Freedom of Religion

Child Custody, Religion, and Children's Reactions to a Parent's Religious Demands

"The change in the child's relationship with the father based on the child's fear of his displeasure if she were not a 'true Muslim,' and her belief that he threatened to abscond with her to Morocco, also contributed to the change in circumstances warranting modification" of the custody arrangement.

|The Volokh Conspiracy |

An interesting opinion in Matter of Baalla v. Baalla, handed down Valentine's Day by a New York intermediate appellate court:

The parties, who were married in 2006, separated in 2008, and divorced in 2009, have one child, who was born in 2006. Prior to the marriage, the mother was Christian and the father was Muslim, but the mother converted to Islam and they were married in a religious ceremony. When the parties separated, the mother returned to Christianity.

Pursuant to the parties' stipulation of settlement and their judgment of divorce, the parties had joint legal custody of the child and the mother had primary physical custody of the child, who was approximately 2½ years old when the parties separated. The stipulation stated that the parties would consult with each other regarding the child's religious training, but did not specify in which religious tradition the child would be raised. As the child's primary custodian, the mother taught the child Christian values and practices in accordance with her beliefs.

When the child was approximately 7½ years old, she complained to the mother that the father was pressuring her to adopt Muslim practices and had threatened to abscond with her to his native Morocco, where he retained citizenship in addition to his US citizenship, if she failed to follow Muslim practices and customs. The child asked the mother to call the police and also sought help from school personnel. The mother responded by filing a petition seeking sole legal custody of the child. The father thereafter petitioned to enforce visitation and to enforce a purported oral agreement that the child would be raised as a Muslim.

After a hearing, the Family Court granted the mother's petition for sole legal custody but granted the father liberal visitation, including on all major Muslim holidays…. "In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child.'" Here, the parties' inability to agree on the child's religious training, which was an issue that had not been addressed in the parties' July 2009 stipulation of settlement, constituted a change in circumstances. The change in the child's relationship with the father based on the child's fear of his displeasure if she were not a "true Muslim," and her belief that he threatened to abscond with her to Morocco, also contributed to the change in circumstances warranting modification.

"In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child." Here, the record supported the conclusion of the Family Court that it was in the child's best interests to award sole legal custody to the mother. With regard to the child's medical care and education, the father had already ceded authority to the mother and admittedly trusted her judgment and expertise in making those decisions. The evidence established that the only issue on which the parents disagreed was the religion in which the child should be raised and to what degree she should be expected to observe the tenets of each parent's religion. The award to the mother of sole decision-making authority with respect to religion is in the child's best interests, and the award of parenting time to each parent on his or her respective religious holidays will continue to allow the child to be exposed to both parents' religions.

Similarly, the father's actual or perceived insistence that the child follow Islam and actual or perceived threats to abscond to Morocco with the child had a serious adverse effect on the child's relationship with him and, thus, made an award of sole custody to the mother appropriate. The child was 10 years old at the time of the hearing and, accordingly, the Family Court properly considered her wishes, weighed in light of her age and maturity.

As I've long argued (see, e.g., my Parent-Child Speech and Child Custody Speech Restrictions article), I think there are First Amendment limits on court-imposed restrictions on parental speech (about religion or otherwise), and on speech-based custody decisions. But in this instance, the decision—which leaves the father free to speak about religion to his daughter, and which is based on what seems to be the actual deterioration of his relationship with his daughter—strikes me as plausible, at least based on the limited factual discussion in the case.

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  1. I’m areligious and frankly don’t really understand it or its allure. It did wonders for my little sister, but my brother just became a worse asshole.

    But things like this really confirm my puzzlement. Convert from Christian to Muslim and back? How is that even possible for a true believer?

    Just one of those puzzles I will never understand, like why some people get so het up about Windsor knots or professional sports teams.

    1. Like jumping political horses midstream, Democrat to Republican, and back. So much for commitment and faith. To speak of an indelible mark verges on a bunch of isms.

      Culturism: A Word, A Value, Our Future (Press, 2000) by John Kenneth Press against multiculturism.

    2. She perhaps either converted in order to marry and please him, and wasn’t a true believer, or she also had a change of heart after the divorce. Both things happen.

      1. Yeah, this seems unremarkable. Based on the experiences of my friends who have been in these situations (ie, “I can’t/won’t marry you unless you convert.”), I’d guess 95% likelihood of your first guess 4% chance of your second guess, and less than 1% that it’s some other explanation.

    3. Read some Eric Hoffer. “True believers” (fanatics) often switch sides. Saul persecuted Christians, then converted, changed his name to Paul, and shaped the early Christian church. Henry VIII was a devout Catholic and “defender of the faith” (including writing ant-Reformation tracts) until he couldn’t get what he wanted from the Pope, and then he “discovered” several issues of doctrine that the Church had wrong. Whitaker Chambers was a Communist and Soviet agent, and then he was a rabid anti-communist.

      But most likely, like most Americans the mother never was a true believer. Lukewarm Christianity is the path of least resistance in the USA, and she was raised in it.

      She picked a husband and went along with his religion, until the cultural baggage that often goes with the Muslim religion became too much to bear – especially considering her daughter’s future. So she divorced him and went back to being nominally Christian.

  2. If the threat to abscond was deemed credible I am surprised this did not go further A change in custody arrangement alone does not seem to address that issue in any meaningful manner..

    1. she wouldn’t be the first child kidnapped and taken overseas to a Muslim country.

      1. This doesn’t just happen with muslim, very few countries seem willing, in practice if not law, to repatriate children after custody disputes.

        1. Japan is notorious for this. The US seems to be the only country that takes repatriation seriously. I’m not sure about Europe.

  3. What a load of hooey. The father was denied his parental rights at the time he was not given 50-50 parental rights and responsibilities. And what 7 1/2 year old shows that amount of “maturity” without coaching? And 10 at the time of the hearing and again the courts allow her to speak for the parents wishes? Let’s hide the outright denial of parental rights under the “best interest of the child” while attorneys and court alike get rich bilking parents for year, like this issue couldn’t have been sent to a hearing within a month?

    1. “And 10 at the time of the hearing and again the courts allow her to speak for the parents wishes?”

      Um, no. The child was allowed to speak for her own wishes, not for her parent’s wishes.

      1. A 10 year old can certainly have well-thought-out wishes.

        1. Agreed, but not what I was replying to.

    2. You’re a monster if you think a court should ignore a father’s threat to kidnap a child and remove her to a foreign country. And you seem to have your name linked to your cause, which must be really pissed off when they realize what sort of moron they have representing them in forums

  4. When news of another classroom rifle-slaughter occurred, Conspiracy followers wondered whether the Conspiracy’s gun experts would immediately blog about god or gays.

    Congratulations to everyone who had “Muslims.”

    1. When news of another terrorist attack occurred, WaPo followers wondered whether the WaPo’s experts would immediately blog about Republicans or Christians.

      1. Does another conservative want to take another crack at that one? We can pretend BillyG’s retort is invisible.

  5. One of the things cases like this illustrate is the importance of hiring a lawyer and clearly articulating expectations, agreements, and how disputes should be resolved, if one is in a divorce and concerned about the religious upbringing of ones children. Leaving religious disputes to courts to resolve will create an even greater mess than leaving other kinds of disputes. I think the reasons for the change in custody here were sufficiently non-religious in character, and the judge appropriately didn’t withhold visitation because of the religious disputes. I also agree agreements on these matters should be in writing, as disputed oral agreements are subject to credibility determinations which may be prone to bias.

  6. The judges of the 4th Circuit are people of strong religious faith. But our country has a secular constitution. Our constitution’s secular character, with its secular concept of freedom of choice, precludes constitutionalizing the sort of religious beliefs the Judges seek to impose.

    The judges’ fatal flaw is regarding religions as themselves having constitutional rights, so that it becomes possible to discriminate “against Islam.” But religions simply don’t have independent constitutional rights any more than races do. Rather, as the Supreme Court explained in Roe v. Wade, only persons have 5th and 14th Amendment constitutional rights. And only persons subject to a state’s jurisdiction have equal protection rights. Otherwise, Americans, autonomous and sovereign, have complete freedom of choice in deciding who or what to admit into their country. Indeed, freedom of choice is the essence of autonomy and soveireignty. This was the principle underlying Roe v. Wade. The 4th Circuit’s opinion is based on nothing more than the sort of religiously based moral values that the Supreme Court soundly rejected in Roe. The United States is a free country. And as the Supreme Court explained in Roe, without freedom of choice – the freedom to decide who and what to admit into ones family – there can be no freedom at all.

    1. Did someone replace ReaderY with a bot? Where does this answer the question at hand?

      1. I think this is supposed to be on the article about the COA ruling against travel ban version 3.0.

  7. (Cont.)

    An extraterritorial alien’s constitutional status is similar to a viable fetus’. Legislatures can, if they wish, grant it rights. They have a compelling interest in foreign affairs, similar to the compelling interest the Roe court found. But if legislatures choose not to, courts have no business using their position to impose their own personal religious and moral beliefs. An extraterritorial alien no more meets the definition of “person” articulated in Roe v. Wade than does a fetus. Its religion, or whether or not it is allowed into the country, is simply of no constitutional concern.

    1. There is no extraterritorial alien in this case. The father is a US Citizen and is currently living in the US.

  8. Seems to me the real problem in this case is the fact our legal system treats children as chattel property of their parents rather than people. Why should either parent be allowed to force the child to participate in religious worship they don’t wish to engage in?

    1. Yes, the court really screwed up. the real problem here is that the child who doesn’t want to be with her father should be with her father because she should have the right to decide to not be with her father.

  9. Yesterday’s news has the state of Oregon considering banning and criminalizing the indelible mark of religious association.

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