Monday, February 11, 2008
Case Law Development: Child's Opinion Should Be Considered in Custody Battle over Circumcision of Adolescent
The Oregon Supreme Court held that a custodial father’s decision to have his 12-year-old son circumcised so the child can convert to Judaism may provide a basis for a change in circumstances allowing a custody modification if the boy opposes the circumcision. The child had been raised as Russian Orthodox, his mother’s religion. His father began studying Judaism at about the time of the divorce, at which time he also was awarded custody of then 4-year-old boy. When father informed mother that the child (then age 9) would be converting and would need to be circumcised, mother petitioned for a change in custody or for an order preventing the circumcision.
The supreme court noted that “the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs--medical, religious or otherwise." However, the court concluded that "at age 12, [the child's] attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of change of circumstances sufficient to warrant a hearing concerning whether to change custody….because forcing [the child] at age 12 to undergo the circumcision against his will could seriously affect the relationship between [him] and father, and could have a pronounced effect on father's capability to properly care for [him]." Thus, the court remanded to the trial court for factual findings regarding the child’s attitude toward the circumcision and how that might affect the parent-child relationship.