Religion’s Role in Custody Battles

Jason Pitzl-Waters —  August 8, 2011 — 56 Comments

A common fear among adherents to minority faiths in the United States is that our beliefs will be used against us in child custody hearings. This is not an imaginary fear, as several modern Pagans have struggled with having their faith being made an issue of in court. I’ve covered this issue periodically almost since this blog started.  From a Wiccan couple barred from teaching their child about Paganism, to the harrowing and bizarre story of Subgenius member Rachel Bevilacqua (aka Rev. Magdalen). Even the mere accusation of adherence to Wicca or modern Paganism is sometimes enough to affect a custody case. In my interview earlier this year with Jen Lepp, founder of the Pagan-owned Internet hosting company DrakNet (now owned by A Small Orange), she made it clear that the company’s move to “de-Pagan” itself came because of pressures resulting from a custody case.

“The fourth year I owned DrakNet, my husband and I got a divorce, and the following year (for a variety of reasons I won’t go into), we entered into a highly acrimonious custody battle. The suit stated outright in it’s initial filing that the basis was the fact that I was Pagan. I hired an attorney who dismissed it as a concern, stating my religion could not be used against me. While I have no doubt the attorney believed that when he told me, he was wrong and his objection was overruled. The county this lawsuit was in was extremely right-leaning, and the Judge in the case relieved me of custody temporarily while my beliefs and their affect on my ability to parent was investigated. Those I knew in the community did offer to rush to my defense, have protests on the courthouse lawn, call the press, and make the case into a circus, but I strongly felt then, as I do now, that a child cannot choose to be at the center of a public controversy. Though I was very, very careful in my answers not to establish any precedent or disclaim or lie about anything I was in the final trial, once I fought back and defended myself and won, I chose not to tempt fate a second time and I left Paganism so that it could not be used against me again.”

Lepp’s experience is in no way unique, and Pagan parents heading back into the closet for the benefit of their children has become a widely acknowledged phenomenon in our interlocking communities.  In 2008 the New York Times reported that issues concerning religion were becoming more common in custody cases, and that judges are increasingly uneasy with the ramifications of having to make value judgments regarding religions. However, a custody case in Kansas involving a Jehovah’s Witness may just offer new hope for Pagan parents worried about losing their children. The Kansas Supreme Court recently upheld a district court’s ruling that it was not qualified to make decisions regarding the mother’s faith in a custody dispute.

“Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination—judges are not trained to mediate theological disputes. Yet consideration of religiously motivated behavior with an impact on a child’s welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law […] Just as mere religious beliefs cannot be solely determinative of custody, a court may not speculate about behavior that religious beliefs may motivate in the future…. A court also may not weigh the merit of one parent’s religious belief or lack of belief against the other’s. Nothing in law school or practice in any setting qualifies a judge for this task, and any judicial effort to tackle it is far too likely to lead to the substantial impairment of the free exercise of religion… Courts must be vigilant to avoid invidious discrimination against religious beliefs or practices merely because they seem unconventional. The consideration of religiously motivated actions as a part of holistic evaluation of the best interests of the child, while excluding consideration of religious beliefs, strikes an appropriate balance among the free exercise rights of each parent; the right of each parent to the care, custody, and control of his or her child; and the welfare of the child….”

In short, unless there is obvious religiously-motivated abuse and harm that can be proven, the courts should not be in the business of deciding what religion is better for a child in custody cases. This is a welcome ruling for any parent who fears losing custody simply because the judge has a grudge, or preconceived notions as to what a “Pagan” is. What needs to happen now is for a wider precedent to be set. While I do not wish this on the parent or child in this case, who no doubt want nothing more than for this nightmare to be over, if this ruling is challenged to a higher court and upheld, it could have farther-reaching impact outside of Kansas.

In addition to hoping that rulings like this one help establish a stronger precedent for judges to stay out of making value judgments about personal belief systems, other responses to the problem of parents using the religion against each other in custody battles is increased mandatory mediation sessions, and giving greater agency to the children in these cases. A cocktail of all three could provide a good inoculation against religious discrimination in the courtroom. In the meantime, many Pagans, and other adherents to minority religions, still worry about revealing too much about their faith, lest it be used against them should a marriage fall apart. If you are a Pagan parent worried about custody, I suggest contacting the Lady Liberty League for help and advice. For those who can speak out, becoming more visible and understood is key in demolishing stereotypes about our faiths.

Jason Pitzl-Waters