Monday, August 13, 2007

Child Custody Criteria

Eugene Volokh (somewhat) recently made a series of posts on the use of beliefs and speech as criteria in child custody trials which I found interesting.

In "Want Custody of Your Quarter-Korean Seven-Year-Old? Better Enroll Her in Martial Arts Class", Eugene criticizes the implicit use of "connection to ethnic heritage" as a criteria, and subsequently addresses whether judicial discussion of facts are an endorsement of their relevance.

The case where a mother's open paganism was treated as one of the reasons to deny her custody is followed by a hypothetical in which the discrimination is against Christianity: "To Those Who Defend Family Court Decisions That Discriminate Based on Parents' Religion".

Eugene then posts about an actual case related to his previous hypothetical: "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 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."
That order was reversed on appeal with the caveat that it could be reimposed if "the child's emotional development [would be] significantly impaired". The post ends by considering racist beliefs and speech.

Eugene summarizes his position in Child Custody Decisions and the Constitution, and provides greater detail in his May 2006 NYU article: "Parent-Child Speech And Child Custody Speech Restrictions (pdf)", part of which he condensed into a blog post: Why Parents in Split Families Shouldn't Lose Their First Amendment Rights To Talk to Their Children.

As I understand it, Eugene argues that Constitutionally protected speech and beliefs should not be considered in custody battles, and that there is not sufficient cause to treat a split family differently in that regard than one that is intact. He admits that cases exist where this may be less than ideal for the child, but argues that, as in some non-custody cases, maintaining our freedoms is worth that risk, and that serious and imminent harm to the child can still be avoided.

There's a lot of material there (including some interesting comments) and I certainly don't expect you to wade through it all (I haven't), but I'm curious what your thoughts are regarding court judgements on better or worse speech, beliefs, religions, and even sexual behavior, as it relates to child rearing, morality training, and custody battles.

To me, these criteria can be relevant, but the variability in our culture makes me wonder whether judges should be trusted to employ them at their own discretion, or even whether it would be feasible or Constitutional to compromise and codify some agreeable framework for judicial use.

What do you think?


Update (Aug 21): Eugene continues with: Wife's "Anti-American Sentiments" (and Perhaps Anti-Semitic Sentiments), which considers a custody case involving a wife's Muslim extremism. He also refers back to a previous post about a judge who gave an order prohibiting a paroled father from discussing with his child any issues pertaining to his religion: Parent-Child Jihadist Speech.


purple_kangaroo said...

It's a difficult question. I think particularly of the situation with Anna Mae He. The foster parents who were fighting to keep the girl had apparently encouraged her to hate her Chinese heritage as one of many manipulations to keep her away from her parents.

Of course, saying bad things to a child about their ethnic heritage and country of origin is certainly different from just not making an effort to help them understand and relate to their heritage.

But I do think such variables should be allowed to be taken into consideration on some level--just as I would wish to take it into consideration if a parent was badmouthing the other parent to a child. That sort of thing is harmful, and does have some relevance to what kind of emotional environment the parent is creating for the child.

Anna Mae He is a poor example, since her custody battle was more like an attempted kidnapping than anything else. But the fact that this sweet little girl--too young to come up with such opinions on her own--was wearing a sombrero, believed she was Mexican, refused to eat Chinese food, and said she never wanted to go to China indicates that the foster parents were most likely manipulating her opinions about her ethnicity as a ploy to try to keep her. They dyed her hair, coached her answers, and bribed her with money to tell a reporter that she didn't want to live in China. I think evidence like that should definitely be a factor, to be looked at along with other evidence, in custody cases.

Kevin said...


Thanks for your comment. I wasn't familiar with the Anna Mae He Affair, so I looked it up. The outcome appears to be justified based upon my limited understanding and their agreement for temporary custody. Poisoning the child's view of the other parent seems like a valid criteria to me too.

What do you think of other speech, like racism or homosexual discrimination? How about sexual practices such as bisexuality or sado-masochism, as in the Paganism case? Should any of those alone be counted against a parent?