The Volokh Conspiracy - Colorado court order prohibiting mother from saying "homophobic" things

about her lesbian ex-partner, who has joint custody: I blogged about this case last November, when the judge entered the order; here's a brief excerpt from the original news story:

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . .

Judge Coughlin, who issued his ruling April 28, did award Dr. Clark sole responsibility for the girl in the area of religion, although with the caveat about exposing the child to anything "homophobic." . . .

Mr. Staver pointed out that the judge gave no similar orders to Miss McLeod regarding remarks or teaching about Christianity or Christians. "It's a real one-way street on this," he said. . . .

Today, the Colorado Court of Appeals reversed the order, though leaving open the possibility that it could be reimposed:

Finally, Clark contends the trial court violated the United States and Colorado Constitutions in ordering that, although Clark would be awarded ["]sole parental responsibility . . . in the area of religion,["] she would be required to make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic. The court neither defined homophobic nor found that exposure to homophobic teachings would either endanger E.L.M.C.'s physical health or significantly impair her emotional development. We conclude that remand for further findings is necessary on both constitutional and statutory grounds.

"While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.

When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her . . . religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's . . . decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." . . .

Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person . . . with responsibility for decision-making" within the meaning of § 14-10-130(1). . . .

Here, . . . we cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual.

Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary. . . .

Clark does not assert, and we do not address, amicus Liberty Counsel's argument that lack of a definition of homophobic in the order creates a constitutional problem of vagueness and overbreadth. However, Clark may present this issue to the trial court on remand, in the context of the court's additional findings. . . .

So the restriction has been lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed.

The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.

	[Eugene Volokh, July 1, 2004 at 8:34pm] Trackbacks Colorado court order prohibiting mother from saying "homophobic" things about her lesbian ex-partner, who has joint custody: I blogged about this case last November, when the judge entered the order; here's a brief excerpt from the original news story: A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong. Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . . Judge Coughlin, who issued his ruling April 28, did award Dr. Clark sole responsibility for the girl in the area of religion, although with the caveat about exposing the child to anything "homophobic." . . . Mr. Staver pointed out that the judge gave no similar orders to Miss McLeod regarding remarks or teaching about Christianity or Christians. "It's a real one-way street on this," he said. . . . Today, the Colorado Court of Appeals reversed the order, though leaving open the possibility that it could be reimposed: Finally, Clark contends the trial court violated the United States and Colorado Constitutions in ordering that, although Clark would be awarded ["]sole parental responsibility . . . in the area of religion,["] she would be required to make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic. The court neither defined homophobic nor found that exposure to homophobic teachings would either endanger E.L.M.C.'s physical health or significantly impair her emotional development. We conclude that remand for further findings is necessary on both constitutional and statutory grounds. "While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding. When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her . . . religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's . . . decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." . . . Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person . . . with responsibility for decision-making" within the meaning of § 14-10-130(1). . . . Here, . . . we cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual. Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary. . . . Clark does not assert, and we do not address, amicus Liberty Counsel's argument that lack of a definition of homophobic in the order creates a constitutional problem of vagueness and overbreadth. However, Clark may present this issue to the trial court on remand, in the context of the court's additional findings. . . . So the restriction has been lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed. The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.