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Wife's "Anti-American Sentiments" (and Perhaps Anti-Semitic Sentiments)

Help Lead to Giving Husband Temporary Physical Custody of Children: Here's an excerpt from the temporary order in Ahmed v. Haroun (Minn. Dist. Ct. Sept. 7, 2005) granting the husband physical custody. The order was later superseded by a permanent order allowing joint physical custody based on a court-appointed custody evaluator's recommendation (see the appellate decision in this case).

c. Neither party alleges domestic abuse by the other party. Assuming Husband's assertions regarding Wife's conduct in practicing her Muslim religion, this Court has grave concern that she would not be an appropriate parent or role model for the children. In the same light, the Court has concern about Wife's volatile behaviors not just towards Husband, but towards the minor children and in front of the minor children.

d. In considering that Husband has lived almost his entire life in the Twin Cities area and has become a U.S. citizen, while Wife has not acclimated well to her relocation to the United States or American culture, has not sought US citizenship until after these proceedings commenced, voiced her anti-American sentiments, it is in the best interests of the parties' minor children to be under Husband's temporary physical custody.

Here is the passage from the husband's affidavit that contains what seem like the relevant "Husband's assertions regarding Wife's conduct in practicing her Muslim religion":

4. In Respondent's mind, the 9/11 tragedy was justified; she believes that America deserved it for being pro-Israeli and because America is standing by watching Israel "slaughter" Palestine. She supports the terrorists' action; she supports and believes in the extremism and Respondent supports Osama Bin Ladin and believes he is a "hero," and a role model to aspiring extreme Muslims.

Shortly after the 9/11 tragedy, we went to Egypt on vacation. It was then when Respondent became so obsessed with the Muslim religion; her brother has become and extremist. Respondent from this point on was consumed by watching every religious program and surfing the net on 9/11 propaganda that Respondent began neglecting the household. Respondent has since been unstable and does not deal with day-to-day issues with reason.

When I met Respondent she did not wear a Hejab. After 9/11, Respondent first started wearing a Hejab. Respondent believes (according to her belief and her interpretation of the Koran), that women who don't cover their hair "will be hung by their hair in hell," which is not true at all. Respondent claims to be a practicing Muslim. If that were true we would be going through the Islamic Jurisprudence of Minnesota Committee in resolving our divorce and she would not sympathize with the 9/11 terrorists. I, on numerous occasions, tried to tell Respondent that we are living in a great country: America where sky is the limit, where we can be more open-minded, and be open to learning from all that is around us. She is not willing to adjust to the American culture and instead, she has significantly gone the other way towards anti-America sentiment. After 9/11, Respondent posted on the refrigerator a list of Jewish owned businesses which she vowed to "boycott". I do not want her to teach the boys such racism and prejudice.

As our sons' father, I have been a positive role model by teaching them good ethics and values. Respondent claims that I have not provided any care for the boys. This is not true! I have fed the children, bathed, changed, shopped, taken them on bike rides, read to them, said prayers with them, swam with them, have gone to almost all of their doctor appointments, taken them to a mosque and Sunday school. I know that I can provide the kids with love and the exposure to the day-to-day life experiences. This is why I ask the Court to grant me physical custody. I am concerned that if Respondent has sole custody of the boys, then she will teach the boys the extreme beliefs she is following. I want the boys to live the "American life" and not grow up being taught and to believe anti-American sentiments that Respondent is following.

Respondent has not liked being this country and does not believe in what it stands for. Respondent has asked me many times to transfer to RE/MAX franchise in the Middle East. During discussions regarding our divorce, she has asked me to buy her an apartment in Egypt.

The wife denied the husband's accusations, though the court seemed to believe the husband when deciding on the temporary order. One of husband's friends and coworkers also filed an affidavit saying that "while at their house for dinner, I was struck to see a list ... of Jewish businesses to avoid, posted on the refrigerator" (a list that he was sure wouldn't be the husband's doing, based on what he knew of the husband's views). The affidavit also reported on the husband's pre-divorce complaints about the wife's "attitude towards her faith, her new country, and her predilection for surfing the internet and watching Islamic satellite programming that was anti-American and extremist in tone," the wife's "fundamentalism and Anti-Sem[i]tic views," and the husband's "concer[] with the type of message and values that extreme Islamic fundamentalism would have on their children."

The husband also alleged various other misbehavior by the wife; the judge seemed to be referring to this when he talked of "Wife's volatile behaviors not just towards Husband, but towards the minor children and in front of the minor children." But it seems pretty clear that the judge relied fairly substantially on the wife's anti-American sentiments, and her "conduct practicing her Muslim religion," which seems to refer to the pro-jihadist and anti-Semitic views. The court of appeals likewise seemed to think the wife's views were important to the trial court's temporary decision; its summary of that decision read,

Ahmed initiated a marital-dissolution proceeding in 2005. He filed a number of affidavits accusing Haroun of sympathizing with terrorists and engaging in anti-Jewish activity. The district court issued a temporary relief order granting Ahmed sole physical custody of the couple's three young children. The district court noted that because of Ahmed's claims about Haroun's "conduct in practicing her Muslim religion, this Court has grave concern that she would not be an appropriate parent or role model for the children." The district court, among other factors, based its decision on Haroun's failure to seek U.S. citizenship until after the proceedings commenced and Ahmed's allegations about Haroun's voicing anti-American sentiments.

In any case, this seems like a fascinating story, and an example of what I describe in my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU. L. Rev. 631 (2006) (as well as in this thread, which touches on another extremist-Islam-related parent-child speech case). A few questions for those who want to think further about this matter:

  1. Do you think that a reasonable judge could conclude — focusing only on the factual question, and setting aside the constitutional issues — that it's more in the child's best interests to be raised by a parent who is not anti-American, anti-Semitic, and fundamentalist Muslim than it is to be raised by a parent who is those things?

  2. Even if the answer to the first question is yes, do you think that the judge should nonetheless be barred from considering such parental views in the custody decision?

  3. If a judge is entitled to consider such ideological factors in this case, do you think that there should be any constitutional limits on child custody decisions that are based on such factors?

Oh My Word:
1. Yes
2. No
3. None that I can think of, at least with regard to the First Amendment, short of the Court saying as a blanket and general rule that one religion is absolutely verboten or another religion is always to be preferred. It is fully constitutional to look at the facts of a situation and say that one parent's religious views and practices are less in the best interests of the child than the other's for various factual reasons that show facts-specific consideration of the child. If such policy is inadvisable, then it is for the state to legislate or for the parents to address in a pre-nuptial or post-nuptial agreement.
8.15.2007 5:00pm
MHeine:
1. Yes
2. No
3. Limited only to the regard of whether the ideology espoused is likely to substantially interfere with the children's ability to become productive US citizens.
8.15.2007 5:23pm
Eugene Volokh (www):
Oh My Word: A brief follow-up question -- say Judge A decides that it's more in the best interests of children to be raised religious (especially in an organized religion) than nonreligious; Judge B decides the exact opposite. As a result, Judge A prefers the parent who will take the child to church (or synagogue or mosque or whatever else) each week over the atheistic, agnostic, or nonobservant parent. Judge B takes the exact opposite view. Constitutionally permissible?
8.15.2007 5:24pm
Richard Aubrey (mail):
The woman is a nutcase. Unfortunately, the manifestation of her illness raises First Amendment questions. It shouldn't.

Are any of the kids girls? Is there any sense this woman is against FGM?
8.15.2007 5:25pm
Nels Nelson (mail):
I just hope the judge wasn't swayed by this stellar argument:


'Respondent believes (according to her belief and her interpretation of the Koran), that women who don't cover their hair "will be hung by their hair in hell," which is not true at all.'
8.15.2007 5:25pm
Fco (www):
Yes to (1) and (2).

We do not want courts making a determination on which ideology is best suited for child rearing. For a court to determine that (all else being equal) a christian home is better, or has higher priority, for a child is an endorsement of religion. Would we next expect feuding parents to proclaim their love for America during a child custody case? Should this really matter?


"Wife's volatile behaviors not just towards Husband, but towards the minor children and in front of the minor children."


This should be enough. If someone is radical, there must be something in their actual behavior that can be shown to harm the child. Rather than relying on her ideology/religion. The mother has every right not to patronize Jewish businesses and to teach her child not to.
8.15.2007 5:26pm
John425:
Legal questions aside ('cause I'm not a lawyer)- Are the kids US citizens? Can't discern that from the story. She should, at the least, have to surrender her passport which would prevent her from fleeing US jurisdiction with the kids.

That leads to a legal question...can the US require a non-citizen to surrender their passport as a condition of custody?
8.15.2007 5:26pm
Daniel San:
1. Yes. It is reasonable to conclude that children are better off not hating their circumstances, such as their nationality. Here, it is a close question (whether it could be reasonable) due to the lack of evidence (presented here) as to what is being taught to the children or how it is affecting the children.

2. It do not see First Amendment difficulties if harm (even tenuous emotional harm) to the children can be shown. I do not see a clear nexus to the children or harm here. Perhaps one can be inferred, but that is a very close call.

3. I would require a showing of harm or likely harm. The showing should relate directly to the children and be more specific than "Muslims are bad" or even "jihadist lovers are bad." Due to the nature of child custody proceeds, I do not think one can require a showing of imminent or serious harm. ("Yes, it is true that they miss a lot of meals, but my religion teaches fasting, so you can't consider that, judge.") A broad First Amendment right could eviscerate the best interests standard in a fair number of homes. ("Spare the rod, spoil the child.")
8.15.2007 5:42pm
CaDan (mail):
I've had a jury trial and several motion hearings before Judge Sovis. In my experience, he's a pretty good judge.
8.15.2007 5:46pm
Fco (www):
John425:


That leads to a legal question...can the US require a non-citizen to surrender their passport as a condition of custody?


Make a parent choose between custody of their child and ever seeing their family again? I doubt it.
8.15.2007 5:48pm
Alan Gunn (mail):
One of my colleagues once described the probate court (which in Indiana decides a lot of non-divorce-related custody issues) as resembling Justice Frankfurter's "cadi under a tree." The basic principle is that you try to avoid letting crazy people have custody of kids, if there's an alternative. This may raise First Amendment concerns when a particular craziness involves religion, but it's still a good principle. Prudent judges will, one supposes, not stress the importance of the losing party's religious lunacy, but it would make no sense to say, in effect, "we won't let fanatics take care of kids unless the fanaticism involves religion, in which case we'll ignore it." There isn't any "neutral" position here: you can either rule against people whose religions tell them to teach their kids appalling things, which in some ways seems "anti religion," or you can ignore religiously inspired awfulness but not other kinds, which is just as biased the other way.

I am reminded, as so often happens in discussions of religious freedom, of Coase's demolition of Pigovian economics, which had blithely taught that both subsidies and penalties were "inefficient." Once you notice that failure to penalize something that affects others is indistinguishable in principle from subsidizing it, this easy answer to all our problems goes away. Same thing with religion: the usual understanding of the First Amendment's religion clauses--don't penalize religion but don't give it special benefits either--is Pigovian, and Pigou was incoherent.
8.15.2007 6:08pm
John (mail):
A parent's beliefs affect the welfare of the child. We wouldn't be having this debate if the mother were committed to arranging a space ship to carry her children to a promised land, if she believed that daily whippings were necessary to raise a child, etc., etc.

At some point, crazy beliefs that touch sensitive areas, like religion, are going to find their way into the consideration of the child's best interests. I suppose a religious belief in polygamy or forced marriage would fairly count against a parent in this weighing, but whether others would or would not simply cannot be determined without a lot of context.

So the answer is the judge most certainly should consider all of a prospective parent's beliefs; but what becomes important, or decisive, cannot be known without all the facts.

In this case, I think the judge was plainly right.
8.15.2007 6:10pm
Eugene Volokh (www):
Alan and John, what do you think of the question I posed earlier in the comments: Say Judge A decides that it's more in the best interests of children to be raised religious (especially in an organized religion) than nonreligious; Judge B decides the exact opposite. As a result, Judge A prefers the parent who will take the child to church (or synagogue or mosque or whatever else) each week over the atheistic, agnostic, or nonobservant parent. Judge B takes the exact opposite view. Constitutionally permissible?

Also, John and Richard Aubrey: Is it really that she's crazy, or just that we think her beliefs are immoral? (Her devout religiosity may involve some beliefs that are factually unsupported, but religiosity involving factually unsupported beliefs -- whether about the Resurrection, the Virgin Birth, or whatever else -- is so commonplace that it's hard to sensibly label it as "crazy.")
8.15.2007 6:19pm
Hattio (mail):
For me the answers are yes, no and yes. Of course, that's the easy part, the difficult question is where you draw the line. I think the judge could easily have justified his decision and either have left out religion or stressed that it was her own nutty version of Islam (I'm presuming the father is also Islamic).
But, all categories you list are fairly broad. If someone believes that we should become a Communist country (or a monarchy, or whatever) but believes it should be done peacefully through reforming the Const. rather than through violent overthrow, I would have a problem with the court holding that against the parents. If someone thinks we should become a European style socialist country (or a pure unregulated capitalist country), should they get a black mark? I would think not (absent advocacy of violence). But at what point should advocacy of resistance count against a parent? I'm not sure. Encouraging your kid to go to a protest, I'm fine with that. Encouraging your kid to throw Molotov cocktails, not ok. But, I'm not so sure about enouraging (or how about just allowing) you kid to chain themselves to a tree?
8.15.2007 6:28pm
Hattio (mail):
Just to be clear, believing that the country should become Communist or a monarchy is something I would definitely call anti-American (though I still don't think it should be held against the parents in custody battles).
8.15.2007 6:30pm
gab:
"Respondent believes (according to her belief and her interpretation of the Koran), that women who don't cover their hair "will be hung by their hair in hell," which is not true at all."

I hope like hell that "this is not true at all" cuz if it is true, there's gonna be a whole lot of unhappy women in the afterlife. Not that I would be down there with them...

2nd thought - go back and reread Dante and see if he might have covered this already.
8.15.2007 6:37pm
BruceM (mail) (www):
It is never in the best interest of a child to be placed in the care of a religious parent. If both parents are religious, then it is in the best interest of the child for the state to maintain custody.

If one parent is religious and one parent is not religious, then it is in the best interest of the child, as well as the best interest of society, for the child to be placed in the custody of the secular parent.

If you believe in invisible spirits, ghosts, witches, demons, etc. you should not be permitted to have custody of a child so that you can indoctrinte said child into your belief system. It's one of those rare situations where the interests of the child and of society go hand in hand. Not being permitted to raise a faith-based terrorist will minimize faith-based terrorism.
8.15.2007 6:53pm
Thorley Winston (mail) (www):
"Respondent believes (according to her belief and her interpretation of the Koran), that women who don't cover their hair "will be hung by their hair in hell," which is not true at all."


I hope like hell that "this is not true at all" cuz if it is true, there's gonna be a whole lot of unhappy women in the afterlife. Not that I would be down there with them...


I'd be curious if the mother in this case actually did believe those things or if the father has taken some religious literature (or the Quoran), possibly out of context, and is trying to impute those beliefs onto her in order to bolster his case. It wouldn't be the first time one parent threw mud at the other in a custody dispute.
8.15.2007 7:09pm
Dan Simon (mail) (www):
Here's a hypothetical for you, Eugene: suppose there were evidence that the mother, beyond simply expressing her views to her children, had actively trained them in her beliefs--requiring them (presumably on pain of rebuke or even punishment) to express hatred for Americans, avoid Jewish-owned businesses, and so on. Would a court that denied her custody based on those actions be running afoul of the First Amendment, in your view? And if not, could the speech described in the actual case be taken as strong evidence that the mother likely would train her children in this way?
8.15.2007 7:14pm
Eugene Volokh (www):
Wow, BruceM -- so you think that foster care is more in a child's interest than being raised by his parents, whenever both the parents are religious (which I expect would happen in 80+% of all cases)? Or would it be orphanages instead? (Incidentally, are you suggesting this only as to children in split families, or also ones in intact families?)
8.15.2007 7:15pm
Alan Gunn (mail):
EV asks:

Alan and John, what do you think of the question I posed earlier in the comments: Say Judge A decides that it's more in the best interests of children to be raised religious (especially in an organized religion) than nonreligious; Judge B decides the exact opposite. As a result, Judge A prefers the parent who will take the child to church (or synagogue or mosque or whatever else) each week over the atheistic, agnostic, or nonobservant parent. Judge B takes the exact opposite view. Constitutionally permissible?

I don't have real opinions about constitutional law; not my field, and it's hard. But it's a fair question, and, having commented, I suppose I should give it a shot. My guess is that an opinion by either Judge A or Judge B in which the decision was expressly based on religion's being per se good or bad would invite reversal; judges aren't supposed to decide issues like that, and they certainly aren't supposed to say that they're doing that. I suppose there are lots of judges who would consider those things but not talk about them. For myself, I find both of your hypothetical judges' beliefs (any religion is better than none, or vice versa) quite odd: I'm happy enough with my own church's views in general, and with those of quite a few other religions as well, but some are so far out that I'd prefer secularism (at least in its milder varieties, as opposed to the "I really dislike G*d" form). But, in any event, the case described in your post is far from this one.

All of this is quite abstract; in particular cases it can make perfect sense to base child placement on religious considerations. When Child Protective Services here takes kids out of their homes, they try to put them in foster homes that observe similar faiths. It's less stressful for the kids, and the parents are deprived of one ground for complaining about their treatment. I doubt that anyone would object to this practice. And even in your Judge A and Judge B case, I suppose it would be constitutionally OK to say that it's better for a child raised in a particular faith to be placed with a parent who will stick with it, and for a child not raised in a particular faith (or any at all) not to be placed with a parent who has adopted something new to the kid and very different. For instance, don't put a 10-year-old who has been brought up as a Baptist [or Muslim] in a Muslim [or Baptist] household, other things being equal. That's just basic cadi-under-a-tree-ism.
8.15.2007 7:21pm
Richard Aubrey (mail):
Eugene.
It's not merely that her beliefs are immoral. The Virgin Birth, btw, does not require us to do bad things to other people.

The circumstances of her explosion of Islamissimo are the key, along with the nutty beliefs in the first place. Boycotting Jewish stores is her right, but the urge is a sympton of something other than a mere concern about the Protocols of The Elders of Zion, or a resentment that Israelis decline to allow suicide bombers into their restaurants.
8.15.2007 7:40pm
A. Zarkov (mail):
Yes, no, no. Moreover wife should be deported forthwith. This solves the problem about her passport—she takes it with her.
8.15.2007 7:49pm
A. Zarkov (mail):
"It is never in the best interest of a child to be placed in the care of a religious parent. If both parents are religious, then it is in the best interest of the child for the state to maintain custody."

Never? Wow you must think every secular person in the world is automatically superior to every religious person. But what do you mean by religious? Do Unitarians count as religious-- or Buddhists? Does any belief system quality as a "religion." How about extreme environmentalists who think we should dismantle our industrial society?
8.15.2007 7:57pm
Hank :

Do you think that a reasonable judge could conclude — focusing only on the factual question, and setting aside the constitutional issues — that it's more in the child's best interests to be raised by a parent who is not anti-American, anti-Semitic, and fundamentalist Muslim?

What does "anti-American" mean? "Anti-Semitic" usually means to think poorly of, or hate, individual Jews on the basis of their religion or ethnicity. "Anti-American" can mean to think poorly of, or hate, individual Americans on the basis of their nationality, but it more commonly means to oppose U.S. government policies. One might be anti-American because one considers the U.S. a rogue state that violates international law, kidnaps and tortures people, and invades other countries. Agree or not, that is not a form of bigotry, but a political opinion.
8.15.2007 8:31pm
pete (mail) (www):
BruceM "It is never in the best interest of a child to be placed in the care of a religious parent. If both parents are religious, then it is in the best interest of the child for the state to maintain custody.'

So everyone from the Rev. Martin Luther King Jr to Billy Graham to me and my wife should have our kids put in state orphanages, while athiests like Joseph Stalin and Madeline O'hair and Woody Allen get to keep their kids because religious people have no business raising kids and if you have to chose between an athiest and a religious person always go with the athiest.

I wonder if your comment was satire.
8.15.2007 8:34pm
LM (mail):
Determining child custody based at all on a parent's beliefs, however irrational or detestable should be a non-starter. Obviously some beliefs could be evidence of mental illness, a valid custody consideration, but it's the illness, not the belief that's determinative. Other beliefs may give rise to non-speech behavior which is relevant and Constitutionally admissible, e.g., refusal to pay taxes. Again, the attendant behavior, not the belief itself controls. The tough call would seem to be indoctrination. It's speech that has potentially significant consequences for the child's well being.

I 'd think by now there would be a meaningful body of case law on this question, no? Custody disputes involving one Christian Scientist parent? You don't get religious indoctrination a whole lot more consequential than that by mentally competent parents.
8.15.2007 8:41pm
R:
It would've been funnier if the judge's reasoning was that he agreed with the mom's Taliban-like version of Islam to the point that the woman should have no say in the matter and given custody to the father.

I'm not a lawyer, but I'm guessing this might not fly.
8.15.2007 8:51pm
Ella (www):
Whenever two parents walk into a courtroom to determine who gets the kids, one or both is walking away with their constitutional rights having been limited in some way. The court could not issue an order allowing one parent to fully exercise her fundamental right to raise her child in a manner that does not abridge the other's equally fundamental right to raise his child. For this reason, a parent's rights are almost entirely irrelevant in a child custody case. Everything that might relate to the best interest of the child is fair game, including the parents' religious and political opinions, sexual behavior, dietary habits, health, etc.

The only limitation on the court's consideration of these factors should be that the court can only use a factor in making a determination if there is a neutral basis to conclude that it has a positive or negative effect on the child's well being. Thus, Mom's recent conversion to paganism might be considered if she and Dad had raised the child in fundamentalist Christianity for the past ten years and the child would be distressed by the change in religious environment if ordered to live with Mom. Dad's inability to refrain from telling his child that Mom was going to hell might also be considered, for similar reasons.

I don't see any other workable standard for custody decisions. The truth is that in most cases, the parents are equally fit and the child would probably do equally well (or poorly) with either parent. All the "constitutionally neutral" factors - income, caretaking ability, law abiding character, etc. - are often a wash, leaving more problematic areas related to speech, beliefs, and behavior.

(As for Judge A and B, they're both wrong and their decisions should be tossed because they failed to make individualized determination of each child's best interests based on evidence presented.)
8.15.2007 9:34pm
Ken Arromdee:
Whatever the law really does in this kind of situation, I think that what it *should* do is say that beliefs that are nutty enough can be a reason to prefer the other parent in custody cases, but that the standard for "nutty enough" should be high enough that the mere fact that one parent has a religion and another doesn't, or one parent is pagan and another Christian, doesn't count as "nutty enough".

This is, of course, very hard to write down as an ironclad rule because it involves human judgment, but that's a problem with implementation, not a problem with the basic concept.
8.15.2007 9:59pm
Dave Hardy (mail) (www):
Let's flip the situation a little. As a hypothetical: the father is a agnostic Klansman. Could care less about religious dictates, just hates blacks, jews, and others with a passion, and is pretty obvious about it. Problems with a judge taking that into account?
8.15.2007 11:11pm
Brian G (mail) (www):
She hates America, yet, of course, she ain't leaving. I say let her have her fair share of custody so she can see first-hand her children how her children chopose the American 21st century way of life, not the Islamic 13th century way of life.
8.15.2007 11:28pm
Roger Schlafly (www):
No. The order is merely a reflection of the judge's prejudices. The fact-finding is dubious, and bears no obvious relation to his actual order. He never identifies any interests of the children, nor does he explain why the father's custody is going to further those interests.

You might infer that the judge wants to shelter the kid from the mother's anti-American beliefs. But she will still see the kid about 25% of the time, under the order that was most unfavorable to her. It is not clear whether reducing her custody from say 50% to 25% is going to help the kid avoid those bad beliefs of hers, if that is really the objective.

I am appalled at how eager the readers here are to deny any parental rights in the matter. I thought that this blog had a lot of libertarian readers. Where are they? Most of those here want to take away all parental rights based on the flimsiest and most bigoted of reasons.
8.15.2007 11:44pm
Richard Aubrey (mail):
Roger. The courts frequently limit the rights of parents thought to be a threat to the child's welfare. And it doesn't take much to be considered less than desireable.

In this case, the wife is not merely Muslim, she's a fanatic Muslim who, moreover, was just kind of mellowing along until her visit to the old country. Whereupon she went nucking futz. It would be like a semi-slacker Catholic going to Italy and coming back thinking Opus Dei is a bunch of liberal weenies, while Torquemada was the bomb.

The issue with most religions is exaggerated with Islam. Most religions have certain cultural aspects which are not, strictly speaking, religious. Some of what is considered their faith is, in fact, cultural. Hatred of Jews, for example, is not in Islam, it just comes with the territory.

The judge in this case was in a position to separate the two and decide as he did. Not to mention, this wife gave every indication of being unstable.
8.16.2007 12:52am
George Weiss (mail):
suppose the judge said he was worried about putting the child into the wifes custody because she believed in aliens and a Kennedy assassination conspiracy.

no religion now..just a judge making an arbitrary decision about 'fitness'

now in Eugene's follow up to "oh my word" the question becomes-one judge believes the wife is good because she will teach her children to have an open mind. another judge believes the opposite and belives kids should be taught to learn the difference between fantasy and reality.

yes..this is pretty arbitrary and judgmental (but so is custody 'fitness' decisions in general)...but i think its constitutional..


theres no reason to assume just because religon is involved it suddenly becomes unconstitutional-remeber..CONGRESS SHALL MAKE NO LAW-not jusges shall not consdier in custody fitness
8.16.2007 12:54am
George Weiss (mail):
and to more specifically answer eugene'es follow up:

yes its contituional for judge a to say its beeter to be raised secualr and judge b to say the opposite.

in MOST cases however- this should be appealable ON THE EVIDENCE not on the contituionality
8.16.2007 12:58am
Brian K (mail):
Let's flip the situation a little. As a hypothetical: the father is a agnostic Klansman. Could care less about religious dictates, just hates blacks, jews, and others with a passion, and is pretty obvious about it. Problems with a judge taking that into account?

I have a better one. The mother is a fundamentalist christian who hates gays and liberals and believes that anyone who supports abortion rights will spend an eternity in hell in agonizing pain. Should the mother lose custody (or not be given custody in the first place)? If not, why is hating jews wrong but hating gays right?

Here's another one. The father is a staunch supporter of 2nd amendment rights and has a half dozen guns laying around the house. Should the judge refuse to grant him custody?
8.16.2007 1:15am
michael (mail) (www):
EV: but religiosity involving factually unsupported beliefs -- whether about the Resurrection, the Virgin Birth, or whatever else..

I didn't know the Catholics had a dog in this fight.
8.16.2007 10:41am
Judge (mail):
Have there been any cases like this involving custody battles among white supremacist terrorists?
8.16.2007 10:51am
Ken Arromdee:
The mother is a fundamentalist christian who hates gays and liberals and believes that anyone who supports abortion rights will spend an eternity in hell in agonizing pain. Should the mother lose custody (or not be given custody in the first place)?

I'd say that this depends on what "hating" means. If it means she boycotts gay-owned businesses, doesn't let the child have gay friends, thinks the Teletubbies are gay propaganda, etc. then she should lose custody.

Just thinking that someone goes to Hell isn't enough. I would, of course, apply the same criteria to someone who thinks that Jews go to Hell.

I also think it's a bad idea to treat "these people will be tortured by God in Hell" as "these people are a plague on our society and in real life we should get as close to torturing them as we're allowed to". Those may be equivalent logically (at least if you think God is good), but people aren't logical about religion and it does believers a disservice to assume they accept all the brutally logical consequences of their own beliefs.
8.16.2007 11:07am
Extraneus (mail):
BrianK: I have a better one. The mother is a fundamentalist christian who hates gays and liberals and believes that anyone who supports abortion rights will spend an eternity in hell in agonizing pain.

Seems this sort of Islam-vs.-The-Modern-Legal-System question is getting more and more prevalent, and it's not simply one of religion in the abstract, but the Muslim religion in particular. For example, there surely are Christians who believe as BrianK's hypothetical -- that "sinners" should be punished in the afterlife. Many if not most devout Muslims, however, believe -- and surely teach their children -- that gays should be killed in the here and now, that God hates Jews and wants believers to kill them, and in a whole host of other things that are incompatible with modern American society.

I think we'll get to a point where Eugene's question is less abstract, and more along the lines of "Is it constitutionally permissible for a judge to rule against parents who teach their children Islam?"
8.16.2007 11:13am
Hoosier:
"I'd say that this depends on what "hating" means. If it means she boycotts gay-owned businesses, doesn't let the child have gay friends, thinks the Teletubbies are gay propaganda, etc. then she should lose custody."

This is just amazing. She should /lose custody/ of her children for negative actions? Not shopping in stores? Not Watching a TV show? Not having gay children ('gay children' at the primary school level? how could anyone know that?)?

If she is using the kids to help vandalize the Disney Store, ok. Otherwise, this is an amazingly intolerant recommendation.

Similarly, the Islamist mom in this case holds to views that don't seem out of the norm for Islamists in general. (By definition, in some cases.) Will NO Islamist parents be allowed to raise their own children from now on? How would we justify that?
8.16.2007 11:57am
Seamus (mail):
So everyone from the Rev. Martin Luther King Jr to Billy Graham to me and my wife should have our kids put in state orphanages

Yep. Because, contrary to what the Supreme Court decided in Wisconsin v. Yoder, children are "mere creatures of the state," which allows parents to raise them only so long as they adhere to the accepted orthodoxy.

(Sheesh. Even the Papal States didn't believe it removing children from Jewish homes and raising them Christian except in rare cases where the children had been baptised (like Edgardo Mortara) and thus, in the Church's eyes, had become Christian.)
8.16.2007 12:29pm
Richard Aubrey (mail):
Hoosier. Good point. This is the norm for Islamists. Which is what people have been saying for some time. Is the fact that it's the norm equal to its being acceptable? And is there some reason judges should find for Islamists in custody cases? Or should they always find against.

It's possible you meant "Muslims" for "Islamists". True?

Anyway, the saga of Britain's first Muslim MP is up on Frontpage. I know that anything coming through Frontpage is sullied by its passage, no matter the original source, so perhaps you could just look up the original source, read it, or related info, and pretend Frontpage didn't pass it on. Or pretend you were reading it before Frontpage got to it. Something.

Beliefs about the next world are different from beliefs about appropriate or divinely-required actions in this. Really.
8.16.2007 12:32pm
Adeez (mail):
"Whenever two parents walk into a courtroom to determine who gets the kids, one or both is walking away with their constitutional rights having been limited in some way . . . Everything that might relate to the best interest of the child is fair game, including the parents' religious and political opinions, sexual behavior, dietary habits, health, etc."

Very well put by Ella. It's fascinating: the state has ZERO interest regarding almost every relevant part of a child's upbringing: education, friends, diet, activities, etc. But as soon as a couple (who had no business procreating in the first place) can't make nice, the state has no choice but to consider everything. The result is that no one is happy. But hey, that's the danger of prohibiting forced sterilization programs I guess.

And in NY it's simple: the Court appoints a guardian, and then does whatever the guardian recommends.
8.16.2007 12:48pm
Hoosier:
Richard Aubrey--

No. I mean 'Islamists.' The father in this case is a Muslim, but not an Islamist, as I read it.

Is it a workable policy to remove children from Islamist parents whenever the issue comes before a court? Is it even desirable?
8.16.2007 1:02pm
Richard Aubrey (mail):
Hoosier. Removing kids from Islamist families is probably not workable. In custody hearings where removing the kid(s) at least partially from one parent or the other is a given requires a decision and considering Islamism is valid.

We are in a whole new territory here. Just as the legal status of combatants working for non-state organizations is not comfortably fitting within the Geneva Convention, the fact of people within a nation whose beliefs require them--some actually act out--to work against that nation is new. There have been seditionists before, sometimes ethnically identified. This is supposedly true in the various states put together by and after the fall of the Austro-Hungarian empire, and later after the fall of the USSR.
In this case, though, everything but the actual explosion is protected by the free exercise clause of the First Amendment plus the liberals' desire to show how hip and tolerant they are.

We do not have, that I am aware, the obscene propaganda on children's television like that provided by the various Palestinian organizations. But if we did, the First would protect it and the libs would ask what those who object are worried about? "Little Islamophobia there, sport? Problem with other cultures, you EuroAmerican redneck? I got my Saudi money and I don't have to listen to anybody."

This situation is, I submit, new. And, as Lincoln said, we must think anew.

I don't see many details of solutions just now, but it would be useful to start asking questions.
8.16.2007 1:22pm
Ella:
OhfortheloveofGod, Richard, not everything that is or ever could be wrong, bad, or annoying is attributable to "the libs", or whatever vaguely defined, yet amazingly monolithic, version of them you have constructed in your mind.

And for the record, the situation is not new. Family courts have been making similar decisions using the same types of factors for generations. Just because some of the people on this blog seemed to have just discovered that fact does not make it a new development.
8.16.2007 1:36pm
Richard Aubrey (mail):
Ella. The situation is new to the nation. I'm not speaking of family courts.

And it wouldn't be conservatives sneering at people who complained of Palestinian-style martyr recruiting on children's television, would it?
8.16.2007 1:49pm
Roger Schlafly (www):
[Ella] The court could not issue an order allowing one parent to fully exercise her fundamental right to raise her child in a manner that does not abridge the other's equally fundamental right to raise his child. For this reason, a parent's rights are almost entirely irrelevant in a child custody case.

[Adeez] But as soon as a couple (who had no business procreating in the first place) can't make nice, the state has no choice but to consider everything.
These statements are false. The court can just ignore the personal, political, and religious beliefs of the parents, and decide in favor of joint custody. The parents do not have to lose their rights. They merely have their rights dividely in case of divorce.

If you really think that Moslems should not be allowed to have kids, then pass a law. This judge was just ruling based on his prejudices.
8.16.2007 2:00pm
Ella:
Unless family courts have been existing in some sort of alternate dimension, the situation is not, in fact, new to the nation because it is not, in fact, new to the nation's family courts. Islam and Islamism came up less frequently than racism, Judaism, homosexuality, or vegeterianism in the past, but the principles and potential Constitutional problems are the same.

And I don't think it would be "the libs" (a choice of words clearly meant to tar ALL people on the political left) expressing that point of view any more than I think it is "the conservatives" who want to reinstate criminal sanctions for sodomy. There are doubtless some people on the left who would act as you think they would (and there is a contingent of the right that might surprise you), just as there are actually people on the right who want to recriminalize sodomy (including those who want to make it a capital offense). As for implying that "the libs" have jumped or are just itching to jump in bed with the Saudis, they'd have to kick Bush, CHeney, and a variety of other conservatives out to make room.
8.16.2007 2:02pm
Yankev (mail):

Hatred of Jews, for example, is not in Islam, it just comes with the territory.


There are Hadiths that appear to suggest that it is in Islam, notwithstanding the existence of Muslims who do not subscribe to that hatred.
8.16.2007 2:05pm
Ken Arromdee:
This is just amazing. She should /lose custody/ of her children for negative actions? Not shopping in stores? Not Watching a TV show? Not having gay children ('gay children' at the primary school level? how could anyone know that?)?

Um, not letting her children have gay children as friends. It may be true that 5 year olds can't have sexual orientations, but custody can involve ages that go up to the teens.

And it isn't watching the TV show or not shopping that's important, it's the beliefs behind them. It's just like the difference between a parent who doesn't let a child cross the street because it's dangerous, and a parent who doesn't let a child cross the street because the street is populated by evil space aliens who like to steal their brains.

I'm also not proposing that this be applied except in a custody battle within a family.

Similarly, the Islamist mom in this case holds to views that don't seem out of the norm for Islamists in general.

But you can claim that any view at all is not out of the norm--if you carefully define the group it's out of the norm from. Her beliefs clearly *are* out of the norm for Islam in general in the US, at least Islam as publically proclaimed.

For that matter, even Islamists normally claim to be moderates and would have to, when asked in court, reply that boycotting business for being Jewish violates the tenets of Islam. If so, we should take them as their word; "it's not out of the norm for secret beliefs that nobody admits to having" isn't an argument we should take seriously.
8.16.2007 2:08pm
Ella:
Roger, Joint custody sounds nice in theory, but is often inpractical. A court (wisely) will not order it unless the parents have demonstrated the ability and willingness to work out the innumerable issues that will arise over the course of the child's life. Otherwise, the court will have to rehear every disagreement about schooling, childrearing, visitation, holidays, medical care, etc. that comes up. If you want to argue that flipping a coin would lead to equally good decisions in most cases, you're probably right, but for some reason our legal system is reluctant to officially implement this scheme.

I don't think most people are arguing that Muslims or Islamists should always lose their kids, just that in some cases, one parent's embrace of a particular brand of Islam may tip the scales in favor of the other parent. One could easily imagine a situation where the reverse would be true. If a child were raised in a conservative Muslim family and Mom converted to Buddhism, precipitating a divorce, it is conceivable that a court would award primary custody to the father so as not to distress the child by an abrupt change in her religious environment.
8.16.2007 2:15pm
Richard Aubrey (mail):
Well, as everybody keeps saying, most Muslims are moderate. It's the Islamists who are the problem.
8.16.2007 3:18pm
Hoosier:
Ken Arromdee--

If a mom thinks that robots are stealing her luggage because she is schizophrenic, then her capacity to raise her children is called into question. If she believes this because she is a member of a certain segment of an ancient and established religious tradition, then what business does the state have taking away her children?

The "no-gay-friends" rule would retroactively confer unfit-parent status on virtually all parents of the generation that raised me and my age cohort.

I am in no position to tell a Mulsim that he or she is interpreting Islam incorrectly.
8.16.2007 3:36pm
Ken Arromdee:
then what business does the state have taking away her children?

I'm only suggesting this for custody battles--when comparing one parent to another parent who doesn't do the same thing. I am not suggesting it when the bad parent is compared to no parent at all.

The "no-gay-friends" rule would retroactively confer unfit-parent status on virtually all parents of the generation that raised me and my age cohort.

If virtually all parents act that way, then the mother and father would both act that way and it wouldn't matter when comparing the parents.

I am in no position to tell a Mulsim that he or she is interpreting Islam incorrectly.

Why not just ignore the question of whether the idea is a correct interpretation of some religion and consider the merits of the idea itself?
8.16.2007 3:57pm
Richard Aubrey (mail):
I'd be interested in the actions. Or the actions likely, given the beliefs.

The issue is not whether parent in question is interpreting Islam correctly, but whether the parent in question is interpreting the norms of civilized behavior correctly.

That some of her issues may be traced to religion makes this more difficult than if, say, they were traced to a history of hallucinogen use. Which, given some of the facts, may still be the case, with Islam being unfortunately in the middle.
8.16.2007 4:19pm
Adeez (mail):
Hey Ella: I'm really feeling you today. But if I may address your comment ("not everything that is or ever could be wrong, bad, or annoying is attributable to 'the libs', or whatever vaguely defined, yet amazingly monolithic, version of them you have constructed in your mind"): WELCOME TO THE VOLOKH CONSPIRACY!

Yes, believe it. Although I sincerely believe that the majority of posters and commenters on this site are very moral, bright people who want to engage in honest debate, unfortunately there's a vocal few who will find a way to blame all of the world's ills on those evil libs. It's like the Twilight Zone. To the point where it's comical: click on any post that's more than a minute old and chances are you'll find an example. Oh, and if you dare criticize this administration for any reason, it's your fault. Ya see, they even got a cute name for it: Bush Derangement Syndrome. See how adorable that is? It's a great way to stifle debate, and it puts the blame on the roughly 70% of this country who can't stomach the man. It's not him, it's us.
8.16.2007 5:05pm
Jay Myers:
1. Yes. Assuming the children are to be raised in the U.S. then being indoctrinated in anti-American views will definitely not be in the best interest. In this specific case, if the husband's representations are true then she will teach the kids that killing yourself to kill infidels is a good thing. Good things presumably should be emulated so being raised by the mother will significantly increase the children's odds of being involved in crimes up to and including suicide bombing.

2. No. Just as the right to free speech is limited when the speech causes harm to others, the rights to free exercise and to raise your children as you see fit are also limited when others are being harmed. Having decided that being raised by someone with those views will be harmful to the child, the judge is no longer obligated to allow the parent the protection of those rights in this limited case.

3. There should be plenty of constitutional protections but they cease when something that is normally protected would harm the child. Exploring the implications of my view, this would mean that tax protesters who don't pay taxes could be at a disadvantage in custody proceedings. After all, it's harmful to the child to be raised to break the tax laws and go to prison.
8.16.2007 5:23pm
Richard Aubrey (mail):
Adeez.

Ref BDS. Saw a lib--on this blog--say, regarding the US' infant mortality, "Take a bow, President Bush". Either the commenter is a moron who thinks history began in January of 2001 or he's suffering from BDS, which believes history began in January of 2001. Except for those rotten things Bush did wrt, say, international relations in 1998.

I have a relative who blamed Bush for not extending the unemployment benefit. I explained it was a congressional vote. Her response was, I still think it was Bush's fault. She also thinks Bush is responsible for the excessive interest in high school football in Texas.

Don't even start complaining about BDS. There are reasons to dislike Bush personally, or his policies, but blaming him for infant mortality, gleefully, no less is BDS. And don't start with the B******t about single anecdotes. I am not going to list the first one hundred obvious, public examples, because you know them as well as I or anyone else.
8.16.2007 5:49pm
Ella (www):
Adeez - I know, and I usually let it go, but when someone casually brings it into a post that has absolutely nothing to do with liberals, conservatives, Ds or Rs, I have to draw the line. I find it particularly galling that many conservatives who insist that certain extreme/stupid/ offensive opinions held by individuals on the left are representative of the left as a whole rightly protest when liberals do the same thing to the right.

In fairness, BDS does exist, as did/does CDS (Clinton Derangement Syndrome), a similar affliction among certain folks on the right. But certain individuals are too eager to diagnose it in anyone who expresses criticism of our current president.
8.16.2007 6:50pm
Roger Schlafly (www):
[Ella] Joint custody sounds nice in theory, but is often inpractical. A court (wisely) will not order it unless the parents have demonstrated the ability and willingness to work out the innumerable issues that will arise over the course of the child's life. Otherwise, the court will have to rehear every disagreement about schooling, childrearing, visitation, holidays, medical care, etc. that comes up.
Again, that is just not true. The court does not have to rehear every issue, and does not have to attempt to micromanage the child's upbringing, even if the parents disagree. You are right that the courts would rather intervene than admit that their decisions are no better coin tossing, but I say that the court does not have to intervene on those issues. The court can simply divide the parental rights, and let the (fit) parents do as they wish. Yes, divorced parents do not always agree, but parents in intact families do not always agree either. Nobody requires parents in intact families to demonstrate the ability and willingness to work innumerable issues, and there is no reason to require divorced parents to do so either. And the court certainly does not have to weigh the validity of differing theological views.
8.16.2007 7:04pm
Hoosier:
Richard Aubrey--

I have to agree with you on the reality of BDS. Adeez said: "it puts the blame on the roughly 70% of this country who can't stomach the man." Well, I can't stomach the man much of the time. But I don't blame him for things that he is not to blame for. I think this is reasonable behavior on my part. And I don't think you were claiming that ALL people who "can't stomach the man" have missed their BDS-vaccine booster shot.

I have colleagues in the Department of History here who will "not rule out the possibility" that the Bushies were behind 9/11. This is as sick as claiming that the Clintons used to kill-off their political enemies and dump them in, say, parks in DC. (Although this sort of thing HAS happened: See, for instance, the Mahoning County, Ohio "Democratic Party." Which is simply the political arm of the Youngstown Mafia. But the Clintons were far away at the time.)

How can one explain this sort of thinking? One can blame BDS. (The Button: "Fight BDS! Not PEOPLE with BDS!") Or one can say that these people are idiots. I'd rather chalk it up to BDS. Which, unlike idiocy, is probably covered by the Americans with Disabilities Act.
8.16.2007 7:16pm
Ella (www):
Roger - I assume that you don't practice family law or know people who practice family law. In a bitter divorce where the parents refuse to play nice, joint custody just doesn't work because the parents will keep bringing the issues back to court. Mom wants to send Junior to public school, Dad to private. Mom wants to try the agressive, experimental asthma therapy, Dad wants the one with more proven results. Back to court. And before you suggest alternating custody every year, think through how bad that instability would be for the child.

While it's true that intact families work through these issues without court supervision, the key word is "intact". If they weren't willing and able to work through these issues (even if the resolution is always "mom's right"), they would no longer be intact. And on the rare occassion where an intact family CAN'T work through these issues, as occassionaly happens in medical decisions, they do go to court.
8.16.2007 7:27pm
Extraneus (mail):
BDS, you say? Check out the comments in this thread at the relatively mainstream Democrat(ic) Huffington Post, if they're still there when you get a chance.
8.16.2007 7:46pm
Extraneus (mail):
Also from a post at the Little Green Footballs blog, how about this DailyKos take on the Padilla verdict? It seems to me that liberals, just like Muslims, should show some due diligence at policeing their own before complaining about being stereotyped. In both cases, their extremist elements are dangerous, not to mention allied with each other.

(Sorry for the OT comments, but it seemed relevant to the BDS references.)
8.16.2007 8:06pm
Roger Schlafly (www):
Ella, I assume that you personally profit from family court interventions, because no one else persists in making such false statements. There are many many examples of joint custody working after a bitter divorce. There is even empirical evidence that no other custody arrangement works any better.

Yes, divorced parents will often go back to court as long as the court is willing to intervene in the child's upbringing, and one parent believes that he or she has something to gain by making a court motion. But that does not mean that the court intervention does any good. Your examples only show that there are some questions for which the court has no good answer.
8.16.2007 9:09pm
Ella (www):
Roger, You are mistaken both in your assumptions about me and about the relative truth of our statements.
8.16.2007 9:13pm
Ella (www):
Extraneus - I could engage in a similar exercise directed at both Republicans and conservatives in general. I won't, because we both know that the exercise is asinine and because it's beneath me and any other rational human being.
8.16.2007 9:15pm
Brian K (mail):
relatively mainstream Democrat(ic) Huffington Post,

HAHAHAHAHAHA. if i laughed any harder i would have wet myself. that's the same as calling Bush a liberal. or saying that delay and cheney are centrists.
8.16.2007 11:55pm
Richard Aubrey (mail):
Brian K. The scary thing is, a lot of people actually think that. Not just say it. Think it.
8.17.2007 11:15am
markm (mail):
Consider a similar case: It's 1942 and the parents are immigrants from Germany. The father is a naturalized citizen. The mother refused to try for citizenship, is a fanatical Nazi, and teaches their child that Pearl Harbor was just retribution for Lend-Lease.

Think about that one a minute.

The first thing that would be quite different is that, if those allegations about the mother could be supported, the judge could readily get confirmation - from the FBI agents waiting to take her back to the internment camp. Unlike the Japanese, Germans were interned only with particularized suspicion, but I'd think that was more than enough reason under the circumstances. It certainly doesn't seem wise to leave people who hate us that much loose in our society - then or now. Not that I'd recommend internment camps, but mainly because deportation is still an option.

So back to 1942. Which way does the judge rule? Probably for the mother (to be reviewed again later), because Daddy just got his draft notice, and is headed for places far more hazardous to children (and adults) than the internment camp. But if Daddy is 4F, I expect he'd win, hands down.
8.17.2007 6:29pm