Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
One of the rarely discussed tragedies in custody cases is how commonly judges assign custody based upon religious preference. There is enormous bias against non-religious parents and judges often reinforce that bias by awarding custody to a religious parent over a non-religious one, even where there are other serious factors that should compel the opposite outcome.
I've got a friend in New York who just went through this and I'm gathering all the legal documents to publicize that case. The outcome was beyond outrageous. The mother, who had full custody during the divorce and custody fight, lost custody because the father would make the child attend church while the mother would not.
This despite the fact that the father had multiple drunk driving arrests and even admitted under oath that he still drove with the child in the car after drinking. This also despite the fact that he had a history of violence, enough to warrant a personal protection order granted to the mother. But the judge felt that raising the child in a "Christian" environment trumped all of that.
The Michigan court of appeals just upheld a similar custody award, though the facts in that case are nowhere near as clear as the one I mentioned above. There were a lot of serious mitigating factors in the Michigan case, including allegations of sexual abuse and arrests. But at least part of the reason the court awarded custody to the father was based on his more rigorous following of Orthodox Jewish tradition:
Under factor (b), the trial court considers the "capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any."13 The trial court found that factor (b) favored Marc Herschfus. The trial court noted that both parties are practicing members of the Orthodox Jewish faith. As part of the divorce settlement, the parties signed a document outlining specific terms for raising Jacob in that religion (the "Upbringing Document"). The trial court recognized that the judgment of divorce indicated that the Upbringing Document "is disputed," but found that the nature of the dispute was not part of the record. The trial court found that the parties "have different views on how strictly to observe their religion," such as in relation to driving on holy days. The trial court noted that Marc Herschfus hired a private investigator to follow Tonya Herschfus on holy days in 2006 and caught Tonya Herschfus driving with Jacob. The trial court found that Tonya Herschfus was clearly "attempting to hide the fact that she is driving from [Marc Herschfus]. The message to Jacob, of course, is that it is appropriate to deceive his father." The trial court noted that the parties also disagreed about the use of kosher food. Tonya Herschfus believed that Marc Herschfus had brainwashed Jacob to read the food labels at her house. She also testified that Jacob refused to eat at her non-Jewish family's home on Thanksgiving 2006. Tonya Herschfus testified that Jacob acted "troubled and withdrawn" even after she promised that she would only give him kosher foods.The trial court found that Jacob was in turmoil given the different religious observances of his parents. The rules at Marc Herschfus's home and Jacob's religious school were inflexible, while Tonya Herschfus was more lax, causing him "substantial stress." Jacob sought "structure and guidance" but felt "conflict and divided loyalty." Jacob's school principal testified that Jacob is a "loner," "hyper and easily angered," and the other children tease him. At the age of five, Jacob already saw a therapist to deal with stress and anxiety. The trial court reasoned that it was not choosing a religion for Jacob or the parties and, therefore, was not interfering with the parties' constitutional right to freedom of religion. Rather, the parties agreed to raise Jacob in the Orthodox Jewish religion. Tonya Herschfus could personally practice any religion as long as
she nurtured Jacob in his religion. The trial court determined that the Upbringing Document was
"not specifically enforceable," but noted that it was "evidence of their agreement and sets forth
their specific understanding of the important principles that are to be followed." Those principles were consistent with Orthodox Judaism. The trial court determined that "Orthodox religious practice is not flexible or subject to broad interpretation. Strict religious observation impacts all aspects of life."
This is extremely bothersome to me and it should be to others as well.
Comments
Grrrrrr, this is so unconscionable. This shows we live in a theocracy. Nothing less.
Posted by: Kim | January 2, 2008 9:15 AM
Personal protection orders pretty much require an assertion of a fear of violence, not any kind of proof or evidence beyond an assertion. Most courts grant them routinely.
When someone tries to use the existance of a personal protection order as evidence of violence such claims are always suspect.
Posted by: Gary Carson | January 2, 2008 9:47 AM
How is this not open for immediate appeal on "church and state" grounds? Is the deciding judge able to award custody for any reasons they feel like with impunity? What if they don't happen to like one of the partners because they're gay / black / male? How is this any different?
Posted by: David Durant | January 2, 2008 9:54 AM
I'm surprised on so many levels...
A) the husband was awarded custody
B) a drunk driver was awarded custody
C) with documentation of violence, he still won custody
Any one of those three is usually enough to ensure that that side doesn't stand much of a chance in winning custody.
Was the mother a war criminal or something? I just can't understand how she couldn't win custody; aren't the odds still with the mother when all else is equal?
Posted by: Richard | January 2, 2008 9:55 AM
Perhaps the mother did not wear her burkha to the hearing? ;(
This is reason #435 why I am an atheist.
Best wishes for your friend :)
Posted by: Gingerbaker | January 2, 2008 10:07 AM
Honestly, This is appalling but not suprising as any society that priveleges(dare I say champions) irrational ideas and superstition will have scenarios like this.
All one has to say in the USA is that you are a Christian and your in the club.
Posted by: GH | January 2, 2008 10:11 AM
Which explains the Orthodox ruling above.
I have been involved in scores of custody cases and have only seen one example of religious bias (admittedly, it was pretty bad). In contrast, I have seen a dozen or more baffling decisions involving smoking, ownership of unusual pets, personal hygiene issues, and one case where the mother was awarded custody solely because her mother was available for child care, whereas the father was going to use a day care center.
Judging is a tough job. Trials are long, and the Judge is not nearly as acquainted with the evidence as the parties and their lawyers are. Then, in most jurisdictions, the parties' lawyers draft competing Orders, and the judge picks one. Sometimes, they will send one back for revisions, but often they take the one that seems most reasonable.
I don't know anything about the case of Ed's friend, and I'm not going to speculate. The odds of that case being decided solely based on religion are low: But, yes, it does happen, and that is bad for the judicial system.
Posted by: kehrsam | January 2, 2008 10:41 AM
Without commenting on either case, I'll just note that child custody disputes are notoriously messy by their very nature. Much of the time, and perhaps most of the time, all the basic factors used to determine who "wins" on any given issue work out to a draw. Most of the time a coin flip would produce a decision that serves the child's best interest just as well as a long and drawn out trial. And, finally, parties and observers are invariably confused about the true nature of the proceedings - it isn't about the parents' rights, since the parents both have equal and undivided rights with respect to child custody, it's about the child's best interest. Appellate judges know - but don't like to admit - the first two and tend to think that the child's best interest is almost always better served by maintaining the stability of an imperfect decision than by the further disruption of yet more proceedings that will, in all likelihood, produce an equally imperfect decision.
Unfortunately, all this results in inappropriate or flat out unconstitutional decisions being upheld under the extremely cursory standard of appellate review. Equally unfortunately, there's not much that can be done to fix it. Religion can be a legitimate factor insofar as one (fit) parent's abandonment of Whateverism causes distress for a child who had been raised as, and whose other (otherwise equally fit) parent still is, a devout Whateverist. Sexuality can also be a legitimate factor, for similar reasons and under similar circumstances.
We could simply bar those factors from consideration even for legitimate reasons, which might cut down on the prejudice masquerading as jurisprudence. But (1) judges would find a way to take it into account for legitimate and illegitimate purposes and (2) even if they didn't, the fix might produce an equal number of unhappy children and parents as the current system. We could also pass laws requiring appellate judges to review child custody decisions more rigorously - I wouldn't recommend holding your breath for it to be truly implemented.
(My personal preference would be to introduce the coin flip or some other random selection technique to resolve disputes between two fit parents, but I'm not holding my breath on that, either.)
Posted by: AnneS | January 2, 2008 10:44 AM
At least the child's immortal soul will be saved just in case daddy dearest goes one step too far and beats the child to death or kills the child while driving drunk. Daddy is obviously more moral then the mother.
Good luck kid. It is needed.
Posted by: Janine | January 2, 2008 10:55 AM
What if the father doesn't even really believe all that religion stuff anyway, and is just using church attendance to get the child? That should offend religious people too.
Posted by: Epistaxis | January 2, 2008 12:03 PM
From what i have read The decision was based upon the mother's failure to comply with the agreement entered at the
time of the divorce > It was the Mothers faliure to comply that lost her custody
Posted by: VicVanity | January 2, 2008 1:46 PM
here is a newstory with a link
BLURB NEWS STORY
> Sunday, December 30, 2007
> Child Custody Shift OK'd For Failure To Follow Religious
Upbinging
> Agreement
>
> In Herschfus v. Herschfus, (MI Ct. App., Dec. 27, 2007), a
Michigan
> appellate court upheld a lower court's modification of a custody
> award. The court gave sole legal and physical custody of a
divorced
> couple's child, Jacob, to the father, based in significant part
on
> the mother's failure to comply with the agreement entered at the
time
> of the divorce to raise Jacob in the Orthodox Jewish religion. It
> rejected the mother's First Amendment challenge, finding
that "the
> trial court's ruling was constitutionally appropriate because it
was
> based on Jacob's needs and not on a value judgment regarding the
> parties' practice of religion."
>
> (Court decision)
> http://courtofappea ls.mijud. net/documents/ OPINIONS/ FINAL/COA/20071227_C278016_ 61_278016.OPN.PDF
Posted by: VicVanity | January 2, 2008 1:49 PM
Oh c'mon kersham you know Judaism and Christianity are the same thing.:-)
Posted by: GH | January 2, 2008 2:03 PM
After reading most of the ruling, it is clear to me, that the ruling is a correct one, and only for a very small part determined by the religious component, but mainly by other factors.
Posted by: Kim | January 2, 2008 2:20 PM
The trial court determined that "Orthodox religious practice is not flexible or subject to broad interpretation."
Bwahahahah! Sure thing: Modern Othodox, Haredi, Hassidic, all the same thing. Except for their hats, of course.
Posted by: nm | January 2, 2008 2:44 PM
What disturbs me about the orthodox case is that what looks to me like each parent "turning the child against the other parent" -- "don't tell dad I'm driving you" and "don't eat mom's food" -- were both seen as evidence of the father's fitness as a parent, instead of being religiously based forms of divorced parents disagreeing.
And to those who are saying that religion in the second case at least might be a "coin flip", and that custody is always confusing -- I think that a larger point being made here might be that religion just plain shouldn't be a serious consideration. If the kid in the second case wanted to be raised by the more religious parent, that's all well and good, but custody is still confusing enough that maybe that shouldn't have taken him away from his mother quite so completely.
Posted by: undeadgoat | January 2, 2008 3:18 PM
This is awful. Somebody needs to investigate both of these judges. Or email this to CNN.
Richard was right: By the standards of modern custody battles, the mother should have received custody. But I guess church was kind of a golden ticket in the judge's mind.
Can I go to Canada now?
Posted by: Skwee | January 2, 2008 3:46 PM
I don't think this particular case is nearly as outrageous as some I've heard about. There was apparently some sort of agreement made that they would raise the child in the Orthodox Jewish tradition and it appears that the mother was not holding up her end of that agreement. And there are many other factors in the ruling. It bothers me that religion even factors in to the equation, but that's probably inevitable in such cases. I just wanted to use this as a jumping off point to discuss the broader issue. I'm working on an article for the Michigan Messenger about the subject, which will be more detailed and include expert analysis. I'll post a link when that's done.
Posted by: Ed Brayton | January 2, 2008 4:03 PM
Skwee:
Of course simply Awarding the mother custody Based upon her Gender is equally outrageous. or even the fact of the courts claiming they know the best interest of a child is Mind boggeling. I am of the school that a Child is best of with equal acess to both Parent unless one is proven unfit. Custody courts are horrible places and the only ones who really win are the courts. I feel that taking the child away from the mother was wrong and that the court should have moved to Equal legal and phsyical custody . since that really is in the childs best interest
Posted by: VicVanity | January 2, 2008 5:08 PM
While a child may desire to be raised in a particular faith, which one parent adheres to over the other, it is a consideration that cannot trump other concerns in determining custody. In fact the NY case seems to imply, and this in line with typical disinterest in the opinion of the child in custody proceedings, it is parent's desire that matters.
I think in making a decision based on the religion beliefs of the parent is really a case of discrimination; whether it be against atheists, non-adherents, or believers of less 'desirable' faiths. If the court wishes to take account of a child's desire then it is fine to include in a binding agreement, however it should be flexible to account for the development of child toward or away from their faith as time passes. The alternative would be like getting a parent to agree to cut the child's sandwiches the way they liked when they where 6 and a half for the rest of their childhood, though that a little facetious.
Ed, did the judge in your friend's case really say something along the lines that "raising the child in a "Christian" environment trumped all", or is that just the message you feel is put out by this ruling? If it is the former then wouldn't that make the ruling unconstitutional?
Posted by: Dreamer | January 2, 2008 7:30 PM
Vic: As someone who has been involved in Domestic Law cases for the better part of twenty years, I have to agree with you: Most children are better off with more or less equal custody and visitation. In fact, I would go a bit further: Going to Court to deny the other parent visitation is often grounds for denying custody to the party who can't agree.
Most custody battles are between the parents, and really don't involve the children at all. Solomon had it right: A real parent would rather give up the child than put it through that kind of hell.
Posted by: kehrsam | January 2, 2008 7:42 PM
Ed, I look forward to your future piece (don't forget the link, please!)
Cases like this often make me ponder such issues of rights of the child versus rights of the parent. Of course such stuff is more broader in scope, but I am certain establishing certain fundamentals in that arena will elucidate solutions in the more focused applications?
Of course, personally I think factors of physical/mental health and welfare are more important to consider than any level of religious instruction. I think it's a bit of a wasted effort to make religion a deciding factor when, as an adult, the individual is free (from perspective of the government) to leave their parents' faith. That's my view.
Posted by: Shawn Wilkinson | January 2, 2008 10:24 PM
Ed, as a NYC lawyer I'll be very interested in reading the details when you get them.
Posted by: Chris Bell | January 3, 2008 4:34 PM
I am glad to see that the author recognized that this case was not unconscionable. (Unfortunately he did not do so on another forum where he posted this information). If you read the court's entire opinion you would know that the court held a 15-day hearing on this case and that the religious aspect was just one of many factors -- all of which favored the father. Thus I don't know why anyone would find this case "extremely bothersome."
AS to the religious standards, in this case the parents agreed (in writing) on a method of upbringing their child and then, a couple years later, the mother changed her mind. Based on testimony from the child's psychologists the court determined that this was not healthy for the child. Furthermore, the mother's own rabbi testified that the mother was not practicing the religion (or bringing up the child) in accordance with any accepted religious standards or in accordance with the parents' written agreement.
I don't see why people are bothered about this case. The court recognized that both parents love their child and that there was no domestic violence or abuse involved. Quite frankly it was one of the most thought out and logical court opinions that I have ever read.
Posted by: Correct Info | January 4, 2008 9:08 AM
Family courts -- at least here in New York -- are a joke when they talk about "best interest of the child". They presume it's always the best interest of the child to retain contact with even an abusive parent.
Kersham, what you write "going to court to deny the other parent visitation is often grounds for denying custody" is absolutely horrifying. So what recourse does a non-abusive parent have then when they find out the other person is abusing shared child? The amount of proof you must have to severe ties is ridiculous.
Despite his having a record and it being a matter of court records that he had a history of drug abuse and violence versus my totally pristine past, I had to skip state with my daughter 22 years ago and since my ex abused other children and you still won't believe the amount of people who think I was just a heinous bitch out to get him. Gee, ask my daughter who's the better parent -- the Christian or the Atheist. She'll give you an earful.
She had visitation of her son supervised when his Daddy refused to take his food allergies seriously. He's sent him to the emergency room several times but we live in fear because the court has chastised her for bringing him back to court on new occurences, twice after unsupervised visitation was restored (which is where it is at now). They seem to feel they scolded him and that is all it takes even though he's sent the boy to the ER three times already and he's only four. They're both Atheist so that doesn't factor in unless it's just the religious bigotry towards women, particularly women who dare leave a man (she left following a domestic violence incident which followed a DUI on his part).
I'm into women's rights as well as church-state separation and one disturbing new trend is to reward custody to Dad when he remarries and has a stay at home wife even if he left first wife for her when, gee, Mom now kind of has to work whether she wants to or not, not to mention working for a living shouldn't cause anyone custody of their child. It's not explicitly stated but you can smell the religious overtones there too. It just has Promisekeepers/Religous Reich stamp all over it.
We aren't in a full theocracy yet but we definitely don't have true religious freedom either.
Posted by: Donna | January 4, 2008 2:28 PM
It bothers me that you all are commenting and ignoring the part of the judge's ruling where he recognizes that this issue is causing the child real distress. For me the important factor is that in his father's home and IN HIS SCHOOL he is taught to worship one way.
That said, it doesn't look like they hired a psychologist or other professional to make sure that the distress wasn't caused by a fear of getting caught at breaking the rules. However, assuming that the child is being distressed by his mother's lax views she should absolutely alter her ways around the child. Also, IMO knowing the child's religious upbringing she should have spoken to him ahead of time about thanksgiving dinner and explained why she felt it was ok to accept the food, but give the child the choice. Sounds like she just expected the child to eat the food.
Posted by: Lucy | August 24, 2009 2:28 PM