Tuesday, November 22, 2005

Case Law Development: Role of Religious Practices in Change of Custody and Visitation Restrictions

The Alabama Supreme Court affirmed a trial court’s change of custody from Mother to Father based on the conduct of Mother’s new husband, providing an extraordinary discussion of the limits of a trial court's ability to consider religious practices and training when those practices alienate children from one parent. 

After Mother had remarried and submitted herself to the religious views and control of her new husband, he moved the family from Alabama to rural Indiana and Mother and Stepfather acted in ways that the trial court found had alienated the children from not only their father but from both parent’s extended family.   For example, Mother’s parents testified in favor of Father’s petition for change of custody. Mother claimed that the change in custody was improper, as the actions she and her husband had taken were grounded in their religious beliefs. The Supreme Court of Alabama held that “the trial court was not precluded from considering the effect on the child of [Stepfather and Mother's] parenting practices simply because those practices were based on religious beliefs.” Citing the ore tenus rule of deference to the trial court's findings, the court found that the trial court's order was based on the bests interests of the children.

The issue that split the court, however, was in the issue the majority concluded was not presented for review: the trial court’s restrictions on Mother’s religious instruction during visitation. The trial court ordered that : "The religious training of the child while in the home of the Mother for visitation shall be    made by example, and not by any religious training which would otherwise be disparaging or critical of in any way the beliefs of the Father, and/or the way in which his household is conducted."  The majority found that the order “when read fairly and objectively” merely prohibited Mother from disparaging Father in religious teaching and thus did not infringe on Mother’s free exercise. Thus, the court concluded “this case does not warrant the exercise of the Court's power to overlook [Mother's] failure to assert the ground, based on her reading of the order, in her petition for the writ of certiorari.

Justice Parker’s vigorous dissent provided a thorough review of the evidence presented in the case and argument regarding the important role of religious freedom in the upbringing of children. “The right to worship God according to the dictates of one's conscience is the most cherished star in our constitutional constellation. Thus, civil government can overreach in few ways more egregious than by invoking the law to restrict a mother from teaching her child the worship of God.”

Snider v. Mashburn, 2005 Ala. LEXIS 205 (November 18, 2005) (bgf)

http://lawprofessors.typepad.com/family_law/2005/11/case_law_develo_26.html

Custody (parenting plans), Visitation | Permalink

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