The Petitioner, DANIEL [P.] (hereinafter, “father” or “Petitioner”) having filed a petition, pursuant to Family Court Act, Article 6, for an order, inter alia, granting him “visitation” with the children, MUJAHID DANIEL [P.], born October 30, 1993; and MUJAHID DAVID [P.], born June 1, 1995 (hereinafter “Daniel” and “David” or “the children”); and the Respondent, ALLISON [B.] (hereinafter “mother” or “Respondent”) having opposed such petition; and these matters, having come on before me for a trial, and the Petitioner having appeared via telephone testimony and by his attorney, John Zenir; and the Respondent having appeared in person and by her attorney, Steven A. Meisner, and the Law Guardian, Gail Jacobs, Esq., having appeared on behalf of the children; and the parties having presented witnesses, and exhibits to this Court; and upon all of the prior proceedings and pleadings had herein; and the parties having consented to this matter being heard and determined by Special Referee Dorothy A. Phillips; the petition is decided as follows:
FACTUAL BACKGROUND & PRIOR ORDER/JUDGMENT OF DIVORCE
The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered “extreme” or non-conventional, especially in today’s, post “9-11” world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone.
It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner and respondent testified that they amassed a large quantity of weapons during their marriage, which in turn, resulted in the petitioner’s most recent felony conviction for weapons possession. The petitioner was incarcerated at the time of the parties’ divorce and it is uncontroverted that his incarceration and current alleged inability to travel, is the direct result of his criminal conduct.
During their marriage, both parties followed a quasi Muslim philosophy, including the naming of the two children born during their marriage, Mujahid Daniel and Mujahid David[.]
The respondent testified that she was a victim of domestic violence during her marriage to the petitioner and that she engaged in those non-conventional activities with the petitioner due to her fear of the petitioner. At the time of their divorce, granted in accordance with the terms of an agreement between the parties, the petitioner was granted, on consent, visitation with the children as agreed to between the parties.
In accordance with the parties’ Stipulation, which was incorporated in their Judgment of Divorce, dated February 25th,1997, the terms of custody and visitation of the children were as follows:
[A] The Wife shall have custody of the Children during their respective minorities. The Husband shall have reasonable visitation rights with the Children, and the Wife shall cooperate with the Husband to enable him to effect such visitation at times convenient to the parties subject to the commitments of and plans for the Children. The parties shall consult with each other on all material matters with respect [to] the Children, including all matters relating to their health and education. If either of the Children shall require significant medical care, the Wife shall keep the Husband informed. Each of the parties agree to avoid involving the Children in any conflicts between the parties and not to disparage the other to the Children.
[B] The parties shall exert every reasonable effort to maintain unhampered contact between the Children and each of the parties, and to foster a feeling of affection between the Children and the other party. Neither party shall do anything which may estrange the Children from the other party, or injure the opinion of the Children as to the other, or which may hamper the free and natural development of the Children’s love and respect for both parents. The Children’s well-being, education and development shall be of paramount importance in the application of all provisions of this paragraph.
As the result of his last felony conviction, the petitioner was sentenced to a Federal Penitentiary in Pennsylvania. At the time of his release, he had a choice of locale for the purpose of service his time of supervised parole. The petitioner contends that until his complete of his parole, he was advised that he would not be permitted to leave the area of his parole.
The petitioner chose Hawaii, the land of his birth and where his father resides, a retired physician, even though he would not be near his children. The petitioner’s father also testified that upon his son’s release, he agreed he would provide familial support and assistance for his son’s parole in Hawaii. His restricted supervised parole ends in July, 2007.
The petitioner filed the instant petition to enforce the parties Judgment of Divorce, granting his visitation as agreed. At the time of the filing of the instant petition for visitation, the petitioner was released from the Federal Penitentiary and is currently on secured parole, unable to travel. The petitioner contends that insofar as he is on parole and unable to travel, the children should be permitted to come to his home for the purpose of effecting visitation and the respondent should pay for the expense of their travel.
The respondent contends that due to the petitioner’s violent felony conviction record, the domestic violence exhibited during the course of their marriage, his extremist views regarding religion, including his belief regarding Jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are MUJAHID, that visitation should be denied.
The respondent testified that she consented to petitioner having visitation with the children because she believed the petitioner would never exercise any visitation.
The respondent now seeks to thwart the petitioner’s visitation with his children, based on a “best interest” argument, and by raising issues that pre-date the parties’ Judgment of Divorce; or in the very least, is seeking to limit the petitioner’s visitation to supervised visitation only.
THE LAW
In deciding the issue of visitation, the courts must determine “what is for the best interest of the children”. Visitation with a noncustodial parent is presumed to be in the children’s best interest even when a noncustodial parent is incarcerated, which, by itself, is not enough to deny visitation (see, Matter of Davis. 232 AD2d 773 [2nd Dep’t 2000]).
“A noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child (see. Matter of MacEwen v MacEwen, 214 AD2d 572; Matter of Vanderholl v Vanderholl, 207 AD2d 494)” (Matter of Ronald Bradley v Wright. 260 AD2d 477).
FINDINGS & DECISION
While this Court agrees that the petitioner’s felony convictions, the history of domestic violence, and his attempts to prophetalize his beliefs to the children in letters and phone calls [while he was incarcerated] does not make him a candidate for untethered protracted unsupervised visitation; it does not rise the level to impose the drastic remedy of denying meaningful visitation to the father. Moreover, the children have a right to visit with their father, and the proof before this Court does not establish that it would not be in the children’s best interest to enforce that right. Notably, both the respondent and petitioner testified that the petitioner no longer attempts to discuss his beliefs with the children during his letters or telephone conversations with the children and the respondent herself no longer believes that it is necessary to monitor the children’s communication with their father. Finally, the children are mature young men who have expressed a desire to visit with their father.
Thus, the issue before the Court is what visitation would be in the children’s best interest, how such visitation should be arranged, whether the children should travel to Hawaii until the father’s supervised parole is completed in July, 2007; and where the children should stay during any visitation due to the fact that the petitioner has failed to establish that he has adequate living/sleeping arrangements to accommodate these children.
The children have not seen their father since 1997, and despite the fact that they speak with him via telephone and communicate with him by letters, he is still a stranger to these children and it is natural that these children would have a certain level of trepidation in visiting with their father for the first time since 1997, in a land far away from their familiar surroundings.
It is this Court’s judgment, after conducting an in camera of the children, that they are mature children, aware of the facts and circumstances of their father’s past, and the reason for their father’s confinement in Hawaii. They are also well traveled; and both they and their mother have a strong familial relationship with their paternal grandfather; [having traveled with the father’s family members in Europe as recently as the summer of 2005]; who lives in close proximity to the petitioner. During the trial, the paternal grandfather testified by telephone and declined the suggestion of counsel. regarding his acting as a supervisor for any visitation and articulated a well founded reason, i.e., that he would not want to be in a position of evaluating his son’s visitation with his children. He did, however, indicate that the children would be welcome to stay at his home, a large well-maintained home, with ample room for the children to stay during any travel to Hawaii.
Accordingly, commencing during the February, 2006 school recess period, the children shall have visitation with their father in Hawaii, the petitioner shall make all arrangements for the children’s travel; and the respondent shall make appropriate arrangements for their care and accommodations during their stay in Hawaii, e.g., with their paternal grandfather or a hotel with the respondent if she chooses to travel with the children.
Due to the fact that the children have not visited their father since 1997, the initial day-time visitation of up to four hours, shall be therapeutic visitation under the auspices of a certified therapist as selected and arranged by the parties and the Law Guardian; and thereafter, visitation shall continue on a day-to-day basis, the second day consisting of one hour of unsupervised visitation with the father, followed by one hour of therapeutic visitation; day three shall consist of two hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation; the fourth day shall consist of four hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation; and finally, all subsequent visitation shall consist of eight hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation.
The petitioner/father’s failure to participate in any of the therapeutic portions of visitation shall be deemed a waiver of any subsequent visitation. The petitioner/father shall not discuss any issues pertaining to his religion or philosophy with respect to same, during any unsupervised visitation time with the children. The petitioner/father’s failure to comply with this specific prohibition shall be deemed a waiver of any subsequent visitation.
The cost and expense for all travel arrangements for the children and therapeutic intervention shall be at the sole expense of the petitioner/father; and the mother shall pay for all hotel accommodations for the children. If the respondent/mother chooses to accompany the children during their trip to Hawaii, then the respondent/mother shall bear the sole cost and expense of all of her travel arrangements as well as all of the costs and expenses for hotel accommodations for herself and the children; and there may such other visitation as agreed to between the parties.
Thereafter, the father shall have day-time visitation, eight hours of unsupervised followed by one hour of therapeutic visitation, for one week during the summer of 2006, and during the February, 2007 school recess period, the cost and expense for such visitation shall be in accordance with the allocation set forth above, plus any other visitation that the parties agree. Thereafter, upon completion of the petitioner/father’s parole, there shall be such other visitation as the parties agree.
This shall constitute the final decision and order of this Court.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER
TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER PERSONAL SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
[New York Appellate Decision, Dec. 12, 2005:]
In a child visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Phillips, Ct. Atty. Ref.), dated November 18, 2005, as, after a hearing, awarded the father unsupervised visitation with the subject children in the State of Hawaii, and the father cross-appeals, as limited by his brief, from so much of the same order as directed that he pay for the subject children's travel and lodging expenses in order to visit him in Hawaii, prohibited him from discussing any issues pertaining to his religion or philosophy with the children during the visitation, and directed therapeutic visitation in addition to the unsupervised visitation.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof awarding the father unsupervised visitation with the subject children in the State of Hawaii and substituting therefor provisions awarding the father day visitation supervised by an individual chosen by the parties and the Law Guardian for seven hours within the State of New York to begin during the children's summer recess in July 2007, and thereafter day visitation supervised by an individual chosen by the parties and the Law Guardian for seven hours within the State of New York to begin during the children's winter school recess in February 2008, with each visit to be followed by one hour of therapeutic visitation with a certified therapist chosen by the parties and the Law Guardian; as so modified, the order is affirmed insofar as appealed and cross appealed from, without costs or disbursements.
The father commenced the instant visitation proceeding to modify an order issued by the District Court of the Third Judicial District (hereinafter the Wyoming District Court) within the state of Wyoming in May 2001 which, after a hearing, inter alia, denied him visitation with the subject children. The father sought an order granting him, inter alia, unsupervised visitation with the subject children in the State of Hawaii.
Initially, we note that the father met his burden of demonstrating a subsequent change in circumstances warranting a hearing (see Family Court Act § 652[b]). The father demonstrated that, following the previous order issued by the Wyoming District Court, he was released from his incarceration at a federal penitentiary and was residing at a permanent residence within the State of Hawaii. Further, it was undisputed that the children wished to visit with the father.
The hearing testimony established that the father had not visited with the subject children since 1997 due in part to his incarceration. Upon his release from the federal penitentiary, the father was, in effect, paroled to the State of Hawaii and prohibited from leaving the State until July 2007. The evidence further demonstrated that the mother and the subject children resided together in the State of New York. After the hearing, the Family Court, inter alia, awarded the father unsupervised visitation with the subject children in the State of Hawaii.
Under the circumstances, the Family Court improvidently exercised its discretion in awarding the father unsupervised visitation with the subject children in Hawaii. A parent's supervised visitation with a child is required only where it is shown that unsupervised visitation would be detrimental to the child (see Matter of Anaya v Hundley, 12 AD3d 594, 595). Given the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172), including the age of the children, the father's extensive criminal background, his history of domestic violence committed against the mother, and the cost and distance of travel, unsupervised visitation with the father in Hawaii is not in the children's best interests (see e.g. Matter of Anaya v Hundley, supra; Matter of Simpson v Simrell, 296 AD2d 621). Thus, we award the father initially only supervised day visitation with the children in the State of New York.
Upon a balancing of the competing interests, the Family Court providently exercised its discretion in restricting the father from discussing any issues pertaining to his religion or philosophy with the subject children, particularly where the Law Guardian supported that restriction (compare Stephanie L. Benjamin L., 158 Misc 2d 665, 667). Further, the Family Court properly directed that the father and the children engage in therapeutic visitation.
In light of our determination, we do not reach the father's remaining contention.
FLORIO, J.P., SCHMIDT, SANTUCCI and LUNN, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
"that's a tough case."
I mean, if the father belonged to the Church of Jesus Christ of the Latter Day Saints and Killing Hobos, is the court limited to enjoining direct hobo-killing advocacy only, or can it limit talk of his hobo-killing religion altogether?
This goes to the issue discussed in the frivolous prisoner lawsuit a couple posts down. However, the issue in this case isn't freedom of religion, it's freedom of speech.
I think the conceptual way to look at these cases is that the custodial parent has the general right to dictate the child's upbringing, and that where the non-custodial parent's free speech poses an actual threat to the custodial parent's interests, the court is entitled to enforce the custodial parent's wishes. This would eliminate cases where it's both parents having their free speech rights restricted, as with the Wiccan case.
/I know absolutely nothing about family law.
The Republic is not going to fall just because we let this father and others like him indoctrinate their children.
I think the problem here is that if the guy was really such a threat, then (a) why would the court grant him parole instead of making him serve out his full sentence and (b) why allow any visitation of his children? Once the court make the determination that he should be freed and allowed supervised visits with his children, it’s a little hard IMO to then justify placing a limit on what topics he can talk with them about.
Probably true. But in a little less inflamatory language, it is also probably true that the husband will, given the opportunity, resume his physical abuse of the wife and pass along his violent propensities to the two sons, who are likely to become "mujahadin" in more than name only. This sounds like a horrible family law decision made worse by the attempt to ameliorate it through the very probably unconstitutional (and almost certainly uninforceable) speech restriction.
Why insist on the polar extremes? Presumably the guy would prefer to see his kids with his free speech rights restricted than to not see them at all.
No but then again the First Amendment really only says “Congress shall make no law.” We could simply read it with the original intent in which case (a) the First Amendment doesn’t apply to the judicial or executive branches and/or (b) doesn’t apply to the States since the Fourteenth Amendment which supposedly incorporates it is at best ambiguous on this point.
There are many cases where 1st Am. rights are restricted in such situations. For example, divorced parents practice different religions. The non-custodial parent (usually the father) has often been barred from discussing religion with his children because it undermines the education by the custodial parent.
2. It appears that the custodial parent's right to control how his/her child is educated is paramount to the speaker's 1st Am. rights.
Certainly, no one has suggested that parents in general may not censor what their children watch on TV or review on the internet. A speaker has a First Amendment right to speak, not to have an audience. Children, who are to some extent subordinated to their parents and whose care is entrusted to the parents, can be excluded from the speaker's audience by the parent. And in extreme cases this parental choice could be enforced by the State or the courts.
3. A divorce situation is admittedly more complex, but the same basic analysis applies. The Court in this situation is enforcing the custodial parent's ability to educate her child -- which apparently does not include a life of jihad.
4. As a general matter, I am dubious about the notion that the 1st Amendment can trump the ability of parents and, in extremis, the State, to protect children.
Suppose a public school decides to teach a unit about the politics of the day, maybe in connection with an upcoming election. It invites the major candidates to address the student body. Is it also required, under the 1st Amendment, to let every nutcase address the students -- i.e. every KKK member, every Nazi, every Communist -- who wishes to have five minutes to try to influence the kiddies? I rather think not. The school, acting in loco parentis has the right, within broad parameters, to determine what is harmful speech to impressionable youngsters and what isn't, even if the speech is, in an adult context, protected by the 1st Amendment.
To address it as a freedom of religion issue would be pretty close to explicitly endorsing the view that Islam is a religion of violent conquest and the slaughter of innocents.
"He should be able to say whatever he likes. Religion? What religion? Who said anything about religion?"
Now, if the father is preaching jihad to his children so that they grow up eager to die for his religion, isn't that pretty much the same thing? He is 'offering them up' just as surely as if he handed them to Moloch's priests.
"A good example of how the Constitution is not a suicide pact. Or shouldn't be."
The Republic is not going to fall just because we let this father and others like him indoctrinate their children.
Unless they indroctinate them that their purpose in life is to detonate dirty nuclear bombs in New York, Washinton, L.A., etc. Come on people we're not playing leftist kumbaya games here. These people with all their hearts and all their energies, Want. Us. Dead.
(Or wearing burkhas, stoning gays, etc.)
Not really. It would be endorsing the view that THIS PARTICULAR PERSON'S VERSION of Islam is "a religion of violent conquest and the slaughter of innocents."
According to the article, the father's "quasi-Muslim philosophy" led him to "amass[] a large quantity of weapons," and ended in his conviction for illegal weapons possession and for making threats.
When one demonstrates by both word and deed that one's "religious philosophy" leads one to a life of violence and criminality, then one should not complain that the Court's do not want that "religious philosophy" imparted to children, including your own.
The possessory conservator gets visitation, but primary control is allocated to the managing cnservator. As best I recall, one aspect of that control is to determine the religious upbringing of the children. Whether or not other states use the same terminology, they must deal with the same issues.
The court's order appears to be a de facto allocation of control of religious upbringing to one spouse. As such, it seems a regrettable but necessary incident of child custody determinations in divorce proceedings.
(Or wearing burkhas, stoning gays, etc.)"
Truthseeker, if I may: what percentage of the U.S. population do you speculate "these people" comprise?
Here, the courts are involved only because two adults, each beginning with an equal right to raise their children as they see fit, could not agree on how to exercise those rights. The courts have no choice but to ultimately pick sides in such a dispute. That is precisely why we have courts to begin with, to provide us a with an equitable means of resolving those disputes that we can't resolve amongst ourselves.
The court had little choice in this dispute but to award primary custody to one parent or the other. Because papa was in jail, the mother was the obvious and only real choice. Papa's criminal background makes him poorly suited to have primary custody even were he not currently in jail.
Once that primary custody decision is reached, the court's limitations on visitation are really not the government imposing its will, but the government simply assisting the custodial parent to assert her right to control the upbringing of her children. The decision being furthered is the parent's, not the courts. The mother could allow the father visitation of any sort if she wanted to; the court is involved primarily to enforce her decision, and to perhaps temper it out of concern for the residual rights of the father, should the mother be too harsh. If a church files suit to evict a squatter who has set up residence in the church hall, the government has not established a religion by enforcing the church's property rights.
As others have noted, the court could have determined that it is not in the child's best interests to have any visitation with his father. That, too, is a sundering of papa's constitutional rights as a parent. But it is a permissible sundering because of the competing rights of the mother. If the court can limit the father's constitutionally-based parental rights to determine his child's upbringing, surely it can limit some of the father's other constitutional rights as necessary to institute its judgment in the custody proceeding.
The facts are that if this is a religion issue, the guy's views are taken by the court as a religion--which the guy and the court agree is Islam--and so the court says this is a species of Islam which is not so far out as to be disqualified from being Islam.
You may be interested in parsing and hair-splitting, but the implication is that the court has accepted this as a religion, and accepted that it is Islam. And parsing and hair-splitting do not trump implications. Not mistaken ones, and not valid ones.
As I have just demonstrated, better treat this as a speech issue.
Get some prominent Muslims and ask them publically if the father's teachings are consistent with Islam. Assuming they say "no", then rule that the father is trying to teach something he just made up and don't allow it.
Ah, but then you're making the government the enforcer of 'official' Moslem doctrine, which smacks of 'Establishment'. Besides, who says 'made up' religions are necessarily false? Remember Bokonon! ;^)
The Courts are doing no such thing. A person is entitled to his own religious philosophy regardless of whether it is the most Orthodox interpretation of a classical religion or the most idiosyncratic cult or somewhere in between. Anywhere along the spectrum, the person has Free Exercise rights.
The Court does not have to determine whether this person's "religious philosophy" conforms with "Islam" or not. That question was never put to the Court and, IMHO, it would be improper to answer it.
What the Court can properly determine is that the father's religious philosophy, such as it is, is closely tied to his acts of violence and crime. As such, it can restricts his attempts to impart it to his children.
I see the logic in Ken Arromdee's proposal, but think it would open up a huge can of worms. The Free Exercise Clause jurisprudence is not sufficiently developed to address these recurring situations, I'm afraid.
Uh, no, not at all. It's analogous to the way that actually plotting the violent overthrow of the U.S. government (a crime) is different from advocating the general idea of violently overthrowing the U.S. government (protected speech). See Yates v. United States, 354 U.S. 298, 318 (1957) (government cannot criminalize the "advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end.").
Get some prominent Muslims and ask them publically if the father's teachings are consistent with Islam. Assuming they say "no", then rule that the father is trying to teach something he just made up and don't allow it.
Along those lines, I wonder if news of this case has reached Osama bin Laden and/or Ayman al-Zawahiri, wherever they may be. This whole case, and what it means for the country, would take a sharp left turn if this guy were to be endorsed by genuine jihadis.
For a number of reasons, it would be better to treat this as a speech issue than have the court declare, by default, that this is a religious issue. Because that would mean this cockamamie crap is a religion, saith the court, by default. If it weren't a religion, this wouldn't be a religious issue, would it?
Well, what makes this a modest proposal in the Swiftian sense is that it doesn't matter whether the prominent Muslims believe that this guy's teachings are Islamic--even if they think so, they'll have to deny it publically (assuming prominent US Muslims, of course--not Bin Laden).
It's not really "let's prevent him from teaching it if it isn't really Islam", but rather "let's prevent him from doing it because it's so widely rejected by society".
Volokh actually states the real basis for this decision. it is not about "free speech" or "religion". Most states do have language in their laws that set guidelines for interaction of non-custodial parents with their children. For instance, the states of Kansas and Missouri indicate parents should refrain from talking about the other parent in offensive terms because, yes, it undermines the custodial parents ability TO PARENT as well as can be psychologically harmful to the child.
That is what is at issue here. Not free speech, but the ability of the custodial parent (or, as bored lawyer indicated "managing parent") to perform their parenting duty.
And, while it is not a "law", but a guideline, courts have routinely set limits through custodial and family law hearings on the interactions, speech or otherwise, of non-custodial parents in an attempt to meet the much broader expectations of protecting the children from harm.
the real question here is not about freedom of speech or religion, but whether the father's beliefs and usual mode of communicating them are harmful to the children and/or their relationship with the custodial mother.
As one person commented, if the mother is raising the children and the father indicates, whether in the language of religion or something else, that women are inferior, that divorce makes them unworthy or worse, a person with low morals that should be beaten or killed, then his language can be construed as undermining the mother's parenting ability and causing harm to the psychological well being of the children.
Again, it's not about religion or free speech. As another points out, you are free to say what you want, but there is no law that guarantees an audience. The custodial parent's right to raise the children as they see fit, their ability to keep them safe and the over all parent child relationship outweighs the non-custodial parent's "right to speech" and insures that the custodial parent does not have to allow the non-custodial parent this "captive audience".
I applaud Eugene's insightful analysis of the difficult issue of spousal free speech rights in family law cases, and don't disagree with his conclusions. I'm writing primarily to commend him on formulating such a well-conceived exam question!
What strikes me is the prematurity or dissonance of worrying too much about the implications of the 1st Amendment in family court, when the liberty aspect of the 14th's due process clause---which in other spheres protects parenting from state interference on the basis of lose `standards' like best interests, which is no more than a term of art for unfettered judicial discretion---is completely unapplied.
The federal court domestic relations abstention in any event renders any consideration of constitutionality in family law, for most purposes, effectively moot.