The article I chose was “Religion Joins Custody Cases, to Judges’ Unease”. This article looks at some issues of religion when involved in child-custody cases. The article tells us that all over the nation the number of child-custody disputes where religion is a main concern are increasing, just as there are more custody conflicts overall in the past few decades. According to one family lawyer, Ronald William Nelson, “there has definitely been an increase in conflict over religious issues. Part of that is there has been an increase of conflicts across the board, and also parents are looking for reasons to justify their own actions.” According to many lawyers, judges are not any more likely to rule on the side of a religious parent or a non-religious parent. Judges find it difficult to rule primarily on religious preference, for how could they say that one religion is better than another or non-religion? Another possible source for the rise in conflicts is when interfaith marriages split-up or one parent converts. There have been many efforts to encourage parents to settle disputes outside of court, and even when they do end up in court in many cases they are only minimally resolved. In the case of Libby Mashburn, her custody was changed at age 6 from her mother to her father. Some believed reasons for this were that her mother, Mrs. Snider’s, strict religious beliefs may have been “damaging her.” According to Libby, who is now 11, “I’m more of my mom’s religion, and my dad sometimes talks bad about my mom. He called it a cult, and it’s definitely not a cult. It kind of makes me mad sometimes. Maybe he thinks her religion may be bad for me, but I think mainly he doesn’t like my mom and is using that as an excuse.” According to legal experts, if a judge tried to choose which religion a child should be brought up in, they would risk creating Establishment Clause issues. In some cases a child’s upbringing can be influenced by religion, but this does not always need to be the main factor when determining custody. While I agree that religion can and does play an important part in most children’s lives, I do not feel in needs to be a determining factor in custody. While we all learn our basics and background in religion from our parents, there can be multiple views. Just as in the cases of a married couple practicing both Jewish and Christian beliefs, why can’t parents who are divorced both teach their separate religions? This would just give the child a wider basis, and present them with different views and someday they could choose for themselves. We all have options, so what is the problem with exposing them to different views? Parents also need to keep the best interest of the child at heart, and while they may feel their religious beliefs are best, arguing about it and bashing the other parent only ends up affecting the child negatively. When a judge is hearing a custody case, they need to at least attempt to lay religion aside, if they did favor one over the other this would be a violation of the Establishment Clause. Judges are not allowed to pick one religion over the other, and should not take differences of religion into account. So unless there is overwhelming evidence that a certain religion may cause serious harm to a child, religion should not be a deciding factor. Even though the parents may be upset with each other, they should not use the other's religion as an excuse to fight for custody. Just because one may have a different religion does not mean they are an unfit parent. Having some experience in a Children’s Court, I know that there are many more important factors in determining custody. In most cases it is in the best interest of the child to have both parents play an active and supportive role in their upbringing, as long as both of them are fit and willing. It is also a great and positive example when parents can cooperate and show respect to one another at least in matters that concern the child, even if they dislike each other. And if they can't do that, I agree that religious factors should be ignored or at least minimized when the court makes its decision.
link for article: http://www.nytimes.com/2008/02/13/us/13custody.html?scp=14&sq=religion%20law&st=cse
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8 comments:
There is absolutely no reason for religion to b=lay a deciding factor in a custody battle and, frankly, any parent who would stoop to that level needs to reexamine their lives as a religious being as well as a parent. The court is putting itself into a detrimental position by even accepting such arguments. It is providing the implication (very similar to the argument of religion in schools) that moral grounding may only come out of a divine faith. This explicitly supports an establishment of religion! How can you state that the only person fit to raise a child is one of faith and not have that be a blatant declaration of establishment against non-religion? Furthermore, the court then has to and gets to decide what religions are valid and what religions are not, which is clearly excessive entanglement. I recognize the belief that one parent may have that they are more fit because of their faith, but realistically, if that is the only thing that sets you apart, it is unethical and unconstitutional for the court to grant anything but joint custody.
This is a really interesting topic, and I have to agree with Brittanie's post as well.
The Court should not be in the government of telling parents how to raise their children. By placing a child with a parent because of their religious belief or because of their choice not to openly practice a religion would essentially tell the other parent that their belief/lack of belief is preventing them from being fit to parent their own child. It is establishment one way or the other and does clearly create excessive entanglement, as brittanie has said. If the religious beliefs or practices come up in a court preceeding the judge should immediately disregard any of the information and inform the parties that religion is not playing into the decision.
The one time I can accept religion impacting a decision is if the child would be physically harmed in some way. If a parent is teaching a child that it is a religious obligation to inflict harm on other people or if a parent is using extreme versions of corporal punishment, saying it is within their faith to exercise this 'right' as a parent, then religion can enter the conversation as a segway into removing a child from an abusive environment. The abuse is a secular reason to remove the child and the religious reasoning behind it is moot.
There is absolutely an issue of establishment when a judge allows religion to be a determining factor in a custody case. As stated, unless there is overwhelming evidence that it is not in the best interest of the child to be exposed to a religion, I don't think it should even be allowed to be examined in such a situation. Just because a parent may find a certain religion to be in the best interest of their child does not actually matter in a legal setting. There can be little validity or common ground when it comes to religion and bringing it into a custody case only makes the situation worse than it already is. It is for the court to decide what is in the best interest of the child, not the parents, and the court should not be crossing the establishment line by allowing religion to play a role in such a case.
Custody cases do not deal with first amendment issues, they deal with the well being of children having a responsible adult to provide for them. I agree with all the above posts that the religious affiliations of parents should not be a factor in deciding custody cases. I do not even see a justification for it if the child is in danger because the courts can then defend their ruling with other reasons, much like KB stated in their post about abuse. Religion should not be brought up and if it is then the courts have a responsibility to re-adjust the perspective of the courtroom. The court should only be concerned with what is the most healthy and safe environment for the child. I do believe if the court were to interact with religious beliefs it would led to serious entanglement issues and the preference of one religion over another.
I agree with Lisa and everyone who has commented on this post. Religion has no place in the courtroom when it comes to a custody battle. Coming from parents who are divorced, I know that religion was not brought up in the divorce decree and that is the way it should be. How can a court listen to an argument that religion should be the deciding factor? That is against so many beliefs of the court system in my opinion. Divorce is not based on relgious differences most time and deciding where a child is going to be placed should not either. I am angered by the father in the article that calls the mother's religion a cult. If he is saying damaging things to the child about her mother, he should not have custody no matter what the religious beliefs are. Deciding where a child should go should solely be based on the best interest of the child, not the best interest of spreading a relgion.
This is an interesting topic, and one that I've not really heard of before or even though about. I think it's pretty obviously an establishment issue, but I also think it's a tougher issue than what appears. When a judge makes a decision, who's to say he's not being religiously biased? As a Christian myself, it would be very hard to absolutely divorce myself from my inner biases and I would honestly be likely to "pick" the Christian parent. It would likely be subconscious thing as well, without me even really knowing. Now, I cant say that's always the case, or even the majority of cases, but if I had to look honestly at my own life and biases, that's what I would say. A judge could very easily lie about the reasoning behind picking a certain parent over the other and we can never really know if he's establishing religion unless it's explicitly because of one of the parent's religious beliefs. In reality though, I doubt that happens very often. It's probably much more implicit and subtle. If I were a judge in which I knew a case would involve religion, especially Christians, I would probably ask to be removed from the case.
I would agree that making a decision based on the parent's religion or lack thereof is an establishment issue. A person's religion is not a determining factor in their ability to successfully parent. If one parent in a divorce case could prove that the other's religious practices were actually causing harm to a child (in cases of child abuse, corporal punishment, or maybe if someone literally had "joined a cult") then an argument could be made for the safety or well-being of a child, but short of that, religion should not play a role in these proceedings.
I agree with what’s been said already; if a judge decides a custody case based on religion alone, that is clearly and undoubtedly a violation of the Establishment Clause. However, going off of something that Jeremy said, I’d like to take the argument a step further. As Jeremy stated, if a judge hears evidence about a party’s religion, it’s highly likely that he or she may be influenced, on some level, to trust the parent whose religious convictions that most closely resemble the judges’ own religious convictions. This is highly problematic from an Establishment perspective, especially given the fact that such leanings would be close to impossible to detect, even if they are present. This evidence should never come onto the record during a child custody hearing, in order to prevent such bias, and in fact, there’s a rule that exists to keep such evidence out. According to rule 610 of the federal rules of evidence, “Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’s credibility is impaired or enhanced.” This would presumably exclude any testimony that tends to attack or advance a parent’s credibility on the basis of religion. This rule ought to be exercised more often in child custody cases, so that evidence of the parents’ respective religions never even find their way into evidence.
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