Parent-Child Jihadist Speech:
I have an L.A. Times op-ed this morning about a fascinating parent-child speech case — one that to my knowledge no media outlet has yet discussed (probably because the facts were discussed in an unpublished opinion that likely no-one but the parties and I had read). Here are the opening paragraphs:
Meet Daniel P. and Allison B. and their children, Mujahid Daniel and Mujahid David, ages 13 and 11.... During their marriage, according to court documents, Daniel and Allison followed a "quasi-Muslim philosophy." They also "amassed a large quantity of weapons," and Daniel was imprisoned for illegal weapons possession and for making threats. Allison testified that Daniel abused her and that she went along with his actions only because she was afraid of him. The couple divorced in 1997, when Daniel was in prison.
Daniel, now out on parole, wants to see his children. Allison objects, based on Daniel's "violent felony conviction record ... domestic violence ... extremist views regarding religion, including ... jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are Mujahid." ("Mujahid" means a soldier fighting for Islam; "mujahedin" is the plural.)
In December, a New York appellate court held that Daniel should be allowed supervised visitation after his parole expires this summer. But the court also upheld, in the name of "the best interest of the children," the trial court's order that Daniel not discuss with the children "any issues pertaining to his religion." ...
In the rest of the op-ed, I discuss the First Amendment implications of such orders, and point out that similar speech restrictions can arise in a wide range of other cases, involving racist speech, anti-gay speech, pro-gay speech, the teaching of religious intolerance, decisions not to teach religion at all, and more. Last year, I wrote an NYU Law Review article (Parent-Child Speech and Child Custody Speech Restriction) on this general subject.
For those who are interested, I also report the opinions below:
[New York family court decision, Oct. 28, 2005:]
The Petitioner, DANIEL [P.] (hereinafter, “father” or “Petitioner”) having filed a petition, pursuant to Family Court Act, Article 6, for an order, inter alia, granting him “visitation” with the children, MUJAHID DANIEL [P.], born October 30, 1993; and MUJAHID DAVID [P.], born June 1, 1995 (hereinafter “Daniel” and “David” or “the children”); and the Respondent, ALLISON [B.] (hereinafter “mother” or “Respondent”) having opposed such petition; and these matters, having come on before me for a trial, and the Petitioner having appeared via telephone testimony and by his attorney, John Zenir; and the Respondent having appeared in person and by her attorney, Steven A. Meisner, and the Law Guardian, Gail Jacobs, Esq., having appeared on behalf of the children; and the parties having presented witnesses, and exhibits to this Court; and upon all of the prior proceedings and pleadings had herein; and the parties having consented to this matter being heard and determined by Special Referee Dorothy A. Phillips; the petition is decided as follows:
FACTUAL BACKGROUND & PRIOR ORDER/JUDGMENT OF DIVORCE
The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered “extreme” or non-conventional, especially in today’s, post “9-11” world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone.
It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner and respondent testified that they amassed a large quantity of weapons during their marriage, which in turn, resulted in the petitioner’s most recent felony conviction for weapons possession. The petitioner was incarcerated at the time of the parties’ divorce and it is uncontroverted that his incarceration and current alleged inability to travel, is the direct result of his criminal conduct.
During their marriage, both parties followed a quasi Muslim philosophy, including the naming of the two children born during their marriage, Mujahid Daniel and Mujahid David[.]
The respondent testified that she was a victim of domestic violence during her marriage to the petitioner and that she engaged in those non-conventional activities with the petitioner due to her fear of the petitioner. At the time of their divorce, granted in accordance with the terms of an agreement between the parties, the petitioner was granted, on consent, visitation with the children as agreed to between the parties.
In accordance with the parties’ Stipulation, which was incorporated in their Judgment of Divorce, dated February 25th,1997, the terms of custody and visitation of the children were as follows:
[A] The Wife shall have custody of the Children during their respective minorities. The Husband shall have reasonable visitation rights with the Children, and the Wife shall cooperate with the Husband to enable him to effect such visitation at times convenient to the parties subject to the commitments of and plans for the Children. The parties shall consult with each other on all material matters with respect [to] the Children, including all matters relating to their health and education. If either of the Children shall require significant medical care, the Wife shall keep the Husband informed. Each of the parties agree to avoid involving the Children in any conflicts between the parties and not to disparage the other to the Children.
[B] The parties shall exert every reasonable effort to maintain unhampered contact between the Children and each of the parties, and to foster a feeling of affection between the Children and the other party. Neither party shall do anything which may estrange the Children from the other party, or injure the opinion of the Children as to the other, or which may hamper the free and natural development of the Children’s love and respect for both parents. The Children’s well-being, education and development shall be of paramount importance in the application of all provisions of this paragraph.
As the result of his last felony conviction, the petitioner was sentenced to a Federal Penitentiary in Pennsylvania. At the time of his release, he had a choice of locale for the purpose of service his time of supervised parole. The petitioner contends that until his complete of his parole, he was advised that he would not be permitted to leave the area of his parole.
The petitioner chose Hawaii, the land of his birth and where his father resides, a retired physician, even though he would not be near his children. The petitioner’s father also testified that upon his son’s release, he agreed he would provide familial support and assistance for his son’s parole in Hawaii. His restricted supervised parole ends in July, 2007.
The petitioner filed the instant petition to enforce the parties Judgment of Divorce, granting his visitation as agreed. At the time of the filing of the instant petition for visitation, the petitioner was released from the Federal Penitentiary and is currently on secured parole, unable to travel. The petitioner contends that insofar as he is on parole and unable to travel, the children should be permitted to come to his home for the purpose of effecting visitation and the respondent should pay for the expense of their travel.
The respondent contends that due to the petitioner’s violent felony conviction record, the domestic violence exhibited during the course of their marriage, his extremist views regarding religion, including his belief regarding Jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are MUJAHID, that visitation should be denied.
The respondent testified that she consented to petitioner having visitation with the children because she believed the petitioner would never exercise any visitation.
The respondent now seeks to thwart the petitioner’s visitation with his children, based on a “best interest” argument, and by raising issues that pre-date the parties’ Judgment of Divorce; or in the very least, is seeking to limit the petitioner’s visitation to supervised visitation only.
In deciding the issue of visitation, the courts must determine “what is for the best interest of the children”. Visitation with a noncustodial parent is presumed to be in the children’s best interest even when a noncustodial parent is incarcerated, which, by itself, is not enough to deny visitation (see, Matter of Davis. 232 AD2d 773 [2nd Dep’t 2000]).
“A noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child (see. Matter of MacEwen v MacEwen, 214 AD2d 572; Matter of Vanderholl v Vanderholl, 207 AD2d 494)” (Matter of Ronald Bradley v Wright. 260 AD2d 477).
FINDINGS & DECISION
While this Court agrees that the petitioner’s felony convictions, the history of domestic violence, and his attempts to prophetalize his beliefs to the children in letters and phone calls [while he was incarcerated] does not make him a candidate for untethered protracted unsupervised visitation; it does not rise the level to impose the drastic remedy of denying meaningful visitation to the father. Moreover, the children have a right to visit with their father, and the proof before this Court does not establish that it would not be in the children’s best interest to enforce that right. Notably, both the respondent and petitioner testified that the petitioner no longer attempts to discuss his beliefs with the children during his letters or telephone conversations with the children and the respondent herself no longer believes that it is necessary to monitor the children’s communication with their father. Finally, the children are mature young men who have expressed a desire to visit with their father.
Thus, the issue before the Court is what visitation would be in the children’s best interest, how such visitation should be arranged, whether the children should travel to Hawaii until the father’s supervised parole is completed in July, 2007; and where the children should stay during any visitation due to the fact that the petitioner has failed to establish that he has adequate living/sleeping arrangements to accommodate these children.
The children have not seen their father since 1997, and despite the fact that they speak with him via telephone and communicate with him by letters, he is still a stranger to these children and it is natural that these children would have a certain level of trepidation in visiting with their father for the first time since 1997, in a land far away from their familiar surroundings.
It is this Court’s judgment, after conducting an in camera of the children, that they are mature children, aware of the facts and circumstances of their father’s past, and the reason for their father’s confinement in Hawaii. They are also well traveled; and both they and their mother have a strong familial relationship with their paternal grandfather; [having traveled with the father’s family members in Europe as recently as the summer of 2005]; who lives in close proximity to the petitioner. During the trial, the paternal grandfather testified by telephone and declined the suggestion of counsel. regarding his acting as a supervisor for any visitation and articulated a well founded reason, i.e., that he would not want to be in a position of evaluating his son’s visitation with his children. He did, however, indicate that the children would be welcome to stay at his home, a large well-maintained home, with ample room for the children to stay during any travel to Hawaii.
Accordingly, commencing during the February, 2006 school recess period, the children shall have visitation with their father in Hawaii, the petitioner shall make all arrangements for the children’s travel; and the respondent shall make appropriate arrangements for their care and accommodations during their stay in Hawaii, e.g., with their paternal grandfather or a hotel with the respondent if she chooses to travel with the children.
Due to the fact that the children have not visited their father since 1997, the initial day-time visitation of up to four hours, shall be therapeutic visitation under the auspices of a certified therapist as selected and arranged by the parties and the Law Guardian; and thereafter, visitation shall continue on a day-to-day basis, the second day consisting of one hour of unsupervised visitation with the father, followed by one hour of therapeutic visitation; day three shall consist of two hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation; the fourth day shall consist of four hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation; and finally, all subsequent visitation shall consist of eight hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation.
The petitioner/father’s failure to participate in any of the therapeutic portions of visitation shall be deemed a waiver of any subsequent visitation. The petitioner/father shall not discuss any issues pertaining to his religion or philosophy with respect to same, during any unsupervised visitation time with the children. The petitioner/father’s failure to comply with this specific prohibition shall be deemed a waiver of any subsequent visitation.
The cost and expense for all travel arrangements for the children and therapeutic intervention shall be at the sole expense of the petitioner/father; and the mother shall pay for all hotel accommodations for the children. If the respondent/mother chooses to accompany the children during their trip to Hawaii, then the respondent/mother shall bear the sole cost and expense of all of her travel arrangements as well as all of the costs and expenses for hotel accommodations for herself and the children; and there may such other visitation as agreed to between the parties.
Thereafter, the father shall have day-time visitation, eight hours of unsupervised followed by one hour of therapeutic visitation, for one week during the summer of 2006, and during the February, 2007 school recess period, the cost and expense for such visitation shall be in accordance with the allocation set forth above, plus any other visitation that the parties agree. Thereafter, upon completion of the petitioner/father’s parole, there shall be such other visitation as the parties agree.
This shall constitute the final decision and order of this Court.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER
TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER PERSONAL SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
[New York Appellate Decision, Dec. 12, 2005:]
In a child visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Phillips, Ct. Atty. Ref.), dated November 18, 2005, as, after a hearing, awarded the father unsupervised visitation with the subject children in the State of Hawaii, and the father cross-appeals, as limited by his brief, from so much of the same order as directed that he pay for the subject children's travel and lodging expenses in order to visit him in Hawaii, prohibited him from discussing any issues pertaining to his religion or philosophy with the children during the visitation, and directed therapeutic visitation in addition to the unsupervised visitation.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof awarding the father unsupervised visitation with the subject children in the State of Hawaii and substituting therefor provisions awarding the father day visitation supervised by an individual chosen by the parties and the Law Guardian for seven hours within the State of New York to begin during the children's summer recess in July 2007, and thereafter day visitation supervised by an individual chosen by the parties and the Law Guardian for seven hours within the State of New York to begin during the children's winter school recess in February 2008, with each visit to be followed by one hour of therapeutic visitation with a certified therapist chosen by the parties and the Law Guardian; as so modified, the order is affirmed insofar as appealed and cross appealed from, without costs or disbursements.
The father commenced the instant visitation proceeding to modify an order issued by the District Court of the Third Judicial District (hereinafter the Wyoming District Court) within the state of Wyoming in May 2001 which, after a hearing, inter alia, denied him visitation with the subject children. The father sought an order granting him, inter alia, unsupervised visitation with the subject children in the State of Hawaii.
Initially, we note that the father met his burden of demonstrating a subsequent change in circumstances warranting a hearing (see Family Court Act § 652[b]). The father demonstrated that, following the previous order issued by the Wyoming District Court, he was released from his incarceration at a federal penitentiary and was residing at a permanent residence within the State of Hawaii. Further, it was undisputed that the children wished to visit with the father.
The hearing testimony established that the father had not visited with the subject children since 1997 due in part to his incarceration. Upon his release from the federal penitentiary, the father was, in effect, paroled to the State of Hawaii and prohibited from leaving the State until July 2007. The evidence further demonstrated that the mother and the subject children resided together in the State of New York. After the hearing, the Family Court, inter alia, awarded the father unsupervised visitation with the subject children in the State of Hawaii.
Under the circumstances, the Family Court improvidently exercised its discretion in awarding the father unsupervised visitation with the subject children in Hawaii. A parent's supervised visitation with a child is required only where it is shown that unsupervised visitation would be detrimental to the child (see Matter of Anaya v Hundley, 12 AD3d 594, 595). Given the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172), including the age of the children, the father's extensive criminal background, his history of domestic violence committed against the mother, and the cost and distance of travel, unsupervised visitation with the father in Hawaii is not in the children's best interests (see e.g. Matter of Anaya v Hundley, supra; Matter of Simpson v Simrell, 296 AD2d 621). Thus, we award the father initially only supervised day visitation with the children in the State of New York.
Upon a balancing of the competing interests, the Family Court providently exercised its discretion in restricting the father from discussing any issues pertaining to his religion or philosophy with the subject children, particularly where the Law Guardian supported that restriction (compare Stephanie L. Benjamin L., 158 Misc 2d 665, 667). Further, the Family Court properly directed that the father and the children engage in therapeutic visitation.
In light of our determination, we do not reach the father's remaining contention.
FLORIO, J.P., SCHMIDT, SANTUCCI and LUNN, JJ., concur.
James Edward Pelzer
Clerk of the Court
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:
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.”
Parents have custody rights limited or denied based on racist speech.
... based on advocacy of Communism (during the 1930s and 1950s).
... based on advocacy of polygamy (we're back to today, as we are on all the examples that don't have dates labeled).
... based on their defense of the propriety of homosexuality.
... based on their advocacy of (or inadequate condemnation of) nonmarital sex.
... based on their teaching of fundamentalism.
... based on their teaching of “non-mainstream” religions.
... based on their teaching of religious intolerance.
... based on their exposing their children to R-rated movies.
... based on their allowing their children unfiltered Internet access.
... based on their exposing their children to photos of men in women’s clothing.
... based on their exposing their children to music with vulgar sexual content.
Parents are ordered not to say bad things about the other parent generally.
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."
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.
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).
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.
NPR Weekend Edition on the Jihadist Father Gag Order Case:
Hear Scott Simon's mellifluous voice, plus my voice, here. It's about 4.5 minutes, which is an eternity in national radio time; I was delighted that NPR was interested in the story.
The Peninsula On-line:
My op-ed on the jihadist father gag order was rerun in "The Peninsula On-line." Question (no fair googling): Which peninsula? Hint below.
The title of the publication is Peninsula On-line: [X]'s leading English Daily.
My Finger Is Well Off the Pulse of the Blogosphere:
I've been quite pleased by the mainstream media reception of my Parent-Child Jihadist Speech op-ed; it ran originally in the L.A. Times, but it's been reprinted in the Atlanta and St. Petersburg newspapers, as well as a couple of others (including this one); NPR Weekend Edition and a local NPR affiliate did something on this, too, as did a Philadelphia radio station and the conservative syndicated Lars Larson radio show.
On the other hand, I had expected there'd be more attention from various blogs and radio programs that often cover radical Islam and the law. I figured the case that my story had uncovered had it all: The First Amendment; jihadism; parental rights; child welfare. Yet I've had much less original posts yield much more interest among blogs and radio programs, especially conservative ones.
I'm not trying either to brag or to complain here; I'm pleased with the attention the story has gotten, and while I think it's interesting, I never expected it to cause a huge stir. Still, I wonder: Did I misjudge the likely interest? Did I just not publicize the story enough? Should I have taken heroic measures to keep Anna Nicole Smith alive for several more days? What can I do in the future to try to draw more attention to such matters? I'd love to hear any speculation or advice that people might have.
Want Custody of Your Quarter-Korean Seven-Year-Old? Better Enroll Her in Martial Arts Class:
From what is otherwise a pretty standard "best interests of the child" analysis in a child custody case, Foster v. Waterman, 2007 WL 2119125 (Iowa App. July 25):
Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage. However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.
Seems to me that courts have no business deciding, whether in a child custody case or elsewhere, how much and what sort of a connection a child should have "with her ethnic heritage." Some parents want their children to be closely connected to the culture of the child's ancestors (or of some of the child's ancestors). Others don't much care, because they reject the notion of bonds with ancestral ethnic groups; or they may even want to deliberately sever a link with a culture of which they disapprove. A court ought to remain agnostic between these approaches.
There may be some rare exceptions to this principle (though I'm not positive even about these): Perhaps in some situations there might be some serious evidence that one parent's approach to the child's racial background is against a child's best interests, for instance if a child who looks very different from other children is having serious social troubles as a result, but one of the parents isn't doing anything to try to deal with that. If an older child has herself developed some emotional connection with her ethnic background, and wants to continue that connection, a court might count in a parent's favor that parent's willingness to accommodate the child's preferences. And it may well be in a child's best interests to learn a foreign language, though learning Spanish (even in Iowa) is probably more in the child's interests than learning Korean.
But in general, a court shouldn't take the view that the ethnically quarter-Korean (or for that matter that the full-blooded Korean) should get more (or less) in touch with her heritage, or should live in a more (or less) "divers[e]" neighborhood. And it's just zany for a court to view a parent's willingness to enroll the quarter-Korean child in a martial arts class as remotely relevant to the child's best interests.
Judicial Discussion of Facts as Endorsement of Their Relevance:
I quoted and criticize below an Iowa appellate decision that said (paragrpah break added):
Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage.
However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.
My view is that courts ought not take the view that children with some Korean blood ought to be taught Korean culture, or ought to live in places that have "diversity." These factors should not be considered in the best interests of the child analysis, absent extraordinary circumstances (which I briefly discussed in the original post).
Some commenters criticized my criticism, reasoning along these lines: "My reading of the opinion is that the parties argued the issue of being able to expose the child to her ethnic background (including martial arts instruction) and the court simply referred to these arguments in a summary fashion. I strongly doubt the court would have included that reference in its opinion if the parties hadn't made it an issue in their briefs and/or oral arguments." "Everyone is over-reacting. This would be a different matter altogether if the Court's ruling actually had been based on the heritage factor. But it wasn't. The trial court just used a factual finding (i.e., both sides would help foster Korean heritage) to neutralize an argument raised by the losing side (i.e., Korean heritage must be fostered). The bottom line is that the 'heritage' argument failed on its facts, thus rendering moot any discussion of its legal significance."
I agree that courts are often guided by what the parties argue. But it seems to me that if a court discusses a particular fact, it implicitly suggests that the fact is legally relevant, and that the case might have come out differently — not would surely have come out differently, but might have come out differently — had this fact been absent. And if it would be improper (or even unconstitutional) for a court to make such a fact relevant, then the court should be careful not to recite the fact in way that suggests that the fact is relevant.
Consider two analogous passages from hypothetical Iowa Court of Appeals opinions. First:
Harold argues that Anjela is an American and it is important for her to be taught a maximum of patriotic values. He contends that Anjela's paternal grandmother, Song, is a patriot and can expose Anjela to the glory of American greatness. We recognize the importance of Angela's patriotic upbringing.
However, Casey is very supportive to Anjela's relationship with Song and Anjela's patriotic education. At the time of trial, Casey was planning to enroll Anjela in the local Daughters of the American Revolution children's education classes. In addition, the areas where Casey and Harold live have approximately the same amount of strong pro-American feeling. We believe Anjela would have sufficient opportunities to learn patriotism under Casey's care.
Harold argues that Anjela is a grandchild of Christians and it is important for her to be raised Christian. He contends that Anjela's paternal grandmother, Song, is a Christian and she can expose Anjela to Christianity. We recognize the importance of Angela's being raised in the faith of her ancestors.
However, Casey is very supportive to Anjela's relationship with Song and her interest in Christianity. At the time of trial, Casey was planning to take Anjela to church often. In addition, the areas where Casey and Harold live have approximately the same amount of Christian population. We believe Anjela would have sufficient opportunities to be involved with her religious heritage under Casey's care.
I take it that we'd treat these hypothetical decisions as strongly suggesting that a parent's lack of patriotism and lack of willingness to raise a child Christian (or at least to raise a child in the child's ancestors' religion) would count against the parent in the custody decision. In this particular case, the parent avoided this by being suitably patriotic and suitably open to raising the child Christian. But we'd read this opinion as strongly suggesting that in another case, a parent might lose custody from being insufficiently patriotic or insufficiently willing to raise the child in the right religion.
If you were a lawyer who saw a court decision like this, would you advise your client, "Oh, never mind, if you're raising your child not to value patriotism [or religiosity], and your ex-spouse argues that this is against the child's best interests, a local court would just ignore that. Sure, in this decision the court mentioned these factors, but only in a summary fashion, and only to rebut one side's argument. If Casey hadn't been raising Anjela patriotic or Christian, the court would still have ruled for Casey, and dismissed Harold's arguments as irrelevant."?
Or would you believe that you should say, "It's hard to tell for sure, but it looks like this court thinks that whether a parent is giving the child a patriotic [or religious] upbringing is potentially relevant. After all, it did discuss these facts, rather than just dismissing Harold's arguments as irrelevant; and it ruled for Casey on the grounds that she was teaching the child patriotism [or religion], rather than on the grounds that it doesn't matter whether she was teaching the child this way. So if you want to improve your chances of keeping custody, you'd best show a willingness to teach the child patriotism [or religion]."?
I would say the latter: The court's decision would signal to me that there's a substantial likelihood that a court would prefer parents who are providing patriotic or religious upbringings over those who aren't. And if I'm right, then the same should be said about the real Iowa Court of Appeals decision that I quoted at the start of this post.
One could still argue that it's proper for the court to suggest that parents who teach their quarter-Korean children about their Korean "ethnic heritage" should be preferred (all else being equal) over those who don't want to teach their children this way, though I disagree (for reasons I mentioned in the earlier post). But I don't think the court's discussion can be dismissed as a merely passing reference to the parties' arguments, with no suggestion about the way the court might rule in future cases.
Child Custody Decisions and the Constitution:
Many comments on the recent child custody thread point out that judges are supposed to decide based on the best interests of the child, and that they may therefore evaluate parents' childrearing decisions in ways that government officials normally don't. And I agree that this is in considerable measure true.
But there should remain, I think, constitutional limits on what judges can do. The Supreme Court's 1984 Palmore v. Sidoti decision is an excellent example: The Equal Protection Clause bars a judge from granting custody to one parent instead of another based on the other parent's having entered into an interracial relationship (or marriage). And this is so even if the judge sincerely (and perhaps even reasonably) believes that a child might face more social problems if the child is reared in a mixed-race family.
Likewise, many state courts have held that judges can't restrict a visiting parent's exposing his children to his own religion, even when the custodial parent is teaching a different religion, at least in the absence of a showing of likely serious harm to the child. A judge may theorize, perhaps even plausibly so, that it's better for children to learn one religion rather than two rival ones. But he can't implement his theory through an order restricting one parent's teachings, since that would violate the Free Exercise Clause.
Several state courts have similarly held that judges can't hold a parent's lack of religion against him in a child custody proceeding -- again, even if the judge sincerely believes that it's in a child's best interests to grow up in a more religious home. The Establishment Clause bars such preferences.
It seems to me these courts are quite right. Indeed, a parent's Due Process Clause right to have custody of the child may have to give way in divorce cases, since both parents can't live apart and at the same time live together full time with the children, and since even joint legal decisionmaking for the child may be impossible when the parents are unable to get along; but this reason for restricting parental rights generally doesn't justify restrictions on Equal Protection Clause, Free Exercise Clause, Establishment Clause, and Free Speech Clause constraints on the government.
Likewise, perhaps even these constitutional constraints must give way when genuinely necessary to prevent likely serious harm to the child, on a sort of "compelling government interest" rationale; I'm skeptical of that in many instances (see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)), but I see the force of the argument. But I don't think that a simple desire to serve the child's best interests slightly better (in the family judge's view) justifies departing from the constitutional constraints.
That's why I'm so troubled when some family courts do prefer the more religious or churchgoing parent over the less religious or churchgoing parent, in my view a blatant violation of the Establishment Clause. That's why I'm troubled when some family courts restrict parents' teaching their children various disfavored ideologies, whether racism, Communism, support for the propriety of homosexuality, hostility to homosexuality, support for the propriety of polygamy, Wiccanism, and so on. And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.
A family court judge necessarily has broad power over children's (and therefore parents') lives. It doesn't follow, though, that this power should be entirely free of the Equal Protection Clause, Establishment Clause, Free Exercise Clause, or the Free Speech Clause.
Mother's Open Paganism Treated as Reason to Deny Her Custody:
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.
To Those Who Defend Family Court Decisions That Discriminate Based on Parents' Religion:
I've seen quite a few defenses of the anti-pagan-parent decision along the lines that the best interests of the child should trump constitutional considerations, that parents should be free to believe what they will but shouldn't be free to expose their children to it, and the like. I discuss this in considerable detail in my article, especially Part II.B, PDF pages 53-81. But for now, let me ask you what you'd think of this hypothetical decision:
One factor we count in favor of awarding custody to the father is that mother is a devout Christian, who takes the view that sex before marriage is immoral, that homosexuality is immoral, and that people who don't accept her so-called Savior are going to end up eternally damned. Moreover, mother not only practices this in private, but expresses her views in ways that the child will surely learn about, for instance by going to Christian churches in public places, and discussing her religion online where she has two to four websites of so-called "blogs." And we have reason to think that as the child gets older, mother will actually try to teach these views to the child.
In our view, such teachings are distinctly against the child's best interests. We believe that they may cause unnecessary psychological suffering during adolescence, especially if the child finds himself sexually interested in the same sex. The fear of eternal damnation -- both for the child and for the child's love ones -- strikes us as especially likely to cause needless suffering, especially since it seems to be entirely lacking in any factual evidence.
Finally, we would be remiss in ignoring that the mother's views are decidedly out of step with the views of the diverse yet oddly ideologically homogeneous City and County in which we live. If the child adopts such views, the child may find himself having a hard time interacting in productive and nondiscriminatory ways with his neighbors, whether they are gay/lesbian/bisexual/transgender, heterosexual but engaged in premarital sex, non-Christian, or just simply tolerant and open-minded. It is therefore clear to us that it is, all things being equal (or even nearly equal), far better for the child to be raised by the agnostic father than by the Christian mother.
A few possible answers:
1. This decision, as well as a decision discriminating against pagan, atheist, less religious, racist, Communist, unpatriotic, hyperpatriotic, etc. parents, would violate the First Amendment, because (at least absent some evidence that the teaching are likely to lead to serious and imminent harm) a court ought not consider a parent's ideology.
2. This decision is perfectly constitutional, since the best interests of the child trump any constitutional considerations. "The issue wasn't so much that Mom was [Christian], but that she blogged about it. She has a right to her own [attitudes about sex], but the kid has some right to be free of them. There's at least an inference here that the blogging and open talk of [hostility towards certain kind of] sexuality were creeping over into the parenting sphere of this child's life."
3. This decision is mistaken, but only because the court errs in its "best interests" judgment. If it really was against the child's best interests to be raised to believe that premarital sex and homosexuality is wrong, and that non-Christians will go to hell, the decision would be entirely proper. A judge who believes that being raised Christian (or this kind of Christian) is against the child's best interests should rule exactly the way this hypothetical judge did. Likewise, an appellate judge who agrees (or who thinks this finding isn't clearly erroneous) should affirm the ruling. I just think that judges should take a different view of the facts, and rule the other way because of that.
4. This decision is unconstitutional, but a decision discriminating against pagan, atheist, less religious, racist, Communist, unpatriotic, hyperpatriotic, etc. parents would be constitutional, because [please explain why].
Why Parents in Split Families Shouldn't Lose Their First Amendment Rights To Talk to Their Children:
Many defenses of child custody decisions based on parents' speech and religion acknowledge that parents in intact families have broad rights to speak to their children free of government restraint (see PDF pages 43-53 of this article), but argue that in split families this is different. I think this is wrong, as I argued at length in my NYU article; but I thought I'd excerpt some of my arguments here, in a somewhat abridged form.
1. Surrender of Parental Rights: Some argue that parents in split families lose some of their constitutional rights: “In matters of custody, the family unit has already been dissolved, and that dissolution is accompanied by a weakening of the shield constructed against state intervention. A parent cannot flaunt the banner of religious freedom and family sanctity when he himself has abrogated that unity.”
Each parent's right to live with a child, and to control the child's upbringing, must indeed yield in some measure when the parents split up. The child can't physically be in two separate households at once; and if the parents are hostile enough to each other, they can't make joint decisions about the child's life.
But it doesn't follow that parents' First Amendment rights must likewise yield. Parents' individual rights to speak to their children (and to practice their religions by speaking to them) can still be fully exercised after the parents break up. The parent may no longer be able to rely on the sanctity of the family as a unit, but he may rely on the sanctity of his own constitutional rights. The government must intervene to some extent when a family breaks up, but there's no inherent reason that it must intervene in the parents' speech.
Nor has the parent's conduct somehow waived the right. First, child custody speech restrictions may be imposed on a parent even when the family's unity was abrogated by the other parent: The law here doesn't distinguish the leaving parent from the one who gets left.
Second, even when a parent seeks the divorce, it hardly follows that the government may require the parent to waive his constitutional rights as a condition of getting that divorce. That's true for First Amendment rights generally (or for that matter Fourth Amendment or other rights); it's presumptively equally true for First Amendment rights to speak to one's children.
2. Best Interests Above All: Child custody speech restrictions also can't be justified simply by arguing that protecting a child's best interests is so important that it trumps any First Amendment rights.
Parent-child speech is protected in intact families even when it may undermine the child's best interests. And this is so even though parental teaching of bad ideologies in intact families can sometimes be more harmful than the same speech in split families: If the parents are divorced, one parent might counteract whatever harmful ideology the other parent is teaching, or at least each parent's authority might be decreased because the parent has less time with the child. But if the parents are still together, they're more likely to teach the child the same message; the child will be even more within their ideological control; and the child's best interests would be even more hurt by the bad teachings.
Thus, proponents of child custody speech restrictions must say something more: They need to explain why the same interest that is inadequate to restrict speech in intact families becomes adequate when the family is split.
3. Need to Decide Accurately: One possible “something more” is that in split families, the judge has been called in, and some custody decision must be made. The court should therefore make the most accurate decision it can, the argument would go, by considering all the relevant evidence, including the parent's likely future speech.
Consider an example: The mother has been a girl's primary caregiver, but is planning to teach the daughter racist views. The father hasn't been the primary caregiver, so the daughter would have some trouble (though not a vast amount) adjusting to being raised by the father. But the father would raise her to be tolerant, which will likely make it easier for her to live a well-adjusted and law-abiding life, perhaps make her a happier child, and definitely make her a better person.
If a judge were to consider all the facts, he might well find that the child's best interests would be better served by giving the father custody. If, however, the First Amendment barred the judge from considering the mother's likely future speech, then the mother would get custody. Such a First Amendment rule would thus lead the judge to make a decision that's not in the child's best interests.
But while accurate decision-making is usually good, the government must sometimes sacrifice some such accuracy, at least so long as the sacrifice doesn't yield very grave harms. Consider Palmore v. Sidoti, where the Court held that the Equal Protection Clause barred family courts from considering a parent's new interracial relationship in the “best interests” analysis. The Court acknowledged that “a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.” Giving custody to the interracially involved parent may thus have been against the child's best interests. But the Court nonetheless held that “[t]he effects of racial prejudice, however real, cannot justify a racial classification.” The Constitution, in the Court's view, required that courts refuse to consider certain evidence, even when that evidence was relevant to the best interests inquiry.
And while excluding speech from the analysis is likely to lead to some suboptimal results, it's unlikely to lead to the downright awful ones: If our hypothetical mother is likely to be physically abusive or neglectful, and not merely racist, then the custody decision will go against her even if her constitutionally protected speech is excluded from the best interests analysis.
True, excluding the speech may risk some harm to the daughter, for instance by making her more likely to get into fights, or potentially reducing her educational and employment prospects. Yet this is a risk we tolerate for children being raised by intact families. The parent's constitutional rights, and society's constitutional interests in preserving parent-child speech from government restriction, justify protecting parents' speech rather than focusing solely on the children's best interests. The situation should be no different when the family is split.
4. Government Intervention in Divorce Reducing the Marginal Cost of Further Intervention: Some argue that we don't want the government to intervene in intact families because such intervention is too harmful to such families, and to their children -- “[t]he remedy would be worse than the disease.” But, the argument goes, once at least one of the parents has called in the courts and some intervention is therefore inevitable, the extra level of government intrusion “adds no disruption to a family that has already broken up.”
Yet this isn't quite right. Even in intact families, we distinguish types of intervention: Laws restricting child abuse, child labor, and the like do indeed intrude on parental decision-making, but they're allowed. But laws restricting what parents in an intact family teach their children are forbidden, because restricting parental speech is more intrusive than restricting parental beating or even parental decisions about the child's employment.
Likewise, when a family is split, the government must step in, and this inevitably involves some intrusion and disruption. But government decisions that restrict a parent's speech are even more intrusive -- and even more disruptive to an honest relationship between the parent and the child -- than is the government's decision about who is to have custody that is based solely on the parents' nonspeech conduct.
5. Protecting the Other Parent's Ability to Control What the Child is Taught: Parents are legally empowered not just to teach their children, but to keep others from teaching the children things the parents dislike. Of course, no parent can keep the child completely insulated from contrary speech, especially as the child gets older. Yet much teaching requires time and repetition. By controlling which school or church children go to, influencing which children and adults they spend time with, and influencing which media they read and watch, parents can substantially control their children's moral and ideological influences.
In intact families, both parents have the right to teach their children what each of them pleases. But in split families, one parent may want to stop the other parent from, for instance, teaching a child a religion or political ideology that differs from what the first parent is teaching. The parent may argue -- as one New Jersey appellate court actually held -- that “[i]t is implicit in protecting the primary caretaker's right to raise and educate his children in his chosen religion to prevent others from simultaneously educating the same children in an alternate religion.”
Yet while many parents sincerely want to stop the other parent from teaching the child certain views, it's hard to see why this desire should be given the force of law. When two people have a child together, each must reasonably expect that the child will be exposed to the other's teachings, including teachings that might change over time. There's no reason why the breakup should increase one parent's control rights relative to what they were before the breakup, and thus decrease the other parent's speech rights.
"Make Sure That There Is Nothing in the Religious Upbringing or Teaching That the Minor Child Is Exposed to That Can Be Considered Homophobic":
A commenter responding to my hypo in which a judge denied a parent custody because the parent's teaching of traditionalist Christianity was against the child's best interests suggested that the hypo was implausible, because Christian beliefs are so widespread in the America. Well, it was meant to be pretty extreme, though I suspect that in a few jurisdictions traditionalist Christian beliefs about sexual morality are in the minority.
But let me remind people of this story from 2003 and 2004, though one that arose in the special case of a parent's Christian teachings being implicitly critical of the other parent. First, the original news story from November 2003:
A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.
Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin 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." ...
Now, an excerpt from the July 2004 appellate opinion reversing the order, but leaving open the possibility that it could be reimposed:
"While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.
When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her ... religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's ... decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." ...
Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person ... with responsibility for decision-making" within the meaning of § 14-10-130(1)....
[W]e cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual.
Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary....
So the restriction was lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed.
The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.
What do you folks think?
1. Should a judge be free to order a parent 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"? Should the judge be allowed to so order only after a specific finding that without the restriction, "the child's emotional development [would be] significantly impaired"?
2. If your rationale is that the judge can and should order a parent not to teach things that could undermine the child's respect for the other parent, say that Clark's ex was a racist. Should the judge have been allowed to order the child to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be consider racist-phobic"?
I believe that hostility to lesbians is indeed morally wrong while hostility to racists is morally right. But does the First Amendment distinguish the two, and conclude that orders not to teach a child homophobia are permissible (at least when such teachings could undermine the child's respect for the other parent) while orders not to teach a child hostility to racists are impermissible (even when such teachings could undermine the child's respect for the other parent)?
(For my answer to these questions, see PDF pages 86-88 of my article.)
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:
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?
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?
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?
"But for the Muslim Faith, the Children Would Have No Faith at All":
An interesting item from Linnell v. Linnell, 2008 WL 1913991 (Conn. Super. Apr. 15):
The children, by the parties' agreement prior to their birth, have been raised in the Muslim faith. The children, or at least Kelsey at this point, attend weekly religious instruction. They observe the Muslim holidays, as well as some of the Muslim rules (i.e., no consumption of pork). The Plaintiff testified that he agreed to raise the children in the Muslim faith, "so long as we were married." The Defendant testified that she "wouldn't compromise on religion." The children's faith should not be premised on the status of the parties' relationship. Further, the record would support that but for the Muslim faith, the children would have no faith at all. Neither party presented evidence that would suggest their original commitment to raise the children as Muslims should no longer be honored and respected.
The order isn't clear on whether the court ordered that the father continue to cooperate in raising the children Muslim. But the discussion in the opinion very strongly points to this, and I take it that divorcing parents don't lightly ignore the judge's sentiments as expressed in the opinion.
Two thoughts about this:
(1) The court says here that the plaintiff agreed to raise the children as Muslims "so long as we were married." Later, though, the court says there was a "commitment to raise the children as Muslims." Is that really accurate? Even if premarital contracts to raise children in a particular religion are enforceable (as I'm inclined to say they would be), it's not clear to me that there was such an agreement.
(2) More importantly, what's this about "Further, the record would support that but for the Muslim faith, the children would have no faith at all"? Can that really be a constitutionally permissible factor? Seems to me that under the First Amendment, the Court may not prefer one religious upbringing over another (at least in the absence of some showing of imminent likely harm to the children), a religious upbringing over an irreligious one, or an irreligious upbringing over a religious one. Whether it's better to be a Muslim or to have no faith at all is not a matter for secular courts, including secular family courts, to decide.
Ban on Divorced Father's "Exposing the Children to His Homosexual Partners and Friends":
A Georgia trial court imposed such a ban in 2007; the Georgia Supreme Court just set it aside on Monday, in Mongerson v. Mongerson:
There is no evidence in the record before us that any member of the excluded community has engaged in inappropriate conduct in the presence of the children or that the children would be adversely affected by exposure to any member of that community. The prohibition against contact with any gay or lesbian person acquainted with Husband assumes, without evidentiary support, that the children will suffer harm from any such contact. Such an arbitrary classification based on sexual orientation flies in the face of our public policy that encourages divorced parents to participate in the raising of their children, and constitutes an abuse of discretion. See Turman v. Boleman, 235 Ga. App. 243, 244 (1998) (abuse of discretion to refuse to permit mother to exercise visitation rights with child in the presence of any African-American male); In the Interest of R.E.W., 220 Ga. App. 861 (1996) (abuse of discretion to refuse father unsupervised visitation with child based on father’s purported “immoral conduct” without evidence the child was or would be exposed to undesirable conduct and had or would be adversely affected thereby). In the absence of evidence that exposure to any member of the gay and lesbian community acquainted with Husband will have an adverse effect on the best interests of the children, the trial court abused its discretion when it imposed such a restriction on Husband’s visitation rights.
Two justices (Melton and Carley) "write separately to emphasize" that the quoted passage above "should only be read to stand for the well-settled proposition that, absent evidence of harm to the best interests of the children through their exposure to certain individuals, a trial court abuses its discretion by prohibiting a parent from exercising their visitation rights while in the presence of such individuals (in this instance, Husband’s homosexual partners and friends)."
By the way, here's an extract from the 1998 Turman case, which I hadn't heard of it until now:
Turman and Boleman were divorced on November 13, 1996. Their settlement agreement, which was incorporated into the final judgment and decree, provided that Boleman would have custody of their minor child. The agreement gave Turman certain specified visitation rights away from the father's residence “on the condition [that] at no time shall [the child] be in the presence of William ‘Larry’ Little or any other African-American male except that [Turman] shall not be in contempt of court if she has casual contact with any African-American male other than William ‘Larry’ Little.” After Turman married Kenneth Turman, an African-American male, Boleman refused to allow Turman to visit with the child away from Boleman's residence. Turman moved to hold Boleman in contempt for refusing to allow her to exercise her visitation rights. At the hearing on the contempt motion, Turman argued that the provision in the settlement agreement conditioning her visitation rights upon the child's having no contact with any African-American male was unenforceable.
The trial court improperly upheld the validity of the visitation provision which prohibited the child's contact with any African-American males. This provision is unenforceable as against public policy.... The visitation provision here violated the express public policy against racial classification and the public policy encouraging a child's contact with his noncustodial parent.
The trial court held that the provision was enforceable because it was a matter of private contract. However, after that private agreement was incorporated into the trial court's order, enforcing the private agreement became state action.... The courts of this State cannot sanction such blatant racial prejudice, especially where it also interferes with the rights of a child in the parent/child relationship.
The agreement between the parties clearly violated the State's public policy to promote the best interests of the child. “It is the express policy of this state to encourage that a minor child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after such parents have separated or dissolved their marriage.” Contrary to this policy, the agreement prevents the child from having contact with his natural mother solely on the basis of an arbitrary racial classification. Although a court may validly provide, under appropriate circumstances, that a child is to have no contact with particular individuals who are deemed harmful to the child, such provision cannot be based solely upon racial considerations, as such ruling violates the public policy of the State of Georgia.
Monday's Mongerson, with which I began the post, apparently doesn't have this extra twist of an initial agreement by the parties; the father seemingly either never agreed to the "[no] exposing the children to ... homosexual partners and friends" condition, or agreed to it only because the trial court "express[ed] its opinion that, but for the agreement, the trial court would not have permitted Husband the limited contact to which the parties agreed" (and then promptly appealed the trial court order).
Thanks to How Appealing for the pointer.
"Father Shall Not Use Profanity or Racial Epithets in the Boys' Presence or Within Their Earshot":
That's from a Delaware Family Court order that came out in 2002, JJ.W. B. v. K.A. B., 2002 WL 31454072 (Del. Fam. Ct.), but that I just came across. If the father used such words in violation of the court order, he would be subject to criminal prosecution for contempt (though practically speaking it seems likelier that the court would further reduce his visitation time with the children).
For more on this broad issue, check out Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006). If this order is constitutional, what other orders would be permitted? For instance, say that the father was expressing racist views, or harshly anti-government views. Could a court also bar the expression of such views within the children's presence? (In particular, the father in this case apparently often said "niggers need to burn in hell," and the child apparently "on one occasion ... made the statement to an African American child in the neighborhood." What if the father had said "blacks are intellectually inferior to whites," or "whites are a bunch of racists that are trying to keep us blacks down," and the child repeated this? Or what if the father taught the child this, but successfully taught the child not to repeat it to others?)
Also, these children were nearly 6 and 4½. If you think that's relevant, at what age would a parent regain his constitutional right to express various views — even views that we may think children shouldn't be taught — around his children?
As you might gather, from this post and from the article, these sorts of speech restrictions strike me as extremely troubling. And though I agree that it is indeed against a child's best interests to hear certain kinds of statements, and to learn evil ideologies from his parents, allowing courts to restrict parental speech strikes me as quite dangerous. Nor is this danger hypothetical; for examples of courts holding against parents' based on their atheism, advocacy of homosexual rights, and a variety of other ideologies, see the Introduction and Appendix to my article. I argue in the article that such diminution of parental rights based on parents' speech is generally unconstitutional. But this should be even clearer as to a court order banning certain speech, as in this case.
Another Quote from a Child Custody Case,
D.J.T. v. L.S., 2001 WL 492492 (Del. Fam. Ct.):
This Court also has concern regarding Father's decision-making in allowing [son] to watch certain R-rated movies. While Gladiator may not be such a poor decision, clearly a movie that has sexual content would be. Mother testified that [son] was allowed to see the movie American Pie which has sexual content.
The son was 14 at the time of the court decision; I suppose he might have been a year or maybe even two younger at the time of the movie watching, but the court's discussion suggests to me that it's talking about the son roughly at the age he is at the time of the hearing, rather than when he was many years younger.
As I've suggested before, it seems to me that courts ought not make such child custody decisions based on the parents' exercise of their First Amendment rights, which include letting their children watch or read various materials. Perhaps the rule might be different as to hard-core pornography, but American Pie, whatever its merits or demerits, surely doesn't qualify as that. Likewise, there is much more of an argument for considering even speech (or exposure to First-Amendment-protected materials) when there's serious evidence that the speech is likely to cause imminent harm to the child. But again, that's a very hard case to make about American Pie.
In any case, I've written much more about this before, but I just thought I'd pass along this one extra data point.
Preference for Public School Over Homeschooling -- and Maybe Private Schooling -- Because It Provides "Exposure to Different Points of View"?
That's what this New Hampshire trial court decision, in In re Kurowski & Voydatch seems to say. The 10-year-old daughter lives during the week with her mother, Ms. Voydatch, who homeschools her. The father, Mr. Kurowski, objected to the homeschooling, and the court adopted the father's proposal that the girl be sent to public school, apparently for largely these reasons:
[The daughter] appeared to reflect her mother's rigidity on questions of faith. [The daughter] challenged the counselor to say what the counselor believed, and she prepared some highlighted biblical text for the counselor to read over and discuss, and she was visibly upset when the counselor (purposely) did not complete the assignment....
The Guardian ad Litem ... concluded that the daughter would be best served by exposure to different points of view at a time in her life when she must begin to critically evaluate multiple systems of belief and behavior and cooperation in order to select, as a young adult, which of those systems will best suit her own needs....
[T]he Guardian ad Litem [also] echoed her previous concerns that Amanda's relationship with her father suffers to some degree by her belief that his refusal to adopt her religious beliefs and his choice instead to spend eternity away from her proves that he does not love her as much as he says he does....
[T]he Court is guided by the premise that education is by its nature an exploration and examination of new things, and by the premise that a child requires academic, social, cultural, and physical interaction with a variety of experiences, people, concepts, and surroundings in order to grow to an adult who can make intelligent decisions about how to achieve a productive and satisfying life.
The parties do not debate the relative academic merits of home schooling and public school: it is clear that the home schooling Ms. Voydatch has provided has more than kept up with the academic requirements of the [local] public school system. Instead, the debate centers on whether enrollment in public school will provide [the daughter] with an increased opportunity for group learning, group interaction, social problem solving, and exposure to a variety of points of view.... [T]he Court concludes that it would be in [the daughter's] best interests to attend public school....
In reaching this conclusion, the Court is mindful of its obligation not to consider the specific tenets of any religious system unless there is evidence that those tenets have been applied in such a way as to cause actual harm to the child. The evidence in this case does not rise to that level, and therefore the Court has not considered the merits of [the daughter's] religious beliefs, but considered only the impact of those beliefs on her interaction with others, both past and future. The Court declines to impose any restrictions on either party's ability to provide [the daughter] with religious training or to share with [the daughter] their own religious beliefs.
The decision is just about home schooling by one divorced parent, where the other parent wants the child sent to public school. But it would in principle also apply to similar disputes over private religious schooling (or private ideologically grounded schooling), since there too the other parent might complain that the schooling is too limited in the "points of view" to which the child is exposed. (Of course, some public schools might be quite limited in the points of view that they teach, and even in the points of view expressed by most students; but my guess is that few courts would be willing to say so.)
The broad principle might also apply beyond divorced families. To be sure, in practice American courts rarely intervene in the educational decisions of intact families, at least absent some evidence of significant abuse. Likewise, the legal standard for such intervention in intact families is much more demanding (requiring some showing that the parents' approach risks causing imminent harm to the child, and not just a judgment that departing from the custodial parent's approach would be in the child's best interests).
But if the legal system becomes genuinely concerned about the supposed lack of "different points of view" to which a child is exposed, that concern should if anything be greater when the child is in an intact family — where both parents are likely to be exposing the child to the same viewpoint — than when the child is in a divorced family in which the parents have different viewpoints. At least in this case, the father could expose the daughter to viewpoints other than the mother's (though that might be quite hard given the daughter's pushback, which in turn seems likely to stem in large part from the mother's greater time with the daughter). In an intact family that homeschools a child or sends the child to private school, the child might not get any "different points of view" from any trusted adult or even from other children. So the logic of this decision, if accepted, might well eventually carry over to decisions about intact families, too.
And the decision strikes me as constitutionally troublesome, whether implemented in broken families or in intact families. It may well be in the child's best interests to be exposed to more views in public school — or it may well be in the child's best interests to avoid the views that public school will expose her to. Those are not judgments that courts should generally make given the First Amendment.
That's especially so since it's hard to imagine courts actually adopting a facially supposedly viewpoint-neutral approach that "exposure to more viewpoints is better." I take it that if a racist parent was complaining that the other parent wasn't exposing their daughter to a wide range of viewpoints on the subject of racism, a judge wouldn't consider that; likewise for a wide range of other views. Likewise, the judge seems to have been moved by the conclusion that the daughter was "rigid on questions of faith"; presumably if the mother were teaching the child less "rigid" views about religion, the judge would not have been as troubled (though some other judge might have been more troubled). Judges' decisions that more viewpoints are better will almost always be based on an evaluation of what those viewpoints are likely to be, and what viewpoints the child is being taught.
This having been said, the court decision asserts that the parents — who do have "joint decision-making responsibility" — had never agreed on the public schooling vs. homeschooling question, and "reserved for the Court the issue whether Amanda would attend public school for the 2009-2010 school year, or continue to be home schooled by Ms. Voydatch." Nor is the case like a normal parental speech dispute, in which, absent court action, both parents would be free to say whatever they wanted to the child. Here, a choice must be made between home-schooling and public schooling; the child can't do both. (The child could of course go to public school and learn more at home, but that would obviously be different from a standard home-schooling approach.) Nor is there an obvious neutral principle that could be followed here, for instance the child's likely academic success in either approach — it looks like the daughter is doing very well with home-schooling, but there seems to be no evidence that she won't do roughly as well with public schooling in this district. Nor can one have a preference for continuing the child's pre-divorce education; the parents had been divorced for pretty much the daughter's whole life.
My inclination, though, is that a court should generally try to choose some neutral basis for the decision that would not require it to evaluate the merits of various viewpoints, or to evaluate whether the daughter needs exposure to more viewpoints of the sort she's likely to get in public school. Even a preference for the choice of the primary residential custodian, however imperfect this might be, would at least keep courts out of deciding when a child's religious views are too "rigid." Government decisions about which schools children should go to, or what they should be taught, shouldn't be based on judges' views about which views are unduly rigid, or atheistic, or racist, or pro-gay-rights, or anti-gay, or what have you.
The Alliance Defense Fund has more on this case, including pointers to its filings in the case; I would of course also be glad to include links to the other side's filings, when and if such links become available. Thanks to Duncan Frissell for the pointer.