From the trial court's judgment giving the father custody (a decision upheld on appeal), Dexter v. Dexter, no. 2005 DR 0110 (Ct. Com. Pl. Portage County, Ohio May 1, 2006), aff'd, 2007 WL 1532084 (Ohio App. May 25):
[Mother] has undertaken to engage in a lifestyle that is extreme by normal social standards and [mother] testified that she is a devotee of sado-masochism; that she is bisexual; that she engages in paganism; that she has used illicit drugs on a semi-regular basis; and that she spends a great deal of time online where she has two to four websites of so-called "blogs." The evidence also indicates that her fiance ... also engages in sado-masochism, and in the past produced and starred in a theater troupe depicting such activity while also engaging in such conduct in his private life with [mother]....
[M]other and her boyfriend have a perfect right to engage in sado-masochism, paganism and their chosen sexual orientation, but nevertheless, this Court is not convinced that [they] would exercise the due diligence that is required to engage in those practices without exposing such lifestyle to the parties' child[ and thus] adversely affect[ing]the best interests of [the child, a 4-year-old girl].
The father may indeed have been a more suitable parent on some grounds, for instance if the mother and her fiance indeed used illegal drugs (though note that the drug use is listed as just one item among many, including the paganism), or if the mother's online time materially affected the time she spent with her daughter (though I assume that if the mother's problem was that she left her daughter unattended, for instance, the court would have said that rather than just pointing to her "spend[ing] a great deal of time online"). But the reference to mother's paganism — and the view that pagans may be denied custody because their open practices risk "exposing such lifestyle to [their] child[ren]" — strikes me as a clear First Amendment violation.
It seems to me that her bisexuality should likewise be none of the court's business; nor should her sado-masochism, unless there's some specific evidence that the practices are physically harmful to her and thus indirectly to the child (evidence that judgment, the magistrate's findings, and the appeals court decision never even hinted at). Likewise, reliance on the fiance's theater performances seem to me barred by the Free Speech Clause. Still, even if we set the sexual practices aside, perhaps on the theory that Lawrence v. Texas provides only modest protection for sexual autonomy (a hotly debated question), the First Amendment bars a court from relying even in part on the mother's pagan religious beliefs or open participation in pagan religious rituals (except insofar as some specific conduct during those rituals endangers the child or perhaps the parent, something there's no evidence of here).
For more on courts restricting pagan practices (there, Wiccan practices), see this post and the Decree of Dissolution of Marriage, Jones v. Jones, No. 49D01-0305-DR-00898, at 4 (Feb. 13, 2004) (directing both parents "to take such steps as are needed to shelter [the child] from involvement and observation of these non-mainstream religious beliefs and rituals"), rev’d, 832 N.E.2d 1057, 1061 (Ind. Ct. App. 2005). For information on courts discriminating against parents who are less religious and less observant than their ex-spouses, see this post. For more on the general issue of child custody decisions that restrict parents' speech, or that count parents' speech and religious belief against them, see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006).
UPDATE: I should have also quoted the appellate decision, which does flag the possible impropriety of relying on religion and the like, but which also suggests that considering religion as a factor is permissible. Here is the relevant excerpt:
In this case, appellant admitted, both in her testimony and through her writings in on-line blogs, that she practiced sado-masochism, was a bisexual and a pagan. Her boyfriend corroborated these practices and beliefs....
The fact that the trial court considered appellant's personal choices and expressed concern over these choices does not warrant reversal under the circumstances of this case where the court's decision was based on consideration of other relevant factors. Therefore, even if we were to find that the court improperly considered some of the evidence regarding appellant's lifestyle choices, we are unwilling to find an abuse of discretion where there are a number of other findings that support the trial court's decision and where the court considered several other factors in making its custody determination.
In urging reversal, appellant contends that this case is analogous to [Pater v. Pater (1992), 63 Ohio St.3d 393]. However, in Pater, the trial court's award of custody to the father was based solely on the fact that the mother was a Jehovah's Witness. Thus, she was denied custody because of her religious affiliation. Both parents were deemed equally competent to care for their child and there was no other evidence finding in favor of the father. The Supreme Court of Ohio reversed the trial court's decision, finding that it was grounded in religious bias. Here, the facts are distinguishable. Unlike Pater, the trial court's decision was not based entirely on its biases or beliefs regarding appellant's personal choices. Rather, the decision was made after the court considered other relevant factors that supported its determination that it was in the best interest of the child that appellee be named the custodial parent. Appellant's reliance on Pater is therefore misplaced.
It seems to me wrong to allow courts to rely even in part on a parent's religion -- at least absent some specific finding that the religion poses a serious imminent risk to the child -- and wrong also just to assume that, even if the reliance on religion was wrong, the result would have been the same without such reliance (at least where the lower court opinion reveals that the court took the religion factor pretty seriously, rather than just mentioning it in passing). The better view, I think, is that expressed in Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979) (paragraph break added):
The case must therefore be remanded for a new determination of the custody issue without regard to the religious affiliations of [the parents]. [Footnote:] It is of no avail to argue ... that since finding number 5 [concerning the family environment] alone would support the award of custody to Randall, the inclusion of finding number 4 [concering religion] should not compel this court to remand the case.
The demand for legal precision is at its greatest when fundamental rights are at stake. The trial court's findings delineate only two grounds supporting an award of custody to Randall. Thus, while finding number 5, concerning the family environment, is a factor which clearly may be relied on in making a custody determination, we cannot be certain that the trial court's decision would have been the same in the absence of its reliance on the religious affiliations of the parties.
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