Archive | Child Custody and Constitutional Law

Tennessee Child Custody Law Favoring Parents Who Can Best Prepare Child for “a Life of Service”

I just ran across the Tennessee statute, Tenn Code Ann. § 36-6-404, that provides the factors that courts are to consider in determining physical custody as between two parents. Many states have such lists of factors, but the bold text seems to me to be unique to Tennessee:

(b) … The court shall make residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child’s residential schedule shall be consistent with this part. If the limitations of § 36-6-406 [which basically deal with abusive, neglectful, criminal, or otherwise unfit parents] are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

[Other factors, which are much more common in such statutes than factor 1 is, omitted. -EV]

(16) Any other factors deemed relevant by the court.

Now I know that Tennessee is the Volunteer State, but preferring parents who can inspire and encourage the child “to prepare for a life of service” strikes me as an improper judgment on the government’s part, and an interference with the parental rights [...]

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Fear That Children Will Be Teased About Parent’s Homosexual Relationship as Basis for Denying Parent Custody?

Impermissible, holds Maxwell v. Maxwell (Ky. Ct. App. Oct. 19, 2012):

[W]e now turn to the family court’s decision to award Robert sole custody. We begin by addressing Angela’s contention that the court erred by considering factors unrelated to the best interests of the children. The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children. The family court states in its order:

The Respondent is seeking to live an unconventional life-style that has not been fully embraced by society at large regardless of whether or not same-sex relationships should or should not be considered sexual misconduct. Like it or not, this decision will impact her children in ways that she may not have fully considered and most will be unfavorable.

First, we observe that under the statutory mandate of KRS 403.270(2), the court is required to determine custody based on the best interests of the child by considering the factors discussed previously herein…. The statute’s next section states that “[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.” KRS 403.270(3). Therefore, Kentucky’s custody statute is designed to focus on conduct that disturbs the interaction between the parent and child. Here, the family court’s decision relies heavily on Angela’s same-sex relationship as problematic without demonstrating that the children were harmed or that their relationship with Angela was harmed. In fact, the evidence suggested that the children were adjusting quite well if not thriving. Thus, under KRS 403.270(2), the court is to consider all relevant factors; however, KRS 403.270(3) does not allow sexual orientation to be a determining factor unless there is a direct negative impact on the children….

[N]ot allowing a parent to have custody of a child because of a threat of

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American Court Enforces United Arab Emirates Divorce, Mahr, and Child Custody Judgment

An interesting case, S.B. v. W.A. (N.Y. trial court Sept. 26, 2012). A quick and oversimplified summary:

1. In 1998, S.B., an American professional woman, married W.A., an Egyptian immigrant who eventually became an architect. They lived until 2006 in America, where their two children were born. They then moved to the United Arab Emirates, where W.A. had gotten a new job.

2. In 2009, S.B. accused W.A. of attacking her, inflicting “severe bruises and a fractured skull.” As a result, W.A. was convicted of assault in the UAE, on the grounds that he had (according to the UAE court) crossed his legal limits to discipline his wife. “The defendant never denied using physical force against the plaintiff, but defended the charges claiming he had the right to use physical means to discipline his wife and that her injuries were not as severe as she claimed.”

The assault formed the grounds for S.B. to divorce W.A., also in the UAE; the UAE divorce court granted S.B. the divorce, awarded her the $250,000 mahr (essentially an amount provided for in the parties’ Islamic premarital agreement in the event of a divorce), ordered W.A. to pay child support and some amount of spousal support, and gave S.B. custody of the children.

3. Both parties then returned to the U.S., and S.B. moved in New York courts for recognition and enforcement of the UAE decree.

4. The short version of what the court generally ruled (setting aside some procedural complexities):

a. The court recognized the UAE divorce.

This seems right to me, given that the UAE was a natural place for the parties to divorce, especially since neither party was planning to move away immediately. (The wife had a banking job in the UAE, and wanted to abide by the terms of [...]

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English Court Lets 10-Year-Old Girl Choose to Be Baptised, Over Jewish Mother’s Objections (but with Christian Father’s Permission)

There’s been some recent buzz about this court decision, In the Matter of C (Romford County Ct. May 11, 2012); see, for instance, here, here, and here. I tend to think the court decision is correct, and here’s why.

The parents were nonobservant Jews for most of their marriage, but at the very end of the marriage, the father converted to Christianity (Anglicanism, specifically). The parents seem to have what in America would be treated as joint physical and legal custody, with the daughter spending roughly equal time with each, and with each having equal authority over the daughter’s upbringing. The daughter, who is apparently a quite intelligent 10½-year-old, decided she wanted to get baptised, which in the Anglican church involves taking baptism classes as well as going through the baptism ritual. The father had encouraged the daughter’s interest in Christianity, but the court concluded that the daughter genuinely did want to go through the baptism, and had been seeking to do so for about ten months; nor did the court note anything that it saw as undue pressure by the father that would bring this about (though of course it’s very hard to figure out what counts as undue pressure in such a situation).

It seems to me that there are four key facts here:

(1) The court had to decide whether to forbid father from taking the daughter to baptism classes and letting her go through the baptism ritual. The question wasn’t whether the mother could, during her parenting time, continue to expose the daughter to Jewish rituals (which she had started doing in some measure following the breakup, though only by “lighting a candle in the home on Friday nights and explaining its significance to the children,” and which she seemed to want [...]

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“Father Shall Take Down That Web Site and Shall Never on Any Public Media Make Any Reference to Mother At All,”

“nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant school events.” That’s the text of a judge’s oral order in Morelli v. Morelli, No. A06-04-60750-C (Diane Gibbons, J., Bucks Cty., Pa. June 6, 2011). If the father says anything about the mother in public, he could be sent to jail for contempt of court. The order isn’t limited to banning libelous statements (though I think even such a much narrower ban would itself pose constitutional problems, especially under Pennsylvania law), nor is it even limited to statements about minor children (though even that sort of order strikes me as constitutionally impermissible). Rather, the court order categorically orders the removal of a Web site, and prohibits all public statements — factually accurate or not — by one person about another person.

That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult. I’m pleased that the order is being appealed, and hope it will be quickly reversed. A relatively old (Jan. 5, 2010) archive of the web site that triggered this order,, is available on [...]

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Judge Grilling Parent in Child Custody Case About the Parent’s Secular Humanism

From yesterday’s Atchley v. Atchley:

The trial court addressed the following inquiry to the husband.
Q. Now, you said you attend a Morning Star Church?
A. Correct.
Q. Do you donate money to the church?
A. I don’t donate money to the church.
Q. Do you—does [husband’s girlfriend]?
A. No, she has not yet.
Q. Okay. Do either of you serve in any ministry that the Morning Star Church is involved in, whether some sort of charity work or teaching kids or anything like that?
A. No, not at this time.
Q. Do you have prayer in your home?
A. We pray at the dinner table.
Q. Bible study?
A. Not in the home, no.
Q. You’ve described yourself as a secular humanist, right?
A. Correct.
Q. Okay. How does—how does a secular humanist determine what’s right and wrong?
A. I mean, it’s a—it’s a—that’s a very deep question. I mean, I think people innately have an idea about what’s right, what’s wrong and you have to—you have to look at it from the perspective of not just, you know, what’s good for me, but what’s good for those around me, am I doing a greater good. I mean, I can have morals and make correct decisions without having a religion per se.
Q. What’s the authority though that you submit to?
A. Just my basic philosophy in life which is that I think humans can help each other solve their own problems. I don’t think we need to look elsewhere. I think if we work hard at it, then we can make a better society and we can all get along and we can solve problems and we can improve how it is we live, what the human condition is.
Q. But ultimately what you’re telling me is

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Judge Vacates TRO Barring Divorced Father From Exposing Child to Religion Other Than the Mother’s

The Chicago Sun-Times reports:

In a divorce case that’s drawn national attention, a Chicago man who claims he has returned to his Catholic roots will be allowed to take his 3-year-old daughter to church, despite the objections of the girl’s Jewish mother, a Cook County judge [Renee Goldfarb] ruled this afternoon….

The judge said she found “no evidence … that taking 3-year-old Ela to church during Joseph’s visitation time is or would be harmful to Ela. She is three years old and, according to Joseph, while at church she waves at the other children, looks around and giggles. This court found that testimony credible.” …

The original order, from Judge Edward Jordan, is here (p. 5); I have read Judge Goldfarb’s opinion, and was quite impressed by the reasoning explaining the decision against interfering with the parents’ religious practices absent “proof of harm or potential harm” to the daughter. The judge had to juggle three not entirely consistent state appellate decisions, and I think did a very good job of coming to the conclusion that as consistent as possible with those decisions and with First Amendment caselaw.

UPDATE: Judge Goldfarb’s opinion is now online here. [...]

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More Discrimination in Child Custody Cases Against the Less Religiously Practicing Parent:

From Stavig v. Stavig, No. 05-0464 (S.D. Cir. Ct. Aug. 28, 2008), recently affirmed by the South Dakota Supreme Court:

[Father] is a little more able to [provide for the 6-year-old son’s “temporal, mental and moral welfare”] than [mother]….

  • Both have the ability to give [son] love, affection, guidance, education and to impart the family’s religion or creed. [Father] is inclined to impart the family’s religion or creed, as he regularly takes the child to Sunday school and at one time enrolled [son] in a church-sponsored pre-school. Conversely, [mother] does not take the child to church or Sunday school, and without any apparent reason or explanation, removed the child from a church-sponsored pre-school to send him to an Interlakes Community Action Program.

Father gets physical custody even though mother had been the “primary caretaker since birth,” a factor that would normally cut in favor of the mother. And, as the court said, the decision was close; the father’s greater religious observance thus may well have changed the result. Note also that the court wasn’t talking about enforcing some agreement between the parties, which might have called for a particular kind of religious upbringing; the court was asking what was most conducive to the child’s “temporal, mental and moral welfare,” and apparently concluded that regular churchgoing is better for the child.

Now it might well be that regular churchgoing is indeed in a child’s best interests. Or maybe regular churchgoing is against a child’s best interests. It seems to me, though, that the First Amendment keeps the government — including courts — from taking a stand on this in deciding people’s parental rights, at least in the absence of actual evidence of imminent harm to the child (as opposed to speculation about whether religiosity is good or bad). For [...]

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