Freedom of Religion

"John and Mother's Religious Reasoning Is Incongruent with Scripture"

Not the sort of reasoning that's supposed to appear in American court opinions.

|The Volokh Conspiracy |

In Matter of W.K. v. J.K., (N.Y. Erie County Family Ct.), decided last year but just posted to Westlaw in the last few days, Father sought sole custody of Mother's and his son John (who was 11 when the case was filed, 15 when the decision was rendered).  Father originally had joint custody, following a divorce that seems to have stemmed from, among other things, Father's adultery.  But John has refused all contact with Father; Father argues that this is because Mother has been prompting John to be hostile to Father.

Judge Mary G. Carney agreed with Father, and gave him sole custody, with no visitation at all for Mother for 90 days; after that, Mother can seek visitation time.  But in the process, Judge Carney said the following (among many pages of other analysis):

John and Mother shun Father "in the name of religion" both stating that they have forgiven Father, but that forgiveness does not require reconciliation. (Petitioner's 11, pages 7, 9, 32). Theologically, this may be accurate but in the instant case John and Mother's religious reasoning is incongruent with scripture. True evidence of genuine forgiveness is personal freedom from a vindictive or vengeful response (Romans 12:17-21), but not always an automatic restoration of relationship. Here, Mother and John speak negatively of Father. They each refer to him as a "liar" who is unworthy of their attention….

Because religion is so central to this family's identity, the court invites them to seek guidance from scripture during their transformation. Of particular relevance is Matthew 18:21-22, the Parable of the Unmerciful Servant, when Peter asked Jesus "Lord, how oft shall my brother sin against me, and I forgive him? Seven (7) times? " It might be important for John to know that Jesus did not say, "No, Peter, just "five (5) times. You have to know when to stop." Jesus told Peter, "No, not seven (7) times but seventy (70) times seven (7)."

Perhaps a joint meditation on these words and a sincere effort to put them into practice will ease this family into their new normal: "Let all bitterness and wrath and anger and clamor and slander be put away from you, along with all malice. And be kind to one another, tender-hearted, forgiving each other, just as God in Christ also has forgiven you. Therefore, be imitators of God, as beloved children; and walk in love, just as Christ also loved you, and gave himself up for us, an offering and a sacrifice to God" (Ephesians 4:31-5:2)….

A pretty clear Establishment Clause violation, it seems to me: A secular court has no business deciding based on its own view of the proper reading of "scripture." (I realize that in some situations government officials might informally try to appeal to people's felt religious beliefs; but not, I think, in a court opinion adjudicating the parties' rights.)

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62 responses to “"John and Mother's Religious Reasoning Is Incongruent with Scripture"

  1. Establishment clause violation yes. Speaking to people in terms they understand, yea, that too.

    1. mad_kalak just made the same point I would have with admirably better conciseness.

  2. Not only that, but the constant putting of numbers in parentheses after spelling them out? That’s sacrilegious.

    1. Glad someone else pointed that out. I can get past the religion part of it. Figure the judge was talking to his audience. But repeating the numbers in parentheses is just inexcusable.

      1. Common in drafting contracts for clarity’s sake, so it’s somewhat of a legal convention.

        1. Which are you arguing is unclear?

          It may be a convention but that does not mean it makes sense or that we should continue to mindlessly follow stupid conventions. I’ll back down, though, if you can give me a scenario where “six” is more clear than “6” or vice versa.

          1. The point is that repeating the value diminishes the prospect of a mistake or misunderstanding, as any drafter (or perhaps even consumer) of sound contracts knows.

            1. No; putting it in twice doesn’t diminish the prospect of a mistake; it increases it. There are two opportunities to get it wrong instead of one. And if it says “Ten (6),” then the fact that you got it right once and wrong once doesn’t help.

              Ken Adams, who is something of a contract drafting guru, absolutely hates this usage:
              https://www.adamsdrafting.com/revisiting-use-of-words-and-digits-to-express-numbers/

            2. No, it doesn’t diminish the prospect of a mistake. It adds opportunity for ambiguity because of contradicting numbers, as David N. points out.

              Besides, if repeating yourself is so great, then why don’t we do it with literally any other provision in the contract? By your logic, you’d write out a provision, then have a duplicate provision–though say written from right to left–inserted immediately afterward to reduce the chances of mistake.

          2. If you mean 26 but mistype, it is clear that there is an error when the following is written: “twenty-six (6).”

            1. In that instance, what would a (26) add that “twenty-six” lacks?

              1. Clarification in the case of a long number, for example, in wills and trusts. “I hereby bequeath and devise one million one hundred thousand eight dollars ($1,100,800) to Joe Schmoe” would show the potential error if the typist forgot to put the “hundred” in front of “eight.”

        2. Sure, but the instances here are NOT the judge’s words, but rather awards that the judge is quoting. She had no business altering the wording of the quoted material to follow some legal-document convention.

  3. I have to disagree. It seems the legal opinion that the mother poisoned the son against the father was pretty sound.

    That the Judge attempted to explain his decision in terms most likely to have an effect on the mother who apparently invoked her religious beliefs to influence the son seems a very rational way to explain it to the mother.

    Had the mother been a psychologist, explaining the decision in psychological terms would not be unreasonable.

    1. “It seems the legal opinion that the mother poisoned the son against the father was pretty sound.”

      The post suggests the father was an adulterer. *If* (and only if) this is true, I’d comment as follows:

      If the father was an adulterer, then what was the basis for letting him retain *any* marital rights? Why not a rule that if you break the duties of marriage so blatantly, the innocent party can get a separation and keep the kids?

      If you protest that the father wanted a relationship with his son, then he could have maintained that relationship easily enough by not cheating on the kid’s mother.

      1. Eddy, what are you going to do if, as is often the case in divorces, both marital “partners” have engaged in adultery?

        How do you resolve the problem that, under your proposed scheme, each partner now has a considerable interest in proving the other to be adulterous, whether this is true or not?

        Finally, what of those couples for whom “extracurricular” activity is both tolerated and encouraged?

        1. You mean there are false accusations in family court? Just like there are false accusations in all courts?

          I posited an adulterous spouse and an innocent spouse. If they’re swingers, or they both independently go off and get some on the side, then I guess that would cancel out, there would be no innocent, wronged spouse, so it’s back to the old drawing board, isn’t it?

          1. “You mean there are false accusations in family court?”

            I mean your plan creates a new incentive for false accusations. The trend to no-fault divorce removes the incentive, and you want to put it back.

            1. So, we reduce the incentive for false accusations…by allowing a spouse to accuse the other of “poisoning the child’s mind against me!”

      2. The parents were originally awarded joint custody. Apparently that wasn’t ever workable. The Judge apparently believed it was sabotaged by the mother.

        1. My suggestion didn’t involve joint custody, thus the failure of joint custody does nothing to rebut my position.

      3. Infidelity is regrettably common. Do you suggest that, in these cases, the cheating spouse should lose all contact with the children?

        What about in cases of alcoholism or drug abuse (even for recovering addicts)?

        The reality is that marriages fail for many reasons. The children of divorce have a tough enough time as it is without losing a parent.

        1. “The children of divorce have a tough enough time as it is without losing a parent.”

          It says the son refuses to see tail-chasing suicidal cop-dad, and the court is awarding TCSCD sole custody of the son and denying custody to the innocent spouse (with the suggestion that if she grovels enough she might get some kind of visitation).

          Yeah, it sure *is* tough being a child of divorce…

          1. “the innocent spouse”

            There do not appear to be any innocent spouses in this story, Eddy.

            1. Fine, then, the spouse who didn’t diddle around.

      4. What if the wife is the adulterer—and gets pregnant?

        Could the husband sue for divorce AND get custody of her child?

        After all, if she wanted a relationship with her children she could have remained faithful.

        1. Meanwhile. CPS threatens to break up families if Mom and Dad let the kids play outside.

        2. We generally do not award custody to someone who is not a parent of the child; however, in that situation, it would not be absurd to award custody of the couple’s biological children to the innocent father.

    2. There are four kids in the family – three in their 20s and the minor child in question. Two of the three adult children refuse to speak to their father, and the minor child wants nothing to do with him.

      The father admitted to the adultery and also attempted suicide – but told his kids that he was “dead to them” to prepare them for his death.

      I’m unclear as to why he gets to use the court system to force a relationship with a young man (who was 11 when his parents divorced in 2014 and is now 15 or 16) who does not want a relationship. I’m also unclear as to why the courts can use the mother’s Catholic faith as a bludgeon against her, wielded by a man who is an adulterer and threatens suicide (two mortal sins).

      “In or around March 2014, Father drafted a suicide note to Ashley, told Mother to tell the children he was dead to them and prepared a closet in his house with items he needed to hang himself. (Petitioner’s Exhibit 11, Pages 25 — 26). Before he could carry out his plan Ashley called the police station number he left on the note. He was [*2]apprehended by the authorities and hospitalized for ten (10) days.”

      It’s not exactly clear what the Christian response is in this situation, especially when the parent is screwing around with the kids’ heads like that. I mean, isn’t there a point wherein if you were really sorry, you would understand the damage you caused and stop forcing people to bend to your will?

      1. That quoted section alone makes him completely unqualified for custody, much less sole custody.

        The Christian response in this situation would be for a third party such as a friend or relative to monitor the father. It would not be to guilt trip the child into acknowledging the father. This would be bother unfair to the child and probably harmful to the father’s mental health as he will be continually rejected by his son, who now has yet another good reason to despise his father, in person.

        This is messed up on every level.

      2. Good questions.

        Like you I thought it was odd that the kid is 15 and his preference doesn’t hold sway? I’m clueless about family law but I had the impression the kid’s preference mattered.

        1. The judge is fairly strident in her belief that the teenager’s lack of desire to be with his father is a result of the mother “poisoning” him; that’s what she says about the other two kids not wanting anything to do with him.

          Unfortunately, it’s a non-falsifiable proposition: either the kid is neutral on the whole thing or wants to be with his father (so custody could go to the father), or he clearly prefers to be with his mother (which is ‘obviously’ due to the mother poisoning him, and therefore, evidence that he should be with his father).

        2. ” I had the impression the kid’s preference mattered.”

          Depends on the state (and probably the judge).
          In Oregon, the children’s preference is not a factor.

    3. That’s thoughtful, but looking at it some more takes us back to Professor Volokh’s point.

      A judge who practiced psychology from the bench would be blatantly out of his or her lane, and the same is true of a judge acting as a religious advisor.

      1. Not necessarily, unless you look into the background of the Judge, not all judges went to law school and on to be judges having no other education or interests.

        1. Let’s posit a judge who is also a licensed psychologist. The problem is that a psychologist has to receive consent of the patient for evaluation, must evaluate using standard methods, should treat using accepted methods, should probably be free from a conflict of interest (e.g., also evaluating and treating an adversary, former spouse, etc.), and must maintain confidentiality during evaluation and treatment.

          We have medical privilege so that patients can be candid with their health professionals without worrying that such will be brought into legal proceedings without their consent.

          None of that will happen in an adversarial court proceeding, and that which is necessary to help a patient in psychology may be opposed to what the law would require a jurist to do.

          Maybe you envision a way in which a background in psychology would help a jurist in these instances, but my inclination is that the psychology background would only push the judge to conclude that he does not know enough to be able to make determinations on that basis.

      2. Isn’t sentencing almost always an exercise in “practicing psychology”?

  4. The outcome sounds about right, if facts are as alleged. If Mother was poisoning Son against Father, then a change of situation is warranted.

    Diverting into a discussion of Scripture is off-topic, but not wrong. It’s no different from a judge referring to a movie or novel.

    1. “It’s no different from a judge referring to a movie or novel.”

      That was my thinking as well.

    2. It’s entirely different because of the Establishment Clause. The judge here specifically said that the Mother’s religious reasoning is incorrect based on scripture. That’s the government showing a preference for a specific interpretation of religious text. It’s a pretty clear violation of the first amendment.

      If a judge said that a parent’s reason for behaving a certain way is illogical because their interpretation of the meaning behind Kramer vs. Kramer was incorrect, that would be stupid but not violate the Constitution because their no Constitutional restriction about it (arguably maybe free speech, but let’s not go there). But when a judge says a parent’s reason for behaving a certain way is illogical because her interpretation of the Bible is incorrect, that’s a violation of the Establishment clause in the first amendment.

      1. Brian,
        If I (the judge) say to you, “I am ruling against you because you do not correctly understand the Bible.”, then I get what you’re saying.

        If the judge says to you, “I am ruling against you because the facts in the case convince me that you have poisoned the child’s mind. And, by the way–since you are relying on Scripture as justification for your actions I have otherwise found to be legally impermissible–I think your understanding of Scripture is incorrect. In Matthew 18:21 etc etc…” . . . well, that bothers me far less.

        (Since I am, personally, a non-believer, I’d rather that judges, psychologists, teachers, policemen, et al, not rely on religious texts for their moral lectures to us. But that’s a separate point.)

        1. Right on. I don’t see a constitutional flaw in the opinion excerpts. The judge’s order did not turn on theological precedent; that part was more of an advice column.

      2. “It’s entirely different because of the Establishment Clause.”

        Or would be, if there was an Establishment issue in this story. Since there isn’t, though, the Establishment Clause can be ignored.

  5. These judges like to preach to others, but do they practice what they preach?

    “I know you’ve been convicted of this liquor-store robberey, but rather than violate true Christian forgiveness and send you to prison, I’ll just release you into the community, and tell you to go and sin no more.”

    1. “After all, you need to be with your son.”

  6. Unrelated commentary, from someone unfamiliar with family law:

    ” She justified her total rejection of Father by stating, ‘He is manipulative to me and he always has been. I could not take the emotional torment any longer.’ When challenged with evidence to the contrary, she sidestepped just like Mother. For example, when reminded that she authored a letter to Father stating her wish for her own husband to be the type of husband and father he had been, she dismissed it; stating, ‘I remember feeling that way. I don’t feel that way now.’ [….] Though Michelle was called to the witness stand to support Mother’s position, her strong alliance with Mother and reluctance to acknowledge Father’s positive influence on her life ultimately served to damage Mother’s case more than help it. Her testimony clearly demonstrated how Mother’s narrative has cruelly turned her heart against Father.”

    I’m going out on a limb here, but bear with me: Michelle no longer wants her own husband to be like her father because her father [i]cheated on her mother[/i], not because her mother “poisoned” her mind against her father.

  7. From the opinion:

    “Father is 53 years old, and employed full time as a Lieutenant Detective Police Officer.”

      1. And I’m sure he never separated any father from his children simply because the father broke the law.

  8. The sad thing about such an obviously erroneous decision is that it is unreviewable, as a practical matter. Reverse, remand and the kid is about 17 years old by the time a new custody decision issues. Hardly matters at that point.

  9. Was the court’s decision really “based on” its view of scripture? Reads to me like the court wanted to lecture them about forgiveness and such. Looks like bad form, but I assume it’s not uncommon for judges to serve up a side dish of moralizing. Maybe that’s ok, as long as they don’t cite the Bible but stick to more benign quotes and platitudes?

    1. This particular judge *did* quote the Bible.

      Yet if someone tried to put a 10 Commandments monument outside the courthouse building, all hell would ensue.

      1. ” if someone tried to put a 10 Commandments monument outside the courthouse building, all hell would ensue.”

        Literally 100% of all the 10 Commandments monuments that exist are outside the courthouse building.

        I suggest that evidence that all hell has broken loose is subject to interpretation.

        1. Your gravedigger-in-Hamlet literalism is dull.

          1. At least Shakespeare got some laughs out of it. Maybe he had a better sense of comic timing.

            1. Lectures on humor from a humorless twit? Pass.

              1. You have a timesome and unfunny tendency to play games with words.

                Language is for communication, not game-playing.

                1. I said “pass”.

  10. “Even giving due consideration to Father’s actions in having an extramarital affair and ending his marriage, John’s scorn and rejection of him are not justified. ”

    Other than that, Mrs. Lincoln, how did you like the play?

  11. By the same logic, would the traditional “and may God have mercy on your soul” when passing sentence for a particularly heinous crime violate the Establishment Clause?

    1. Correction: when sentencing a defendant to death

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