I've blogged about this before, but what's striking is precisely how routine such cases are in Michigan. Here's an excerpt from the latest, Kik v. Kik, 2008 WL 376404 (Mich. App. Feb. 12):
As to raising Emma [age 2.5 at the time], the trial court found that this sub-factor favored plaintiff based on the testimony that plaintiff had a stronger religious background and was more actively involved in bringing the minor child to church than was defendant. Because this finding was based on the record evidence, no error occurred with regard to this factor.
Let's set aside the broader First Amendment questions on when a court may treat a parent worse because that parent's speech (religious or otherwise) to the child seems likely to harm the child. Here, there was no finding remotely like this.
Rather, the court was simply interpreting Michigan's best-interests statute — which requires the consideration of "[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any" — as giving a preference to the more religiously active parent.
This seems to be an even clearer case of religious coercion than in Lee v. Weisman, the graduation prayer case: Under the Michigan rule, which Michigan courts often apply (see the Appendix to this article), Michigan parents know that, to maximize their chances of keeping custody of their children, they need to go to church more often. A solid violation of the Establishment Clause, I think, plus of the Michigan Constitution's religious freedom provision:
Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend ... any place of religious worship .... The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.Words to live by — if only the Michigan courts lived by them in their child custody decisions.
Related Posts (on one page):
- Agreements to Raise a Child in a Religion:
- Michigan Court Prefers Agnostic Parent Over a Parent Who Has Been Finding Religion:
- Religious Upbringing and Changes in Attitudes:
- Routine Discrimination Against the Less Religious in Michigan Courts:
Do you think the phrase "if any" fails to save the statute's constitutionality? Doesn't it presume that there will be households in which there was no pre-existing value accorded to the pursuit or study of a particular religion or creed, and therefore that in those particular cases, no weight ought be accorded to a new-found (e.g., a feigned) devotion?
"In our household, before the divorce, we were rational agnostics. We didn't often talk about it, but on the few occasions when we did, we agreed that our particular creed would be that we would not disrespect any religions, but neither would we choose to participate actively in any organized religion. By continuing to refrain from taking my child to church regularly, I am therefore continuing [key statutory word] the precise education and raising of my child in the creed our family followed pre-divorce."
The court finds as a matter of fact that she's correctly described the pre-divorce family situation. Is it not then obliged to treat "rational agnosticism" the same way it would treat Catholicism or Islam?
Suppose the husband says: "I've been born again since Spousy and I decided to split up, I've now found Jesus, and I now want to take Baby Benjamin here to church with me every Sunday." Wouldn't the statute -- focusing as it does on continuation -- actually require the trial court to count that against the husband's position?
If, say, the mother is Mormon and the father is Catholic who both attend religious services regularly (using two denominations who lay claim to religious Truth), does the court then try to determine which parent is more sincere in his or her beliefs? Or does it decide that in case of a tie to use other factors?
Note to self, preview is your friend.
So this sort of narrow reading of the statute would be constitutional, I think (and suitable given the canon of construction that counsels reading a statute to avoid constitutional problems). But applying the statute to prefer the more religious parent rather than the less religious parent, in the absence of any evidence that the child prefers to continue in his religious upbringing (or possibly that a serious change would be disruptive for the child), would be unconstitutional.
Bill Dyer: Even if the statute preferred nonreligious parents over more religious parents, when the child had been raised nonreligiously, that would be unconstitutional, because it would pressure the more religious parent to forgo religious practice. But I've seen no evidence that Michigan courts even consider this in their decisions; the decisions I refer to just blithely assume that the more religious parent is more suitable than the less religious one, with no discussion of how religious the child's upbringing had been beforehand.
The case of the Amish convert was particularly interesting because once Dad succeeded in getting a court order requiring the kid to go to school, she disappeared into the Amish community. Mom won't say where she is, and Dad hasn't seen her for over 2 years. Reminded me of what supposedly happens in the UK when fundamentalist Muslims are required to send their daughters to high school -- the daughters just disappear, either into another person's household or are sent back to the parents' home country until they're of an age to marry and not be required to attend school.
But I'm not convinced that the statute is unconstitutional on its face, across the board. I think a statute that permits a family judge to place some weight (along with other factors in a complicated, incredibly subjective matrix) on promoting continuity of faith or (as the case may be) non-faith in a child's life is not necessarily unconstitutional. To argue to the contrary -- which I'm not sure whether you're doing, Prof. V -- requires one to read the First Amendment in a way that requires governments to penalize those families whose values include religious belief by ignoring those values.
So, for this to be illegitimate, the parents must be assumed to have a civil right to adopt which supercedes the supposed best interests of the child.
Show that the parents have a civil right to adopt.
Or, it doesn't apply.
the staute (as written) has nothing to do with civil rights of the parents, it deals with a child's right to practice a child's chosen religion. EVs argument introduces a parental civil right to practice or not practice religion. Without more than the one case presented, which doesn't provide a hole lot of information, it is difficult to decide if the statute (as construed by the courts) raise the problems EV envisions.
More information would help (or possibly hinder) EVs argument about coerction of parents to attend church in order to obtain custody of minor children. In the Kik case the appeals court decision is silent on the question of whether the child as developed a religous creed, if the original court ( not sure if it is actually a court in Michigan but if not I am sure the Master or whatever will forgive the error) made an inquiry and determined that the child had a creed which was benefited by church attendance then Kik in no way supports the coerction argument, if the original court merely presumed with no basis the existence of such a creed it would support the coercion argument. It would be interesting to see how a court would weigh the issue in the case of a non-religous parent and a religous child versus a religous parent who was less able to accomodate the child's practice of religion, if assesed properly this (sub)factor should be weighed in favor of the non-religous parent and the coercion argument is a non-issue.
Rather, the system, as practiced virtually universally in all American states, is that state law will inform the family court fact-finder/chancellor (embodied in the trial judge), who then (almost universally shielded from close appellate review by an "abuse of discretion" standard) declares what is, quote-unquote, "objectively" in the "best interest of the child."
As I understand him, Prof. V is here objecting to a common practice which is perhaps (or perhaps not) suggested (or perhaps, or perhaps not, compelled) by a statute that seems to be designed to tilt the playing field -- to give an automatic preference to a parent who can demonstrate an adherence to a religious faith, some faith, whatever faith, as opposed to being simply unmoved by any faith whatsoever.
Prof. V doesn't challenge -- if I understand him correctly -- the underlying premise, which is that the "best interest of the child" can be statutorily defined by reference to a parent's (or both parents') preferences and practices.
I'm left wondering if the First Amendment permits a state legislature to say: We want to encourage parents to believe in something. The "something" in which they believe can be a well-considered and rational system even of agnosticism, and certainly one of atheism. But we think it's better to encourage parents who are committed to something by giving them preference in child custody decisions over the drooling slackers who've never even thought about these issues.
I'm inclined to think that the First Amendment would permit that. I don't know where Prof. V comes out, though, or if he accepts this as a relevant question.
Well, now, children aren't persons so don't get carried away. The supreme court settled that in 1973.
The question is how the statute, which makes no reference to the religous beliefs or practices of the parent, might, as applied by the court system, compell parents in custody disputes to adhere to a religous creed they would not otherwise do so. It might also be argued, although not eaarlier done so, that the statute could encourage religous parents (or even non-religous parents who are willing to fake religousity) to force religon on children to gain an advantage in child custody cases.
The Kik case as presented, mentions one parent being more religous than the other, but from what is presented we cannot determine if the original court considered that directly as a factor in deciding the more religous parent worthy of favorable consideration or if the fact of on parent being more religous was only incidental to a decision that the child had more capacity to indulge the child's religon of choice with the more religous parent.
AS an interestng extenson, if the statute as applied does not favor religous parents over non-religous parents, would a perception that the courts apply favortism to religous parents raise the same freedom of religon question?
I dunno, what other word would you use for children besides custody? it means you have possesion without ownership. it has strong connotations of a duty to maintain, and lesser connotations of a duty to improve. it certainly indicates a much stronger obligation than "person the child is spending time with currently". perhaps there is better word in english, but i'd feel a lot more obliged to cleaning up after and feeding a child i am the costodian to than one which i am "the person the child is spending time with currently" to.
I don't see how this differs from your posts on Sharia law. If people choose to enter into a marriage agreement that requires certain religious practices then the courts can enforce (somewhat) that agreement. In this case all that has happened is that the law has decided to view mutual decisions about child rearing as binding commitments.
I suspect that raising an "ACLU"-style objection of this sort might not be in the best interests of the would-be custodial parent, in our state's courts. So that may be a structural reason why it won't get challenged any time soon. I sure as heck would make my church attendance much more regular, beginning the Sunday after deciding to divorce, if I wanted custody of my kids.
But I don't think that's what the outcome is in Michigan courts.
As someone said upthread, if I wanted custody of my child, I'd start going to Church much more regularly after I decided to divorce.
The only solution is for the family courts to get out of the business of second-guessing parents and micromanaging the upbringing of kids.
There are many other choices that parents make, and it is nearly always better to let the parents make those choices, than to try to get a court to make the choices.
* http://www.youtube.com/watch?v=UFBZ_uAbxS0
Thus, if a judge is actually going to consider things that will make a child a healther, happier person with a longer life, then why should he or she be obligated to ignore exactly those factors?
Moreover, the literature does not, in general favor any particular faith -- though I don't think there has been any studies of outre cults compared to mainstream religions. Thus, if the judgement is simply one of what will provide for these benefits and not in favor of any faith -- and thus not the establishment of any faith -- then how is it the "establishment" of a particular religion?
The happiest person possible is one who's been doped with happiness-inducing drugs forever.
A good portion of us, if asked if we'd want to be doped with happiness-causing drugs for the rest of our lives, would answer "no". If you're trying to maximize happiness, the answer is "yes"--but a lot of people just aren't utilitarians on this subject. We value knowing the truth and understanding the world, even if it's unpleasant, over happiness.
Likewise, a non-religious person may admit that religious people are happier, but think that religion is probably false, and prefer a less pleasant truth to a more pleasant falsehood. The judge, of course, has no business deciding that families or children must be strict utilitarians.
(This also ignores the possibility that part of the reason believers are happier is the stigma against unbelievers. Placing the child based on that would be like placing the child with a parent who isn't having an interracial relationship on the grounds that people are generally happier in single-race families--such a factor should not be considered even if it's tru.)
Certainly, multiple studies have shown that intrinsic (but not extrinsic) religiosity is associated with lower levels of depression and anxiety. Among adolescents, active religious involvement is associated with lower levels of drug use, premarital sex, depression, and lower suicide risk. Multiple studies have shown that religious involvement is associated with better coping in poor health, particularly with HIV infection.
Leaving "happiness" alone, however, active religious involvement is associated with lower blood pressure,lowered risk of heart disease, and lowered risk of cancer. It is associated with increased survival in leukemia.
More impressive, however, is the relationship between church attendance and mortality. A study of 21000 adults found a 19 times higher mortality amont adults who never attended church compared to those who attended more than once a week. In another study, regular church attendance was associated with an 8-year longer life expectancy comparing regular attendance with non-attendance. This was particularly true in African-Americans, where it was assicated with a 13.8-year life extension. In one metanaysis of 125,000 people, regular church attendance was associated with a 25% decrease in mortality at followup, with the most impressive effect being on mortality from cardiovascular disease.
Don't want any of these benefits for our kids! No, sir.
Child custody is so complicated.
First, folks are focusing on the age of the child and the fact that at 2.5 they can't have a well thought out religious preference. But, I don't think this is dispositve. If the child is used to going to church 2X a week, and seeing all the same people, including peers that he becomes used to interacting with, disrupting that will usually not be in the child's best interest. Not a hard and fast rule, but definitely the majority of the cases. And I say that as an agnostic who hasn't regularly attened church in 15 + years, and hasn't been to a service in well over a year.
Roger Schlafly,
I agree with you that generally letting the parents agree is the best bet. And most courts will go with what parents agree to. The problem is, many divorced couples can only agree to fight about everything.
Precisely. And Michigan is in what used to be called The Northwest, later "the Old Northwest", to which the Northwest Ordinance applies.
I believe that, toward the close of the Civil War, Lincoln made a moving speech and referred to "the Old Northwest", its harvests and its soldiers.
the wording of the statute is important:
on its face, the statute does not prefer religion over non-religion except when it comes to the child's free exercise rights.
first, the word "continue." if the child was not raised in a religion during the parents' marriage, by definition, this status is not "continued" by a parent who becomes religious at the time of the divorce.
second, the limitation, "if any". again, if the child is not practicing a religion, or has not been raised in a religion, there is no preference for religion in the decision. a divorcee cannot suddenly have a religious awakening in order to get custody.
some children may choose to follow a religion. yet until they reach majority age or move out, their guardian may prevent them from practicing that religion. if the state regularly puts children into situations where a controlling parent is hostile to their religious beliefs, this could raise a free exercise question.
it would not be analogous to a case where a believer is asking the state to allow her to practice polygamy, or to handle snakes or use a controlled substance. neither is it a case where the government only gives weight to religious reasons. the best-interests statute requires consideration of secular factors like love, affection, and guidance. to allow consideration of secular but not religious factors would be suspect our free exercise jurisprudence.
the free exercise clause (and the michigan best interest statute) merely ask that the ability of a child to practice her religion be a factor in the custody decision.
but, obviously, in a case involving a 2.5 year-old, this application is weaker than in a case involving, say, a teenager.
*neither is it a case where the government only gives weight to religious reasons [in making accommodations].
*to allow consideration of secular but not religious factors would be suspect [under] our free exercise jurisprudence.