No. The court cannot prefer the religious parent because the court
thinks religion is a good think. If I was not clear about that, the
defect was in my prose and not in my view of substance.
I also take David Saperstein's point: continuity can be in the
best interest of the child, especially when the child is old enough
to have knowledge and preferences. But for any pair of views about
religion, a change in either direction is a break in continuity. The
judicial preference would be for continuity, or for the child's own
views, not for either of the pair of religious views.
Quoting Ed Brayton <[EMAIL PROTECTED]>:
But I guess the real question is, can the court choose that parent
based on
the fact that they are religious and the other is not. That's
really the
crux of the issue.
Ed Brayton
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas
Laycock
Sent: Sunday, January 06, 2008 5:30 PM
To: religionlaw@lists.ucla.edu
Subject: RE: A new religion and custody case
I agree that the court cannot order either parent to send the child
to
Catholic school. The court apparently did that here; it may be an
error of
form rather than substance, until and unless the custodial parent
changes
her mind.
I also agree the court cannot award custody to the parent who will
choose
Catholic school because she will choose Catholic school.
The problem with either of these is not just the very specific
Kentucky
clause, but the basic principles of religious liberty; the court
cannot
choose the child's religion. All the court can choose is which
parent will
be empowered to decide in the event that divorced or never married
parents
can't agree.
Quoting Ed Brayton <[EMAIL PROTECTED]>:
I don't think there's a constitutional problem with a court saying
that
the
custodial parent gets to decide where to send the child to school.
But is
there a constitutional problem with a court saying, "I'm giving
custody to
this parent because they'll send the child to a Christian school"?
I
recognize that this is usually couched in terms of one factor
among many,
but I've also come across many custody rulings where the judge
made it
quite
clear that this was the primary reason, even cases where that one
factor
outweighs incredibly serious factors against giving that parent
custody.
And
I've found very few cases where an appeals court overrules such a
ruling.
It
seems clear to me that there is at least some degree of
constitutional
problem with such a ruling.
Ed Brayton
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas
Laycock
Sent: Sunday, January 06, 2008 4:13 PM
To: religionlaw@lists.ucla.edu
Subject: RE: A new religion and custody case
Suppose the order simply said "The choice of school is for the
parents,
not
for the court. These parents can't agree, so the court is forced
to
decide
which parent gets to exercise the parental right to choose. The
court
finds
that it is in the best interest of the child for the mother to
have
custody
and for the mother to choose the child's school."
The two sentences of preamble pretty much just describe what
courts have
to
do in every custody case. Hard to find a constitutional objection
to
that,
but same result.
Quoting David Cruz <[EMAIL PROTECTED]>:
Just looking at the text, it's not clear to me that it would be
violated by a state's allowing a custodial parent to send a kid
to a
school of that parent's choosing. A noncustodial parent would
not
get her way (or not during the time the other parent had custody
under a joint arrangement), but she wouldn't be "sending" the kid
to
an objectionable school. (A noncustodial parent would have a
textually better argument if she were forced to pay some of the
tuition for an objectionable school the other parent sends the
kid
to.)
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.
-----Original Message-----
From: Ed Brayton <[EMAIL PROTECTED]>
Sent: Sunday, January 06, 2008 3:27 PM
To: 'Law & Religion issues for Law Academics'
<religionlaw@lists.ucla.edu>
Subject: A new religion and custody case
With a bit of a spin. A father in Kentucky is arguing in court
that a
custody ruling requiring that his son continue to go to Catholic
school
is
unconstitutional under the KY constitution. Section 5 of that
constitution
says:
"Nor shall any man be compelled to send his child to any school
to which
he
may be conscientiously opposed."
Very interesting case. The mother apparently wants the child to
go to
Catholic school, so it would seem that the constitutional
argument would
apply to both sides.
http://www.wlky.com/news/14981101/detail.html[1]
Ed Brayton
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
Links:
------
[1]
/horde/services/go.php?url=http%3A%2F%2Fwww.wlky.com%2Fnews%2F14981101%2Fdetail.html
[2]
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw
_______________________________________________
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