Apropos the ongoing discussion of the role religious beliefs should play in custody disputes, the Oregon Supreme Court decided today that a 12 year old boy should have some say in the custodial parent's decision to have him circumcisd, though that say should occur within the context of the noncustodial parent's motion for a change of custody. The parents reared their son in the Russian Orthodox faith, but at about the time of their divorce, the father began to study Judaism and later converted. As custodial parent, the father elected to have the son circumcised claiming that the boy wished to be circumcised because of his interest in converting to Judaism; the mother objected and asserted that so did her son; she sought to enjoin the circumcision and to obtain a change of custody. In response, the father, aided by amici, asserted both that the son accepted the decision to be circumcised, and that in any event the son's wishes were irrelevant, and that even conducting an evidentiary hearing to determine the son's wishes would violate the free exercise rights of the father to control as custodial parent the decision of whether to circumcise his son. The trial court temporarily enjoined the circumcision, and the case made its way to the Oregon supreme court. The relevant portion of the decision (minus footnotes) follows:
Although the parties and amici have presented extensive material regarding circumcision, we do not need to decide in this case which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M. However, in this case, mother has averred in her affidavit that M objects to the circumcision. In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or at 400 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here. We remand the case to the trial court with instructions to resolve the factual issue whether M agrees or objects to the circumcision. In order to resolve that question, the trial court may choose to determine M's state of mind utilizing means available to it under the relevant provisions of ORS 107.425. If the trial court finds that M agrees to be circumcised, the court shall enter an order denying mother's motions. If, however, the trial court finds that M opposes the circumcision, it must then determine whether M's opposition to the circumcision will affect father's ability to properly care for M. And, if necessary, the trial court then can determine whether it is in M's best interests to retain the existing custody arrangement, whether other conditions should be imposed on father's continued custody of M, or change custody from father to mother. Boldt v. Boldt, http://www.publications.ojd.state.or.us/S054714.htm If the son wishes to proceed with the circumcision, the litigation should quickly come to an end for lack of any basis to order a change of custody. But suppose the trial court determines in an evidentiary hearing that the son opposes circumcision. How should the court determine whether it is in the best interest of the child to order a change of custody? Should it matter whether the son wishes to remain within the Russian Orthodox faith and to avoid a symbolic statement of Jewish religious faith, or simply wishes to avoid the risks associated with elective surgery, or just wishes to avoid what is reputed to be the substantial discomfort associated with the procedure at his age? Should the court draw any guidance from judicial bypass rulings that assess whether to permit a pregnant minor to obtain an abortion without parental notification or consent given that bypass cases sometimes pit the asserted best interests of a child against the religious beliefs of a parent? Should the court consider the maturity of the son in assessing the best interests determination? Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University (954) 262-6151 (voice) Shepard Broad Law Center (954) 262-3835 (fax) [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel _______________________________________________ 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.
