More Discrimination in Child Custody Cases Against the Less Religiously Practicing Parent:

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).