The Volokh Conspiracy

An interesting Virginia Supreme Court decision, Wyatt v. McDermott (Va. Apr. 20, 2012), recognizes this right. An excerpt (paragraph breaks added):

John M. Wyatt, III, is seeking monetary damages for the [alleged] unauthorized adoption of his baby, herein referred to as E.Z. E.Z. is the biological daughter of Wyatt and Colleen Fahland, who are unmarried residents of Virginia. [Wyatt claims the following happened:] Prior to E.Z.’s birth, Wyatt accompanied Fahland to doctors’ appointments and made plans with Fahland to raise their child together. Without Wyatt’s knowledge, Fahland’s parents retained attorney Mark McDermott to arrange for an adoption. While Fahland informed Wyatt of her parents’ desire that she see an adoption attorney, she assured Wyatt that they would raise the baby as a family. During a January 30, 2009 meeting with McDermott, Fahland signed a form identifying Wyatt as the birth father and indicating that he wanted to keep the baby.

Fahland offered to provide Wyatt’s address, but McDermott told her to falsely indicate on the form that the address was unknown to her, which she did. She also signed an agreement in which she requested that the adoptive parents discuss adoption plans with the birth father. Wyatt was “purposely kept in the dark” about this meeting, and Fahland continued to make false statements to Wyatt at the urging of McDermott, indicating that she planned to raise the baby with Wyatt, with the purpose that he would not take steps to secure his parental rights and prevent the adoption.

To facilitate an adoption, McDermott contacted “A Act of Love” (Act of Love), a Utah adoption agency, and Utah attorney Larry Jenkins with Wood Jenkins LLP, a Utah law firm representing Act of Love.

Approximately one week prior to E.Z.’s birth, Fahland and her father met again with McDermott. At McDermott’s urging, Fahland spoke to Wyatt briefly on the phone and then sent him a text message informing him that she was receiving information about a potential adoption. Later that day and throughout the week prior to E.Z.’s birth, Fahland continued to assure Wyatt that she still planned to raise the baby with him.

Fahland concealed the fact that she was in labor during conversations with Wyatt, at the direction of McDermott and on behalf of the other defendants. E.Z. was born two weeks early, on February 10, 2009, in Virginia, and Wyatt was not informed of the birth. The next day, Fahland signed an affidavit stating that she had informed Wyatt she was working with a Utah adoption agency and an affidavit of paternity identifying Wyatt as the father. Despite her full knowledge of his address, she placed question marks as to his contact information on the notarized documents at the urging of McDermott. Thomas and Chandra Zarembinski, Utah residents who retained Act of Love to assist them in adopting a child and planned to adopt E.Z., signed an agreement stating that they were aware that E.Z.’s custody status might be unclear. On February 12, Fahland signed an affidavit of relinquishment and transferred custody to the Zarembinskis, who had travelled to Virginia to pick up the child. Wyatt claims all defendants induced Fahland to waive her parental rights knowing that Fahland did not want to relinquish rights to the baby and that Wyatt believed he would have parental rights….

The Court is now left to determine what elements are essential to the tort as it exists today, consistent with the original writ, but in line with equal protection and modern law. Kessel [a West Virginia case] succinctly lays out the elements of this cause of action, consistent with Virginia law:

(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and (4) damages resulted from such interference.

Continue reading ‘Intentional Tortious Interference with Parental Rights’ »

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds.

From BK v. New Hampshire Dep’t of Health and Human Services (D.N.H. Mar. 7, 2012):

This case raises the potentially important issue of whether state authorities violate the free exercise rights of children, or their parents, under the First Amendment by placing the children with foster families who subject them to practices abhorrent to their faiths. In this case, the plaintiffs are Hindi who allege that the foster families fed the children beef and took them to Christian religious services.

The court, however, has not yet dealt with this issue; the March 7 decision deals only with the state sovereign immunity question, and concludes that some defendants are entitled to such immunity and others aren’t.

What happens when divorced parents with joint legal custody disagree about whether their child should be given the routine childhood immunizations? That’s the issue in Grzyb v. Grzyb (Va. Cir. Ct.), decided in mid-2009 but just uploaded to Westlaw a day or two ago.

The Grzybs were the divorced parents of a 3-year-old girl, with “joint legal custody of the child, which implicitly included joint decision-making regarding the child’s medical and health care.” The father wanted the daughter immunized, but the mother had a religious objection to the immunization:

Mrs. Grzyb … testified that she first formed a religious objection to vaccinations when she was pregnant with the child, that she “prayed about it a lot,” and felt “led by the Holy Spirit” to the conclusion that the child should not receive routine immunizations. She testified that “I never felt so strong about anything outside of faith as I do about vaccination.” … Ms. Grzyb’s pastor, the Reverend Scott Mauer, … [testified] that it was not a tenet of his religion that children remain unvaccinated. Rather, he testified that “this falls into an area that we would consider to be what the Bible often refers to as disputable matters, which are areas that the Bible does not necessarily address directly.” He continues:

in those cases, historically the position that the Baptist Church has taken is that a person should apply the best understandings of our truth of the scripture and also the sensitivities believing as the Holy Spirit and come to a conviction about it. And that furthermore if they do come to a conviction based upon those things, that they are then to be obedient to that conviction because the Bible is clear that, if a person has come to a conviction that they do believe is from God, that to the best of their ability that they believe that in good faith before the Lord, that if they do not then pursue that directive of that decision that they are in sin.

Now if this were just a matter of whether two parents acting together (or a sole custodial parent) were exempt from the Virginia immunization requirement, Mrs. Grzyb’s religious objection would give her a statutory immunity (see subsec. D(1)). But in this case, the question was what should be done to the child when the two parents who share legal custody disagree. The common answer is such situations is to conclude that joint legal custody isn’t working out on this question — since joint custody presupposes an ability to agree — and one parent should be given sole custody as to medical matters. But which parent?

Here’s the court’s analysis: The court concludes that (1) getting immunized would indeed be in the child’s best interests, given the medical expert testimony that, “the risk of ‘serious complications’ [from vaccines] was ‘very low’ and that [the child] is ‘at greater risk of the diseases that the vaccines protect against, absolutely.’” But the court also observed that (2) the mother was more actively involved in the child’s medical care:

Continue reading ‘Children’s Immunizations, and Disputes Between Divorced Parents’ »

In re D.S. (Ore. Sup. Ct. Feb. 16, 2012) is an interesting — and, as usual, sad — parental rights case. Father had four children living with him and his girlfriend: his daughter, D (age 14), his son, R (age 12, D’s full brother), his girlfriend’s son, G (age 5 or 6), and his and his girlfriend’s daughter, S (age less than 2, D’s half-sister). D’s mother is in prison.

D accused father of physically abusing her, and is now in foster care. The father says “D was lying about the physical abuse and was an ‘out of control’ teenager.” The father is awaiting trial on the physical abuse charges.

D wants to visit with her siblings, and the trial court ordered that the father not interfere with that, at least as to R and G (but apparently not the very young S, though that’s unclear). The father objected, claiming this violates his parental rights with regard to R and G.

The Oregon Supreme Court agreed that the father’s parental rights were in play, and remanded for further development of the facts. Exactly what showing the court would find adequate for allowing a restriction of the father’s rights is not clear. But the court did conclude that the trial court cannot order sibling-sibling visitation as a matter of course, and had to consider the father’s rights to control access to those siblings who are still in his custody.

Law professor David Pimentel has an interesting article detailing the ways in which law and social norms have evolved to the point where perfectly ordinary parenting practices can land you in prison or at least subject you to an expensive lawsuit or prolonged official harrasment [HT: Bryan Caplan and Katherine Mangu-Ward]. As Pimentel points out, this is often a result of vague statutes and regulations that are interpreted by courts and administrative agencies to require extremely overprotective parenting. Pimentel notes that many such overprotective practices are influenced by media sensationalism and have little or no support in the actual data on child safety and some might even harm children more than they benefit them.

I will leave the specific legal issues to those more expert in these matters than I am, such as co-blogger Eugene Volokh. But one example from the text was particularly striking to me, based on personal experience:

Even one generation ago, the norms were different for determining the age at which a child no longer needed a babysitter. The expected minimum age for babysitters has gone up as well, although in the few states that have legislated specific ages, the thresholds vary widely. In Illinois, it is illegal to leave a child under 14 unsupervised for an “unreasonable period of time”; in Maryland, in contrast, a 13-year-old is considered old enough not only to care for himself, but to babysit infants. The days when 11- and 12-year-old neighborhood kids were considered competent babysitters appear to be long gone. This development is all the more marked considering that mobile phones have created a virtually instant line of communication between the sitter and the parents, something unheard of in earlier eras, when younger sitters were considered acceptable.

I worked as a babysitter when I was twelve, back in the barbaric Dark Ages of the mid-1980s. And this was not considered unusual at the time. When I was 14, I was once hired to babysit a neighborhood family’s three kids for several days in a row (the parents came home in the evening, but I was the only one with the kids from about 9 to 5). You can argue about whether my neighbors should have hired an adult instead. But it certainly should not be against the law to hire a sitter in their early teens, nor is there any evidence that this is unusually dangerous or somehow causes permanent harm to the kids.

On the other hand, anecdotal evidence suggests that the growing legal and social bias against younger babysitters has helped drive babysitter pay to levels unheard of in my time. I am almost tempted to get back into the babysitting business myself to take advantage of it!

As Pimentel describes in the article, only a few states have laws that specifically ban early-teen sitters. But the practice might potentially lead to charges under the sorts of vaguely worded general child welfare statutes that he discusses at length in his article. The article describe a variety of dubious prosecutions on other issues that have resulted from such laws.

So held the Hawaii Supreme Court, in Hamilton ex rel. Lethem v. Lethem (Haw. Feb. 7, 2012), interpreting the Hawaii Constitution, though in reasoning that could be seen as applicable to the federal Constitution and to other state constitutions. And the court concluded that even a noncustodial parent retains this right “with respect to that child’s conduct during the visitation period.”

Based on this constitutional right, the court concluded that, to warrant the issuance of a domestic restraining order based on alleged child abuse, there must be (1) a finding that “the parent’s discipline is [not] reasonably related to the purpose of safeguarding or promoting the welfare of the minor,” (2) taking into account “factors such as [a] the nature of the misbehavior, [b] the child’s age and size, and [c] the nature and propriety of the force used.”

The court left it for a lower court to apply this standard to the facts of the case. Here, though, are the facts as alleged by the child (a 15-year-old girl), which led to the issuance of a restraining order against the father:

Continue reading ‘Constitutional Right to Moderately Corporally Punish One’s Child’ »

The case is In the Matter of Q (A Child) (Eng. & Wales Ct. App. Dec. 21, 2011); The Independent (UK) reports:

A Muslim man who had a baby with an unmarried woman has been told that his daughter must remain with an adopted family because there is too great a risk that his love child could become the victim of a so-called “honour killing”.

Three senior judges today ruled that a “desire to preserve the family’s honour” among the mother’s relatives meant placing the child with the father was simply too dangerous…. The father had tried to challenge that decision but lost his case….

The child, who is called “baby Q” in court documents, was conceived towards the end of 2009. Her father was already married to another woman who lived outside the country at the time. The man began an affair with a Muslim woman from within his own community and the pregnancy was unplanned. When the mother -– referred to as “M” in court documents — discovered she was pregnant she became “terrified of her family’s reaction”…. The court heard how police enquiries established that had M’s father found out about the pregnancy “he would consider himself honour bound to kill the child”, his daughter and even his wife….

Here’s an excerpt from the opinion:

The judge’s findings about the risk of physical harm to the child and members of her family are very important. It is a topic to which she returned regularly during the judgment. She found that there were no physical risks if Q were to be adopted by Mr and Mrs A; in contrast, although she could not quantify it, she found that there would be “a very significant risk” if Q were to live with F and W. She did not consider that the risk was removed if, in fact, GF already knew of the baby as she acknowledged may be the case. She observed that whilst there was no baby evident, there was no proof of the relationship between M and F but “[i]f Q is placed with her father then two and two might very easily be put together” because Q is quite obviously not W’s child. If GF’s community were thus to find out about the relationship between M and F, “it would be a matter of intense almost unimaginable shame to him and his family”. It was plainly the judge’s view that this might provoke action to preserve the family’s honour and she thought that “a particularly high degree of risk from relatives or members of M’s community would arise immediately after placement”. She was mindful of the seriousness of the physical harm involved and observed that:

“the magnitude of the consequences here is such that even a small degree of risk must be taken into account. In my judgment here there is such a risk and quite possibly a high one.”

… This is a case which presented the judge with a most difficult decision. Q, relinquished at birth by her mother, M, had for some time been placed with Mr and Mrs A who are loving and devoted adopters and to whom she had formed a deep attachment. On the other hand, Q’s father, F, married to another woman and with a child of that marriage, sought to have Q united with him in his care. In addressing the question whether to make an adoption order it is clear to us that the judge was guided by the fundamental consideration whether Q’s welfare throughout her life required the making of an adoption order. In adopting this approach we believe the judge cannot be faulted. She considered whether adoption was demanded rather than being merely reasonable or desirable. In our judgment this approach took full and proper account of any possible right of F or Q to family or private life.

The judge proceeded to assess whether Q’s welfare required the making of an adoption order having regard to all the considerations set out in section 1 of the 2002 Act. In the particular circumstances of this case, the judge rightly regarded the risk of physical harm to Q and M as being of major importance. Here the evidence was, in our judgment, compelling. Q was conceived in a relationship which was unacceptable to M’s traditional Muslim family and conducted in secrecy. When M realised she might be pregnant she ran away from home for fear of the reaction of her family and, in particular, her father, GF. Shortly after her pregnancy was confirmed, M took steps to have her baby adopted at birth. Although she returned to her home, she concealed her advancing pregnancy by wearing loose clothes and travelling to the other side of her town for her antenatal care. As soon as Q was born, she was relinquished for adoption because M genuinely feared for Q’s safety should GF become aware of or be forced to acknowledge her existence. M’s evidence, supported as it was by her actions and the evidence of F and an experienced police officer, drove the judge to conclude that refusal of the order would carry with it a significant risk of physical harm. In our judgment this conclusion cannot be criticised….

Thanks to Ken Braithwaite for the pointer.

The case is In re Adoption of J.P. (Ark. Dec. 15, 2011), and it involves both a conflict between a father and a deceased mother’s parents (and grandparent), and a challenge to the adoption by the father’s new wife (the child’s godmother, as it happens). The Arkansas Supreme Court indirectly relies on the father’s constitutional parental rights to overturn a lower court award of visitation to the grandparents and great-grandmother, who had been closely involved with the child’s upbringing but who were now less involved in the child’s life because of a rift with the father. The court concludes that the father’s rights aren’t absolute, and that a sufficient showing of harm to the child could justify granting visitation rights to the grandparents and great-grandmother, but that no such showing was made here.

But the court refuses to allow the new wife (and godmother) to adopt the child, for reasons related to the rift with the grandparents and great-grandmother:

Before an adoption petition can be granted, the circuit court must find from clear and convincing evidence that the adoption is in the best interest of the child…. Here, the circuit court found, in pertinent part:

Although Derek and Andrea testified that it was coincidence, the restriction of [Doris]‘s and [Bertie]‘s contact with [J.P.] began when Derek and Andrea started dating. From an observation of Andrea as a witness, the Court finds Andrea’s attitude toward [J.P.] to be possessive and exclusive of the maternal family. The Court finds that an adoption of [J.P.] by Andrea would not be conducive to fostering a relationship between [J.P.] and his maternal family. A hindrance or loss of a relationship with his maternal family would not be in the best interest of [J.P.]

Considering all the best interest factors, the Court finds that the adoption of [J.P.] by Andrea is not currently in the best interest of [J.P.] The Petition for Adoption is denied.

It is clear from Andrea’s testimony that tension existed between her and J.P.’s maternal family. It is that tension that troubled the circuit court and served as the court’s basis for finding that the adoption was not currently in J.P.’s best interest; we do not disagree. That is not to say that it would not be in his best interest at some point in the future. However, giving due regard to the opportunity and superior position of the circuit court to judge the witnesses before it, we cannot say the circuit court’s finding that adoption was not currently in J.P.’s best interest was clearly against the preponderance of the evidence. For this reason, we affirm the circuit court’s denial of the petition for adoption.

So the father (1) has a presumptive constitutional right to limit visitation by other family members — but (2) he does not have a right to give his new wife the legal status of parent, and (3) the court may indeed deny the adoption partly based on the father’s exercise (see item 1) of his constitutional right to limit contact between the child and the other family members.

To be sure, there is no constitutional right to adopt a child, whether one is a stepparent or not. But in many (though not all) situations, the government is generally not allowed to condition benefits (such as the ability to adopt) on one’s exercise of constitutional rights: I take it, for instance, that the government generally may not deny prospective parents the right to adopt a child on the grounds of the parents’ political views. Likewise, two courts have generally held that the government may not deny prospective parents the right to adopt or to be foster parents based on their exercise of a constitutional right to engage in same-sex sexual relations, see here and here. If a parent has a constitutional right to limit visitation by other family members, is it proper to use the exercise of that constitutional right to deny him and his spouse the ability to have the spouse adopt the child? In any case, this struck me as an interesting question, and an interesting decision that was worth blogging about.

That’s a question that some readers asked on another thread, so I thought I’d pass along these excerpts from Troxel v. Granville (2000) on the subject. First, here’s an excerpt from Justice O’Connor’s plurality opinion:

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”

The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’” (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U. S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children” (citing Meyer and Pierce )). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

Second, here’s most of Justice Scalia’s dissent:

In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their children — two of them from an era rich in substantive due process holdings that have since been repudiated. See Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972). The sheer diversity of today’s opinions persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection. A legal principle that can be thought to produce such diverse outcomes in the relatively simple case before us here is not a legal principle that has induced substantial reliance. While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.

Judicial vindication of “parental rights” under a Constitution that does not even mention them requires … not only a judicially crafted definition of parents, but also — unless, as no one believes, the parental rights are to be absolute — judicially approved assessments of “harm to the child” and judicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoption later found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents. If we embrace this unenumerated right, I think it obvious — whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do — that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.

That seems to be Michigan law, at least according to Reardon v. Midland Community Schools (E.D. Mich. Sept. 2, 2011):

First, some brief attention needs to be given to Michigan law governing the obligation of parents to provide care and support to their children until the age of eighteen on the one hand, and yet, on the other hand, providing children the autonomous right to leave their parents’ home at the age of seventeen. See Mich. Comp. Laws §§ 712A.2(a)(2) & (3), 722.3, 722.151. Pursuant to Michigan Compiled Laws § 722.151, “[n]o person shall knowingly and wilfully [sic] aid or abet a child under the age of 17 years to violate an order of a juvenile court or knowingly and wilfully conceal or harbor juvenile runaways who have taken flight from the custody of the court, their parents or legal guardian.” Moreover, Michigan probate courts have jurisdiction to compel a juvenile who has deserted her home to return, at least until the juvenile reaches the age of seventeen. Mich. Comp. Laws § 712A.2(a)(2) & (3).

On the other hand, although Michigan law terminates the courts’ jurisdiction over runaway children at seventeen, it also provides that parents still have an obligation to support their children until they reach the age of eighteen. Under Michigan Compiled Laws § 722.3, “parents are jointly and severally obligated to support” their minor children, and Michigan courts may order parents to continue to support their children after they reach the age of majority. In Michigan, the age of majority is eighteen. Mich. Comp. Laws § 722.52. Absent an adoption, a biological parent’s obligation to support his or her children remains with the parent even if parental rights have been terminated. See Evink v. Evink, 542 N.W.2d 328, 329–30 (Mich. Ct. App. 1995). Whether these Michigan laws are well founded or not, they played a role in the events of this case.

I don’t know anything more about the subject, but I’d love to hear how this actually plays out in Michigan, and what other states have similar rules. Note also that it’s not clear from the opinion how the duty to support children interacts with the children’s right to leave home, but I assume that the legal duty is complied with if the parents offer the children room and board at the parental home; I take it that a child may not leave home and then demand, as a matter of law, that the parents pay for the child’s rent and groceries. This, though, is just my expectation — I don’t know exactly how Michigan law plays out in this respect.

UPDATE: A commenter points out that the 17-year-old girl in this case was “grant[ed] … a guardian and conservator, as well as child support”; the parents appeal, and the case will be argued soon.

California Business & Professions Code 460(b) reserves the regulation of medical procedures to the state, and preempts contrary local rules:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

(1) This subdivision shall not be construed to prohibit the enforcement of a local ordinance in effect prior to January 1, 2010, related to any act or procedure that falls within the professionally recognized scope of practice of a healing arts professional licensed under Division 2 (commencing with Section 500).

(2) This subdivision shall not be construed to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a healing arts professional licensed under Division 2 (commencing with Section 500).

This appears to preempt the proposed San Francisco ban on circumcision of boys, at least as applied to procedures conducted by doctors (as opposed to mohels who don’t have a medical license). And a California judge’s tentative ruling released yesterday agreed with this argument (the final ruling is expected at some point after oral argument today):

The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the legislative history of §460(b) confirms that the legislature intended to prevent cities and counties from regulating medical services which is a matter statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made. City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384, 389 Accordingly, the Court issues a Writ of Mandate Ordering the Director of Elections for the City and County of San Francisco to remove the measure from the ballot in its entirety.

Why didn’t the court simply hold that the ban couldn’t be applied to doctors, but could be applied to others (such as mohels)? The opinion doesn’t say, but it could be that the judge concluded that if such an important part of the proposal is preempted, the proposal has to be entirely removed, perhaps because voters who vote for the proposal as written might well not have voted for a radically narrowed proposal. (That’s the “severability” question, which often arises both as to voter initiatives and legislatively enacted statutes; there’s a complex body of law related to that in each state.) Or perhaps the court was influenced by the argument that a circumcision restriction limited to non-medical-professions would in effect apply solely or almost solely to religious circumcisions, and would thus be impermissibly targeted against religion.

In any case, unless the decision is reversed on appeal (unlikely, I think), it now appears that there will be no legal battle about the difficult constitutional issues here, whether having to do with parental rights or federal and state religious freedom constitutional provisions. The dispute would have to await either a California statute or a state statute or local ordinance in some other state, and neither option seems terribly likely politically. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Some comments on recent posts have suggested that libertarians should support a broad notion of parental rights. I haven’t written at any length on parental rights (except as to the special case parental free speech rights), and my thinking on this is far from definite; and of course I surely can’t speak for libertarians generally. But as somehow who is in many matters a presumptive libertarian, I thought I’d say a bit about this. Note that I’m speaking in this post about what I think the right rules ought to be, not about what we should understand our Constitution to say with regard to this question.

1. To begin with, though parental rights are seen by the law as part of parent’s “liberty,” it’s an unusual sort of liberty. The strongest case for liberty arises when people seek the right to do what they please with their own bodies, labor, and property, and the bodies, labor, and property of consenting adult partners (whether sexual, familial, business, or otherwise). But parental rights are the rights to control someone else’s actions. My child is not me. He is not my property. That I have the right to, say, alter my own body (or hire someone to do it for me) or to choose spiritual healing over traditional medical treatment doesn’t tell us much about whether I should have the right to alter another person’s property, or deny another person medical treatment — even if the other person is my minor child.

2. Moreover, parental rights don’t just involve the government refraining from action (e.g., by not arresting me for false imprisonment when I physically restrain my child, the way it would if I tried to do that for an adult). Rather, they involve the government taking affirmative coercive steps to support parents’ rights. The law often makes it a crime to entice minors from their parents, even when the minors are happy to go. It lets police forcibly return runaway minors. Some statutes threaten children “who persistently or habitually refuse[] to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian” with being adjudged “ward[s] of the court.” And some court decisions go so far as ordering people not to contact a particular minor. See Brekke v. Wills, 23 Cal. Rptr. 3d 609, 613 (Ct. App. 2005) (upholding injunction barring sixteen-year-old girl’s ex-boyfriend, whom mother considered bad influence, from contacting the girl, partly on grounds that injunction helped protect “[mother’s] exercise of her fundamental right as parent to direct and control her daughter’s activities”). If parents are legally allowed, for instance, to decide not to provide a child with certain medical treatment, a doctor who wants to provide such treatment would be legally barred from providing it.

Thus, parental liberty involves (A) suspension of the normal rules — which most libertarians approve of — barring one person from coercing another, plus (B) special rules that outright forbid people from certain actions with other people’s children. This is pretty far from things such as liberty of speech, sexual liberty (whether or not one thinks such liberty should be constitutionally protected liberty), liberty of contract, and so on. So the libertarian case for parental rights has to rest on something other than the basic “my body, my labor, my choices” libertarian perspective. To be sure, the parent may say “my child,” but that’s a different sense of “my” than in “my body.” Someone’s being “my brother” or even “my spouse” doesn’t give me rights over that person. If someone’s being “my child” gives me rights over the child, there needs to be some better explanation than “liberty” in the abstract.

3. My sense is that the strongest such explanation, at least from a libertarian perspective, should not from claims about parents’ inherent liberty to control their children’s upbringing, and more from claims about what’s best for children given the limitations of government. The argument would go something like this: Children, up to a certain age, need someone to make decisions for them, with an eye towards putting them in the best position to exercise their liberty once the children grow up. Someone needs both to shield them from dangers that may keep them from surviving to adulthood (disease, accidental death, starvation, criminal attack), and to positively provide them the things they need (education, self-control, and the like).

Continue reading ‘Liberty and Parental Rights’ »

In Friday’s Ex Parte E.R.G., the Alabama Supreme Court struck down the Alabama grandparent visitation statute, holding that it violated the rights of parents. The decision was a splintered 4-3-2 decision, which reflects the Supreme Court’s splintered decision in Troxel v. Granville (2000) — which held that some such laws are unconstitutional, but didn’t decide whether all such laws are unconstitutional. And the opinion among state courts is likewise splintered. I hope to have a chance to blog about this in the next few days.

But for now, I just wanted to note this passage from Justice Parker’s concurrence (which also contains various assertions about the Christian basis of American law):

I concur specially to write on the origin of the fundamental right of parents to direct the upbringing and care of their children. The main opinion in this case references Troxel v. Granville, 530 U.S. 57 (2000), for the principle that parents have a fundamental right to direct the care and upbringing of their children. This right does not originate with Troxel, however; it has existed for millennia, an integral part of the institution of the family.

I. The family preexisted the state.

The family was the first of all human institutions. One man and one woman came together in covenant before God, and they, with the children God gave them, became the first human social structure. As William Blackstone wrote, “single families … formed the first natural society,” becoming “the first though imperfect rudiments of civil or political society.” 1 William Blackstone, Commentaries on the Law of England *47 (1765). There was no state: no one person had been given civil authority over another, to punish evil and to prevent oppression. Nor was there a church to provide structure and order in the worship of the Creator. Both of these necessary institutions would come later — indeed, they were prefigured in the discipline and worship of the family — but the “sacred” relationships, Montgomery v. Hughes, 4 Ala.App. 245, 58 So. 113 (1911), within the family came first.

I certainly agree that the family preexisted the state as we know it. But is there any solid basis for believing that it was an exclusively two-person family in which the parents exercised parental authority even to the exclusion of the grandparents? Certainly families in many early societies could be polygamous, rather than “[o]ne man and one woman”; in particular, the society described by the Old Testament, which Justice Parker cites several times, allowed polygamy. And in at least one famous ancient Western civilization — the Roman — grandfathers at least nominally had power over their grandchildren, as well as over their adult children. Do any readers know whether Justice Parker’s assertions that the two-parent-controlled nuclear family (or for that matter just the father-controlled two-parent nuclear family) indeed came “first,” under any plausible scientific understanding of when “human institutions” emerged?

I should say that if Justice Parker had limited himself to saying that parental rights and monogamy were well-established in English law at the time of the framing of the Constitution, I would have had no historical objections to that narrower claim. Thanks to How Appealing for the pointer, and to Alabama Appellate Watch for posting the opinions.

The proposed anti-circumcision initiative follows the text of the San Francisco initiative. According to the Jewish Journal, “To qualify the initiative for inclusion on the ballot in Santa Monica’s next election in November 2012, its proponents will need to collect signatures from 10 percent of the city’s approximately 61,000 registered voters in the next six months. If they obtain signatures from 15 percent of Santa Monica’s voters, the initiative could be put to a vote in a special election.”

Santa Monica is a relatively wealthy enclave of the greater Los Angeles area — not really a suburb, but part of the West Los Angeles core. It is also heavily Democratic (69% D, 29% R), and supposedly almost 5% Jewish. San Francisco is likewise supposedly about 5% Jewish; America as a whole is 2% Jewish, though I’m not sure how the site that I’m citing is gathering its city-level religion statistics. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

In November, San Francisco voters will vote on an initiative that would generally ban circumcision of boys under age 18, except when “the operation is necessary to the physical health of the [child] because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a … licensed … medical practitioner.” In determining whether the exception is applicable, “no account shall be taken of the effect on the [child] of any belief on the part of [the child] or any other person that the operation is required as a matter of custom or ritual.”

Would such a ban be constitutional? That’s a surprisingly complex question, and I’d like to break down the answer into two parts: the parental rights question in this post, and the religious freedom question in another post.

As of 2005, about 56% of newborn American boys, and about 31% of American boys in the Western states, were circumcised. (In the Midwest, the fraction was nearly 75%.) Since Jews and Muslims — the two groups that generally circumcise for religious reasons — make up about 3% or so of the population, it seems that over 90% of all circumcisions are not religiously motivated. The fraction might be lower in San Francisco proper (I know of no statistics limited to that city), but I suspect that even in San Francisco, the great majority of circumcisions aren’t religiously motivated.

So the parental rights question, viewed independently of the religious freedom question, is indeed important. And, as we’ll see in the later post, it turns out that, even for religiously motivated circumcisers, the religious freedom claim depends in some measure on the parental rights question.

Is a presumptive constitutional right of parents in play here? Parents, the Supreme Court has held, have a presumptive constitutional right to control the upbringing of their children. No such right is mentioned expressly in the Constitution, but the Supreme Court has recognized this right since the 1920s, and so far only Justice Scalia has argued that no such right exists (though Justice Thomas has expressly said that he expresses no view on whether it exists).

Continue reading ‘Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom in This Post)’ »

What a way to enter this world. From In re Leroy R. (N.Y. App. Div., decided today):

Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about August 31, 2010, which, following a hearing pursuant to Family Court Act § 1028, granted the application of respondent father to release the subject child to his custody on condition that the child not be left alone with the respondent mother, and subject to the father demonstrating to the “reasonable satisfaction” of the petitioner agency (ACS [Administration for Children's Services]) that there are appropriate arrangements in place to ensure that the child will not be left alone with the mother, unanimously reversed, on the law and the facts, and the application denied, without costs.

Continue reading ‘“The Father’s Graphic, Profanity-Laced Death Threats Were Directed at ACS Staff and Hospital Personnel Within Hours of His Son’s Birth”’ »

Arkansas’s Act 1 (passed by a voter initiative, though that didn’t affect the analysis), “an individual is prohibited from adopting or serving as a foster parent if that individual is ‘cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.’” Today’s Arkansas Dep’t of Human Servs. v. Cole, a unanimous decision from the Arkansas Supreme Court, struck down the law. The reasoning went basically as follows:

1. The Arkansas Constitution was interpreted in Jegley v. Picado (2002) as securing a right to privacy, included in which is protection of “private, consensual, noncommercial acts of sexual intimacy between adults.”

2. There is no constitutional right to adopt or to be a foster parent; but even privileges that the government may withdraw for some reasons generally can’t be withdrawn in a way that substantially burdens a constitutional right. Here, telling people that to adopt or to be a foster parent they must give up their constitutional right to sexual intimacy with their chosen partner is a substantial burden on that constitutional right. “[U]nder Act 1 the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children. The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic. They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”

3. The court didn’t consider the possibility that heterosexual unmarried couples who want to adopt or foster children could avoid this burden by marrying, presumably because the right to privacy also includes a right not to marry.

4. Burdens on the right to sexual intimacy can still be constitutional if they are narrowly tailored to a compelling government interest, and exclusion of some such couples as part of the “best interests of the child” analysis might be constitutional. (The court said the same as to “no living with your lover while your children are present” conditions in child custody orders.) But this could only be done based on individualized findings that the particular relationship is indeed against the child’s best interests.

The systems for selecting parents for adoption and foster care already provide for individualized examination of the fitness of prospective adoptive or foster parents. If there’s concern that a particular unmarried relationship is so likely to be unstable, for instance, that it would be against a child’s best interests to be placed in that family, then that concern could be considered as part of the selection process. But a categorical ban on such parents isn’t narrowly tailored to the government interest in protecting children. (I take it that this decision was partly influenced by the fact that for many children who are up for adoption or foster care, the choice is not between an eminently suitable married couple as parents and an unmarried couple as parents, but rather between an unmarried couple and an unsuitable married couple, or an unmarried couple and some group home, or an unmarried couple who are the child’s relatives and a married couple who are strangers to the child.)

The analysis strikes me as correct, given the recognition of a couple’s sexual intimacy as a constitutional right. Just as a rule that bars placing children with libertarians, Socialists, or gun owners would be an unconstitutional burden on the underlying right to speak or to own guns, so a rule that bars placing children with unmarried couples in a sexual relationship is an unconstitutional burden on the underlying right to sexual intimacy.

Thanks to How Appealing for the pointer. No thanks to the AP headline writer who characterized the story as “Ark. court strikes down law barring gay adoptions” (though the body of the story does note that the law barred all adoptions by unmarried couples, same-sex and otherwise).

I have a piece on this in National Review Online today (based on a 2008 post). Here are the opening paragraphs:

People talk a lot about “multiculturalism,” whether to praise it or condemn it. But standing alone, the concept is too vague to be supported or opposed. In this respect, it’s much like certain other concepts, such as “equality.” Do you support equality or oppose it? Well, it depends on what exactly is meant by “equality,” doesn’t it?

“Multiculturalism” is similar. Some things that are reasonably labeled “multiculturalism” are mostly bad, and others are mostly good. We can all imagine bad versions of multiculturalism — ones that dramatically undermine the social cohesion necessary to maintain order or defend the nation in war; ones in which many people in a modern economy speak mutually unintelligible languages; ones in which members of some subcultures feel comfortable violently attacking people, whether of their own culture or of others; and so on. But America is also founded on its own sort of multiculturalism, which has usually (though not always) stood us in good stead. Here are four constitutional manifestations of this multiculturalism.

For more, see here.

A very interesting case handed down Monday, In the Matter of D.I.S. and Sidman v. Sidman (4-3 vote). Here’s the key legal issue, and the holding:

Reviewing an unpublished opinion of the court of appeals, we address whether, in seeking to terminate a guardianship established by parental consent, fit parents may invoke the constitutional presumption that they make custodial decisions in the best interests of their child. The United States Supreme Court enunciated this presumption in Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), which we have implemented in In re Adoption of C.A.,137 P.3d 318 (Colo. 2006), and in In re B.J., 242 P.3d 1128 (Colo. 2010)….

Just as the fit parents’ decision to consent to a guardianship is presumed to be in the best interests of the child, so too their decision to seek termination of the guardianship and regain care, custody, and control of the child is presumed to be in the best interests of the child, unless the guardianship order contains an express provision limiting the parents from asserting this presumption. In the absence of such a limitation in the guardianship order, as here, when fit parents seek to terminate the guardianship, guardians bear the burden of demonstrating by a preponderance of the evidence that termination of the guardianship is not in the best interests of the child….

[T]he Troxel presumption and the court’s statutory role in considering what is in the child’s best interests can be accommodated through the guardian bearing the burden of proof by a preponderance of the evidence. We hold that, in a proceeding brought by fit parents to terminate a guardianship established by consent under section 15-14-204(2)(a), guardians must demonstrate by a preponderance of the evidence that termination of the guardianship is not in the best interests of the child. This is consistent with section 13-25-127(1), C.R.S. (2010), which applies a preponderance standard when the degree of proof is not otherwise specified. Our holding in this case recognizes that non-custodial parents seeking to terminate a guardianship are not in the same position as the custodial parents in C.A. and B.J….

Accordingly, in this termination of guardianship proceeding, the trial court must give “special weight” to the parents’ decision to terminate the guardianship, and the non-parent guardians have the burden to show by a preponderance of the evidence that terminating the guardianship is not in the best interests of the child. This accords with Colorado’s longstanding history of affording respect to parental authority while consistently recognizing that the best interests of the child must be taken into account….

This is not to say that parents who petition for termination of a guardianship will automatically regain custody of the child; the longer the child resides with and is cared for by guardians, the more likely it may be that guardians, despite the presumption in parents? favor, will be able to show by a preponderance of evidence that the best interests of the child are served by continuation of the guardianship.

So though this is billed as a victory for the parents, note that the parents may still lose based simply on a finding that it’s more likely than not in the child’s best interest to stay with the guardian. This is a very different standard than for termination of the custodial rights of parents who currently have custody — there, the parents win unless there’s clear and convincing evidence that they are unfit parents (and not just that shifting custody is in the child’s best interests). I’m not saying this to criticize the court’s decision; it may well be that when a child is raised for nearly all of his several-year-long life by the guardians, the switch back to the biological parents and away from those people whom the child has long seen as parents will be too traumatic. I just want to note that the standard adopted by the decision is not particularly pro-biological-parent.

In any case, here’s part of the majority’s rationale for at least providing some protection for the parents, followed by the majority’s statement of the key facts of the case:

Continue reading ‘Colorado Supreme Court on Parents’ Getting Back Custody of Children After Voluntarily Appointing Temporary Guardians’ »

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 decision seems correct to me, because it is in the child’s best interests. And while I think that there should be serious First Amendment constraints on decisions based on a parent’s speech, I think courts may and should consider each parent’s non-speech conduct that may seriously affect the physical health of the child. And that is so even though the conduct might be religiously motivated, so long as the court isn’t discriminating against the parent based on religion. Even if heightened scrutiny is called for under a state Religious Freedom Restoration Act (Florida has one, but it didn’t seem to have been argued to the court) or under the Smith/Yoder “hybrid rights” theory, I think such decisions would be narrowly tailored to the compelling government interest in protecting the child against infectious diseases.

In any case, here’s the opinion, Winters v. Brown (Fla. Ct. App), decided today:

[Mother] appeals the court’s award of ultimate responsibility to [Father] for their minor child’s health care, and specifically, their minor child’s vaccinations. Father cross appeals the court’s award of substantial timesharing to Mother. We affirm both provisions of the trial court’s order.

While the parties were never married, Mother and Father have a minor child together. When differing religious beliefs resulted in disagreement over the minor child’s health care, Father petitioned the court to establish paternity and each party requested ultimate responsibility over health care, religious, and educational issues. Mother is a chiropractor and a proponent of holistic medicine. A tenet of her religious beliefs is that God has provided the human body with an innate immune system that enables the body to heal itself. Mother believes that anything introduced into the body to prevent disease or treat illness is against the will of God. Specifically, Mother opposes vaccinations. Accordingly, pursuant to section 1003.22(5)(a), Florida Statutes (2007), Mother obtained an exemption for the minor child from the immunization requirement to attend public school.

Conversely, Father desires that the minor child receive traditional medical care, including well baby exams, blood draws, urinalysis, and vaccinations. The court held three hearings to determine responsibility for the minor child’s health care where multiple experts testified concerning the effectiveness of vaccinations. Mother also testified regarding her religious beliefs, medical care of the minor child, and their parent-child relationship.

Continue reading ‘Court Upholds Decision Giving Parent Authority Over Child’s Medical Care Because That Parent Would Immunize the Child’ »

In Boseman v. Jarrell (Dec. 20), Julia Boseman and Melissa Jarrell decided to raise a child together:

Plaintiff [Boseman] and defendant [Jarrell] met in 1998. At that time, plaintiff lived in Wilmington, North Carolina, and defendant lived in Rhode Island. The first time they met, they “discussed their desires to have children.” Roughly one month later, the parties began a romantic relationship. From the outset, the parties continued to voice their desires to have a child. In the spring of 1999, defendant moved from Rhode Island to Wilmington, and the parties began living together as domestic partners.

In May of 2000 the parties initiated the process of having a child. They decided that defendant would actually bear the child, but both parties would otherwise jointly participate in the conception process. The parties agreed to choose an anonymous sperm donor and researched and discussed the available options. They also attended the medical appointments necessary both to impregnate defendant and to address her prenatal care. Plaintiff read to the minor child “in the womb and played music for him.” Plaintiff also cared for defendant during the pregnancy and was present for the delivery. Defendant eventually gave birth to the minor child in October of 2002, and the parties jointly selected his first name.

Following the child’s birth, the parties held themselves out as the parents of the minor child. They gave the minor child a hyphenated last name composed of both their last names. They also “had a baptismal ceremony for the child at the plaintiff’s church during which they publicly presented themselves to family and friends as parents of the child.” Further, each of the parties integrated the minor child into their respective families and each family accepted the minor child.

The parties raised the child together, and in 2004-05 the plaintiff, with defendant’s consent, got a court order from a Durham County (N.C.) court adopting the child without severing defendant’s parental rights. According to this order, then, the child had both plaintiff and defendant as parents. But in May 2006, the couple broke up, and “defendant limited plaintiff’s contact with the minor child following the parties’ separation,” “while admitting ‘that the plaintiff is a very good parent who loves [the minor child] and that [the minor child] loves [plaintiff].’” Litigation ensued.

The North Carolina Supreme Court held, by a 5-2 vote, that the adoption could be challenged; the dissenters concluded that a state statute barred such challenges. The majority then held:

1. The adoption is invalid, because North Carolina statutes provide only for (a) adoptions that sever all existing parental rights (which clearly isn’t what the parties were getting), or (b) adoptions by a stepparent, which preserve the other parent’s rights (but which aren’t available here because the parties weren’t married to each other). And adoption is in North Carolina entirely a creature of statute; courts aren’t allowed to create new forms.

2. Nonetheless, the plaintiff should get joint custody, because (a) it would be in the child’s best interests, and (b) the defendant had voluntarily let the plaintiff play the role of a parent (and not just a temporary caretaker). (When item b is absent, a parent can’t lose full custody of a child simply because some other arrangement is in the child’s best interests; the standard for loss of full custody would be unfitness on the parent’s part.) In this, the court endorsed the very similar conclusion reached by the North Carolina Court of Appeals in Mason v. Dwinnell, a case I blogged about in May 2008.

Here is how the North Carolina Supreme Court majority reasoned:

Continue reading ‘North Carolina Supreme Court on Two-Mother Families’ »

A commenter on the Adoption of Muslim Children thread, apparently reacting to the AP article statement that “State child welfare agencies that permanently remove Muslim children from troubled homes usually can’t find Muslim families to adopt them because of the restrictions in Islamic law,” asks:

Could someone please clarify which U.S. law identifies an orphaned child of Muslim parents as a Muslim?

An excellent question. Many states have statutory provisions that provide that children be placed, when possible, in a foster home that matches the child’s religious persuasion; this also tends to cover adoption, and when a child is too young to have a religious persuasion, the law — and, I think, state child welfare agency practice — tends to follow the religious persuasion of the parents. To quote the New York rule, which is actually part of its state constitution,

When any court having jurisdiction over a child shall commit it or remand it to an institution or agency or place it in the custody of any person by parole, placing out, adoption or guardianship, the child shall be committed or remanded or placed, when practicable, in an institution or agency governed by persons, or in the custody of a person, of the same religious persuasion as the child.

Some courts have upheld these statutes (see, e.g., here and here), and I don’t know of any court that has struck them down. The decisions aren’t generally clear on why the statutes are constitutional, but I take it that the arguments are that (1) it’s less disruptive for children who have religious practices or beliefs, (2) it makes religious parents who give up their children feel more comfortable (because they’ll believe that the children’s spiritual needs, as the parents see them, will likely be attended to), and (3) because of consideration 2, it removes one obstacle to parents’ agreeing to put their children up for adoption.

The chief constitutional objections to this, I think, are that (1) it might mean that children from some religious backgrounds have to wait longer to be adopted than children from other religious backgrounds, and (2) it requires the government to decide what religion a parent really belongs to, to decide which religions are close enough to count as being the same religion (a theological decision that the Establishment Clause generally forbids), perhaps to inquire into the adoptive parent’s level of religious observance, and do similar things. I think these constitutional objections are strong ones, but, as I mentioned, courts have not been particularly impressed by them.

Naturally, these statutes are not by any means deliberate attempts to accommodate Muslims as such. They were created to accommodate the interests of Catholics, Protestants, and to some extent Jews, but are now also being applied to other religious groups.

Strikes me as quite sensible, not because of some special disability imposed on Sharia law as such, but because of the application of generally applicable American rules, under which comity is given to certain foreign child custody decrees only if they generally comply with American norms. The case is Charara v. Yatim (Mass. Ct. App., decided today) (some paragraph breaks added):

This is an appeal by the father, Said Yatim, from a divorce judgment entered in the Probate and Family Court that awarded custody of the couple’s two minor children to the mother, Hiba Charara; divided their property; and ordered the father to pay child support. The parties, as well as their children, are United States citizens who were living in Massachusetts when the marriage suffered an irretrievable breakdown in 2004. On May 30, 2004, the couple (with their children) returned to Lebanon for the purposes of there obtaining a religious divorce. Once in Lebanon, the father did not institute divorce proceedings as he had agreed, but instead sought and obtained custody of the two children. The mother returned to the Commonwealth and instituted the underlying divorce action, in which she also sought custody and child support.

Following a trial, a judge of the Probate and Family Court concluded that no deference was due the custody order issued by a Jaafarite religious tribunal (Jaafarite Court) in Lebanon. The probate judge based his decision on evidence, including the testimony of experts, that the Jaafarite Court’s custody order was not made in “substantial conformity” with Massachusetts law regarding the best interests of the children….

On June 23, 2004, the father initiated an action for reconciliation and custody in the Jaafarite Court in Lebanon. That court has jurisdiction [under Lebanese law] over family matters arising between persons of the Shia sect of the Islamic religion…. By a temporary order dated July 29, 2004, the father was given custody of the children….

In deciding the question whether the Jaafarite Court’s decree should be given deference, the probate judge engaged in a two-step determination. He first determined that the Probate and Family Court “has jurisdiction to make a custody determination in this case pursuant to G.L. c. 209B, § 2(a)(2), because no other state is the home state of the [children], the [mother] resides here, and because the children and the parties resided here until 2004, there exists substantial evidence here regarding the children and their care.” Second, he “decline[d] to give deference to the Lebanese Judgment because it was not in ‘substantial conformity’ with the laws of Massachusetts. G.L. c. 209B, § 14.” …

B. Substantial conformity. To support his argument that the probate judge erred in concluding that the Jaafarite Court decree was not decided under law in substantial conformity with Massachusetts law governing child custody cases, the father claims (1) that the testimony of his expert supports the conclusion that “the relevant standard for custody matters under the Jaafarite School of Islamic Law in Lebanon is the best interests of the children”; and (2) the mother was under no duress when she entered into the agreement in Lebanon that gave custody to the father.

1. Best interests standard. The probate judge’s findings and conclusions regarding the substantive law of best interests applied in the Lebanese Jaafarite Court, as compared to that applied in the Commonwealth, are set forth below:

“Based on the evidence, it is clear that male children in Lebanon go to the Father at the age of two. The parents are not evaluated equally when determining the best interest of the children and which parent should have physical custody. Although the Mother can obtain custody, it is only if the father is a criminal or cannot or will not care for the children. Unlike Massachusetts which requires that the court determine the best interest of the child and which parent should have custody based upon the ‘happiness and welfare of the children,’ it is clear that the Lebanese law does not take that into consideration unless the father is unfit. G.L. c. 208, § 31.”

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