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Interesting Child Custody / Alleged Threat of Female Genital Mutilation Case

By on February 20, 2013 11:18 pm in Parental Rights

Mohamed Aly, born and raised in Egypt, lives in Canada. Amal Aden, born and raised in Somalia, lived in Minnesota until she and Aly met on a Muslim dating site and she moved to Canada. They married, and have a daughter, born in 2011. But Aden left Aly, taking the daughter back with her to Minnesota. Aly then petitioned under the Hague Convention (a treaty) and the International Child Abduction Remedies Act, “alleging that Aden wrongfully removed their child to the United States. Aly contends that the child is a habitual resident of Canada within the meaning of the Convention, and accordingly seeks an order from the Court directing the prompt return of the child to that country. Aden opposes the petition, alleging that Aly has not met the requirements under the Convention and raising affirmative defenses to the return of the child — including that there is a grave risk of harm should the child be returned to Canada.”

The court (Aly v. Aden (D. Minn. Feb. 14, 2013)) went through a lot of details, including the various factual allegations and cross-allegations, and I can’t do all those details justice here. Here, though, is an interesting discussion of the mother’s (Aden’s) argument that returning the daughter to the father would put the daughter at risk for female genital mutilation (some paragraph breaks added):

58. Aden alleges that Aly approves of the practice of female genital mutilation (“FGM”). Aden also alleges that Aly asked Aden to take [daughter] to Aden’s mother, who lives in Kenya, to have the child undergo FGM. Aden testified that Aly then stated that if Aden’s mother would not do the procedure, Aly would take [daughter] to his mother in Egypt to have the procedure done.

59. Aly denies that he approves of FGM

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North Great Neck Principal Says He Was Mistaken, Apologizes

By on February 9, 2013 11:39 am in Parental Rights, Religious Freedom

Last week, I blogged about a letter sent by the principal of North Great Neck High School, a public high school on Long Island:

We write this letter to inform you of a situation in our community about which we have deep concerns. There is a store front temple that serves kids free food and then while they are eating, preaches to them. They only permit Jewish kids to enter. They separate boys from girls. Girls are offered free food and religious instruction Tuesdays from 11:00 a.m. to 1:00 p.m. and boys are offered free food and religious instruction on Thursday and Friday from 11:00 a.m. to 1:00 p.m.

As you know we have an open campus and students are allowed to leave campus on their free periods or lunch periods to walk to town and get lunch. They are not allowed to drive so their choices are constrained to the immediate general area. The Torah Ohr Temple at 575 Middle Neck Road believes it is perfectly okay for them to entice our students with free lunch in order to give them orthodox religious instruction, or what many would frankly call proselytizing children. We don’t agree. We have consulted many other local clergy, and they don’t agree with the practice either. These are children, not adults.

Upon hearing about the situation, we visited the Temple ourselves. The visit was unsettling. There were at least several dozen of our students sitting at long tables in a room that had to be entered through a side door. They were quietly eating while a man was instructing them in orthodox religious beliefs. There is no sign on the building even identifying it as a Temple.

We entered into conversations with Rabbi Kohan, the man in charge who clearly believes that what he is

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Public High School Complaining About Off-Campus Proselytizing (During Lunch Hour)

By on February 1, 2013 5:08 pm in Parental Rights, Religious Freedom

[UPDATE: A week later, the principal said he had erred, and apologized.]

Here’s a letter from the principal of Great Neck North High School, on Long Island:

January 31, 2013

We write this letter to inform you of a situation in our community about which we have deep concerns. There is a store front temple that serves kids free food and then while they are eating, preaches to them. They only permit Jewish kids to enter. They separate boys from girls. Girls are offered free food and religious instruction Tuesdays from 11:00 a.m. to 1:00 p.m. and boys are offered free food and religious instruction on Thursday and Friday from 11:00 a.m. to 1:00 p.m.

As you know we have an open campus and students are allowed to leave campus on their free periods or lunch periods to walk to town and get lunch. They are not allowed to drive so their choices are constrained to the immediate general area. The Torah Ohr Temple at 575 Middle Neck Road believes it is perfectly okay for them to entice our students with free lunch in order to give them orthodox religious instruction, or what many would frankly call proselytizing children. We don’t agree. We have consulted many other local clergy, and they don’t agree with the practice either. These are children, not adults.

Upon hearing about the situation, we visited the Temple ourselves. The visit was unsettling. There were at least several dozen of our students sitting at long tables in a room that had to be entered through a side door. They were quietly eating while a man was instructing them in orthodox religious beliefs. There is no sign on the building even identifying it as a Temple.

We entered into conversations with Rabbi Kohan, the man in

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Equality vs. Liberty

By on January 23, 2013 6:08 pm in Freedom of Speech, Parental Rights

The Center for Law and Religion Forum had a post a couple of weeks ago about a talk by Erwin Chemerinsky (dean of the new UC Irvine law school), in which he made a rather striking proposal. Indeed, Dean Chemerinsky has made the proposal in print several years ago, in an article titled Separate and Unequal: American Public Education Today, so I thought I’d quote that article and put the matter in Chemerinsky’s own words, because I think it more broadly illuminates the danger that excessive equality arguments pose to liberty:

My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, and no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.

How could this happen? One possibility would be through the Supreme Court, though of course not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection for their students, and order the creation of a unitary system as a remedy. Another way to achieve a truly unitary system is by legislative action. Congress could adopt a law to achieve these goals or state legislatures could do so within the states’ borders.

I do not minimize the radical nature of this proposal, but this may be the only way that equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those

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Foreign Child Custody Disputes Involving People Coming from Countries That Apply Islamic Family Law

By on December 30, 2012 2:36 pm in International Law, Islamic Law in the American Legal System, Parental Rights

From Souratgar v. Fair (S.D.N.Y. Dec. 26, 2012):

Petitioner Abdollah Naghash Souratgar, an Iranian citizen, petitions this Court for the return of his son, Shayan, to Singapore. Shayan, who will soon be four years old, was born in Singapore and has Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore. She traveled to the United States where neither petitioner, respondent, nor the child has any meaningful ties or connections.

The father sued in American court, seeking return of the child to Singapore. The relevant American legal rule is that provided by the Hague Convention treaty, and the federal statute — the International Child Abduction Remedies Act — that implements it:

The Hague Convention seeks to “secure the prompt return of children wrongfully removed to or retained in” signatory states. The United States has ratified the treaty and implemented its terms through ICARA. Singapore acceded to the treaty in May 2012.

Under the Hague Convention, a child’s removal from a signatory state is wrongful when “[ (a) ] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [ (b) ] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The treaty applies to children under the age of 16….

In order to prevail, petitioner must establish by a preponderance of the evidence … that “(1)

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District Judges Split on Whether California Ban on Sexual Orientation Change Therapy for Minors Is Constitutional

By on December 5, 2012 10:18 am in Children's Rights, Freedom of Speech, Parental Rights

I was too swamped yesterday to blog about this, but Prof. Howard Friedman (Religion Clause) has a characteristically excellent summary:

This week, two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of California’s new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age. In Welch v. Brown (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:

Especially with plaintiffs in this case, it is … difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message…. Duk is a Catholic and, with patients that share his faith, he discusses [tenets] of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” … Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

However, in Pickup v. Brown (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect. She wrote in part:

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct…. As SOCE therapy is

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N.Y. Court Denies Parents’ Request to Change Last Name of Children

By on November 5, 2012 7:22 pm in Parental Rights

The problem? The parents wanted to change the children’s last name to a name other than either the mother’s or the father’s, plus (and it’s not clear how relevant this ended up being) they had changed one child’s name three years before. From In re Kobra, 2012 WL 5373490 (N.Y. City Civ. Ct. Oct. 26):

The Petitioner, Tamannatul Kobra, the mother of two children, seeks leave of the court through the submission of two petitions to change the names of her children: Heemika Hossian, a four year old female and Siratul Muntaha Hossain, a nine year old female. The two petitions involve the consent of both parents, Tamannatul Kobra and her husband, Mosharaf Hossain….

On January 20, 2009, Mosharaf Hossain, with the consent of his wife, Tamannatul Kobra, submitted a petition to the Civil Court in Kings County to change the name of his daughter, Sidratul Muntaha, then six years of age, to Sidratul Muntaha Hossain. On that same date, the Hon. Dawn Jiminez was satisfied that the petition was true and that the interest of the child was substantially promoted by the infant child assuming the surname of her biological father and issued an order granting the name change.

In this case, on May 10, 2012, Tamannatul Kobra, petitioned the Court for approval to change her eldest daughter, Sidratul Muntaha Hossain, to a new assumed name of Oporajita Neeladri and her youngest daughter, Heemika Hossian to a new assumed name of Himika Himadri. In paragraph 9 of both petitions, Tamannatul Kobra states that “I do not like the name” as the reason for the name change.

When the application was first presented to the undersigned judge in Special Term II on May 10, 2012, the Applicant stated that she wanted to change the children’s name for passport purposes.

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When Parents Disagree, Should Child Bear the Mother’s Last Name or the Father’s?

By on November 1, 2012 6:00 pm in Parental Rights, Sex Discrimination

Veronica Goudreau and Andrew Lemieux conceived a child, Alexander. (As it happens, they were minors, in high school, but that needn’t matter for the legal analysis.) They then broke up, but Lemieux wants to help raise the child.

When the child was born, Goudreau named the child Alexander Bailey Goudreau. But when the child was a year old, the father (represented by his parents as plaintiffs) asked that the child’s name be changed to Alexander Bailey Lemieux. The court renamed the child Alexander Goudreau Lemieux, reasoning,

The court makes it[s] decision based on the best interests of Alexander. Alexander has two parents who both care for him and love him. Andrew Lemieux’s commitment to Alexander should be demonstrated in Alexander’s name, as should Veronica Goudreau’s.

And on appeal, the New Hampshire Supreme Court (In re Name Change of Alexander Goudreau (N.H. Oct. 30, 2012)) agreed:

[W]e hold that the trial court sustainably exercised its discretion in changing the child’s name to Alexander Goudreau Lemieux. The record supports the trial court’s findings that, at the time of the petition’s filing, both mother and father cared for, loved, and were committed to Alexander — findings which mother does not challenge on appeal. Accordingly, we conclude that the trial court had an objective basis sufficient to sustain its conclusion that Alexander’s full name should include both parents’ surnames. On appeal “[w]e consider only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made, and we will not disturb the trial court’s determination if it could reasonably have been made.” Although additional fact finding might have aided our review of the trial court’s order, we conclude that the trial court could reasonably have found that the name Alexander Goudreau Lemieux was in the child’s best interest.

But, accepting [...]

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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)

By on August 6, 2012 1:18 pm in Child Custody and Constitutional Law, Children's Rights, Parental Rights, Religious Freedom

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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Do Nude Drawings Sent to Your Five-Year-Old Daughter Appeal to “a Prurient Interest in Sex of Minors”

By on June 15, 2012 5:52 pm in Freedom of Speech, Parental Rights

Utah law, like the law of many states, bans the distribution to minors of “harmful-to-minors” material (for more on this, see this post). The Utah statute reads,

“Harmful to minors” means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it:
(i) taken as a whole, appeals to the prurient interest in sex of minors;
(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(iii) taken as a whole, does not have serious value for minors.

Defendant, with the unlikely last name of Butt, was in jail on a theft charge, and wrote two letters to his wife — letters that were read by jail officials pursuant to a jail random interception policy — with drawings that he asked the wife to pass along to their 5-year-old-daughter:

The first letter was addressed to Defendant’s wife. The envelope had a large pink heart drawn on it, and inside the heart were three letters: C, K, and S, presumably standing for his wife Cammy, his eight-year-old son K.B., and his five-year-old daughter S.B. Defendant enclosed individual letters to his wife and children. At the bottom of the letter for S.B., he drew a picture of himself naked with a speech bubble stating, “I love you [S.B.]” coming from his mouth. Next to the nude drawing of himself, he wrote, “Love you, Dad” and “I have no idea why she wanted me to draw my w[ie]ner. But she insisted. Scary!!” Corporal Black, the prison guard on duty, intercepted this letter. After inspecting it, he took it to Deputy Alan Freestone, the deputy sheriff for the San Juan County Jail. That same day, Deputy Freestone met with

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Intentional Tortious Interference with Parental Rights

By on April 26, 2012 12:01 pm in Parental Rights, Torts

An interesting Virginia Supreme Court decision, Wyatt v. McDermott (Va. Apr. 20, 2012), recognizes this right. An excerpt (paragraph breaks added):

John M. Wyatt, III, is seeking monetary damages for the [alleged] unauthorized adoption of his baby, herein referred to as E.Z. E.Z. is the biological daughter of Wyatt and Colleen Fahland, who are unmarried residents of Virginia. [Wyatt claims the following happened:] Prior to E.Z.’s birth, Wyatt accompanied Fahland to doctors’ appointments and made plans with Fahland to raise their child together. Without Wyatt’s knowledge, Fahland’s parents retained attorney Mark McDermott to arrange for an adoption. While Fahland informed Wyatt of her parents’ desire that she see an adoption attorney, she assured Wyatt that they would raise the baby as a family. During a January 30, 2009 meeting with McDermott, Fahland signed a form identifying Wyatt as the birth father and indicating that he wanted to keep the baby.

Fahland offered to provide Wyatt’s address, but McDermott told her to falsely indicate on the form that the address was unknown to her, which she did. She also signed an agreement in which she requested that the adoptive parents discuss adoption plans with the birth father. Wyatt was “purposely kept in the dark” about this meeting, and Fahland continued to make false statements to Wyatt at the urging of McDermott, indicating that she planned to raise the baby with Wyatt, with the purpose that he would not take steps to secure his parental rights and prevent the adoption.

To facilitate an adoption, McDermott contacted “A Act of Love” (Act of Love), a Utah adoption agency, and Utah attorney Larry Jenkins with Wood Jenkins LLP, a Utah law firm representing Act of Love.

Approximately one week prior to E.Z.’s birth, Fahland and her father met again with McDermott. At McDermott’s

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California Bill Would Ban Psychotherapy Aimed at Changing Under-18-Year-Olds’ Same-Sex “Desires, Attraction, or Conduct”

By on April 25, 2012 3:25 pm in Children's Rights, Parental Rights, Religious Freedom, Sexual Orientation

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds. [...]

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Foster Parenting and Religion

By on March 13, 2012 5:45 pm in Children's Rights, Parental Rights, Religion and the Law

From BK v. New Hampshire Dep’t of Health and Human Services (D.N.H. Mar. 7, 2012):

This case raises the potentially important issue of whether state authorities violate the free exercise rights of children, or their parents, under the First Amendment by placing the children with foster families who subject them to practices abhorrent to their faiths. In this case, the plaintiffs are Hindi who allege that the foster families fed the children beef and took them to Christian religious services.

The court, however, has not yet dealt with this issue; the March 7 decision deals only with the state sovereign immunity question, and concludes that some defendants are entitled to such immunity and others aren’t. [...]

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Children’s Immunizations, and Disputes Between Divorced Parents

By on March 8, 2012 4:11 pm in Children's Rights, Parental Rights

What happens when divorced parents with joint legal custody disagree about whether their child should be given the routine childhood immunizations? That’s the issue in Grzyb v. Grzyb (Va. Cir. Ct.), decided in mid-2009 but just uploaded to Westlaw a day or two ago.

The Grzybs were the divorced parents of a 3-year-old girl, with “joint legal custody of the child, which implicitly included joint decision-making regarding the child’s medical and health care.” The father wanted the daughter immunized, but the mother had a religious objection to the immunization:

Mrs. Grzyb … testified that she first formed a religious objection to vaccinations when she was pregnant with the child, that she “prayed about it a lot,” and felt “led by the Holy Spirit” to the conclusion that the child should not receive routine immunizations. She testified that “I never felt so strong about anything outside of faith as I do about vaccination.” … Ms. Grzyb’s pastor, the Reverend Scott Mauer, … [testified] that it was not a tenet of his religion that children remain unvaccinated. Rather, he testified that “this falls into an area that we would consider to be what the Bible often refers to as disputable matters, which are areas that the Bible does not necessarily address directly.” He continues:

in those cases, historically the position that the Baptist Church has taken is that a person should apply the best understandings of our truth of the scripture and also the sensitivities believing as the Holy Spirit and come to a conviction about it. And that furthermore if they do come to a conviction based upon those things, that they are then to be obedient to that conviction because the Bible is clear that, if a person has come to a conviction that they do believe is from

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Parental Rights to Refuse Sibling-Sibling Visitation

By on March 1, 2012 4:10 pm in Parental Rights

In re D.S. (Ore. Sup. Ct. Feb. 16, 2012) is an interesting — and, as usual, sad — parental rights case. Father had four children living with him and his girlfriend: his daughter, D (age 14), his son, R (age 12, D’s full brother), his girlfriend’s son, G (age 5 or 6), and his and his girlfriend’s daughter, S (age less than 2, D’s half-sister). D’s mother is in prison.

D accused father of physically abusing her, and is now in foster care. The father says “D was lying about the physical abuse and was an ‘out of control’ teenager.” The father is awaiting trial on the physical abuse charges.

D wants to visit with her siblings, and the trial court ordered that the father not interfere with that, at least as to R and G (but apparently not the very young S, though that’s unclear). The father objected, claiming this violates his parental rights with regard to R and G.

The Oregon Supreme Court agreed that the father’s parental rights were in play, and remanded for further development of the facts. Exactly what showing the court would find adequate for allowing a restriction of the father’s rights is not clear. But the court did conclude that the trial court cannot order sibling-sibling visitation as a matter of course, and had to consider the father’s rights to control access to those siblings who are still in his custody. [...]

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