The Volokh Conspiracy

“nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant school events.” That’s the text of a judge’s oral order in Morelli v. Morelli, No. A06-04-60750-C (Diane Gibbons, J., Bucks Cty., Pa. June 6, 2011). If the father says anything about the mother in public, he could be sent to jail for contempt of court. The order isn’t limited to banning libelous statements (though I think even such a much narrower ban would itself pose constitutional problems, especially under Pennsylvania law), nor is it even limited to statements about minor children (though even that sort of order strikes me as constitutionally impermissible). Rather, the court order categorically orders the removal of a Web site, and prohibits all public statements — factually accurate or not — by one person about another person.

That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult. I’m pleased that the order is being appealed, and hope it will be quickly reversed. A relatively old (Jan. 5, 2010) archive of the web site that triggered this order, http://www.thepsychoexwife.com, is available on archive.org.

From yesterday’s Atchley v. Atchley:

The trial court addressed the following inquiry to the husband.
Q. Now, you said you attend a Morning Star Church?
A. Correct.
Q. Do you donate money to the church?
A. I don’t donate money to the church.
Q. Do you—does [husband’s girlfriend]?
A. No, she has not yet.
Q. Okay. Do either of you serve in any ministry that the Morning Star Church is involved in, whether some sort of charity work or teaching kids or anything like that?
A. No, not at this time.
Q. Do you have prayer in your home?
A. We pray at the dinner table.
Q. Bible study?
A. Not in the home, no.
Q. You’ve described yourself as a secular humanist, right?
A. Correct.
Q. Okay. How does—how does a secular humanist determine what’s right and wrong?
A. I mean, it’s a—it’s a—that’s a very deep question. I mean, I think people innately have an idea about what’s right, what’s wrong and you have to—you have to look at it from the perspective of not just, you know, what’s good for me, but what’s good for those around me, am I doing a greater good. I mean, I can have morals and make correct decisions without having a religion per se.
Q. What’s the authority though that you submit to?
A. Just my basic philosophy in life which is that I think humans can help each other solve their own problems. I don’t think we need to look elsewhere. I think if we work hard at it, then we can make a better society and we can all get along and we can solve problems and we can improve how it is we live, what the human condition is.
Q. But ultimately what you’re telling me is that the authority for what you think is right and wrong comes from you?
A. Yeah, I mean, it’s—it has to come from me. I mean, you have to think—but you have to be—you have to try to be, you know, objective about it. Yeah, I don’t have a book or a sheet of paper with a list of tenets or anything I should follow.

Continue reading ‘Judge Grilling Parent in Child Custody Case About the Parent’s Secular Humanism’ »

The Chicago Sun-Times reports:

In a divorce case that’s drawn national attention, a Chicago man who claims he has returned to his Catholic roots will be allowed to take his 3-year-old daughter to church, despite the objections of the girl’s Jewish mother, a Cook County judge [Renee Goldfarb] ruled this afternoon….

The judge said she found “no evidence … that taking 3-year-old Ela to church during Joseph’s visitation time is or would be harmful to Ela. She is three years old and, according to Joseph, while at church she waves at the other children, looks around and giggles. This court found that testimony credible.” …

The original order, from Judge Edward Jordan, is here (p. 5); I have read Judge Goldfarb’s opinion, and was quite impressed by the reasoning explaining the decision against interfering with the parents’ religious practices absent “proof of harm or potential harm” to the daughter. The judge had to juggle three not entirely consistent state appellate decisions, and I think did a very good job of coming to the conclusion that as consistent as possible with those decisions and with First Amendment caselaw.

UPDATE: Judge Goldfarb’s opinion is now online here.

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).