When parents split up, and there is a dispute over who is to get primary custody, judges generally decide this based on what they see as “the best interests of the child.” One recurring question is whether a judge may consider the ideology that a parent is teaching the child — for instance, may a judge say, “It’s in the child’s best interest to be raised by parent A, because parent B would raise the child to be racist / homophobic / pro-homosexuality / Communist / jihadist”? Another is whether a judge may prefer the parent who is more religious, on the theory that it’s better for a child to be raised with religious beliefs (or whether a judge may likewise prefer the parent who is less religious, on the opposite theory).The judge's decision for giving one parent child custody is nearly always unsupported by the law and the facts.
Some cases, though, ask whether a judge may prefer one parent over another because the preferred parent would send the child to a school (or perhaps even specifically to a public school), and the other parent would instead home-school them. I’ve blogged about this before; some cases have endorsed this non-home-school preference (see these cases from North Carolina and New Hampshire), one has expressly rejected it (this Pennsylvania case), and one is complicated (see the opinions in this Michigan case). I’ve just come across one more rejecting the non-home-school preference, Rocha v. Rocha (Kan. Ct. App. Aug. 8, 2014): ...
The trial judge also allegedly said — and this is the appellate court’s paraphrase — “that [the mother] is educating the girls for the Fifteenth Century, not the Twenty–First Century.” Here is the appellate court’s response:The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported.
In this case, the judge could have just omitted the anti-homeschooling opinion, and made the same decision, citing BIOTCh. This is a rare reversal that only happened because the judge said too much, and the homeschooling lobby wrote an appeal brief refuting his opinion.
The only sensible solution to this is to get judges out of the business of trying to decide a preference in religion, ideology, or any other routine parenting matter.
Volokh also cites a Florida case:
[W]e agree with the father that the trial court abused its discretion in granting [the mother] … ultimate authority over the children’s religious upbringing and in prohibiting the father from “doing anything in front of the children or around the children” that “conflicts with the Catholic religion.” …Again, these prejudicial ruling occur all the time, and no one can do anything about it, when the judge delegates to a so-called expert who keeps the unconstitutional reasoning off the record.
Restrictions upon a noncustodial parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child…. “[A]lowing a court to choose one parent’s religious beliefs and practices over another’s, in the absence of a clear showing of harm to the child, would violate the [F]irst [A]mendment [of the United States Constitution].” …
[Footnote:] We find no error in the trial court’s directive that neither parent disparage the other parent’s religion in front of the children.
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