The Volokh Conspiracy

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Custody decision discriminated based on religiosity, sexual history


From the Appeals Court of Massachusetts decision last week in A.M.D. v. V.C.D.:

1. First, the facts:

The parties met in approximately October, 2008, when the wife was sixteen and the husband was twenty-one. Both parties lived in Alexandria, Virginia. Initially, the wife lived with her mother and the husband lived with both his parents. The wife's mother and stepfather disapproved of the relationship, and after an argument, they "kicked" the wife out of their home. She asked for permission to live with the husband and his parents, but the husband's parents declined. The husband's parents also disapproved of the relationship and encouraged the husband to end it.

In January, 2009, the wife discovered she was pregnant. The parties married on February 9, 2009. The husband did not tell his parents about the marriage or the pregnancy until after the ceremony.

The parents separated during the pregnancy, and "The wife was in foster care in Virginia when the child, a boy, was born in September of 2009. The husband visited the wife and child in foster care frequently and helped change, feed, and bathe the child." The parents then did live together for two years, with friends or the wife's aunt, but separated when the child was three, and the wife filed for divorce.

2. The trial court granted custody to the father, but the appeals court disapproved of part of the basis for the trial court's reasoning, and sent the case back for further proceedings:

The trial judge made several factual findings regarding the wife's religion and sexual history. The judge devoted a paragraph of her decision to the details of the child's Catholic baptism, the husband's Catholic background, and the wife's lack of religious affiliation, even though religious upbringing was not an issue in the case. She also detailed the frequency of sexual relations during the parties' marriage, the wife's sexual activity and abortion before she met the husband (i.e. that the wife was "sexually active" and "terminated a pregnancy"), and the wife's sexual activity after the separation. None of these factual findings were linked in any way to the impact of her behavior on the child or the best interest of the child.

The judge's consideration of the wife's sexual history was irrelevant to the division of caretaking responsibilities and the warmth of the child's relationship with the parents. The judge failed to make findings, and there is nothing in the remaining findings to suggest that the wife's religious beliefs or sexual history "adversely affect[ed] [the child's] physical, mental, moral or emotional health." The judge's focus on these matters suggests "'a clear error of judgment in weighing' the factors relevant to the decision."

The judge also described in detail the advanced degrees of the husband's parents. She noted that they reside, with the husband, in a "custom built house" in Shadyside, Maryland, a community which she described as "a pleasant and safe community with a low crime rate." She found that this living situation was "more stable, comfortable, and advantageous" than residing with the wife, who lived in a "clean" apartment in a house owned by the municipal housing authority, together with her fiancé and their daughter. She also found that the husband and his parents had arranged for the child to attend private parochial school, and that this was preferable to the public schools in the town in which the wife resided.

The judge was permitted to consider the "living arrangements and lifestyles of each parent and how such circumstances may affect the child." … However, the judge's focus on the grandparents, their education and advantages, and in particular the provision of a Catholic education, indicate that the same type of judgments explicitly expressed in other portions of her findings and rulings may have infected these portions of the decision-making process. The presence of unsupported factual findings and impermissible considerations also erodes the basis of the judge's credibility findings.

For more examples of judges favoring the more religious parent in custody decisions—which I think is unconstitutional—see my "Parent-Child Speech and Child Custody Speech Restrictions" article. (I suspect there are other recent examples of judges considering a parent's past premarital or post-separation sexual history, even in the absence of any evident effect on the child, but I just haven't researched that.)