The New York Times reports on the recent increase of custody cases that are centering around religion. While at one time custody arrangements were often fairly simple, with the mother of the child usually gaining custodial duties, nowadays more and more parents are battling it out in court and issues over religion are being used as a wedge to prove unfitness. A trend that is making many judges uneasy.
“Judges do not want to take on custody disputes rooted in religion, said lawyers like Gaetano Ferro, who until recently served as president of the American Academy of Matrimonial Lawyers. Mr. Ferro said, “How will a judge say in any rational fashion that Islam is better than Buddhism, Catholicism better than Judaism, or Methodism better than Pentecostalism?” As a result, more and more states have tried to keep custody disputes out of court by mandating mediation. But the effect has been piecemeal, and religious disputes have proven to be among the most difficult to resolve, lawyers said.”
A consequence of this trend is that custodial parents who belong to a religion that may seem strange or “cultish” to an outsider are getting their rights challenged more often, and in some cases losing custody to the parent who belongs to a more “normal” faith.
“We were easy targets because we were made to look like cultists,” Mrs. Snider, 36, said. “I think whether anyone admits it or not, almost all of the ruling had to do with religion. Nothing I had done was called into question except that.”
This trend has had reverberations within the larger modern Pagan movement. Several recent custody hearings have had the parents adherence to a Pagan faith factor into the case. One of the most notable being the infamous SubGenius custody battle, in which a mother lost custody of her son, and didn’t get it back until the biological father was imprisoned for drunken driving, she had racked up over 100,000 dollars in court costs, and was forced by a judge to remove all materials relating to the Church of the SubGenius from her home. Even after all that, she still only has “temporary” custody.
“Magdalen still does not have permanent custody of her son. Judge Punch took the case back and, for whatever reason, he has only given her a temporary custody order. This means that when Jeff gets out of jail, he could (in theory) take up the legal reins and continue harassing her once again.”
So how do we solve these problems over faith, divorce, and custody? Some states are hoping that increased mediation will help solve some of these problems.
“Some states like California and Connecticut have taken innovative steps to get parents to resolve custody issues outside court. In Connecticut, for example, those seeking a court order have to meet with a family-relations specialist in an effort to negotiate. If that fails, they attend a daylong session to settle their differences before a panel that includes a lawyer and a mental health professional.”
Meanwhile, some lawyers are pressing to give the children in such cases greater autonomy at ever younger ages.
“If Julie Ann Bergmann (the mother) and her supporters win this case it could create a legal precedent in which a minor as young as 13 could choose their own religious life despite the wishes of the parents. The ramifications for modern Paganism are immediately clear. A child who converts to a modern Pagan faith could refuse to attend Christian Church or be forced into a school that inhibited his or her religious choices. It would also help protect Pagan parents from custody challenges brought by Christian relatives (so long as the child expressed a preference for modern Paganism).”
Neither solution has made much headway in the legal system, and it seems likely that these sorts of cases will happen more often as religious minorities, and non-mainstream variations of the dominant monotheisms, continue to grow. Eventually, one of two roads will have to be taken. Completely leave out matters of faith from custody battles, or directly involve faith communities and experts on religion in the custody process. Neither path will please everyone, but our current system seems far too whimsical and uninformed to make wise decisions involving children and religions outside the mainstream.