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Wednesday, February 13, 2008

Courts - "Religion Joins Custody Cases, to Judges’ Unease"

From the NY Times, a story by Neela Banerjee headed "Religion Joins Custody Cases, to Judges’ Unease." Some quotes:

Across the country, child-custody disputes in which religion is the flash point are increasing, part of a broader rise in custody conflicts over the last 30 years, lawyers, judges and mediators say.

“There has definitely been an increase in conflict over religious issues,” said Ronald William Nelson, a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section. “Part of that is there has been an increase of conflicts between parents across the board, and with parents looking for reasons to justify their own actions.” Another factor, he said, is the rise of intermarriage and greater willingness by Americans to convert.

Nobody keeps track of who wins in these religious disputes, but lawyers say that judges are just as likely to rule in favor of the more religiously engaged parent as the other way around. That is because, for constitutional reasons, judges are reluctant to base their rulings primarily on the religious preferences of parents.

Judges do not want to take on custody disputes rooted in religion, said lawyers like Gaetano Ferro, who until recently served as president of the American Academy of Matrimonial Lawyers. Mr. Ferro said, “How will a judge say in any rational fashion that Islam is better than Buddhism, Catholicism better than Judaism, or Methodism better than Pentecostalism?”

Recall however that Indiana's Wicca case, as stated in the Court of Appeals opinion, Thomas E. Jones, Jr. v. Tammy U. Jones (8/17/05), involved not a dispute between the divorcing parents over religion, but rather :
[W]hether the trial court lacked authority to order that divorcing parents, who are practicing Wiccans, take steps to shelter their child from involvement in and observation of “these non-mainstream religious beliefs and rituals.”

Posted by Marcia Oddi on February 13, 2008 04:54 PM
Posted to Courts in general