The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.)