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Religion and Custody Disputes

My colleague Rick Garnett and I had a chat about this interesting New Hampshire custody case a few days ago. He blogs on it here. I'm afraid I don't see the dire implications for religious freedom here that Jody Bottum and Rick do.The parents, as far as I can tell, have joint custody of the girl -- according to their custody agreement, the court was to step in if there was disagreement. The court did so. All along, the father objected to home schooling, the mother endorsed it. His objections became stronger over time -- in part because of the religious framework embedded in it.If the mother was raising the child to believe that the father was going to hell--and didn't love her enough because he didn't share her belief systems, it seems to me he has just cause to be concerned. (Suppose the father was Catholic--and the mother was raising the child to believe Catholics go to hell).So here are the questions:1) Is it legitimate, in the course of a custody hearing, for the court to take into account the effect of a religious belief systems on a child's relationship with the non-custodial parent? It seems to me that the answer is yes.2) Is it legitimate for the court, in this context, to have and employ a theory of education--a default understanding of what it means to educate a child to operate in this society, apart from achieving test scores, to apply in the context of familial disputes?. Again, I think the answer is yes.

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.



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As Cathy and I discussed, it is clearly the case that the context of the court's opinion -- that is, a dispute regarding custody arrangements -- complicates matters. In this context, courts often have to make decisions about matters that, as a general matter, are probably not courts' business. What is (to me) troubling about the court's decision is the fact that the court concedes that the child is being educated in accord with the relevant standards and that the mother is a fit parent, but nonetheless endorses the conclusion that "the daughter would be best served by exposure to different points of view at a time in her life when she must begin to critically evaluate multiple systems of belief and behavior and cooperation in order to select, as a young adult, which of those systems will best suit her own needs." To me -- and again, I agree with Cathy that the familial-dispute context complicates matters -- this line of reasoning is worrisome, and in tension with religious liberty, even if it were operating merely as a default theory of education. (There is also the different question whether this default theory of education really is attractive, on the merits.)

Right -- but I think what probably underlies this decision more than anything else is a judgment that the mother's influence is overwhelming relative to that of the father, in a way that would ultimately undermine the daughter's relationship with the father. Indeed, she was trying to lessen the amount of time the daughter could spend with the father as part of the same proceeding. Basically, the parents haven't agreed on anything related to school, they can't even communicate civilly about the matter, and the court allowed the mother to home school for a significant period of time. Now, I would bet money, it figures it's time to let the father's views prevail at least for a while. This is what custody disputes look like, requiring judges to play Solomon day in and day out.

I agree. Family law court decisions are sui generis and cannot be extrapolated outside the family law arena. Family law judges routinely monitor the amount of lipstick to be purchased and used by teenagers, the content of iPods and many other issues that would normally be managed by parents. Often in family law matters, the parents are incapable of making any parenting decisions at all--yet somebody must do so for the good of the children. There is another issue. It is common in family law for parents to attempt to "alienate" their children from the other parent. There are many subtle and not so subtle methods of doing so. A parent getting caught alienating their children runs the risk of losing custody. Unfortunately, religion is often used as a subterfuge for alienation. For these reasons absolutely nothing can be read into the court's decision regarding government interference with religion. Divorce is a tragedy. Figure out a way to work things out with your spouse or the state will be forced to make some important decisions you may not agree with.

New Hampshire, like most (all?) states, uses a 'best interests of the child' standard in evaluating these kinds of disputes. (The NH standard is referenced in another part of the case opinion.) This is a good standard, but of course the devil is always in the details in what can often be very difficult and very emotional disputes.I agree with Joe McFaul that these cases are sui generis, and I think Barbara's got it exactly right that the court recognized the mother's overwhelming influence. I'm betting that Amanda's visible frustration when the counselor didn't complete the Bible assignment Amanda had given her played a significant part in the court's decision. The mother's comments that Amanda reveals her true feelings only to her, and that she is the "trusted adult" in her daughter's life also likely swayed the court. I'm also betting the court has a long history with these parents and their disputes over their daughter, and that there is a lot to be read between the lines of the formal prose of the court opinion.

"The evidence support a finding that Amanda's generally likeable and well-liked, social and interactive with her peers, academically promising and intellectually at or superior to grade level."

My experience in Family Court in New york was tha many custody metters were extremely accrimonious and much manipulation by parties occurred to "get at" the other.I agree then with the sui generis approach stated here.

Rick, I don't see the concession on the part of the court that you see--to say that she''s doing well on standardized tests sn't to say that she's been educated well. . She's mastering the material. But that doesn't necessarily mean she's being educated. I don't think the government has to remain agnostic about what counts as education. Exposure to other views, in most cases, in most theories of education, is seen as a good thing. Ability to deal with people who have other views is also a good thing--I think the interaction with the counselor was, in fact, deeply troubling. Why is she giving the counselor a Bible assignment? The key thing about the mother's view of education (which was tried for several years) was that it alienated the girl from other parts of the family. It alienated her from the broader community--and in that, it seems to me, we can see what distinguishes the case from Yoder. So one does not need to have a deep view of education to object to the mother's approach--one only needs a functionalist approach, which considers the relationships advanced or impeded by the educational style. I think Barbara is right--the religious beliefs the daughter is being inculcated with by the mother are ones which directly and adversely affect her relationship with her father.

I think the interaction with the counselor was deeply troubling because the counselor did not respond to Amanda's questions when clearly Amanda is concerned for her Father.

Exposure to other views, in most cases, in most theories of education, is seen as a good thing. I imagine that most homeschool parents choose to do so precisely because this statement is accurate. It's not so much the content of the courses that they object to, although this plays a part. More important is the imparting of a generally skeptical outlook that accepts everything as potentially true, yet believes nothing. What kind of citizenry are we raising? It seems to me that in too many cases we are bringing up persons with no central convictions except relativism. This is not a path to freedom."The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum - even encourage the more critical and dissident views. That gives people the sense that there's free thinking going on, while all the time the presuppositions of the system are being reinforced by the limits put on the range of the debate."--Noam Chomsky

The role of the judge is not to decide these questions as an absolute matter but as a referee in a dispute between the parents, whose views on the matter are diametrically opposed to each other. It's hard to be balanced when the middle ground is an abyss between two opposing precipices.

"Divorce is a tragedy. Figure out a way to work things out with your spouse or the state will be forced to make some important decisions you may not agree with."The discussion here revolves around civil divorce custody cases, and I don't want to detract from that. But I think the comment above is the crux of the biscuit, perhaps a topic for another thread sometime in light of how effective the Church's pre-marital and Retrouvaille programs are at stemming divorce rates among Catholics. Generally, couples need to ask themselves whether their dislike for each other trumps their love for their child, especially in situations where no one is in danger of physical harm or emotional abuse.Staying together for the sake of the kids is stressful and probably shaves years off the lives of couples who force themselves to swallow a lot of the bile they feel and pull together despite their personal divisions. But I'm not sure that, in the long run, that's any less stressful than dealing with custody and support wrangles, and wondering, in their final hours, if they truly did what was best for their children.Moreover, as this case illustrates, whatever divisions the couple has before divorce will deepen after a divorce, when sharing living space no longer requires them to maintain even a veneer of civility.

Kathy, can the STATE have a theory of education? Or does it have to remain agnostic--say about religions that think little girsl should be educated to be homemakers?Is there a theory of education that should apply--at least by default, in a a pluralistic society.Do college admissions offices have to be agnostic--certainly private schools don't. Some probably favor homeschooling, other look on it with suspicion.My worry about Rick's comment is that I think he thinks the state has to remain relativistic about what counts a good education in order to promote freedom of religion.

I think Cathleen nailed it in her last comment. There seems to be an undercurrent in Rick's view that the state should be preferring the parent who wants to make religion the dominant theme of her child's education, no matter what the other parent thinks about it, and that any decision that undercuts the religious aspects of that education is somehow anti-religion. And there are some of us who continue to believe that Yoder was wrongly decided, or at least, should have been a lot more difficult. Read the dissent of William O. Douglas, which I thought was very insightful.

"The Court has not considered the merits of Amanda's religious beliefs but considered only the impact of those beliefs on her interaction with others both past and future." If the Court has not considered the merits of Amanda's religious beliefs how can the Court consider the impact of those beliefs on her interaction with others both past and future?That being said, someone should tell Amanda about the "Good Thief", who at the hour of his death, saw The Light.

Cathy, I don't think there is such a thing as a "state" in a pluralistic society, at least not in the way you are suggesting. We don't have a single mind with which we make all our collective decisions. The government isn't "agnostic," but plural.

Kathy, the state of New Hampshire is a political entity. It's a coercive entity. It passes laws. It enforces laws. It passes requirements for kids about schooling. It inculcates values, formally and informally. Among the things it inculcates should there be a theory of education?Nancy--would you tell the counselor to say the same thing if the Father were a practicing Catholic? He's the good thief who has to convert to evangelical protestantism before being saved?

Laws are enacted by legislatures, and in a pluralistic democracy the makeup of legislatures is pluralistic. Legislators make laws by majority vote, not by unanimous agreement on underlying principles. Legislators have theories, lobbyists have theories, constituents have theories, but legislatures as such do not have theories. If a theory of education--a set of underlying principles determining votes--were to be imposed upon a legislature, whoever imposed it would be committing an aggressive political act, the kind of act that legislatures tend to resist, and for which there tends to be backlash. This resistance is a good thing, because in a healthy political climate there will be constant pressure on a legislature, but no one will be able to dominate the legislature.

The Court has no justification for placing Amanda in public school since:1).The Court can not consider the impact of Amanda's religious beliefs on her interaction with others past and future due to the fact that the Court has not considered the merits of Amanda's religious beliefs to begin with, and2) "The evidence supports the finding that Amanda's generally likeable and well-liked, social and interactive with her peers, academically promising and intellectually at or superior to grade level."

You have it exactly backwards Nancy. The court is prohibited from examining the merits of Amanda's beliefs. Its role is limited to whether the inculcation of those beliefs was done in a manner that is injurious to Amanda's relationship with her father, a person who has the exact same interest in her society that her mother does. His views count even if they are not religious. This isn't anything new. Lots of divorced parents use religious difference as a means of alienating children from the other parent.

If the Court is prohibited from examining the merits of Amanda's beliefs then the Court can not determine the impact of Amanda's beliefs on her relationship with her Father. Religious differences are not limited to divorced parents and certainly Amanda's Father is in no way prohibited from exposing her to his religious views.

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