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Michigan Court Prefers Agnostic Parent Over a Parent Who Has Been Finding Religion:

Here's an excerpt from a recent Michigan court decision:

The Plaintiff [father] testified that agnosticism and scientific rationalism were important factors to both parties when they were first married and both felt strongly about not raising their daughter in organized religion. The Plaintiff remains consistent in not attending any religious services with the daughter. The Plaintiff's testimony and actions appear to be sincere in raising the daughter outside any organized religion.

The Defendant [mother] testified that she was more firm in avoiding religious organizations during the summer, but during the winter months she found herself drawn to church, both because of the friendly environment and community feeling it provides, and because her earlier opposition to religion has been softening. The Defendant testified that she has allowed the daughter to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child who was 3½ at the time of the decision. The Plaintiff testified that the Defendant has admitted to him that she takes daughter to church occasionally and does not feel that it will make a difference.

The Plaintiff appears to be more consistent in avoiding organized religion with the daughter on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties' religious beliefs, however, both parties agreed that agnosticism and scientific rationalism was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in the daughter's agnostic, rationalistic upbringing while the Defendant has allowed the daughter to make the decision on whether she attends church....

As to raising the daughter in her absence of religion, the Court concludes that this factor favors the Plaintiff.

Of course, this isn't a real decision -- it's a recasting of the decision I blogged about yesterday, in which the court preferred the more religiously observant parent over a parent who has moved towards having less interest in exposing her daughter to organized religion. But I think it's a useful way of looking at the problem.

It seems to me that this hypothetical decision would be a First Amendment violation. Remember that the judge wouldn't be finding any specific secular harm to the child from the change; there'd be no evidence that the child is finding the change to be disruptive (in fact, the child seems to prefer it), and no evidence that the religious services somehow involve some physical danger to the child. Nor would the judge be finding any binding contract to raise the child irreligious; there's no evidence of a willingness to be so bound, and no legal hook for the court to consider the contract between the parties in making a decision that's supposed to be about the best interest of the child.

The judge would simply be saying that a parent who had moved towards greater religiosity since when the child was born should be disfavored. And secular courts are not supposed to make such judgments.

But if I'm right, then how could the actual child custody decision (quite commonplace in Michigan courts, and some other courts, or so my research suggests) be constitutional? If a court can't hold against a parent the fact that she has moved away from agnosticism and towards religiosity, how can it hold against a parent the fact that she has moved away from organized religion and towards less church attendance?

DavidBernstein (mail):
It strikes me that if there is uncontested evidence that the parents agreed to raise their children in a certain, nonabusive way when they got married, the parent that follows through on the deal SHOULD be favored, whether the agreement was atheism, or religion, or whatever.
2.29.2008 4:24pm
Rohan Verghese (www):
I don't know. Isn't part of good judgement being able to re-evaluate the situation and come to new conclusions?

Or are you to be bound by all the things that you believed decades ago?
2.29.2008 4:38pm
Eugene Volokh (www):
David: If there was an agreement that the parties intended to be binding, then that agreement might properly be enforceable -- though that would have to go outside the "best interests of the child" analysis, I think, and it would also require that the agreement be enforceable without theological judgments on the court's part.

But there are lots of agreements, especially in the contexts of ongoing relationships, that the parties do not intend to make into legally binding agreements. "I will always love you" said to a lover is a classic example: If you want to make it even a little bit legally binding, you have to go through some pretty significant formalities. Without those formalities the agreement is understood as expressing a desire, a hope, or a plan, not a legally binding commitment.

Likewise with "[Christianity / objectivism / music lessons] are an important factor to me, and I feel strongly about raising our daughter this way." One can be entirely sincere about this, and in fact plan to stick by this, without intending to make a binding commitment. In fact, many people -- knowing how time and experience leads us to change our views on many subjects -- would rightly balk at making such binding commitments (just as they often, though not always, balk at turning "I will always love [my boyfriend/girlfriend]" into a binding commitment).

So if there is evidence that the parents agreed to make a binding commitment to raise their children in a certain, nonabusive way, there would be at least a serious argument in favor of enforcing the contract (though again one would need to know to what extent the best-interests test can be displaced under state law by such contracts). But it seems to me a mistake to infer such a binding, long-term commitment simply from an agreement in principle, as to matters on which people's attitudes often change with time.
2.29.2008 4:39pm
ruralcounsel (mail) (www):
Rohan Verghese:

That's also a part of bad judgment.
2.29.2008 4:40pm
ruralcounsel (mail) (www):
EV:
I would argue that what David meant was that consistancy and honoring your promises should have some weight in terms of beneficial parenting skills, and therefore in determining what is in the best interest of the child, not so much that he means it should be legally enforced (i.e. as a contract).

I see a distinct pro-religious bias, because clearly a court wouldn't come out with your role-reversed opinion. But I also suspect American society is perfectly happy with that bias ... just look at the issues regarding Presidential candidates and religion ... see any agnostics or athiests running?

I suspect a good many of the candidates are actually agnostic, and are just lying through their teeth about their devotional personalities, in order not to offend the masses. Which I'm actually happier with than thinking any of them actually believe ...
2.29.2008 4:52pm
DavidBernstein (mail):
Partly what Rural said. But otherwise, I think the main point of disagreement between Eugene and me would be the standard of proof for intent to make a binding agreement. For me, it would be enough to know that one party is very serious about their religion (or whatever), and probably wouldn't have married the individual but for the agreement to raise children a certain way. This sort of rule would have the great advantage of giving people an incentive to think very seriously about what they are getting into before agreeing to raise their children a certain. In my experience, too many people are in the "yeah, whatever, I guess I can always change my mind later if need be or even get divorced to get out of it" when sensitive premarital issues come up. (My personal experience is largely with people who agree to raise their children in a particular religion, but don't actually bother to find out anything about that religion before making the agreement).
2.29.2008 4:58pm
SSD (mail):
It seems this was really no more than a round about rationalization intended to say "The mother gets custody." How difficult is that to understand?
2.29.2008 5:02pm
chillens:
Professor Volokh:

I think this post is very unfair.

Your hypothetical says:


[B]ut during the winter months she found herself drawn to church, both because of the friendly environment and community feeling it provides, and because her earlier opposition to religion has been softening.



Here, you completely made up crucial facts (in bold) which were nowhere to be found in the court's actual opinion. Indeed, you recognized a big weakness in your argument and invented new facts to paper over that weakness. You felt the need to specify that the mother had made a conscious, deliberate, and considered decision to re-evaluate her atheism and to include more religion in her life. But in the actual case, there was no such evidence. My view of the actual case was that the mother stopped going to church because she was lazy, not because she reconsidered her faith.

You could have written your hypothetical this way:

but during the winter months she found herself drawn to church because the church was always warmer than her drafty home.

That changes the analysis a lot. And I think it gets more to the core of what the case is about.

My view of the evidence is beside the point, however, because I think the judge is entitled to deference here. But we do know that the judge did NOT write something similar to my bolded language in your hypothetical, which suggests to me that the judge was not hostile to atheism.
2.29.2008 5:06pm
Gregory Conen (mail):
@SSD: The decision awarded custody to the father.

Now, it's possible that the judges did rule to award custody to award custody to the parent they liked better. But I don't see any evidence of that.
2.29.2008 5:11pm
SSD (mail):
ah, my mistake. I *assumed* that today's changed hypothetical reversed the grounds but that the parties were the same. I don't know that the result was any better though.
2.29.2008 5:14pm
Reader (mail):
Eugene, you are overlooking what seems to be fairly obvious - one party was diligent in following-through on the plan, and the other slacked off. If it had been another activity important to the child's development (e.g., taking the child to piano lessons, or teaching him Latin), and one parent kept to a regular schedule while the other didn't, I would want the child with the former.

The idea that this would be true only if the parents intended to bind each other to keep up with piano lessons in perpetuity is just silly - no one does that, and yet it's generally a good thing to stick with it (even though the kid will sometimes ask to stay home playing video games).
2.29.2008 5:25pm
Eugene Volokh (www):
Reader: I don't see why diligence in following through on 3.5-year-old plans should be seen as inherently a virtue. People's attitudes, including attitudes about what's best for one's child, change, and understandably so.

And the argument that the activity is "important to the child's development" assumes the conclusion -- it assumes that a court can say that participation in organized religion is important (in the sense of being valuable) to the child's development. That's precisely what a court cannot, I think, do, given the Establishment Clause.

(If the Court had made a specific finding that this activity is important to this child's development not because it's organized religion but because the child is obviously upset at the disruption, that would be a different story -- but there's nothing nearly like this finding here.)

chillens: My explanation for why she was drawn to church is simply the flip side of people's guesses about why the mother in the real case was drawn away from church. In the real case, it sounds like she was drawn away because (1) going to church was somewhat inconvenient (for reasons unrelated to religion), and (2) she was coming to think that organized religion wasn't really that important. In my hypothetical, she is drawn towards church because (1) going to church was convenient (for reasons unrelated to religion), and (2) she was coming to believe in some measure in organized religion.
2.29.2008 5:58pm
Eugene Volokh (www):
David: In a follow-up post, I also pointed out some problems with courts enforcing vague agreements that require theological or otherwise inherently religious decisions; I'd like to hear your thoughts on that.

But, as to "it would be enough to know that one party is very serious about their religion (or whatever), and probably wouldn't have married the individual but for the agreement to raise children a certain way" -- wouldn't that be tremendously difficult to ascertain?

Assume John and Mary are in love, and they get married. They have children, and (say) seven years after the marriage, they get divorced. John now claims that he was a "very serious" Lutheran, and "probably wouldn't have married [Mary] but for the agreement to raise children a certain way [Lutheran]." To determine this, a court would have to decide whether

(1) John was a "very serious" Lutheran seven years ago, as opposed to merely a mildly serious Lutheran;

(2) John would not have married Mary, even though he was apparently much in love with her, if she hadn't agreed to raise the children Lutheran; and

(3) John would not have married Mary if she had insisted on raising the children merely Christian, or Protestant, as opposed to Lutheran (since this is required to determine the precise terms of the contract).

Can a court really resolve this in a remotely reliable way?
2.29.2008 6:09pm
PLR:
The fact that one spouse observes contractual commitments of this type and the other does not should be completely meaningless in custody decisions. The idea that it should be any factor is strange, let alone a presumptive factor.
2.29.2008 6:10pm
TruePath (mail) (www):
Eugene, it seems you are demanding too much from the court. It doesn't need to know or be certain about any of this only evaluate witness credibility the same way it would in any other situation.

Also let's suppose the legislature had decided conforming to earlier deciscions was itself a virtue (even though I find it stupid) how would this violate the establishment clause.

Finally it seems you make this argument assuming there is some meaningful objective notion of best interest lurking around in the background. This can't possibly be true. Suppose one parent wants the kid to live fast and die young while the other wants them to cower in fright to maximize life expectancy? What if one parent want the child to be prescribed Ritalin or other drug to aid school performance while the other wants the kid to live naturally? Or what if one parent encourages premarital sex because it's fun while the other thinks it's immoral?

The point is most deciscions we make about how children should be raised come back to questions of moral values not some kind of utilitarian calculus. Likely many things our society accepts as obviously in the child's best interest would not cut it in a pure optimization of life utility or monetary success or whatever.

The point is that in the abscences of considering parental agreements you don't drop back to some nice secular objective standard. Rather you drop back to an societal context that reads in moral values stemming from a judeo-Christian religiously inspired moral system. Thus accepting what these particular parents actually agreed upon is the only way to fend off a much worse establishment violation.
2.29.2008 6:34pm
rc:
plr:"The fact that one spouse observes contractual commitments of this type and the other does not should be completely meaningless in custody decisions."

Observing commitments is one of the keystones of maturity. When the courts have to decide who is the most mature and capable parent, even "Fingerpainting is important. I fingerpaint with my kid every week" wins out over "I used to think fingerpainting was important, but now I don't"

What do you believe in? What do you commit to? If the answer is -crickets-, then the fingerpainter wins.

This is court bias in favor of maturity or commitment or whatever. This is not fingerpainting favoritism.
2.29.2008 6:39pm
Asher Steinberg (mail):
Doesn't being "raised in the church" entail going to church? It seems to me like they had an agreement to take their kid to church, not just to raise her as a Christian - in which case you'd be right and they'd have no place deciding whether more or less church attendance is more Christian.
2.29.2008 7:13pm
Bill Poser (mail) (www):

The judge would simply be saying that a parent who had moved towards greater religiosity since when the child was born should be disfavored.


Eugene,

I think that this is an incorrect characterization of what the judge would be ruling. What the judge is ruling is that the parent who continues to carry out the plan the parents had agreed to should be favored. This would favor the more religious parent if the parents had agreed to a religious upbringing and the non-religious parent if the parents had agreed to a non-religious upbringing. The principle itself is religiously neutral and therefore constitutional.

Further, the court could adopt such a principle as a matter of policy. That is, it does not presuppose that such agreements are to be construed as binding. Whether it is a good policy is another question.
2.29.2008 7:24pm
The NJ Annuitant (mail):
It is hardly amazing that ideas about child rearing would change once there is an actual child on the scene.
2.29.2008 10:58pm
PLR:
<blockquote>Observing commitments is one of the keystones of maturity. When the courts have to decide who is the most mature and capable parent, even "Fingerpainting is important. I fingerpaint with my kid every week" wins out over "I used to think fingerpainting was important, but now I don't"

What do you believe in? What do you commit to? If the answer is -crickets-, then the fingerpainter wins.

This is court bias in favor of maturity or commitment or whatever. This is not fingerpainting favoritism.</blockquote>
You act like all divorcing parents are teenagers.

The whole point of custody proceedings is to assign possession of human beings to a capable parent. A parent who has a rotten credit score is one thing. A parent who has had a good faith change of heart since the date of some dubious "contract" about child rearing, but is otherwise fit, is another.

In any event, the aggrieved party of such a breach is the other spouse, not the children. I'm not interested in a justice system that awards human beings as "compensation" for unfulfilled expectations.
2.29.2008 11:44pm
rc:
PLR: "A parent who has had a good faith change of heart since the date of some dubious "contract..."

That is an assumption of the mother's motivation. But while we can only speculate regarding the mother's motivation, the father has a stated value that he's followed through on in a measurable way. Point, father.
3.1.2008 2:15am
cboldt (mail):
This is a fascinating post, with a fascinating set of responses. I think it well illustrates the "ascendancy of law", or "ascendancy of hubris" over religion. That is, that a legal system, WITHOUT MORE, is adequate support for a moral and just society.
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it assumes that a court can say that participation in organized religion is important (in the sense of being valuable) to the child's development. That's precisely what a court cannot, I think, do, given the Establishment Clause.

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It's just my opinion, but that being based on reading Blackstone, thinking some about the history of courts (equity, chancery, and law courts USED to have different sources of "authority"), and the text of the 1st amendment, that the above statement is flat out incorrect. A court can say that participation in organized religion is important, or valuable. That is far from "establishment of religion," as the 1st amendment construes a legislating enactment that establishes a state religion (even that likely couldn't compel participation, FWIW).
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"Ascendancy of law" eventually reaches a point where all that is not specifically forbidden, is permitted -- or is not "wrong." Again, it's just my opinion, but I think that individuals are more apt to be "good" in the sense of valuable to society as a whole, when they conform their conduct not only to the law, but also to moral dictates that are external to the law.
3.1.2008 9:39pm
Alec:
The ignorance of the obvious is the most disturbing feature of this post and the most ironic, given Professor Volokh's promotion of the Federalist Society. Michigan is a laboratory of the conservative legal movement, yet a respected libertarian such as Professor Volokh cannot endorse either the rationale or the results of this "experiment."
3.2.2008 12:00am
Mark P. (mail):
I've got no problem with your hypothetical opinion. (Although I agree that your added values-laden comment about the values of church in the new hypothetical is uncalled for.) It's not a matter of "contract" though. To me, this issue is a simple judicial tie-breaker. There's no indication that one parent would be better than the other. But the court has to make a decision. There has to be a plan for how these children are to be raised. The parents had a plan -- both parents agree to this fact. One parent deviated from the plan. Now that the court has to decide on a plan, and there is no other basis for deciding on a new plan, the default rule goes back to the parents' original plan. I must admit that I see the Establishment Clause concern in this case as borderline hysterical.
3.3.2008 11:25am