents who are both minimally competent to have parental rights over the children. In some sense, this is the worst decision to make, figuring out who is "better" between two parents who are both at least minimally competent, but at the same time the joint custody arrangement preserves the non-primary custodian's right to have significant say in the major parts of the child's upbringing.

When it comes to /visitation/ for fit parents, however, the Court should liberally grant it to any non-custodial fit parent and impose no restrictions on a parents' speech, nor should it deny visitation on the basis of parents' speech or expressive conduct. The appropriate response to 'inappropriate' speech by the non-custodial (or custodial, for that matter) parent is counter-speech, not judicial prohibition. Parents can explain opposing points of view, even to a child.

Some speech may be so terrible it makes a parent unfit. Mental torture or abuse, in the form of speech, for example, might into this line. Again, we can prevent the slippery slope by turning to child welfare law for our boundaries.

For an unfit parent, they should not be entitled to custody or robust visitation. In this case, the Court can impose conditions, even speech conditions, on visitation. An analogy would be to when a child welfare agency creates a "plan" to keep a child with a household which appears to be unfit but has a chance for rehabilitation. The State has the /right/ to take the child, but rather than doing so imposes conditions on the child remaining. Similarly, the Court can completely /deny/ visitation to an unfit parent, but might impose conditions on it to preserve a relationship and/or try to throw a bone to even an unfit parent.

So in our cases, the Court might be justified in weighing (although I think it should be modestly as compared to other factors) speech when awarding primary custody, not at all when deciding visitation for fit parents, and can impose robust restrictions when "probationing" unfit parents.

Our jihadist then, is an unfit parent. The Court was within its rights to impose restrictions on his speech as a condition of visitation.

These are some off the cuff thoughts, but what do you think?
2.6.2007 4:41pm
JB:
Two possible rules:

1) Parental speech violating the "fighting words" or associated should be grounds for removal. So "Gays are bad" is OK, but "Punch that faggot out" is not.

2) Poisoning the child's mind against the other parent isn't OK. So "Gays are bad" is OK, even if the other parent happens to be gay, but "Your mother is a lesbian, so she's evil and you should hate her" is not.

The Jihadist, depending on what flavor of jihad he goes in for, might violate rule #1. Rule #2 primarily addresses the ones at the end.
2.6.2007 4:51pm
Steve:
Joint custody is only appropriate for situations where both parents are able to raise the child jointly. That doesn't mean they have to agree on everything, but if they have fundamental differences about how the child should be raised, then one or the other of them should be awarded custody.

The custodial parent(s) get to make the key decisions regarding their child's upbringing - a right which has been recognized as fundamental by the Supreme Court.

In sole custody situations, there should be a presumption in favor of visitation by the non-custodial parent. However, since visitation rights are essentially judicially-imposed impositions upon the custodial parent's right to raise their child as they see fit, it's appropriate to use narrowly-tailored speech restrictions to ensure that the custodial parent's rights are not compromised. If you're a custodial parent, the government shouldn't force you to accept someone in your child's life who is going to deeply interfere with your efforts at parenting.

You can't both recognize as fundamental a custodial parent's rights to control the child's upbringing and grant the non-custodial parent unlimited rights to interfere with that upbringing. Something has to give. Where the difference of opinion is so consequential that the child's upbringing would be fundamentally altered, then the choice is either speech restrictions or a removal of the visitation right altogether. While free-speech absolutists may see the latter as the only legal option, I'm sympathetic enough to the plight of non-custodial parents to let them elect the former if they choose to.
2.6.2007 4:53pm
PatHMV (mail) (www):
I agree with Oren. I don't think a single rule can be crafted. I've sure seen some family court judges do bad things with their discretion, but I'd still rather have them exercise their discretion (within very broad limits) than try to pin down some hard-line rule.

Remember, if both parents can work things out, there is no need for court involvement, and the court won't be making these choices for either parent. Court intervention comes only when two parents can't agree. As a judge, I wouldn't be particularly willing to tell a mother that she has no choice but to allow her ex-husband to indoctrinate their children into a skinhead movement.

Lack of a cohesive single rule obviously allows for some inconsistencies from jurisdiction to jurisdiction and from judge to judge. And it allows for some results which one part of society or the other doesn't care for (especially in the areas of church attendance, homosexuality, and race relations).

Again, we're in an area where the courts are generally deciding between two utterly incompatible desires by two parties with (initially) an equal right to controlling the upbringing of the child. If one parent desires that the child be raised Wiccan, and the other parent desires that the child be raised Buddhist, only one of those desires can prevail. The only alternative to the court picking one parent is to allow both parents to tear at the child, yanking them back and forth between competing beliefs and values, until the poor kid reaches 18 and can tell them both to go stuff it.

And Solomon's solution won't work... they're both actual, legitimate parents of the kid.
2.6.2007 5:04pm
Sean M:
Steve raises the interesting point about when the Court (or the parties) agree that joint custody isn't feasible and the Court must now apportion visitation rights to a non-custodial parent.

While I am sympathetic to Steve's point that the custodial parent wouldn't normally have to countenance anyone interfering with their basic parenting decisions, so why the non-custodial parent, I think his argument fails.

Even the most restrictive parent must permit SOME views to get to his child that he or she might not agree with. For example, when the child goes to school, he or she might learn that Creationism is scientifically invalid, that he should be tolerant to all religions and races, and so on, even if the parent disagrees with that. The correct response is counter-speech at home, not slapping speech restrictions on the school. Even allowing that the most strident parents could home school if they really wanted to, the State can still (I think, I am less certain here) require that the home study program teach certain core content that is thought important to all developing adults.

So view robust visitation by the non-custodial parent as sending the kid off to school. You may not like it, it may interfere with parenting efforts, but it is ultimately rectified at home, not by speech restrictions.
2.6.2007 5:07pm
statfan (mail) (www):
And Solomon's solution won't work... they're both actual, legitimate parents of the kid.

I'm not sure about that. Consider this: parents must come to a concensus about what rules they will follow when raising the child. If they can't come to a concensus, neither parent will be awarded custody.
2.6.2007 5:21pm
Waldensian (mail):
The most interesting thing about this debate, to me anyway, is that the government is of course almost entirely unable to make these kinds of judgments when parents remain married. If the parents remain married, the parents' conduct has to be pretty much criminal in order to affect their custody rights.

For example, so long as the still-married Klansman doesn't abuse his kids, nobody talks about terminating his parental rights, even when he dresses them up in little Klan-ette outfits and marches down Main Street with them toddling along beside him.

Upon divorce, however, it's a complete free-for-all for the long arm of the state. Suddenly the courts feel that they can wade into essentially any area (parents' speech, political views, smoking, fondness for giving the kids rides on motorcycles) simply by waving the "best interests of the child" standard around. But that's a dangerous business. The standard is of course subject to wildly divergent interpretations based on things like the judge's own religion, political views, etc. etc.

The real work that needs to be done is to constrain, somehow, the things that the state gets to decide about kids upon divorce. I don't have much of a clue about how to do that. But as a first cut, I think in most cases courts should not get to interfere with parenting decisions that are not criminal.
2.6.2007 5:28pm
Hattio (mail):
I think before people go claiming that a felony on your record they should consider that these go away. Can you really claim that a felony cocaine possession at 19 should prevent you from having custody at 40 of your 3 year old child. What if the opposing parent has two (or more) misdemeanor DUI's and 15 Drunk and Disorderly charges all in the last five years?

As to the rule, I have to come down on the side of large discretion unless it inflicts on sincerely held religious belief. And of course, the judge would have to determine what is sincere.
2.6.2007 5:40pm
Hattio (mail):
That would be that these never go away. These being felony convictions.
2.6.2007 5:43pm
PatHMV (mail) (www):
Waldensian... my point has been that it's not really the long arm of the state making these decisions. The state's only decision is which parent is to receive custody and to resolve disputes between those parents about how to raise the child. The court has no power, even under the "best interests of the child" rule, to compel a result sought by neither parent. For example, if the mother and father are fighting over whether to raise the child Buddhist or Wiccan, the court cannot step in and order that the child be raised Christian.

This is just not the "state" deciding on its own how to raise the child. This is the courts resolving disputes between two private parties. It's no different, at core, then any other judicial remedy between two private parties in dispute. For example, the state has no right, generally, to interfere with contracts between two private parties, or to set the terms of those contracts (speaking generally here in non-regulated areas involving contracts that are not contrary to public policy). When the court interprets a contract, it is not actually setting the terms of the contract, it is only resolving the difference of opinion between the two parties about how to interpret the contract which they signed.

These disputes between parents must be resolved somehow. We have courts primarily to resolve private disputes between parties, ultimately to preserve the public order and reduce the need or desire of individuals to settle such disputes violently (as often happens in societies whose legal systems are not fully developed). If I fathered a child by a woman who subsequently turned into a virulent racist, and the courts refused to assist me in preventing her from poisoning their young, impressionable minds, I would still find a way to protect my children. That solution might involve threats, violence, going into hiding, or other measures not conducive to good civil order. SOMEBODY must resolve the disputes between the parents. I think the courts, guided by the general and very vague standard of "best interests of the child", are best equipped to do so.
2.6.2007 5:44pm
Rich B. (mail):
The last thing I want in a custody hearing are debates over how frequently Mom used the N-word and had pre-marital sex versus how often Dad views porn and goes to church. Remember that the biggest flaw with the concept of the "test suite" is that it assumes that the facts will be "given."

In reality, Mom says that Dad beats the kids, and Dad says that Mom is a drunk, and the evidence is brought in about a spanking in 2002 and DUI from 1998, and the truth is that neither parent is perfect, but nobody called the cops about it until after they filed for divorce.

The standard should be very simple: If you did this to your child while you were married, could the state take your kid away? None of the items I see above, including advocating "jihad" qualifies.

Personally, I am much less concerned about the welfare of the children of peace-lovin' Mom and jihad-lovin' Dad than I am about the well-being of the children of happily-married Jihad-parents.
2.6.2007 5:45pm
Sean M:
I think what the commenters are agreeing to so far is that there should be wide latitude as to what parents get to do when they have the children.

The harder issue that no one has addressed yet, since the main part of the post is couched in terms of "restrictions" is:

When the Court is deciding IN THE FIRST INSTANCE whether to award sole custody or primary caretaker status to jihad-Dad or peace-loving Mom, can the Court take those attributes into account?

Or are these attributes morally neutral when it comes to custody decision? All other things being equal (that is, besides jihad or peace-loving status), is there no reason to prefer one parent over the other for a sole custodian or primary caregiver?
2.6.2007 5:59pm
Ken Arromdee:
This contradict your first premise. Take gays for example. Opposition to homosexuality could fall under religious exemption or it could be "universally condemned" (in some places) and therefore suspect.

I was suggesting that "universally condemned" would override "religious or political".

On the other hand, I had intended something like "universally condemned in general US culture". It'll be hard to find even one politician or religious figure willing to publically support segregated drinking fountains nowadays. It's not hard to find many such figures who don't oppose homosexuality. You need to distinguish between a minority viewpoint, and a viewpoint that is so rare that to even call it a minority is to exaggerate its prevalence.
2.6.2007 6:06pm
Waldensian (mail):

SOMEBODY must resolve the disputes between the parents. I think the courts, guided by the general and very vague standard of "best interests of the child", are best equipped to do so.

I think our disagreement is pretty narrow. I certainly agree that somebody must resolve SOME of the disputes between the parents. If one parent wants the kid's primary residence to be California, and the other wants the kid's primary residence to be Virginia, a court has to resolve that dispute. The kid can't "primarily" live both places. This is in general a dispute that would not exist but for the divorce, and simply must be resolved because of the divorce. A court applying the best interest standard is really the only way here.

However, the fact is that the "best interest of the child" standard is frequently invited to the table to decide other matters that expand the reach of the state quite significantly and, in my view, improperly. Say one parent wants to ride motorcycles with the kid, one doesn't want the kid on those dangerous motorcycles. This dispute is not (necessarily) a product of the divorce, and if the parents remained married the state would have absolutely no business stepping in.

Why does the state get to "resolve this dispute" -- i.e., decide what it thinks is best with respect to motorcycles and force one party to comply -- simply because there has been a divorce? I think this is a very dangerous business, and I think that the application of the "best interest of the child" standard must be policed to prevent courts from making all kinds of value judgments that the state simply has no business making.
2.6.2007 6:13pm
Prigos:
Road to hell, good intentions, etc. There isn't a guideline that would work, in any jurisdiction. As demonstrated by the list where there are current examples, judges aren't an party to be establishing them. And of course, in situations where these sorts of restrictions are established, even small, unavoidable breaches are likely to be the source further action.

That said, a rule banning these sorts of restrictions isn't really an option to address the issue. Judges in custody cases have a wide latitude (in most jurisdictions) in determining what constitutes an unfit parent. If you introduce a law banning speech restrictions, the likely result would be that the parents on whom the judge imposes a restriction now would simply be labelled "unfit" because the judge opposes a particular political/cultural/religious stance by that parent.

There are no palatable options, really. In the end, someone, somewhere, gets screwed over because of bad legislation, biased but "well-meaning" judges or poor representation.
2.6.2007 6:17pm
Ken Arromdee:
This is just not the "state" deciding on its own how to raise the child. This is the courts resolving disputes between two private parties.

The difference between this and the state deciding a contract dispute is that you can decide what goes into a contract. The state only gets involved once you've written something into the contract in the first place.

On the other hand, you can't marry under a "contract" that doesn't give the state the power to decide custody battles based on the best interests of the child. Essentially, the state is using its power (state-provided benefits of marriage) to dictate the terms of the "contract". And as we're aware of in the gay marriage debate, these state-provided benefits are a powerful thing.
2.6.2007 6:23pm
Ken Arromdee:
When the Court is deciding IN THE FIRST INSTANCE whether to award sole custody or primary caretaker status to jihad-Dad or peace-loving Mom, can the Court take those attributes into account?

Advocacy of jihad is universally condemned (in the USA). So yes.

(Of course, it's only universally condemned publically and I'm sure some support it in private, but then that's also true of the segregated drinking fountains, etc.)
2.6.2007 6:29pm
Steve:
For example, when the child goes to school, he or she might learn that Creationism is scientifically invalid, that he should be tolerant to all religions and races, and so on, even if the parent disagrees with that. The correct response is counter-speech at home, not slapping speech restrictions on the school.

It would also be a correct response to send the child to a religious school. One of the first Supreme Court cases on the right to privacy, Pierce v. Society of Sisters, recognized exactly that right. But you can't unilaterally withdraw your child from visitation, of course, which is why the analogy is imperfect.

Court-ordered visitation with a non-custodial parent, like a law that requires you to send your child to public school, interferes with fundamental rights of parenthood to the extent that it forces you to expose your child to speech that you have a deep-seated problem with. That's why I'm suggesting, in extreme cases, that narrowly-tailored speech restrictions are appropriate, as an alternative to cutting off visitation rights altogether.
2.6.2007 6:39pm
A. Zarkov (mail):
Children are pretty robust creatures and well survive even having alcoholic parents. It's extremely difficult to show anything other than the most extreme behavior is harmful to a child. Children can easily survive a parent who is a communist, clansman, racist, homosexual, atheist, Calvinist, Freemason or whatever. A family law court should stay clear from restricting or basing a custody award on any kind legal behavior of the part of one or both parents. These restrictions are probably unworkable and enforcement is going to lead to endless court appearances. So unless you want all the family's money drained into the pockets of their lawyers, stay away from this sort of stuff. But perhaps that's the motivation behind having a court get involved in parent-child speech.
2.6.2007 7:15pm
Shelby (mail):
How about a structural approach: When custody/visitation/restrictions are based on certain "disfavored" categories (views on sex and gender, religion, race, creed, to name a few), then they can only be imposed if a three-judge panel agrees unanimously. I know this is kind of a way around Eugene's rules, but I think in conjunction with some of the other suggestions it does help.
2.6.2007 7:19pm
Mary Katherine Day-Petrano (mail):
I can add one more to the list, and this is a real true case -- 15 year stable custody awarded to parent switched (5 days per week and 6 weeks summer plus every other holiday) to grandparent who drugged with quaaludes and sexually abused the custodial parent when parent was a child age 14, and caused parent traumatic brain injury before going to court -- because the parent was a qualified individul with disabilities who invoked Title II of the Americans With Disabilities Act.

Apparently invoking Title II of the ADA against a California State court was contrary to good parenting such that the parent's fundamental Constitutional right to parent gave way to the grandparent on a "best interests" finding of the type condemned by Troxel.

The custody switch ordered for the parent's having litigated federal Title II ADA rights, in favor of the grandparent, was further bolstered by a non-move order to prevent the parent from moving anywhere out of the town the grandparent lived in and virtually destroy her ever achieving the benefits of legal employment and her ABA-accredited law degree.

There was even more damage, but suffice it to say the Presiding Judge recused the entire Superior Court Bench over the mishandling of the case. And that's a fact.
2.6.2007 8:45pm
Mary Katherine Day-Petrano (mail):
And I forgot to add, the Superior Court Judge who started all of it by granting the intial "grandparents are better than parents" order, was removed from the Bench for groping his judicial clerk. And that is also a fact.
2.6.2007 8:50pm
Mary Katherine Day-Petrano (mail):
"intial"=initial
2.6.2007 8:51pm
Reg (mail):
If the bill of rights had not been applied to the states as would be the result under the constitution and 14th amendment as written and originally understood, this would not be a problem. This is a good case where at least a more deferential standard ought to apply to the states. The current rule is the best that can be done under the circumstances.

The best interest of the child is one of the very few interests that ought to trump a persons right to say what they wish without consequences from the government. The intent of the government is not to punish speech, or discriminate against certain viewpoints.


The intent is to find the best possible situation for a child when its parents are unable to resolve their dispute in any other fashion. To exclude religion and speech from consideration would result in worse situtations than what are already very difficult situations. I'm rusty on my 1st Amendment terms, but certainly, viewpoint neutrality cannot be enforced in such situations. A person's possible religious or political beliefs vary infinitely, and in choosing what is best for a child they must be taken account of.
2.6.2007 8:52pm
David/ashton379 (mail):
One concern I have is the continued pressure on parents to raise thier children "right" while at the same time reducing the amount of actual rights they have in regards to raising thier children. I think it is easy for people to see the struggle between the governmental interest in having well-adjusted youth, while at the same time maintaining parental rights.

I think that the court needs to institute a factor test. Offhand, I am not sure all what factors I would feel best, but they might include: the custody of the parent when custody is not the issue in dispute, the social acceptibility of the speech in question, the interests of the state of regulating the speech in question, and if the speech falls under previously enumerated rights. Of course a factor test would need more work and refinement, those are just ideas that come to mind offhand.
2.6.2007 9:22pm
Mary Katherine Day-Petrano (mail):
A little Monte Cristo-esque, but here is the tail of Karma, a deserved fate of at least two of the judicial officers involved in mishandling the Title II ADA grandparent "best interest" case that destroyed an entire family and an innocent JD's two bar admissions for more than 17 years:

Honorable John Gallagher, Sonoma County Superior Court Judge, removed from the Bench: Sonoma County Superior Court Judge John Gallagher Removed From the Bench.

Honorable Elaine Watters Rushing, Sonoma County Superior Court Presiding Judge (circa 1995), judicial disciplinary censure Commission on Judicial Performance and Law.Com article and The Daily Judge: Judge get 10 days in jail, with work release, for DWI
2.6.2007 9:38pm
Mary Katherine Day-Petrano (mail):
I cited my sources. Where's whit when ya need him?
2.6.2007 9:39pm
ReaderY:
I believe that in general, judges are pretty free to decide which parent should have custody and can enforce spousal agreements about how to raise the children, but cannot issue orders on behalf of the State about how a child should be raised absent. This is based on Meyer v. Nebraska and Pierce v. Society of Sisters. In our society, children are not given over to be raised by the State and parents do not act as mere conduits of the state's wishes. The reason is that preserving the right of parents to raise children as they see fit is essential to the First Amendment in the same way that preserving the right of private schools to exist and teach is essential to the First Amendment.

The First Amendment has legitimate penumbras, and this is one. There could be no genuinely independent speech without autonomous institutions traditionally essential to the transmission of knowledge across generations. Although I don't believe a right of abortion has a connection to the First Amendment in anything like the way this case does, the Meyer and Pierce cases reflected a legitimate and textual constitutional concern.
2.6.2007 11:10pm
ReaderY:
Wish to clarify that the right applies to teaching ones children, and may extend to other acts of rearing and disciplining ones children, but does not extend to e.g. involving them in crime. In this particular case, the state can easily prohibit the father from involving the son in handling guns (let alone heavier stuff) under Prince v. Massechusetts. This is conduct, not speech or the exercise of religion or conduct traditionally associated with child rearing and discipline, and it is conduct that the state has the power to criminalize.

However, for the reasons given above, I believe the Judge's order to the father not to discuss religion is completely unconstitutional.
2.6.2007 11:19pm
logicnazi (mail) (www):
It is an essential aspect of the parent-child relationship for a parent to be able to explain what they now believe to the child. Thus simple explanation (dad now believes ...) should be almost never prohibited.

As far as dogmatic instruction the courts should merely look to the pre-marital setup to figure out how the child should be raised. Regarding the raising of the child during the marriage as an implicit contract they should endeavor to allow only those dogmatic indoctrinations that are reasonably compatible with the way the married couple was raising the child

As far as the child's best interest none of these claims should even be considered unless they are accompanied by something resembling a scientific case that they are truly harmful, i.e., lead to outcomes that are essentially universally agreed upon to be bad (death, murder, etc..) and were agreed to be bad by the parents prior to the divorce. Things like letting the child see vulgar movies, seeing porn or whatever seem to be more articles of religious faith themselves than well documented harms.
2.6.2007 11:26pm
David Wright (mail):
I am dismayed that our court system tries to manipulate family relationships at such a detailed level, and amazed that so many commentators are willing to accept such intervention and try their own hand at crafting rules.

In my opinion, in none of these example cases should the courts consider parental speech in custody or visitation decisions. The limits on free speech in these cases should be the same as in others: fighting words that pose an immediate threat to the child ("go play in traffic") or another person ("put this poison your mother's coffee"). Beyond that parents should be left to teach their children as they see fit, regardless of how objectionable society at large find those teachings.

It's not that I don't have my own strong opinions about what and how children should be taught. It's that I think the damage wrought by allowing the government to dictate what beliefs parents may impart to their children (which is, ultimately, an attempt to dictate what beliefs the next generation of citizens will have) is orders of magnitude larger than the damage wrought by letting a few deranged parents teach their children wacky ideas. As long as the children are not put in danger of physical harm, they are going to grow up, rebel, and be exposed to and influenced by others.
2.6.2007 11:28pm
logicnazi (mail) (www):
Also I simply don't understand how deciding that church going is in the best interests of the child is not a glaring obvious violation of the establishment clause but maybe this is just obvious or I'm missing something.
2.6.2007 11:33pm
eric (mail):
I think the courts resort to minor factors when they have to choose between two competent parents. Family law is a den of bad reasoning and biases. Often, it seems the biases are maternal presumption of custody unless she is incompetent, unless the kid is old enough to say what he or she wants and both parents are competent, then the kid wins.

Most divorce lawyers probably tell guys this up front.
2.6.2007 11:57pm
Cal Lanier (mail) (www):
The most interesting thing about this debate, to me anyway, is that the government is of course almost entirely unable to make these kinds of judgments when parents remain married.

Exactly. If the state can't impose the same restriction on married parents, it should not be able to impose it on divorced or never married parents.
2.7.2007 12:00am
Elliot123 (mail):
Do we consider the right to hear speech to be protected by the first amendment? The right to read what one chooses? The right to watch what one chooses? If so, do children have the same full set of rights that adults have? Do chldren have a right to hear, watch, and read anything they please?

If they do not have the full set of rights, is this a basis for a judge to determine what the child may hear rather than what someone else may say?
2.7.2007 12:17am
David Wright (mail):
Elliot: It is certainly true that we (even I) accept limits on the rights of children to see and hear what they want. But those limits are not relevent to this argument. This argument involves the rights of parents to say what they want to their children, without state interference. Even if children had no more free speech rights than a block of wood, their parents still would.
2.7.2007 12:43am
JamesWN (mail):

Advocacy of jihad is universally condemned (in the USA). So yes.

But advocacy of the violent overthrow of the government is protected under Brandenburg, as long as the speaker doesn't intend to incite imminent lawless action and there is no likelihood that violence is afoot.
An interesting hypothetical is what a court should have done if Clarence Brandenburg had taken his child to a Klan rally and the violation of the criminal syndicalism statute was not prosecuted but rather was said to be material to a custody or visitation dispute.
Unless it could be argued that Brandenburg's speech was likely to incite a child to imminent lawless action, the negative implication of using the attendance at the Klan rally would therefore largely discard the imminence test.
2.7.2007 1:49am
Roger Schlafly (www):
[Oren] I don't think that I could, for the life of me, craft a set of rules that works. The best I could do was vest discretion in the judges and hope that they will do a good job. Appellate review also seems like a good idea.
That is merely a formula for letting the ignorant and irrational prejudices of judges override the rights of parents. If there are no rules and judges have wide discretion, then there is no way of saying that any decision is better than any other, and no way for appellate review to correct anything. Indeed, appeals today hardly ever correct custody mistakes.

The only reasonable solution is joint custody for fit parents. Joint custody is even preferable when the parents have fundamental differences about how the child should be reared. Everything else is just an exercise in irrational prejudices.
2.7.2007 2:51am
PersonFromPorlock:
logicnazi:

Also I simply don't understand how deciding that church going is in the best interests of the child is not a glaring obvious violation of the establishment clause but maybe this is just obvious or I'm missing something.

The establishment clause simply forbids the federal government from sponsoring a church, i.e. a particular temporal organization. There is nothing in it that forbids it from nodding in the direction of religion, or even a particular religion; however, the Fourteenth Amendment's equal protection clause does.
2.7.2007 7:52am
paulhager (mail) (www):
I don't understand how a custody decision can be based on anything in the list.

"Best interest of the child" is among the slipperiest and most dangerous of slippery slopes, allowing all manner of government interference in child rearing. With respect to custody, unless there was a prenup that mandated that any children were, for example, to be raised Catholic, a Catholic parent's religious preference shouldn't be used to deny custody to a Protestant, non-believer, pagan, Communist, or any other sort of non-Catholic parent. Generally, unless the parent is physically harming or neglecting the child, beliefs - even objectionable ones - should be completely irrelevant in determining custody.
2.7.2007 10:05am
Triangle_Man:
The felony test advocated by Dan Hamilton and Sean M is nearly useless in determining the fitness of parents. Hattio pointed this out above, but one need simply enumerate all of the offenses that constitute felonies. For example, until August 5, 2005 it was a felony to ship a bottle of wine to a resident of Florida. Were "felons" convicted under this law unfit parents?
2.7.2007 12:34pm
logicnazi (mail) (www):
PersonFromPorlock,

Thanks for the clarification but I have to admit I'm still a bit confused on this point. I know I've been told what you just said before. However, I thought I'd also seen 1st ammendment decisions that seemed to throw out policies that clearly advocated religion in general rather than atheism. In fact I thought I remember seeing a post by Eugene here that suggested that pure pro-religion advocacy by the government might violate the 1st ammendment.

For instance I thought it was at least questionable whether a law that imposed a higher tax on atheists rather than people who are religious might violate the 1st ammendment. Maybe I'm just mistaken and it was the 14th ammendment.

In either case you are right that it isn't clearly a violation of the 1st ammendment.
2.7.2007 1:58pm
Dan Hamilton:
Triangle_Man

For example, until August 5, 2005 it was a felony to ship a bottle of wine to a resident of Florida. Were "felons" convicted under this law unfit parents?


Yes. There are lots of stupid laws. But Criminals teach their children to be criminals. Sorry but what part of that don't you understand. And yes you can argue ALL day that some criminals raise non-criminal children. But we are not talking about SOME individual criminals. We are talking about divorced criminals getting custody or visitation. It is BEST that they don't have either.
2.7.2007 3:59pm
Aaron:
Hence, Martha Stewart was an unfit parent. So was Ollie North.

Dan, you undermine your argument with such simplistic statements. If you mean violent felons, then that's one thing. However, there are tons of malum prohibitum offenses that would render one to be unfit as a parent, in your eyes?

What about MLK? Bad role model for his kids, huh?
2.7.2007 5:07pm
Sean M:
Triangle_Man and Aaron are most likely right. Perhaps "felon" is too broad a term. But the law does have ways to define things like "crimes of violence" or perhaps a felony of a certain degree (like of the 2nd or 1st degree) that can work around this, as well as an enumerated list of specific crimes that might render a parent unfit. All of these are possible without running afoul of the First Amendment. Admittedly, it would need to be a statutory rule to prevent judicial tampering rather than a common law rule, which might prove troubling.
2.7.2007 5:25pm
Public_Defender (mail):
Exactly. If the state can't impose the same restriction on married parents, it should not be able to impose it on divorced or never married parents.

You aren't serious, are you? When parents divorce and disagree about who should raise the kids, how do you propose that the parents resolve the dispute? Should they be allowed to physically remove the kids from the other's home whenever the other parent lets his or her guard down.

Maybe the fairest way to resolve religious disputes between parents is to flip a coin. The winner gets to choose the child's faith, and the loser isn't allowed to say anything that interferes with the winner's choice.
2.10.2007 4:20pm