The Volokh Conspiracy
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Father and mother split when their daughter Odetta (a pseudonym) was an infant. Father was born in West Africa, and was apparently a nonpracticing Muslim; mother was born in Haiti, and was a Seventh Day Adventist. "Upon her birth, Odetta was given a Muslim name, and the family took part in a ceremony in which she was formally recognized into the Muslim faith."
The daughter lived with the mother, but the father helped raise the daughter, with his brother's help, until the daughter was age three. During that time, "Odetta attended the same mosque as the paternal uncle," and "sporadically attended a Christian church with her mother and, on occasion, with her father as well."
Then the father murdered the mother. The mother's Adventist family got custody. Should the father's Muslim brother get visitation, on the theory that continued exposure "to both parents' religions and cultures" "be in [the] child's best interests"? (Odetta is now almost 10; the father supported the paternal uncle's petition.)
Yes, said the trial court and Friday the Massachusetts Appellate Court affirmed, in Adoption of Odetta. An excerpt from the trial court's decision:
Odetta's best interests will be served by allowing "her to have some contact with her father's family, the tenets and practices of Islam which are part of her family heritage and which the adoptive family, who are not Islamic, cannot or will not provide for her."
And some from the appellate court's decision (some paragraph breaks added):
Here, the judge concluded that, in the particular set of circumstances presented, the "preservation of both religions/cultures" to which Odetta had been exposed was fundamental to her development and in her best interests….
At the time of the mother's death, Odetta's parents had not chosen one religion or culture for her but, instead, chose to expose her to both religions and cultures. The paternal uncle is the sole family member available and able to continue to expose Odetta to a culture and religion that was an integral part of her life until the mother's untimely death.
We agree that, where supported by a record of purposeful exposure to both parents' religions and cultures, and in the absence of evidence of harm to the child, continuing that exposure may be in a child's best interests…. [O]ur "law sees a value in … contact with the parents' separate religious preferences…. And it is suggested, sometimes, that a diversity of religious experience is itself a sound stimulant for a child." …
The judge also ordered visitation with the paternal uncle "in order to preserve the child's relationship with her paternal aunt and uncle" in light of the "inherent if latent animosity between the maternal family and the paternal family." Given the unusual and tragic nature of this case, the judge's order makes sense.
The paternal uncle has been a part of Odetta's life since birth, and has attended many milestone events, including her first three birthdays. Prior to the mother's death, the paternal uncle would take Odetta once or twice a month, usually to the mall to buy her clothes and toys. At times, Odetta also spent the night at the paternal uncle's home, and the paternal uncle would watch Odetta while the mother was at work.
After the department became involved with the family, the paternal uncle continued to visit with Odetta. At first Odetta was reluctant, but she quickly grew comfortable with monthly visits that began as supervised, and transitioned to unsupervised, all without incident.
Moreover, in spite of any understandable discord between the maternal and paternal families, the maternal aunt and uncle testified that, if allowed to adopt Odetta, they would be open to permitting the paternal uncle to visit. Indeed, the maternal uncle conceded that "it [is] probably in [Odetta's] best interest" to maintain a relationship with the paternal uncle.
In the ordinary case, the adoptive parents must be relied upon to ensure that the child is exposed to her ethnic and religious heritage, and to make certain, where appropriate and permitted, that there is continued contact with the child's biological extended family. While all parents, including adoptive ones, are presumed to act in the best interests of their children, the judge found that a court order was necessary in this case to insure that Odetta's best interests are met.
The order is narrowly tailored and not intended to interfere with the adoptive parents' ability to raise Odetta. We do not deem such an order to be an abuse of the judge's broad discretion.
I have to say I'm pretty skeptical about the argument that "'preservation of both religions/cultures' to which Odetta had been exposed was fundamental to her development and in her best interests." Odetta attended mosque until age three; it seems unlikely that she'd be distraught if she couldn't do it any more. Perhaps, even if the decision to allow the paternal uncle visitation was wrong at the outset, at this point she's been going to mosque more, and cutting that off would disturb her; but the court doesn't say so, which makes me doubt that there is any evidence of that. Nor do I think that it's somehow inherently in a child's best interests to continue to be partly reared in the religions and cultures of both her parents, or to continue being exposed to those religions and cultures that she once experienced in her households.
And while some courts speculate that there is value in "diversity of religious experience" and others think there is value in having the child be exposed to only one religion, either value strikes me both as highly speculative and quite modest. (I speak here of the value from the perspective of the secular legal system; I realize that those who believe in a religion might view exposure to the religion as being of incalculably large value—might view exposure to other religions as being potentially incalculably harmful—but I don't think the courts can take those competing theological claims into account.) Moreover, it seems to me that there is value in leaving the new adoptive parents with the sort of flexibility that most parents have, including the flexibility to choose who will visit with their child, without judicial supervision or the need to call in a judge if there is a dispute.
Now continued exposure to people may be a different story. If Odetta has come to love her uncle, who helped care for her, separating her from him might indeed be against her best interests. And it's possible that, more broadly, a child's maintaining a relationship to family members who cared for her (even if the relationship has faded from the child's perspective) might be helpful; among other things, if the child wants to rekindle the relationship, rekindling a relationship with a family member—even when one wants to do so—will usually be harder than rekindling a relationship with a religion.
In some adoption and religion cases, the court might be trying to honor the biological parents' preferences. For instance, a Wisconsin statute provides, "When practicable and if requested by the birth parent, the adoptive parents shall be of the same religious faith as the birth parents of the person to be adopted"; other states, have similar rules. And this might also remove a disincentive to infant adoptions, which may help some children. (For instance, it might be good for a young single new mother to give up her child for adoption, but she might be reluctant to do it unless she can be assured that the child will be raised in what she sees as the right religion.)
But whatever one thinks of such considerations, they don't strike me as relevant to determining the best interests of the child in this case. Nor do they strike me as independently persuasive here. In particular, the father's preferences don't strike me as that relevant, given his murdering the mother.
Instead, it seems to me that the court is just taking the view that, as a matter of law, children generally ought to be exposed more rather than less to each biological parent's culture—even to the point that someone other than their biological or adoptive parents is given legal rights to visitation with the child. Yet that seems to me a decision that the adoptive parents should make, not a decision that the judge should make for them.