Sikh and Non-Sikh Divorce, Disagree on Whether Children Should Get Haircuts

N.S. v. H.C., decided Friday by the California Court of Appeal (Justice Terry O'Rourke, joined by Justices Judith McConnell and Jose Castillo), involved a Sikh ex-husband, a "nonpracticing Christian" ex-wife, and a daughter and son who, "at the time of trial, … were seven and five years old respectively." The chief dispute had to do with whether the children should comply with various Sikh practices, including (1) not cutting their hair, (2) wearing religious bracelets, and (3) for the son, wearing a head covering (a patka). Here's an excerpt of the analysis as to the cutting of the hair:

The [trial] court concluded, "… The court finds that it is in the best interest of the children to feel comfortable with their hair and the length of the hair. However, the court finds that there have been times when mother has engaged in cutting [son's] hair, in particular, to intentionally upset … father. The court orders that if the children express a desire to have their hair cut, they may have their hair cut; however, at no time shall [son] receive a buzz cut and at no time shall [daughter's] hair be cut shorter than shoulder length. This assures that her father will still be able to braid her hair, notwithstanding that it is in two braids, rather than one braid." …

[The trial] court erred by failing to determine … whether mother had made a clear affirmative showing that if the children adhered to father's Sikh faith as regards the haircuts … it would be harmful to them. "[H]arm to the child from conflicting religious instructions or practices … should not be simply assumed or surmised; it must be demonstrated in detail."

Mother testified the children requested the haircuts, which made them fit in with their family and friends on her side…. Father also testified that at some point mother considered that the children's uncut hair was "unhygienic." But that testimony regarding hygiene was not developed or supported at the hearing, and therefore any claim in that regard lacks foundation. Judicial intervention in the children's religious upbringing must be "conditioned upon a clear affirmative showing of harm or likely harm to the child."

Additionally, the court specifically ruled that mother sometimes cut son's hair "to intentionally upset … father." Mother's conduct evinces a disregard for [an earlier trial court] ruling, which was based on father's constitutional right to raise the children in his faith. Finally, the court's conclusion that the daughter's desired hair length is something "personal to her" is untethered from the constitutional requirement of a showing of harm before a parent's religious right may be abridged….

The … [trial court erred in] subordinating father's constitutional rights to religious exercise and to raise the children in his faith to the children's personal desires and their "comfort" considerations. It specifically ruled: … "if the children express a desire to have their hair cut, they may have their hair cut." It also reasoned, "[I]t is in the best interest of the children to feel comfortable with their hair and the length of the hair."

But at the time of trial, the children were seven and five years old respectively. The court nowhere explains, and the record fails to show, they had sufficient maturity to hold informed views about the religious observances at issue here. Under [Cal. Family Code § 3042(a)], the court is only required to consider the preference of the child if the child "is of sufficient age and capacity to reason so as to form an intelligent preference as to custody[.]" We are not aware of any reported decision holding that a child of the ages of son and daughter had such capacity.

In light of the above, we reverse the portion of the court's ruling permitting either child's hair to be cut and deferring to their wishes regarding the removal of their bracelets or, for the son, his patka. The court is directed to conduct new proceedings specifically to ascertain whether the children's adherence to father's Sikh religion regarding the cutting of their hair, the use of bracelets, and son's use of a patka would harm the children. For the court's guidance in formulating a new order regarding these issues, a California case has set forth some general considerations:

"In all events, the question that comes to the courts is whether, in particular circumstances, such exposures [to the parents' religious practices] are disturbing a child to its substantial injury, physical or emotional, and will have a like harmful tendency for the future. The critical literature warns against perverting a quest for the child's best interests into one for the psychic comfort of the parents—a warning against overvaluing the parents' constitutional liberties. A warning is equally in order against depriving a parent of all connection with the child, or connection on the religious plane, out of an exaggerated fear of injury to the child. It is often said that if accommodation appears necessary, that form should be sought which intrudes least on the religious inclinations of either parent and is yet compatible with the health of the child."