From Stavig v. Stavig, No. 05-0464 (S.D. Cir. Ct. Aug. 28, 2008), recently affirmed by the South Dakota Supreme Court:
[Father] is a little more able to [provide for the 6-year-old son's "temporal, mental and moral welfare"] than [mother]….
- Both have the ability to give [son] love, affection, guidance, education and to impart the family’s religion or creed. [Father] is inclined to impart the family’s religion or creed, as he regularly takes the child to Sunday school and at one time enrolled [son] in a church-sponsored pre-school. Conversely, [mother] does not take the child to church or Sunday school, and without any apparent reason or explanation, removed the child from a church-sponsored pre-school to send him to an Interlakes Community Action Program.
Father gets physical custody even though mother had been the “primary caretaker since birth,” a factor that would normally cut in favor of the mother. And, as the court said, the decision was close; the father’s greater religious observance thus may well have changed the result. Note also that the court wasn’t talking about enforcing some agreement between the parties, which might have called for a particular kind of religious upbringing; the court was asking what was most conducive to the child’s “temporal, mental and moral welfare,” and apparently concluded that regular churchgoing is better for the child.
Now it might well be that regular churchgoing is indeed in a child’s best interests. Or maybe regular churchgoing is against a child’s best interests. It seems to me, though, that the First Amendment keeps the government — including courts — from taking a stand on this in deciding people’s parental rights, at least in the absence of actual evidence of imminent harm to the child (as opposed to speculation about whether religiosity is good or bad). For more examples of this happening in other states, see this set of posts. For more general thoughts on the Constitution in child custody cases, see this post. If you’re really interested, you could have a look at my article on Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006), which discusses the Religion Clauses issues as well as the Free Speech Clause issue. Finally, for cases holding (in my view correctly) that a parent’s lack of religiosity generally ought not be a factor in custody decisions, see Placencia v. Placencia, 3 S.W.3d 497, 502 (Tenn. Ct. App. 1999); In re Marriage of Oswald, 847 P.2d 251, 253 (Colo. Ct. App. 1993); Burrows v. Brady, 605 A.2d 1312, 1317 (R.I. 1992); Elbert v. Elbert, 579 N.E.2d 102, 110 (Ind. Ct. App. 1991); Eastes v. Eastes, 590 S.W.2d 405, 408 (Mo. Ct. App. 1979); Wilson v. Wilson, 473 P.2d 595, 598–99 (Wyo. 1970); Welker v. Welker, 129 N.W.2d 134, 138 (Wis. 1964); Maxey v. Bell, 41 Ga. 183, 185–86 (1870).
Randy says:
“Now it might well be that regular churchgoing is indeed in a child’s best interests. Or maybe regular churchgoing is against a child’s best interests.”
Of course, that depends upon the particular religion, AND the particular needs/desires of any person who practices it. But your point is well taken — it should cut either way, and religion should not automatically be considered a good for the child. I know too many people who found their religion was a detriment to them in some fashion.
October 12, 2009, 8:13 pmPlufyn says:
Interesting. I wonder if the South Dakota Supreme Court is comprised primarily of people who feel that church attendance makes someone better.
October 12, 2009, 8:21 pmChrisTS says:
Well there you are! Clearly, a Satanist.
October 12, 2009, 8:24 pmSplunge says:
Yeah right. The problem here is just that the mother didn’t pick out the right religion. Had she picked out the modern religion of Al Gore Go Greenism, or multiculti We R The Worldism, or some such, she would have been a shoo-in.
Actually, any of these decisions are based on the Court’s preferred religion. Normal judges know just about squat about superior child-rearing, because, you know, not a one of them is home raising a child, or ever has done. You don’t get to be a judge by taking out 10 to 15 years to be a superior mother or father.
Arguably we should appoint only grandmothers and grandfathers commissioners that decide child custody cases. People with actual experience successfully raising children, who can distinguish what actually works from the latest academical theory of what works.
October 12, 2009, 8:25 pmloki13 says:
Splunge,
Ignoring your hyperbole for a second (although your troll-fu is trong), I think you’re missing the point Prof. Volokh is raising, namely- do you want the courts weighing religion (or lack thereof) in a child custody dispute?
You might believe “a religion” is better than “no” or “weak” religion. Would you feel the same if the father was… oh… Wahhabi/Salafi and it was a daughter they were fighting over?
Do you want parents of the same relgion testifying about, literally, who is holier than thou?
Do you want courts making a decision, when parents are of differing religions, as to which is a “better” religion for a child?
Absent an understanding from the parents (preferably in writing), I think courts are best when they don’t factor this in at all; a more interesting question is what if the religion is also tied into the social events that the child had been attending?
October 12, 2009, 8:42 pmShelbyC says:
Well, that’s what happens when you ask judges to decide what’s in the best interest of the child. Be careful what you wish for.
October 12, 2009, 8:42 pmRoger says:
You have a good argument against the family courts using religion as a factor. But you don’t explain why using religion as a factor is any worse than all the other factors that the family court uses. Anything other than joint custody involves depriving some parent of constitutional rights.
October 12, 2009, 8:44 pmloki13 says:
On this, I agree with ShelbyC.
Back in the day, I spent a little time clerking in the family court system. The old saw was-
“In the criminal system, you see bad people at their best. In the family system, you see good people at their worst.”
Never is this more true than in child custody cases. It’s (almost) never about the child- it’s just warfare between the parents continued through another means. “Motion to allow 16 year old son to drive to Father’s For Visitation.” Blech. Just… get along. In the end, a little compromise and the willingness to let your ex win a few battles will save you heartache and billable hours.
October 12, 2009, 8:46 pmChrisTS says:
You don’t think that abusiveness, alcoholism, inability to support, a habit of holding wild parties every weeknight would be more relevant than religion? Not relevant at all?
October 12, 2009, 8:49 pmloki13 says:
Roger,
I think you’ve posted this argument before. But to put it simply- if the parties agree, there’s not (usually) a problem. Simple. It’s when the parents act like children and make the court do a decision for them that a decision has to be made. At that point, the court has to make a decision, and it’s often base on incomplete information (because how can any court truly know all that goes on in a family’s life). The court has to base its decision on some factors, and I think that the good professor outlines why religion is one that shouldn’t be used, for both Constitutional and practical reasons.
(Also, there is no constitutional right to joint custody)
October 12, 2009, 8:50 pmloki13 says:
To expand on my previous thought- you want joint custody? *Stay together*. You can’t stay together? Then get divorced and *agree on what to do with the kids*. If you can’t do that, then tough. Get a good lawyer and file first. :)
October 12, 2009, 8:51 pmChrisTS says:
Well said, although I think decent parents work it out for the kids’ sakes no matter how tough it is. Of course, if one spouse is not ‘decent,’ then the legal advice is sound.
October 12, 2009, 9:10 pmChrisTS says:
At any rate, it will minimize the damage to the kid[s].
October 12, 2009, 9:11 pmanonymous says:
Just cut the kids in half, and let each parent decide how they want to raise their half. They’ll get over the idea of living through their kids, imparting their own personal ideas into them soon enough.
All parents do. Even if they don’t divorce, and don’t split the difference.
October 12, 2009, 9:23 pmanonymous says:
The character testimony: are your kids relatively happy? If so, you’re doing an ok job. If they are happy and healthy, you’re ahead of the game. Happy, healthy, goodlooking and athletic (enough) … we have a winner.
God told me that.
October 12, 2009, 9:25 pmptt says:
Consideration of other factors isn’t expressly forbidden by the constitution.
October 12, 2009, 9:28 pmRandy says:
Anonymous: Don’t forget artistic!
October 12, 2009, 9:34 pmShelbyC says:
How ’bout constitutionally protected speech?
October 12, 2009, 9:38 pmSoronel Haetir says:
If religiosity (or at least the outward signs thereof) is to be used as a child custody factor then the New York court should have decided whether the Hindu couple a few days ago were actually married.
October 12, 2009, 9:49 pmRoger says:
Loki13, you seem to want to justify judges doing dumb things because parents ask them to do dumb things. Yes, parents ask dumb things. My disagreement is with the courts.
You argue that “when the parents act like children” then “the court has to make a decision”. That is where I disagree. The court does not have to make a decisions on religion, and it does not have to make a decision on most of the other issues brought by those childish parents. If courts used joint custody, then you would not see those silly motions for visitation on Fathers Day.
October 12, 2009, 10:05 pmOren says:
I really suggest you get into family law and give this theory a try.
October 12, 2009, 10:47 pmRicardo says:
They’re not quite the same. The bias of this court seems to be that more religious involvement is better than less religious involvement without regard to what the religion is. If there is a case of a Hindu couple where one is a traditional Brahmin who wants to raise the child in that tradition while the other is a secular, agnostic Hindu with no real involvement in the religion or culture, the court would probably side with the traditional parent.
On the other hand, if the non-traditional parent was instead a member of a non-traditional sect of Hinduism, like International Society for Krishna Consciousness and was just as involved in that non-traditional sect as the traditional parent was involved in her own sect, then giving preference to one over the other would be similar to deciding whether a given Hindu wedding was valid.
I’m not saying I agree with the bias on more religion is better than less religion. That strikes me as extremely improper. But I think there is a way to distinguish the two cases.
October 12, 2009, 11:09 pmLoki13 says:
I like Roger’s idea. If a party breaches a contract, those stupid courts should stay out of it- just, split the difference! If a person keeps trespassing on your property, keep the stupid courts out of it. And if two parents can’t decide what to do about their children, do nothing!
I’m sure this will end well.
October 12, 2009, 11:10 pmanonymous says:
I don’t know Loki. Sometimes you see the outcomes of the court-ordered things — plus the time, money and stress hassle of getting them decided … can it really be all that worse to do nothing and let time pass, come what may?
Keep the courts out of it, and sometimes solutions present themselves. Take here, the situaion in the original post, say the judge isn’t in charge — how does that play out with two people, one in with the churching, one not so much? Two divorced people even. Getting the judge involved may not be any better than doing nothing, and seeing what happens. (I suspect eventually, one of the parents would “give” depending on the weight/value they — and especially extended family — place on the churching.) More value/priority, more likely to stick to your guns. Like some families do with sports, say. Are we really better involving a third person’s values, even if they are rationally weighing factors, looking at both sides, giving all factors equal weight, blah blah blah. Decisions happen.
October 12, 2009, 11:25 pmspudbeach says:
I understand that there are many reasons why this judgment may be final, and may even be right one. But it still leaves a bad taste in my mouth.
To quote Everson v. Board of Education 330 U.S. 1 (1947):
No matter how you look at it, basing a child’s custody on which placement will give him religious education is aiding a religion, and doing so is inconsistent with the above quote.
No matter how you look at it, taking away custody from a parent who wishes it is punishment, and doing so based on religion is inconsistent with the above quote.
I guess some people are blind when it comes to religious injury. When this question is finally addressed squarely, I doubt that a competent court will be blind.
October 12, 2009, 11:41 pmEric says:
Amazing that religion is allowed to be used. The threshold standard for considering where religion should be considered should be actual harm to the child. Snake-handling should be considered.
But really, why should the old primary caregiver saw work either? I find that in these types of cases, birds of a feather flock together and the parents are often equally good or bad. However, “primary caregiver” often means lazy, unemployable, worthless, crazy, or so physically disabled that the person is not even able to care for his or herself. If you can’t or won’t support yourself, you have no business getting primary custody.
Maybe we should start with joint custody and the party who behaves the worst loses it?
October 12, 2009, 11:54 pmanonymous says:
basing a child’s custody on which placement will give him religious education is aiding a religion
Unless we’re talking the junior Dalai Lama (sp.) here, the religion is not aided by adding one more. (or 2, 3, or 12 even.)
taking away custody from a parent who wishes it is punishment,
That’s a stretch. The court isn’t taking your child away from you because of religious practice; it’s all those other little things too that made it impossible for you to work it out with the child’s other parent. The religion thing just tipped the balance. One of many things you’re being “punished” for.
I guess some people are blind when it comes to religious injury.
And some people have sore eyesight and are looking to find a reason: wah-la — it’s a religious discrimination thing at root cause.
No, nope, nada aqui. Move it along, the competent courts are splitting the babies the best they can, if you’re willing to bring in all your marital issues along with your child(ren) to carve up. I doubt the family court issues get mixed up with first amendment theory like this in any appealing way. Steer clear of such nonsense when you can and let things play out, as they do daily in intact families even on issues like this.
October 12, 2009, 11:56 pmRoger says:
This was not a contract dispute. The court explicitly said that it was ignoring the previously-stipulated child custody agreement and decree, because of precedents allowing the court to make its own determination about which parent is in the best interests of the child (BIOTCH). I think that courts making decisions like this is wrong and unnecessary.
You are free to disagree, of course, but please don’t tell me that a judge has to make a decision on religion just because some party asks for a decision on religion.
October 13, 2009, 12:30 amLeo Marvin says:
Paging Danger Mouse.
October 13, 2009, 1:00 amPensans says:
How can a decision about the best interest of the child not involve the state in questions of the proper relation between religion and personal development?
October 13, 2009, 1:25 amloki13 says:
Anonymous- I actually agree with you. Take a contract breach. If a party knows it is going to breach a contract (say an efficient breach for a better opportunity), it is better for the breaching party to, you know, offer the other party compensation than to send things to court. In family law, it is best for the parents to just *get along*. When family members ask for my advice about some boneheaded litigation (I wanna sue my landlord blah blah blah) my advice is always the same- avoid, if at all possible, litigation. Unless you can do the following:
1. Clearly articulate what you want from the litigation.
2. Understand the time involved.
3. Understand the money involved.
4. Understand the emotional and mental drain it can cause…
then DON’T DO IT. However, sometimes people suck (that’s my first rule). So instead of shooting each other, we go to court. So, court is awful, but it’s better than shooting.
I think.
October 13, 2009, 1:33 amA. Zarkov says:
Any lawyer who had done a significant amount of divorce work knows that as a practical matter the US Constitution doesn’t exist in family law courts. Go ahead and bring it up and get your client hit with attorney fees. State legislatures have given family law judges such wide latitude that they can do almost anything without getting overruled as this case demonstrates. Even if you should win at the appellate level, your victory will likely turn out to be a Pyrrhic one. The case goes back to the same judge that got overruled who will then be very angry with both lawyer and client. The judge might even defiantly refuse to change his ruling. Go read the 1984 California case In Re Marriage of Hoffmeister where the parties went around twice, which is why we have Hoffmeister I and Hoffmeister II.
October 13, 2009, 6:51 amCustody says:
Reading the two opinions, I find little to support the notion that this is “religious discrimination”. The court did not pick between two religions (or between religion and secularity), and decide that Dad’s religion is better. Note also that, despite its comments about the mother’s conduct, the court found the parents equal on this factor. (“Both parents have the ability….”)
The facts as recited are pretty standard “best interest factors” findings for a custody case. The legislature defines a set of factors the court must address, including the ability and willingness of the parents to raise the child in the child’s religion, so the court dutifully does so.
It appears that, as is their First Amendment right, the parents were agreed upon raising the child in a specific faith. Then mom decided she wasn’t all that interested in church and, without discussing the decision with anybody, pulled the child out of a church-sponsored daycare. She did not offer an explanation for that decision to the court. While reciting that history, the court nonetheless found the parents equal under that particular factor.
The court addresses another factor – the concern that mom may not be particularly committed to fostering a relationship between father and child. Many judges put a great deal of weight on that factor.
The appeal to the Supreme Court seems to focus almost exclusively upon whether the father’s actions during the relationship should have been treated as domestic violence, and thus prevented the father from gaining custody. Although I haven’t read the brief, it does not believe that the mother raised the issue of religion on appeal.
The more interesting issue to me, arising from cases like this, is the deference of trial courts to outside experts to make their decisions for them. The court’s job is to evaluate the best interest factors and make a decision, but instead a “child custody expert” is hired to prepare a report for the court. It sounds like here there was a “battle of the experts”, with the judge picking the opinions of dad’s expert and rejecting the opinions of mom’s. Is there evidence that a child custody expert will do a better job of deciding custody than a judge? Or that when the so-called experts conveniently make recommendations favoring the side that employs them, the judge should (or is capable of) picking one side’s expert over the other?
October 13, 2009, 9:20 amegd says:
It is unfortunate that for all of his otherwise insightful and well reasoned work, EV persists in his anti-religion musings.
Yes, religion could have played a part. Another fact that may have played a part was that “Jessica is not committed to encouraging contact between Tyler and his Father.”
It also may be important that the court identifies “the family’s religion or creed.” It can be inferred from the case that the religion is shared by both parents, it is not merely the father’s religion.
Therefore, both parents have agreed that religious upbringing is in the child’s best interest, but only the father is interested in furthering this interest. The mother didn’t remove the child from church-sponsored pre-school for religious reasons, or for ethical or moral reasons. She did so “without any apparent reason or explanation.”
The mother was not acting in the child’s best interests, and not raising the child in a manner both parents agreed the child should be raised.
There are no First Amendment issues here.
October 13, 2009, 9:29 amProf. S. says:
Isn’t the real story of the case the fact that the husband ended up with custody? I mean, if you think that religious discrimination is bad, that’s nothing compared to the sex-discrimination if child custody cases.
October 13, 2009, 9:50 amAnonanonanonanon says:
Real question is would they have let the father take the kid if the father was Muslim….
October 13, 2009, 9:54 amgeokstr says:
Reminds me of the peer-reviewed, extensively documented scientific study I read about, where it was statistically proven why grandparents get along so well with the grandchildren. It seems they share a common belief – that the grandchildrens’ parents are idiots.
October 13, 2009, 10:17 amanonymous says:
Lol geokstr.
October 13, 2009, 10:28 amAbdul says:
I think the judges may have been more sympathetic to First Amendment arguments if the the mother had made them. Instead, she removed a child from a familiar program “without any apparent reason or explanation.” Removing a child from a familiar soccer program to enroll him in a new swimming “without any apparent reason or explanation” would also raise an eyebrow, although maybe less so because athleticism has less pervasive influence on a child’s worldview than religion. I don’t see where the mother raised her objections to religious instruction as a reason or explanation.
Furthermore, there are certain tangible merits to religious upbringing that exist regardless of theology. Religous people in america tend to live longer, and are wealthier.
October 13, 2009, 10:44 amDave N says:
Geokster,
I thought it was because the grandparents and grandchildren had a common enemy.
October 13, 2009, 10:57 amJimbino says:
The courts never seem to comprehend the fact that all children are born atheists. No child is born a Catholic or a Jew, and the Protestants don’t consider a child a Christian until he makes an intelligent confession of faith, since one is “justified by faith” alone.
October 13, 2009, 11:10 amArthurKirkland says:
The courts never seem to comprehend the fact that all children are born atheists.
I would have guessed “agnostics.” But, as with almost all points involving religion, it’s just a guess.
October 13, 2009, 11:25 amspudbeach says:
Hmm — so adding one person doesn’t help a religion? That’s like saying one raindrop doesn’t cause a flood. The more raindrops, the bigger the flood. The more people educated in a religion, the bigger the religion. Any aid to a religion, no matter how small, is aid to a religion, and is prohibited by the first amendment.
Unless, of course, you’d rather have religious wars.
So nice of you to make your remark internally inconsistent. How is “isn’t taking your child away from you because of religious practice” consistent with “just tipped the balance?”
If not for the religion, would custody have been changed? Maybe, reading the entire decision. But if so, why even mention it? I didn’t think that courts were in the habit of adding irrelevancies to their opinions. Mentioning the religious practice as a factor leads one to believe that it played a role in the decision. If it did, that, in and of itself, is unconstitutional.
October 13, 2009, 11:48 amJohn says:
“Both have the ability to give [son] love, affection, guidance, education and to impart the family’s religion or creed. [Father] is inclined to impart the family’s religion or creed, as he regularly takes the child to Sunday school and at one time enrolled [son] in a church-sponsored pre-school. Conversely, [mother] does not take the child to church or Sunday school, and without any apparent reason or explanation, removed the child from a church-sponsored pre-school to send him to an Interlakes Community Action Program. ”
I think everyone here is missing WHY the court ruled in favor of the father. From what I read here, the PARENTS when they were together established a certain level of religousity for the family as a whole, which included regular church attendance by the family, and various regilous education activities for the child. Since the split, the mother has not supported a continuation of those arrangements, while the father has. So given that nothing about the relgion is alleged to be harmful to the child, continuation of a situation that the child is likely to see as normal is in the best interest of the child, and the father has acted in a way that shows he is best capable of doing that.
October 13, 2009, 12:16 pmdisintelligentsia says:
There should be very little weighing of religion or, for that matter, much of anything else. Parenting is a fundamental right and so to is a child’s right to the care and companionship of each of their parents. There should be a presumption of equal joint physical parenting time for each party unless it can be shown by clear and convincing evidence that one is an unfit parent. As things sit judges do pretty much whatever suits their particular prejudices – which in most cases means that the mother gets sole custody and the father is turned into a visiting wallet to the ruin of the children and the parents.
As to the issue of a judge weighing “religion” as a factor, there are a number of “non-religious” factors that a judge could use to substitute for his prejudice as to religion – constancy as to the child’s prior upbringing, socialization – the child has friends at the church, “it takes a villagism” — the church provides the child and the parent with community support that the other parent lacks, etc. The list could go on for a very long time and any lawyer worth his salt could make a “religious” decision look very secular.
October 13, 2009, 12:22 pmegd says:
It is not necessarily unconstitutional, especially since it appears in this case that the parents agreed to certain religious upbringing of the child.
If two parents agree not to use profanity in front of their children, and Dad starts dropping the F-bomb every third word, using this fact to determine (or change) custody would not violate his right to free speech. The court would merely be interpreting the agreement made between the parents regarding the upbringing of a child.
The mother was free to argue that she didn’t want religious upbringing for the child, but she didn’t. Similarly, the swearing father could argue that he changed his mind about non-profanity upbringing. At that point, the court would have to determine which environment was better for the child.
But she didn’t argue that, and to interpret her non-responsiveness as a desire to bring up the child in a non-religious (or less religious) environment is putting words in her mouth.
October 13, 2009, 12:22 pmMatt B. says:
Including religion in the analysis can’t be any worse than the bogus “primary caregiver” factor, which is almost by definition nearly always the mother. As a friend once told me when I asked him if he had to get up in the middle of the night to feed his baby, he responded, “nah, I don’t have breasts, I’m useless to a baby.”
October 13, 2009, 12:26 pmDoc Merlin says:
Absolutely, and people are surprised.
October 13, 2009, 12:45 pmDoc Merlin says:
1) You are showing your bias here, thats really a Christian thing.
2) Islam doesn’t believe this. It claims that (depending on sect) either all children are born Muslim, or children with a Muslim father are born Muslim.
3) Judaism also doesn’t believe this, every child born to a Jewish woman is born Jewish.
4) Actually among the major religions, Christianity is one of the only religions that requires conversions of sorts from people descended from adherents.
October 13, 2009, 12:50 pmanonymous says:
Hmm — so adding one person doesn’t help a religion? That’s like saying one raindrop doesn’t cause a flood. The more raindrops, the bigger the flood. The more people educated in a religion, the bigger the religion. Any aid to a religion, no matter how small, is aid to a religion, and is prohibited by the first amendment.
Unless, of course, you’d rather have religious wars.
Wow big jump there. I’ll play — let em battle it out in a religious war!!
And if you think one little child worshipping at the faith house of one of his parents is really just the beginning of a rainstorm that will flood us into the religious wars… you’re silly. I stand by what I said. No religion is aided here by the child being added to that congregation’s list.
If this is your idea of “aiding a religion” then you are just nitpicking hoping to get some constitutional issue hyped up — you’re not better than the ACLU really. Family court cases like this will never advance your cause, so best go sniffing elsewhere. Honestly.
October 13, 2009, 2:15 pmanonymous says:
So nice of you to make your remark internally inconsistent. How is “isn’t taking your child away from you because of religious practice” consistent with “just tipped the balance?”
If not for the religion, would custody have been changed? Maybe, reading the entire decision. But if so, why even mention it? I didn’t think that courts were in the habit of adding irrelevancies to their opinions.
Let’s assume “just tipped the balance” is true, more the original poster’s claim than mine, which was just a pickup. Take away all the other issues mentioned that brought this family to divorce court to begin with, it’s not about religion where this child ended up. That whole stack of other issues brought you here.
And that last sentence about judges adding irrelevancies to their opinions?? Lol who are you reading; in the real world judges are all about that. You must think SCOTUS opinions and good writing trickle down. Stick to your nice clean academy and keep counting angels on those pinheads (or taking money for speeches from those who do?)
October 13, 2009, 2:20 pmptt says:
It’s pretty well established, no, that disrupting a child’s living arrangement is usually harmful?
The decision isn’t neutral.
October 13, 2009, 3:26 pmThorley Winston says:
I just finished reading the order Eugene provided and I’m going to out on a limb here and state that I don’t think that the continuation of the child’s religious upbringing was the deciding factor.
My suspicion after doing a little reading between the lines is that it may have more to do with the court stating initially that “[t]he Court does not find Jessica to be a credible witness,” concerns that she may be suffering from depression, and her refusal to provide the psychological evaluation that was completed by Dr. Packard. Add to that what appears to be a pattern of arbitrary decisions concerning the child without any explanation or reason given and a child that is closer to his father than mother even though she was the primary care giver and I think the judge is seeing signs that the mother may have psychological issues and/or be unstable which could be harmful to the child.
The judge might be wrong and/or I might be reading too much into these facts but that seems to me to be what tipped the decision.
October 13, 2009, 4:51 pmRoger says:
No. There are millions of people who have fond childhood memories of moving frequently or having other disruptions. There is no known harm.
Most parents do all sorts of things that they cannot rationally explain. They would all lose custody under that standard.
So the judge is some sort of amateur psychologist who thinks that he can make a diagnosis that none of the psychologist witnesses could see? Shouldn’t she have the right to address whatever accusation is being made?
No matter how you figure this, the judge was just ruling on his prejudices, and not using any defensible principles.
October 13, 2009, 5:20 pmR Gould-Saltman says:
A not-very-clearly-written decision, which injects a religious issue where there was otherwise no reason to inject one.
There certainly seems to have been enough additional admissible evidence on real issues from which this judge could have reached the result that he did. It would be nice if there’d been some explanation as to what an “Interlakes Community Action Program” is, and why the child’s attendance at church is per se preferable to this, whatever it is.
I’d also be interested in knowing whether South Dakota follows the California rule, which is that custody litigants DON’T automatically lose their physician-patient and psychotherapist-patient privileges simply being custody litigants, or the rule in some other states, which is that once you’re a custody litigant, you’ve got no privilege.
October 13, 2009, 6:33 pmADF Alliance Alert » “More Discrimination in Child Custody Cases Against the Less Religiously Practicing Parent” says:
[...] Volokh writes at the Volokh Conspiracy about a recent decision in “Stavig v. Stavig, No. 05-0464 (S.D. Cir. Ct. Aug. 28, 2008), [...]
October 14, 2009, 4:55 pm