In researching my story on such cases, I am highly disturbed by many of them and find the whole notion that a judge may decide that it is better for a religion to be raised in a religious environment than a non-religious one to be constitutionally dubious. And I am frankly astonished at how rarely a higher court prevents it, even in the most astonishing cases.
I came across one Mississippi case that involved both religion and homosexuality that I find absolutely outrageous. The mother was awarded custody over the father and the only two factors on which the father was deemed to be worse than the mother was that he was homosexual (even though the court noted that there was no effect on the close relationship between father and son and noted that the father and his partner were always discrete and didn't display any physical affection in his presence) and he didn't take the child to church (the child was 14 and the father felt he could decide on his own whether to go to church). On the other side, the child was living with the mother and stepfather, who had a history of felony assault and alcoholism. The stepfather had twice beaten the mother, both times in front of the child, once the child had to call 911 to stop it. They had been evicted from their apartment because of the stepfather's behavior. This seems a pretty compelling reason for a change of custody, especially when the only two bases for any negative conclusions about the father are highly dubious and based on prejudice rather than reason. As to this specific case, there was one similar in Indiana in 2005, where a Wiccan couple that was divorcing were forbidden from teaching about Wicca to their son. Both parents wanted him taught about their religion, but they sent him to a private Catholic school and the judge said that doing so would confuse him. That's one of the rare cases where such a ruling was overturned, thankfully, by the Indiana court of appeals. I'm really surprised that this issue has generated so little discussion on this list since I originally posted about it. Ed Brayton -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Saturday, January 05, 2008 5:55 PM To: Law & Religion issues for Law Academics Subject: "Confus[ing] the child's faith formation" Rivera v. Tomaino, 2007 WL 4530832 (N.Y. App. Div. 3rd Dept.), No. 2007501213, reverses a family court's order denying overnight visitation, but states: "Specifically, nothing in the record establishes any unusual lifestyle or beliefs on the part of the father and his fiancée which would justify prohibiting overnight visitation; also, they readily agreed to refrain from exposing the child to any ceremony connected to their religious practices. "Providing the flexibility necessary to permit the child to attend church and other religious events with the mother, as well as protections against her exposure to any aspect of the lifestyle of the father and his fiancée which could confuse the child's faith formation, can be accomplished by an order for overnight visitation, which includes reasonable conditions set by Family Court. Accordingly, we remit the matter to Family Court for further updated fact-finding, if necessary, and the fashioning of an appropriate order providing for overnight visitation." Is it constitutionally permissible for a family court to restrict a parent's exposing a child to the parent's religious practices, simply because of a concern that such exposure "could confuse the child's faith formation"? Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
