The Volokh Conspiracy

Chris and Pat have a daughter. They split up. The basic child custody rule is that the choice of which parent should have custody must be based on the best interests of the child. And if one parent has taken the lead childrearing role, and had the most contact with the child, that tends to cut strongly in favor of maintaining custody with that parent.

But assume Chris refuses to give Pat access to the child, either before the custody hearing or in defiance of the custody order. And assume that, when Pat seeks to get custody, Chris points out that the child no longer has much of a relationship with Pat — precisely because Chris has barred any such relationship.

On one hand, giving Pat custody might seem to be against the child’s best interests, because the child would be moving to the home of a parent whom the child hasn’t known in years. (Say, for instance, that the child is now eight, and has barely seen Pat for three years.) On the other hand, letting Chris profit from Chris’s misconduct seems wrong, too, and may be against the child’s best interests: Chris has behaved in a way that reflects badly on Chris’s character, and it seems likely that Chris will continue to bar the child from having a relationship with Pat (in a way that Pat might not do with respect to Chris, if Pat got custody). What to do?

In any case, that’s one of the issues in Miller-Jenkins v. Miller-Jenkins (Vt. Oct. 29, 2010). That litigation has long been in the news because the parents are two women — the biological mother (Lisa) has now turned away from lesbianism, partly on religious grounds — and because there has been a complicated jurisdictional question involving Virginia and Vermont. For more on the earlier stages of the litigation, see here, here, and here. In the latest phase, the Vermont Supreme Court reaffirmed that the nonbiological mother (Janet) had the same parental rights as Lisa, because Lisa voluntarily let Janet play the role of parent (that’s the “psychological parent” or “de facto parent” doctrine, which strikes me as quite correct). And the court also upheld the trial court’s shifting custody to Janet:

We affirm the family court’s order to transfer custody from Lisa. We are, however, under no delusions that a transfer of custody is simple under even the best of circumstances. We are mindful of the fact that much time has passed since Janet and IMJ spent a significant amount of time together. We are also aware that the family court found that Lisa is the cause of this estrangement. As reflected below, the family court should have great discretion at the hearing called for in the mandate of this order to reevaluate Janet’s relationship with IMJ at that time and ensure a transition that comports with the law’s intent to defend and protect IMJ’s best interests. Cf. Matter of Stacks, 406 So.2d 979, 980-81 (Ala.Civ.App.1981) (holding that where child was in care of grandmother for much of his life, trial court was correct in delaying permanent transfer of custody to child’s mother to allow child to become re-acquainted with her and to “prevent the trauma to him of an abrupt removal”).

Continue reading ‘One Parent’s Denial of Access to the Other Parent, and the Best Interests of the Child’ »

May a state give siblings — usually adult siblings — a right to visitation with a child, over the parents’ objection? The issue is discussed in In re D.C. & D.C., decided yesterday by the New Jersey Supreme Court. That case involved prospective adoptive parents (currently foster parents, but an adoption request is pending), but as the court pointed out the same issue could arise as to biological parents. The court’s analysis is quite long, but here’s a sample:

[S]iblings can petition for visitation with their brothers and sisters who have been adopted by nonrelatives, subject to the avoidance of harm standard [and not just the less demanding "best interests of the child" standard -EV]. We can envision, for example, a case in which pre-teen siblings, raised together in the same household, deeply entwined in each other’s lives, are removed due to abuse or neglect. If one is adopted by a non-relative and the other taken in by his grandmother, it seems likely to us that denial of the sibling’s application to visit his adopted brother would satisfy the harm threshold. To the contrary, it is less clear that siblings separated at birth and raised in different households with no interaction whatsoever would be able to vault the threshold.

Obviously, the analysis is a fact-intensive one in which the sibling “bear[s] the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child.”

UPDATE: Just to make clear, the court is saying that visitation may only be ordered when there’s a finding that denying visitation would cause “a substantial likelihood” of “serious physical or psychological harm” to the child. A finding that visitation would be in the child’s best interests — i.e., that the child would be better off if visitation were allowed compared to if visitation were denied — does not suffice to justify the interference with the parents’ rights.

From In re Wean (Tex. Ct. App. Aug. 31), which reversed a trial court finding that a father engaged in family violence against his children, and a protective order based on that finding. The opinion discussed many matters, and I can’t do full justice to it here. But I thought I’d quote a few passages:

1. Religious Beliefs:

Also at the hearings, there was evidence regarding Josh’s religious beliefs. According to Sarah, Josh believed that children were born sinful, wicked, and willful and needed their will to be broken in order for them to be obedient, and such message was preached at their church. Sarah testified that Josh believed spanking is mandated by the Bible and she needed to follow his directives regarding discipline because he was the head of the household. She alleged that Josh believed women were created for men, that their roles were unequal, and that women do not need education beyond high school because their “only role” is as wife and mother. According to Sarah, Josh pressured his boys to pray and read the Bible daily. Sarah alleged that Josh’s beliefs were evidenced by publications available from Vision Forum Ministries, the Christian company for which Josh was the chief financial officer. One of the many books available for purchase on the Vision Forum website, which was admitted into evidence, instructed parents to spank their children in the privacy of the home and stated that spanking a disobedient child is required by God and is an act of love. A handful of articles posted on the website were also admitted into evidence, which articles stated that the husband and father is head of the household and that man has headship over woman….

Regardless of whether Sarah’s description of Josh’s beliefs is accurate, … such beliefs would not constitute evidence of family violence. We recognize that concepts such as favoring male leadership or promoting corporal punishment could conceivably be manipulated to hide or justify family violence, support an unhealthy balance of control in a marital relationship, or repress a victim’s attempts to seek protection. However, there is no evidence in the record that the beliefs–by themselves–make the existence of family violence more likely. We cannot agree that the fact a parent believes that a person is born with a “sinful nature,” that spanking as a form of discipline is endorsed by the Bible, or that the husband is the “head” in a marital relationship is thereby evidencing to CPS or the judicial system that such parent engages, or is likely to engage, in violence or abuse against his or her children. We conclude that the trial court’s finding of family violence does not find support in the evidence regarding Josh’s or his employer’s religious beliefs.

Continue reading ‘Conservative Christian Religious Beliefs, Use of Moderate Corporal Punishment, High Sex Drive, and Interest in Wife’s Private Areas Do Not Show Family Violence’ »

From today’s In re the Petition of Theresa Goudeau to Adopt a Minor Child (Ga. Ct. App.), 2010 WL 3369363 (some paragraph breaks added) (opinion not yet on any free online site, to my knowledge). I should say that the trial court’s decision to take a child away from foster parents because they’re an unmarried couple — and to deny the foster mother’s adoption petition because she’s living with her boyfriend — appears to me to be not only against Georgia law but also cruel. Whatever might be the merits of a preference for married parents over unmarried parents in such matters, the court of appeals was surely right that “to remove [a nearly 3-year-old girl] from the only family she has ever known would be ‘devastating’ to the child.”

The trial court’s response that “It cannot be in a child’s best interest to be placed in a household which the courts of this state have condemned as immoral” strikes me as deeply inadequate. And any argument that a policy of barring unmarried couples from being foster parents (or barring unmarried people with live-in lovers from being adoptive parents) would be good for other children in the future also strikes me as unsound: It’s not like our system is so awash in would-be foster and adoptive parents who are willing to raise babies born with cocaine in their systems that we can afford to reject apparently eminently loving and effective parents. Again, the matter might be different if we were considering a preference for married parents over unmarried ones, when there was a choice to be made. But that does not seem to be the case here, or in many other situations.

In any case, here’s the appellate court’s discussion of the trial court’s reasoning:

In a written order issued a few weeks later on March 12, 2010, the superior court denied the petition for adoption and held that Goudeau and Lovett should not have physical custody of A.C. because of their relationship with each other. The court found no common law marriage existed between Goudeau and Lovett and found that clear and convincing evidence established they were “living in an immoral, meretricious relationship, … and that the adoption and their continued custody is inappropriate.” Quoting from cases involving illegal contracts, change of custody and visitation cases between divorced parents, and criminal statutes prohibiting sodomy, fornication, and adultery, the court held that allowing a child to be adopted by an unmarried person living with someone else violates Georgia’s “public policy,” which favors the institution of marriage. The court continued:

DFACS has adopted a policy, in contravention of Georgia law, that persons living in meretricious relationships may serve as foster parents and adoptive parents. DFACS’ Adoption Services Manual (March 2007) expressly confirms this policy by requiring “significant others” to attend [adoption orientation and training]. DFACS’ policy violates the established public policy and laws of this state favoring the institution of marriage, and declaring meretricious relationships as immoral. Georgia recognizes the legitimacy of married couples and single individuals. It does not recognize any other status, regardless of the mores of some members of society who have thrown off long-standing social, moral, ethical and religious constraints. DFACS’ policy offends the laws of this state, the sensibilities of this court, and the common conscious [sic] of the moral, ethical and religious citizens of this state. (Emphasis in original.)

And here is a longer excerpt from the appellate decision:

Continue reading ‘Living in Sin and Judicial Activism’ »

Rifqa Bary, about whom I blogged before, is the 17-year-old girl from a Muslim family in America who ran away from home, claiming her father had threatened to “hurt her, kill her or send her back to Sri Lanka” because she had converted to Christianity. A police investigation apparently concluded that the girl’s charges were unfounded, though obviously there’s still a factual dispute between the girls and the parents on this. She is now in foster care, awaiting her forthcoming 18th birthday. Here’s the latest item, as summarized by Prof. Howard Friedman at the Religion Clause blog (which is a must-subscribe if you’re interested in religion and the law):

Rifqa has had a bout with uterine cancer. She underwent surgery, and her physician recommended that it be followed by 45 weeks of chemotherapy even though she is disease-free according to available imaging techniques. Her parents support that recommendation, but Rifqa, who turns 18 next week, opposes that course of treatment, though she will continue to consult her doctors. Yesterday an Ohio juvenile court magistrate ruled that Rifqa is mature enough to make the treatment decision for herself, and said the court cannot order treatment because Rifqa’s health is not in immediate danger. Rifqa’s parents claim the decision to end chemotherapy came after Rifqa attended a faith-healing event. Rifqa’s attorneys, however, say she went to a “prayer conference” shortly after her diagnosis. She had multiple surgeries and began chemotherapy, but it made her weak and sick.

That’s the issue in In re Adoption of A.M., decided yesterday by the Indiana Court of Appeals. The biological father was fine with the adoption, which terminated father’s parental rights — the plan was basically for the grandfather (on the mother’s side) to take on the father role, with the mother retaining her role as mother. Indiana law appears not to allow this; the relevant statutes provide that an adoption severs both biological parents’ parental rights, unless “the adoptive parent of a child is married to a biological parent [or previous adoptive parent] of the child.” There is no provision for a child’s parents to switch from biomom+biodad to biomom+someone who isn’t married to biomom.

But the court of appeals allowed the adoption nonetheless, because of the state’s policy of preserving families and protecting the child’s best interests:

Grandfather is the biological grandfather of A.M. We also observe that the record reveals that, while Mother and Grandfather are not living together, they live only fifteen minutes apart, and that A.M. stays overnight with Grandfather almost every weekend and that Grandfather has contact with A.M. about three or four times a week. Grandfather takes A.M. to church, dance class, and the park. Grandfather provides discipline and financial support. In summary, the record reveals that Grandfather and Mother are both acting as parents.

Based upon the reasoning in [an earlier case], the idea that the best interests of the child is the primary concern in an adoption proceeding, the purposes of the adoption statutes as stated by the legislature, and the trial court’s initial determination that adoption was in the best interests of A.M., we conclude that preventing the adoption in this specific case on the basis of [the statutes I summarized above -EV] would cause an absurd result not intended by the legislature.

The dissenting judge disagreed: “The record clearly supports the conclusion that Grandfather’s adoption would be in the best interest of the child and that Grandfather is ready, willing and able to assume the responsibilities of a parent. But that is not the question presented. The proposed adoption is simply not authorized by statute and should, therefore, be disapproved.”

So holds In re G.G. (Cal. Ct. App. June 29, 2010), by a 2-1 vote. (The court order said that “Father to be in individual counseling to address issues with a male therapist regarding father‘s racist and sexist views,” but the appellate opinion seems to treat the counseling as focused solely on the father’s use of “sexist and racist remarks” and “repeated angry use of racial, ethnic and gender epithets.”)

This isn’t a divorce case; the father was a single father of twins who were born using an “anonymous egg donor” and a “surrogate mother.” The children were placed in foster care on the grounds that the father had “used inappropriate discipline,” one of the children “has exhibited explosive, aggressive, uncontrollable behavior requiring therapeutic, psychiatric intervention, and the father failed to obtain timely, necessary therapeutic, psychiatric intervention for the child despite numerous recommendations for treatment,” and the father “has provided a chaotic home environment including regular and consistent confrontational behavior with the children‘s school and in the community.” One of the conditions imposed for the father to get his children back was that he get counseling related to his sexist and racist statements.

Here’s the majority’s justification for its upholding the condition:

Continue reading ‘To Get Children Back, Father Must Get Counseling to “Address His Use of Sexist and Racist Language”’ »

The case is Miller v. Mitchell, just handed down today, and it’s important but complicated. Please bear with me. [UPDATE: For more on this case, and how it could impose stringent constitutional limits on anger management classes, anti-drug/alcohol-abuse classes, or even traffic school offered as alternatives to prosecution, see this follow-up post.]

Here are the facts: A bunch of high school students were sending around “photographs of semi-nude and nude teenage girls,” apparently generally their classmates. The prosecutor “sent a letter to the parents of between 16 and 20 students — students on whose cell phones the pictures were stored and students appearing in the photographs — threatening to bring charges against those who did not participate in what has been referred to as an ‘education program.’”

The education program was divided into a Female Group and Male Group. The “Female Group” syllabus lists among its objectives that the participants “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages.”

In the first session, students are assigned to write “a report explaining why you are here,” “[w]hat you did,” “[w]hy it was wrong,” “[d]id you create a victim? If so, who?,” and how their actions “affect[ed] the victim[,] [t]he school[, and] the community.” The first two sessions focus on sexual violence, and the third on sexual harassment. The fourth session is titled “Gender identity-Gender strengths,” and the fifth “Self Concept,” which includes a “Gender Advantages and Disadvantages” exercise.

What’s more, it appears that the particular girls whose parents were suing were probably not guilty of the crimes that the prosecutor threatened to prosecute them for (basically, participation in the distribution of child pornography). First,

Before the meeting, [District Attorney George Skumanick] had shown plaintiff MaryJo Miller and her ex-husband the two-year-old photograph of their daughter, in which Marissa Miller and Grace Kelly, 12 or 13-years-old at the time, are shown from the waist up wearing white, opaque bras. Marissa was speaking on the phone, while Grace was making a peace sign. Despite Ms. Miller’s protests that her daughter and friend were merely being “goof balls” and were not naked, Skumanick claimed the image constituted child pornography because they were posed “provocatively.” …

After the meeting, Skumanick showed Jane Doe the photograph of her daughter Nancy, taken about a year earlier. In the photograph, Nancy is wrapped in a white, opaque towel, just below her breasts, appearing as if she just had emerged from the shower.

I don’t think the prosecutor’s claim is right. First, the first two displays are not child pornography, since they don’t portray sexual conduct, lewd exhibition of the genitals, or “nudity … depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction”; the matter is less clear as to the third, since it at least shows naked breasts — I can’t tell for sure without knowing more about the circumstances, and about Pennsylvania law on this. [UPDATE: I at first neglected to distinguish the three displays, but I've revised the preceding sentence to do so.] And, second, as the court stresses later, there was no evidence that the particular children on whose behalf the lawsuit was brought actually possessed the photos, which the court suggests is required for prosecution. (The court doesn’t discuss the possibility that the children might have been accomplices to the making of the photos, presumably because under 18 Pa. Consol. Stats. Ann. § 306(f) “a person is not an accomplice in an offense committed by another person if … he is a victim of that offense.”)

So the prosecutor (1) threatened to prosecute plaintiff’s daughter (2) even though it turns out he didn’t have probable cause for a prosecution (3) unless the daughter went through the “education program.” All three elements, it turns out, seem to be crucial to the decision.

Here’s what the court held:

(1) Requiring the education program violated the parents’ parental rights. “Jane Doe objects to the education program’s lessons in why the minors’ actions were wrong, what it means to be a girl in today’s society, and non-traditional societal and job roles. She particularly opposes these value lessons from a District Attorney who has ‘stated publicly that a teen[]age girl who voluntarily posed for a photo wearing a swimsuit violated Pennsylvania’s child pornography statute.’ The program’s teachings that the minors’ actions were morally ‘wrong’ and created a victim contradict the beliefs she wishes to instill in her daughter.” “[A]n individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles. An essential component of Jane Doe’s right to raise her daughter — the ‘responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship’ — was interfered with by the District Attorney’s actions.”

The court distinguished education provided by a school, partly because the prosecutor “is not a public education official, but a public law enforcement official,” and partly because parents may choose to send a child to private school. The court did not discuss whether similar programs could be made requirement curriculum for all private schools.

(2) “Nancy Doe likely can show that the education program would violate her First Amendment freedom against compelled speech. She would be required to explain why her actions were wrong (presumably as a moral, not a legal, matter) in the context of a program that purports to teach, as Mitchell’s counsel described at oral argument, ‘[w]hat it means to be a girl; sexual self-respect, [and] sexual identity.’ We see a fundamental distinction between this requirement and the oft-used and constitutionally sound requirement in preindictment or pre-trial diversion programs that a potential defendant acknowledge responsibility for his or her criminal conduct or admit wrongdoing. ‘[W]hat it means to be a girl in today’s society,’ while an important sociological concern, in this case is a disconnect with the criminal and juvenile justice systems. This mismatch is all the more troubling given the age of the program’s participants. Minors often are more susceptible to external influences, and while this susceptibility may weigh in favor of certain educational or rehabilitative programs, it also cautions against allowing actors in the juvenile and criminal justice systems to venture outside the realm of their elected authority.”

(3) Threatening to prosecute the children for refusing to attend the education program interfered with the parents’ parental rights and the children’s rights to be free of compelled speech, because it threatened governmental retaliation for the exercise of constitutional rights.

(4) But this apparently is true only if the prosecution also lacked probable cause, given the Court’s ruling in Hartman v. Moore (2006). If the prosecutor had probable cause to prosecute, he could have done so if he was also motivated by the girls’ refusal to participate in the education program (and apparently could therefore have threatened to prosecute them if they didn’t participate in the program).

So what can we make of this? Items 1 and 2 seem to announce potentially quite broad principles: The government may not compel children to go through various educational programs — at least value-laden ones such as the one involved here — or threaten retaliation if they don’t go through the programs.

But item 4 dramatically limits the scope of that, at least when it applies to alternative-to-prosecution programs such as these. How much precedential effect will items 1 and 2 have when item 4 is inapplicable, for instance when (1) the state imposes some mandatory curricula on private schools as well as public ones, or (2) the state threatens the withdrawal of privileges (say, a driver’s license, or access to some government program) rather than a criminal prosecution? Not at all clear. I’d love to hear more thoughts on this, especially from people who are familiar with this general area of the law. (Plus I hope to blog more about this later myself as well.) But in any case, I wanted to pass this along, since I expect many of our readers will find the parental rights and free speech issues here to be quite interesting.

Thanks to How Appealing for the pointer.

An interesting, but unsurprising, decision in Todd v. Copeland (Va. Ct. App. Mar. 9, 2010):

Before 1995, Virginia’s adoption statutes, as interpreted by Virginia’s appellate courts, passed constitutional muster despite the absence of an explicit standard because the courts read into the statute the requirement that “[a]n adoption over objection by a natural parent should not be granted except upon clear and convincing evidence that the adoption would be in a child’s best interest and that it would be detrimental to continue the natural parent-child relationship.” …

Continue reading ‘Adoption Over Parent’s Objection Requires Showing That Continued Parent-Child Relationship Would Be Detrimental to the Child’ »

The Christian Science Monitor reports that “Police say that at least six Muslim men have been arrested in the US in the past two years for crimes that suggest honor killings.” Unfortunately, it doesn’t point to the specific incidents, nor tell us the number of honor killings (the number of arrestees may not match the number of crimes); the six arrests number also appears in this earlier USA Today story. It does, however, point to a murder plus what is likely an attempted murder from two months ago, which I hadn’t heard about before:

An Iraqi immigrant accused of slaying his daughter in an “honor killing” has been charged with first-degree murder and could face the death penalty ….

Faleh Hassan Almaleki … is accused of using his Jeep Cherokee to run over his daughter, 20-year-old Noor Almaleki, and [Almaleki's boyfriend's mother, Amal Khalaf,] in a Peoria[, Arizona] parking lot on Oct. 20. His daughter died of her injuries [but Klahaf is expected to recover]….

Almaleki was reportedly furious with his daughter for becoming “too Westernized,” police said.

Prosecutors have labeled Noor Almaleki’s death an “honor killing,” saying the elder Almaleki killed his daughter because she dishonored the family by not following traditional Iraqi or Muslim values….

At Almaleki’s initial court appearance on Oct. 31, county prosecutor Stephanie Low said he admitted deliberately running down his daughter….

UPDATE: I blogged about this because this suggests that there’s a serious problem in various Muslim communities, a cultural pathology of some very significant Muslim subcultures that deserves attention. But I should remind people of my post from last year, where I pointed out that Islamic cultures are by no means unique in unduly tolerating killings justified by a sense of family honor, and that American manslaughter law has treated certain kinds of killings (of cheating spouses and their lovers) as less serious than ordinary murder. Until recently, this treatment has been even starker in some situations and some jurisdictions, occasionally to the point of entirely excusing the killing and leaving it unpunished.

The two are not the same: American manslaughter law is generally limited to infidelity by spouses (historically) and occasionally lovers, and not to perceived sexual improprieties by daughters. Manslaughter also covers only more or less immediate reaction to a provocation (though some recent departures from the law, often perceived as coming from a “liberal” perspective on criminal justice, have relaxed that condition), while many of the Muslim “honor killings” appear to be more planned out. And this reflects, I think, a different ideology behind the act, an ideology that strikes me as especially troublesome (all ideologies that lead people to kill, setting aside self-defense and the like, are troublesome, but some may be more so than others). Whatever might be said about modern American manslaughter law, it rests on the premise that there’s something less culpable in someone’s giving in to uncontrollable impulses stemming from broken vows (especially when focused on adultery, which I believe is more commonly seen as mitigating the offense to manslaughter than is cheating by a girlfriend or boyfriend), not on the premise that a planned killing of one’s child is a way to regain honor.

Nonetheless, there are enough similarities that we can’t claim that the generally problem is uniquely present in Muslim cultures, though there does seem to be a version of the problem that is specific to some significant Muslim subcultures, and the problem needs to be recognized and aired in order to be ultimately reduced and perhaps even solved.

The Jawa Report posts what appears to be a copy of the motion:

IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO DIVISION OF DOMESTIC RELATIONS AND JUVENILE BRANCH

IN THE MATTER OF:

FATHIMA RIFQA BARY,

AN ALLEGED DEPENDENT CHILD

Case No. 09 JU 11 14895

Judge: GILL

Magistrate: GOODRICH

MOTION TO ENJOIN COUNSEL FROM PASSING MESSAGES OF THIRD PARTIES DIRECTLY TO THE MINOR CHILD

Wherefore, now come Mohamed Bary and Aysha Risana Bary, the parents of Fathima Rifqa Bary, by and through counsel, Omar Tarazi, and move the Court to enjoin Fathima Rifqa Bary’s attorneys from passing messages of third parties directly to the minor child without the approval and supervision of Franklin County Children Services; Petitioner moves the court to order Fathima Rifqa Bary and her attorneys to turn over all such communications in their possession or control to FCCS; that third party adults are not to be allowed to communicate with Fathima Rifqa Bary until an approved list is determined by FCCS after consultation with all parties. This motion is supported by the attached memorandum of law.

Omar Tarazi (0084165)
[Address and phone numbers removed]

MEMORANDUM IN SUPPORT

1- Certain hate filled sites for bigotry and propaganda are advertising Fathima Rifqa Bary’s attorney, Angela Lloyd address as the approved mean for the readers of the sites to get messages delivered to Fathima Rifqa Bary under the guise of sending her “Christmas Cards.” http://atlasshrugs2000.typepad.com/atlas_shrugs/

2- The particular sites involved have been inciting hatred regarding the current case with such posts as, “Strickland is demented. He knows the fatal record of his Child Services department. Why did he insist that Rifqa be returned? She was perfectly safe and perfectly happy in Florida. Why did this tool of jihad force the hand of Florida? Strickland says a killer is innocent, but Rifqa is guilty of not submitting to the religion of misogyny, gender apartheid and slavery. There is a level of corruption and Islamic influence all the way up to Strickland’s office that is deeply troubling. He’s on their payroll…Are they medicating her [Rifqa Bary] under the “psychiatric evaluation” findings? Who knows? Do the Islamic apologists in the Ohio media even so much as question this fascism? Not a peep.” http://atlasshrugs2000.typepad.com/atlas_shrugs/

3- Allowing the readers of such sites to have a channel of communication to Fathima Rifqa Bary is dangerous to her health and safety. It also undermines the ability of Franklin County Children Services to do its job in supervising and protecting Fathima Rifqa Bary. The GAL for Fathima Rifqa Bary, FCCS and the parents of the minor child have a right to know when third parties are communicating to the minor child particularly when the third parties might endanger the health and safety of the minor child.

4- Therefore, for the safety and security of Fathima Rifqa Bary we ask the court to enjoin Fathima Rifqa Bary’s attorneys from passing messages to their client from third parties and order them to deliver all such communications in their possession or control for Fathima Rifqa Bary that have come from third parties to this action to FCCS and order Fathima Rifqa Bary to turn over any communications in her possession or control she has already received from third parties through her attorneys to FCCS; that third party adults are not to be allowed to communicate with Fathima Rifqa Bary until an approved list is determined by FCCS in consultation with all parties.

Omar Tarazi (0084165)
[Address and phone number removed]

For more on the case, see here. The Atlas Shrugs posting referred to by the motion appears to be this one.

Now custodial parents are indeed entitled to try to restrict speech to their minor children, and may have the law’s support to do that: For instance, if a child goes to some political event without the parent’s permission, the parents could forcibly bring the child back, and could even have the help of the police in doing so. Likewise, I take it that parents could seize letters directed to their child, if they get their hands on them first.

At the same time, this power is in practice extremely limited when it comes to 17-year-olds, and it’s not clear to me that it should extend to cases where a 17-year-old child is already outside the parents’ physical custody. (The constitutional question, I take it, would have to do with the degree to which the First Amendment rights of counsel to pass along messages to Bary, the First Amendment rights of third parties to speak to Bary without governmental interference with the delivery of their messages, and possibly Bary’s First Amendment right as a listener not to have the government interfere with speech to her are limited by any residual rights the parents might have to control communication to a 17-year-old child who is no longer in their physical custody.) And if the test under state law is indeed whether the speech is “dangerous to [the minor's] health and safety,” it’s hard to see how such speech, however critical it might be of government officials, of Islamic groups, or of Bary’s own parents, is indeed a danger to the 17-year-old girl.

Thanks to Religion Clause for the pointer.

This is the case I blogged about a few months ago, in which a 17-year-old girl from a Muslim family ran away from home, claiming her father had threatened to “hurt her, kill her or send her back to Sri Lanka” because she had converted to Christianity. A police investigation apparently concluded that the girl’s charges were unfounded, though obviously there’s still a factual dispute between the girls and the parents on this. Now here’s the latest, from the AP:

[Bary and her family] must listen to each other’s views about religion if they are to reunite, a possibility that appears in jeopardy since the girl continues to refuse any contact with her parents or siblings, a caseworker says.

A case-management plan filed Monday said Rifqa Bary and her parents should hear what each has to say about Islam and Christianity as a step toward a possible reunification. But the plan, written by a government caseworker, also said “severe differences” exist between the 17-year-old girl and her parents over what led Rifqa to run away to Florida over the summer….

Bary’s parents, Mohamed and Aysha Bary, agree with their daughter being in foster care for the moment, but are concerned about her and would like a family relationship with her again, according to the plan….

Thanks to Religion Clause for the pointer.