Archive | Parental Rights

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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Court Upholds Decision Giving Parent Authority Over Child’s Medical Care Because That Parent Would Immunize the Child

The decision seems correct to me, because it is in the child’s best interests. And while I think that there should be serious First Amendment constraints on decisions based on a parent’s speech, I think courts may and should consider each parent’s non-speech conduct that may seriously affect the physical health of the child. And that is so even though the conduct might be religiously motivated, so long as the court isn’t discriminating against the parent based on religion. Even if heightened scrutiny is called for under a state Religious Freedom Restoration Act (Florida has one, but it didn’t seem to have been argued to the court) or under the Smith/Yoder “hybrid rights” theory, I think such decisions would be narrowly tailored to the compelling government interest in protecting the child against infectious diseases.

In any case, here’s the opinion, Winters v. Brown (Fla. Ct. App), decided today:

[Mother] appeals the court’s award of ultimate responsibility to [Father] for their minor child’s health care, and specifically, their minor child’s vaccinations. Father cross appeals the court’s award of substantial timesharing to Mother. We affirm both provisions of the trial court’s order.

While the parties were never married, Mother and Father have a minor child together. When differing religious beliefs resulted in disagreement over the minor child’s health care, Father petitioned the court to establish paternity and each party requested ultimate responsibility over health care, religious, and educational issues. Mother is a chiropractor and a proponent of holistic medicine. A tenet of her religious beliefs is that God has provided the human body with an innate immune system that enables the body to heal itself. Mother believes that anything introduced into the body to prevent disease or treat illness is against the will of God. Specifically, Mother opposes

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North Carolina Supreme Court on Two-Mother Families

In Boseman v. Jarrell (Dec. 20), Julia Boseman and Melissa Jarrell decided to raise a child together:

Plaintiff [Boseman] and defendant [Jarrell] met in 1998. At that time, plaintiff lived in Wilmington, North Carolina, and defendant lived in Rhode Island. The first time they met, they “discussed their desires to have children.” Roughly one month later, the parties began a romantic relationship. From the outset, the parties continued to voice their desires to have a child. In the spring of 1999, defendant moved from Rhode Island to Wilmington, and the parties began living together as domestic partners.

In May of 2000 the parties initiated the process of having a child. They decided that defendant would actually bear the child, but both parties would otherwise jointly participate in the conception process. The parties agreed to choose an anonymous sperm donor and researched and discussed the available options. They also attended the medical appointments necessary both to impregnate defendant and to address her prenatal care. Plaintiff read to the minor child “in the womb and played music for him.” Plaintiff also cared for defendant during the pregnancy and was present for the delivery. Defendant eventually gave birth to the minor child in October of 2002, and the parties jointly selected his first name.

Following the child’s birth, the parties held themselves out as the parents of the minor child. They gave the minor child a hyphenated last name composed of both their last names. They also “had a baptismal ceremony for the child at the plaintiff’s church during which they publicly presented themselves to family and friends as parents of the child.” Further, each of the parties integrated the minor child into their respective families and each family accepted the minor child.

The parties raised the child together, and in 2004-05 [...]

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Adoption of Children and Religious Matching

A commenter on the Adoption of Muslim Children thread, apparently reacting to the AP article statement that “State child welfare agencies that permanently remove Muslim children from troubled homes usually can’t find Muslim families to adopt them because of the restrictions in Islamic law,” asks:

Could someone please clarify which U.S. law identifies an orphaned child of Muslim parents as a Muslim?

An excellent question. Many states have statutory provisions that provide that children be placed, when possible, in a foster home that matches the child’s religious persuasion; this also tends to cover adoption, and when a child is too young to have a religious persuasion, the law — and, I think, state child welfare agency practice — tends to follow the religious persuasion of the parents. To quote the New York rule, which is actually part of its state constitution,

When any court having jurisdiction over a child shall commit it or remand it to an institution or agency or place it in the custody of any person by parole, placing out, adoption or guardianship, the child shall be committed or remanded or placed, when practicable, in an institution or agency governed by persons, or in the custody of a person, of the same religious persuasion as the child.

Some courts have upheld these statutes (see, e.g., here and here), and I don’t know of any court that has struck them down. The decisions aren’t generally clear on why the statutes are constitutional, but I take it that the arguments are that (1) it’s less disruptive for children who have religious practices or beliefs, (2) it makes religious parents who give up their children feel more comfortable (because they’ll believe that the children’s spiritual needs, as the parents see them, will likely be attended to), and (3) [...]

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American Court Refuses to Honor Lebanese Islamic Court Child Custody Order

Strikes me as quite sensible, not because of some special disability imposed on Sharia law as such, but because of the application of generally applicable American rules, under which comity is given to certain foreign child custody decrees only if they generally comply with American norms. The case is Charara v. Yatim (Mass. Ct. App., decided today) (some paragraph breaks added):

This is an appeal by the father, Said Yatim, from a divorce judgment entered in the Probate and Family Court that awarded custody of the couple’s two minor children to the mother, Hiba Charara; divided their property; and ordered the father to pay child support. The parties, as well as their children, are United States citizens who were living in Massachusetts when the marriage suffered an irretrievable breakdown in 2004. On May 30, 2004, the couple (with their children) returned to Lebanon for the purposes of there obtaining a religious divorce. Once in Lebanon, the father did not institute divorce proceedings as he had agreed, but instead sought and obtained custody of the two children. The mother returned to the Commonwealth and instituted the underlying divorce action, in which she also sought custody and child support.

Following a trial, a judge of the Probate and Family Court concluded that no deference was due the custody order issued by a Jaafarite religious tribunal (Jaafarite Court) in Lebanon. The probate judge based his decision on evidence, including the testimony of experts, that the Jaafarite Court’s custody order was not made in “substantial conformity” with Massachusetts law regarding the best interests of the children….

On June 23, 2004, the father initiated an action for reconciliation and custody in the Jaafarite Court in Lebanon. That court has jurisdiction [under Lebanese law] over family matters arising between persons of the Shia sect of the

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One Parent’s Denial of Access to the Other Parent, and the Best Interests of the Child

Chris and Pat have a daughter. They split up. The basic child custody rule is that the choice of which parent should have custody must be based on the best interests of the child. And if one parent has taken the lead childrearing role, and had the most contact with the child, that tends to cut strongly in favor of maintaining custody with that parent.

But assume Chris refuses to give Pat access to the child, either before the custody hearing or in defiance of the custody order. And assume that, when Pat seeks to get custody, Chris points out that the child no longer has much of a relationship with Pat — precisely because Chris has barred any such relationship.

On one hand, giving Pat custody might seem to be against the child’s best interests, because the child would be moving to the home of a parent whom the child hasn’t known in years. (Say, for instance, that the child is now eight, and has barely seen Pat for three years.) On the other hand, letting Chris profit from Chris’s misconduct seems wrong, too, and may be against the child’s best interests: Chris has behaved in a way that reflects badly on Chris’s character, and it seems likely that Chris will continue to bar the child from having a relationship with Pat (in a way that Pat might not do with respect to Chris, if Pat got custody). What to do?

In any case, that’s one of the issues in Miller-Jenkins v. Miller-Jenkins (Vt. Oct. 29, 2010). That litigation has long been in the news because the parents are two women — the biological mother (Lisa) has now turned away from lesbianism, partly on religious grounds — and because there has been a complicated jurisdictional question involving Virginia [...]

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Sibling Visitation

May a state give siblings — usually adult siblings — a right to visitation with a child, over the parents’ objection? The issue is discussed in In re D.C. & D.C., decided yesterday by the New Jersey Supreme Court. That case involved prospective adoptive parents (currently foster parents, but an adoption request is pending), but as the court pointed out the same issue could arise as to biological parents. The court’s analysis is quite long, but here’s a sample:

[S]iblings can petition for visitation with their brothers and sisters who have been adopted by nonrelatives, subject to the avoidance of harm standard [and not just the less demanding “best interests of the child” standard -EV]. We can envision, for example, a case in which pre-teen siblings, raised together in the same household, deeply entwined in each other’s lives, are removed due to abuse or neglect. If one is adopted by a non-relative and the other taken in by his grandmother, it seems likely to us that denial of the sibling’s application to visit his adopted brother would satisfy the harm threshold. To the contrary, it is less clear that siblings separated at birth and raised in different households with no interaction whatsoever would be able to vault the threshold.

Obviously, the analysis is a fact-intensive one in which the sibling “bear[s] the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child.”

UPDATE: Just to make clear, the court is saying that visitation may only be ordered when there’s a finding that denying visitation would cause “a substantial likelihood” of “serious physical or psychological harm” to the child. A finding that visitation would be in the child’s best interests — i.e., that the child would be better off if [...]

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Conservative Christian Religious Beliefs, Use of Moderate Corporal Punishment, High Sex Drive, and Interest in Wife’s Private Areas Do Not Show Family Violence

From In re Wean (Tex. Ct. App. Aug. 31), which reversed a trial court finding that a father engaged in family violence against his children, and a protective order based on that finding. The opinion discussed many matters, and I can’t do full justice to it here. But I thought I’d quote a few passages:

1. Religious Beliefs:

Also at the hearings, there was evidence regarding Josh’s religious beliefs. According to Sarah, Josh believed that children were born sinful, wicked, and willful and needed their will to be broken in order for them to be obedient, and such message was preached at their church. Sarah testified that Josh believed spanking is mandated by the Bible and she needed to follow his directives regarding discipline because he was the head of the household. She alleged that Josh believed women were created for men, that their roles were unequal, and that women do not need education beyond high school because their “only role” is as wife and mother. According to Sarah, Josh pressured his boys to pray and read the Bible daily. Sarah alleged that Josh’s beliefs were evidenced by publications available from Vision Forum Ministries, the Christian company for which Josh was the chief financial officer. One of the many books available for purchase on the Vision Forum website, which was admitted into evidence, instructed parents to spank their children in the privacy of the home and stated that spanking a disobedient child is required by God and is an act of love. A handful of articles posted on the website were also admitted into evidence, which articles stated that the husband and father is head of the household and that man has headship over woman….

Regardless of whether Sarah’s description of Josh’s beliefs is accurate, … such beliefs would

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Living in Sin and Judicial Activism

From today’s In re the Petition of Theresa Goudeau to Adopt a Minor Child (Ga. Ct. App.), 2010 WL 3369363 (some paragraph breaks added) (opinion not yet on any free online site, to my knowledge). I should say that the trial court’s decision to take a child away from foster parents because they’re an unmarried couple — and to deny the foster mother’s adoption petition because she’s living with her boyfriend — appears to me to be not only against Georgia law but also cruel. Whatever might be the merits of a preference for married parents over unmarried parents in such matters, the court of appeals was surely right that “to remove [a nearly 3-year-old girl] from the only family she has ever known would be ‘devastating’ to the child.”

The trial court’s response that “It cannot be in a child’s best interest to be placed in a household which the courts of this state have condemned as immoral” strikes me as deeply inadequate. And any argument that a policy of barring unmarried couples from being foster parents (or barring unmarried people with live-in lovers from being adoptive parents) would be good for other children in the future also strikes me as unsound: It’s not like our system is so awash in would-be foster and adoptive parents who are willing to raise babies born with cocaine in their systems that we can afford to reject apparently eminently loving and effective parents. Again, the matter might be different if we were considering a preference for married parents over unmarried ones, when there was a choice to be made. But that does not seem to be the case here, or in many other situations.

In any case, here’s the appellate court’s discussion of the trial court’s reasoning:

In a written order

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An Interesting (Though Sad) Development in the Rifqa Bary Case

Rifqa Bary, about whom I blogged before, is the 17-year-old girl from a Muslim family in America who ran away from home, claiming her father had threatened to “hurt her, kill her or send her back to Sri Lanka” because she had converted to Christianity. A police investigation apparently concluded that the girl’s charges were unfounded, though obviously there’s still a factual dispute between the girls and the parents on this. She is now in foster care, awaiting her forthcoming 18th birthday. Here’s the latest item, as summarized by Prof. Howard Friedman at the Religion Clause blog (which is a must-subscribe if you’re interested in religion and the law):

Rifqa has had a bout with uterine cancer. She underwent surgery, and her physician recommended that it be followed by 45 weeks of chemotherapy even though she is disease-free according to available imaging techniques. Her parents support that recommendation, but Rifqa, who turns 18 next week, opposes that course of treatment, though she will continue to consult her doctors. Yesterday an Ohio juvenile court magistrate ruled that Rifqa is mature enough to make the treatment decision for herself, and said the court cannot order treatment because Rifqa’s health is not in immediate danger. Rifqa’s parents claim the decision to end chemotherapy came after Rifqa attended a faith-healing event. Rifqa’s attorneys, however, say she went to a “prayer conference” shortly after her diagnosis. She had multiple surgeries and began chemotherapy, but it made her weak and sick.

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May Child’s Grandfather Adopt the Child, While the Child’s Mother Retains Her Parental Rights?

That’s the issue in In re Adoption of A.M., decided yesterday by the Indiana Court of Appeals. The biological father was fine with the adoption, which terminated father’s parental rights — the plan was basically for the grandfather (on the mother’s side) to take on the father role, with the mother retaining her role as mother. Indiana law appears not to allow this; the relevant statutes provide that an adoption severs both biological parents’ parental rights, unless “the adoptive parent of a child is married to a biological parent [or previous adoptive parent] of the child.” There is no provision for a child’s parents to switch from biomom+biodad to biomom+someone who isn’t married to biomom.

But the court of appeals allowed the adoption nonetheless, because of the state’s policy of preserving families and protecting the child’s best interests:

Grandfather is the biological grandfather of A.M. We also observe that the record reveals that, while Mother and Grandfather are not living together, they live only fifteen minutes apart, and that A.M. stays overnight with Grandfather almost every weekend and that Grandfather has contact with A.M. about three or four times a week. Grandfather takes A.M. to church, dance class, and the park. Grandfather provides discipline and financial support. In summary, the record reveals that Grandfather and Mother are both acting as parents.

Based upon the reasoning in [an earlier case], the idea that the best interests of the child is the primary concern in an adoption proceeding, the purposes of the adoption statutes as stated by the legislature, and the trial court’s initial determination that adoption was in the best interests of A.M., we conclude that preventing the adoption in this specific case on the basis of [the statutes I summarized above -EV] would cause an absurd result not intended

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To Get Children Back, Father Must Get Counseling to “Address His Use of Sexist and Racist Language”

So holds In re G.G. (Cal. Ct. App. June 29, 2010), by a 2-1 vote. (The court order said that “Father to be in individual counseling to address issues with a male therapist regarding father‘s racist and sexist views,” but the appellate opinion seems to treat the counseling as focused solely on the father’s use of “sexist and racist remarks” and “repeated angry use of racial, ethnic and gender epithets.”)

This isn’t a divorce case; the father was a single father of twins who were born using an “anonymous egg donor” and a “surrogate mother.” The children were placed in foster care on the grounds that the father had “used inappropriate discipline,” one of the children “has exhibited explosive, aggressive, uncontrollable behavior requiring therapeutic, psychiatric intervention, and the father failed to obtain timely, necessary therapeutic, psychiatric intervention for the child despite numerous recommendations for treatment,” and the father “has provided a chaotic home environment including regular and consistent confrontational behavior with the children‘s school and in the community.” One of the conditions imposed for the father to get his children back was that he get counseling related to his sexist and racist statements.

Here’s the majority’s justification for its upholding the condition: [...]

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Third Circuit Upholds Injunction of Threatened “Sexting” Prosecution

The case is Miller v. Mitchell, just handed down today, and it’s important but complicated. Please bear with me. [UPDATE: For more on this case, and how it could impose stringent constitutional limits on anger management classes, anti-drug/alcohol-abuse classes, or even traffic school offered as alternatives to prosecution, see this follow-up post.]

Here are the facts: A bunch of high school students were sending around “photographs of semi-nude and nude teenage girls,” apparently generally their classmates. The prosecutor “sent a letter to the parents of between 16 and 20 students — students on whose cell phones the pictures were stored and students appearing in the photographs — threatening to bring charges against those who did not participate in what has been referred to as an ‘education program.'”

The education program was divided into a Female Group and Male Group. The “Female Group” syllabus lists among its objectives that the participants “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages.”

In the first session, students are assigned to write “a report explaining why you are here,” “[w]hat you did,” “[w]hy it was wrong,” “[d]id you create a victim? If so, who?,” and how their actions “affect[ed] the victim[,] [t]he school[, and] the community.” The first two sessions focus on sexual violence, and the third on sexual harassment. The fourth session is titled “Gender identity-Gender strengths,” and the fifth “Self Concept,” which includes a “Gender Advantages and Disadvantages” exercise.

What’s more, it appears that the particular girls whose parents were suing were probably not guilty of the crimes that the prosecutor threatened to prosecute them for (basically, participation in the distribution of child pornography). First,

Before the meeting, [District Attorney George Skumanick] had shown plaintiff MaryJo Miller and her ex-husband the

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Adoption Over Parent’s Objection Requires Showing That Continued Parent-Child Relationship Would Be Detrimental to the Child

An interesting, but unsurprising, decision in Todd v. Copeland (Va. Ct. App. Mar. 9, 2010):

Before 1995, Virginia’s adoption statutes, as interpreted by Virginia’s appellate courts, passed constitutional muster despite the absence of an explicit standard because the courts read into the statute the requirement that “[a]n adoption over objection by a natural parent should not be granted except upon clear and convincing evidence that the adoption would be in a child’s best interest and that it would be detrimental to continue the natural parent-child relationship.” …

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“Honor Killings” by Muslim Men in the U.S.

The Christian Science Monitor reports that “Police say that at least six Muslim men have been arrested in the US in the past two years for crimes that suggest honor killings.” Unfortunately, it doesn’t point to the specific incidents, nor tell us the number of honor killings (the number of arrestees may not match the number of crimes); the six arrests number also appears in this earlier USA Today story. It does, however, point to a murder plus what is likely an attempted murder from two months ago, which I hadn’t heard about before:

An Iraqi immigrant accused of slaying his daughter in an “honor killing” has been charged with first-degree murder and could face the death penalty ….

Faleh Hassan Almaleki … is accused of using his Jeep Cherokee to run over his daughter, 20-year-old Noor Almaleki, and [Almaleki’s boyfriend’s mother, Amal Khalaf,] in a Peoria[, Arizona] parking lot on Oct. 20. His daughter died of her injuries [but Klahaf is expected to recover]….

Almaleki was reportedly furious with his daughter for becoming “too Westernized,” police said.

Prosecutors have labeled Noor Almaleki’s death an “honor killing,” saying the elder Almaleki killed his daughter because she dishonored the family by not following traditional Iraqi or Muslim values….

At Almaleki’s initial court appearance on Oct. 31, county prosecutor Stephanie Low said he admitted deliberately running down his daughter….

UPDATE: I blogged about this because this suggests that there’s a serious problem in various Muslim communities, a cultural pathology of some very significant Muslim subcultures that deserves attention. But I should remind people of my post from last year, where I pointed out that Islamic cultures are by no means unique in unduly tolerating killings justified by a sense of family honor, and that American manslaughter law has treated certain [...]

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