Court Upholds Right of Divorced Father to Raise His Young Children in Sikh Tradition

In N.S. v. H.C., (CA App., Oct. 17, 2025), a California state appellate court reversed and remanded a trial court's ruling on divorced parents' respective rights to control the religious upbringing of their 7-year-old son and 9-year-old daughter. The court said in part:

Father argued in his trial brief:  “[Mother] has shown a complete disregard for [his] raising the children in the tradition of his Sikh faith.  Bracelets the children wear as reminders of their faith, as well as the head covering for their son, are discarded by [her] during their time with her, and she insists upon cutting their hair exceedingly short, knowing that a tenet of the Sikh faith is to leave hair uncut....

Despite thoughtfully grappling with the issues presented here, the [trial] court erred by failing to determine, under the caselaw cited above, whether mother had made a clear affirmative showing that if the children adhered to father’s Sikh faith as regards the haircuts, patka and bracelets, it would be harmful to them....

Mother testified the children requested the haircuts, which made them fit in with their family and friends on her side.... Likewise, mother’s testimony regarding the use of the bracelets and the patka in summary was:  As the children asked to take them off, she allowed them to do so....

The [trial] court’s other fundamental error was subordinating father’s constitutional rights to religious exercise and to raise the children in his faith to the children’s personal desires and their “comfort” considerations....  The court nowhere explains ... they had sufficient maturity to hold informed views about the religious observances at issue here.  Under section 3042, subdivision (a), the court is only required to consider the preference of the child if the child “is of sufficient age and capacity to reason so as to form an intelligent preference as to custody[.]” ...

The critical literature warns against perverting a quest for the child’s best interests into one for the psychic comfort of the parents—a warning against overvaluing the parents’ constitutional liberties....  A warning is equally in order against depriving a parent of all connection with the child, or connection on the religious plane, out of an exaggerated fear of injury to the child....

On remand, the court is directed to determine whether the religious practices of barring haircuts, requiring the wearing of bracelets, and requiring the son to wear a head covering will be harmful to the children, and to enter a new order on these issues in accordance with this opinion....

[Thanks to Eugene Volokh via Religionlaw for the lead.]

6th Circuit: Free Exercise Challenge to Child Custody Ruling Must Be Dismissed

In Edelstein v. Flottman, (6th Cir., Jan. 10, 2025), the U.S. 6th Circuit Court of Appeals agreed with an Ohio federal district court that the domestic relations abstention doctrine requires dismissal of a suit against the state judges and social worker involved in the child custody rulings in plaintiff's divorce case. Plaintiffs, a mother and her minor son, contended that the mother's parental rights and the son's free exercise rights were violated by the custody order which forced the son to spend the Sabbath with his non-observant father. The court said in part:

"a fair reading of [Plaintiffs'] complaint and [their] brief on appeal reveals that the instant case essentially is a pretense to obtain federal review of domestic relations matters," which we cannot do.

Florida Appellate Court Disqualifies Trial Judge from Hearing Custody Case Involving Transgender Child

 In H.S., v. Department of Children and Families, (FL App., April 3, 2024), a Florida appellate court in a 2-1 decision ordered a trial judge to recuse herself from hearing a case in which a father is challenging the Florida Department of Children and Families' removal of a child from the father's custody. DCF contends that the father, who is a Christian minister and youth pastor, is abusive toward the child because he does not support the child's gender transition. The appeals court concluded that:

Here, the father's fear that he cannot receive a fair and impartial hearing before the trial judge is well-grounded and objectively reasonable....

To an objectively reasonable person, the trial judge's pre-hearing remarks were antagonistic to the father and his right to direct the child's upbringing and moral or religious training. Those remarks when taken together—referring to the child by female pseudonyms, telling the child that "you are one smart, strong[,] [t]ogether, young lady," and to "[c]hin up, sister"—implied a foregone conclusion, before hearing the father's motion, that the trial judge was supportive of the child's gender transition before adulthood and opposed to the father's reliance upon his moral or religious beliefs to otherwise direct the child's upbringing.

Furthermore, the trial judge's in-camera interaction with the child went beyond mere attempts to establish a rapport with the child.,,, [T]he trial judge verbally expressed an inclination—again, before hearing the father's motion—to order the father to submit to "professional help," "counseling," or "guidance" from DCF in an effort to change his moral or religious beliefs.

Judge May dissented, saying in part:

Here, the trial judge's attempt to speak with a child in a manner that put the child at ease does not demonstrate the judge's predisposition of the pending issue. In fact, trial judges often take special care to speak with children to ensure they are comfortable in court proceedings; the decision to do so is within a trial judge's discretion.

Volokh Conspiracy has more on the case.

Certiorari Denied in Case of Anorexic Transgender Teen Placed Under State's Care

The U.S. Supreme Court today denied review in M.C. v. Indiana Department of Child Services, (Docket No. 23-450, certiorari denied, 3/18/2024) (Order List). In the case, an Indiana state appellate court upheld the removal to state custody of a 16-year-old transgender child who was suffering from anorexia. The teen's parents, because of their Christian religious beliefs, refused to accept their child's transgender identity. The appellate court also upheld an order barring the parents from discussing the child's transgender identity during visitation.  (See prior posting.)  USA Today reports on the Supreme Court's action.

Custody Order Barring Father from Taking Child to His Church Upheld

In Bardonner v. Bardonner, (IN App., March 12, 2024), the Indiana Court of Appeals held that a father's free exercise rights were not infringed in any way by a provision in a custody order that gives his former wife custody of their child and the sole right to determine the child's religious training.  At issue is a trial court order that provides in part:

Father shall NOT permit the child to attend any All Saints Orthodox Church service, Sunday school, social event, any event located at the church, any event sponsored in whole or in part by All Saints Orthodox Church; nor any private events hosted by a member of All Saints Orthodox Church....

The court said in part:

The bottom line is that Mother has the exclusive authority to dictate Child’s religious training, and she has decided that Child shall not participate in Father’s church. Mother does not need to explain her reasons or justify her decision in any way.

Finally, we note that it was Father’s own violations of previous court orders, which were less restrictive on this issue, that led the trial court to impose the current prohibition against taking Child to even private functions hosted by members of Father’s church. Given the trial court’s broad discretion in family matters, we decline Father’s invitation to find an abuse of that discretion here. 

In sum, the trial court’s order does not violate Father’s First Amendment rights; nor is it erroneous for other reasons.

New Florida Law Allows Courts to Take Jurisdiction Over Minors Undergoing Gender Transition Treatment

On May 17, Florida Governor Ron DeSantis signed Senate Bill 254 (full text) which prohibits sex reassignment prescriptions or procedures for individuals under 18 years of age. It also allows Florida courts to take jurisdiction over a child who is present in the state when the child "has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures," and allows a parent to seek emergency custody of a child that is being subjected to sex reassignment prescriptions or surgery.  The new law also imposes informed consent procedures for sex-reassignment prescriptions or procedures for adults. Politifact discusses the reach of the new law. (Update: It is part of a 5-bill package (see prior posting.)

Utah Supreme Court Says Order in Divorce Proceeding on Children's Religious Teaching Is Too Broad

Kingston v. Kingston, (UT Sup. Ct., Dec. 22, 2022), is a challenge by Ryan Kingston to a trial court's order in a divorce proceeding that barred him from encouraging his children to adopt the teachings of any religion without the consent of his former wife, Jessica. According to the Court:

At the time of their marriage, Ryan and Jessica were both members of the Order, also known as the Kingston Group, a polygamous religious community. Ryan remains a member of the Order today, but Jessica left the Order before the divorce.

During the divorce proceedings, the teachings and practices of the Order became a key issue as both Ryan and Jessica sought custody of their four children.

In a 3-2 decision, the Court remanded the case to the trial court for it to "craft a more narrowly tailored remedy." The majority said in part:

 [W]e agree with Jessica that the State has a compelling interest in shielding the children from psychological harm. The district court found that "[t]he Order's religious teachings jeopardize the health or safety of the children, and will cause harm to the children's welfare." Specifically, the court identified two potentially substantial harms to the children associated with Ryan's religious beliefs: (1) grooming of the children for early marriage; and (2) exposure to Order teachings that ostracize outsiders and demonize those who have left the group, including Jessica. Protecting the children from these harms is a compelling state interest....

The district court's prohibition is broader than necessary to prevent the identified potential harms to the children. The court prohibited Ryan from "encourag[ing] [the children] to adopt the teachings of any religion" without Jessica's consent. This prohibition applies broadly to "the teachings of any religion," but the court only identified specific harms associated with the Order. As written, the prohibition would prevent Ryan from teaching the children the Lord's Prayer or encouraging them to adopt the teachings of Islam. Based on a plain language reading of the prohibition, Ryan would have to seek Jessica's consent before engaging in either of these activities. The prohibition cannot be described as "narrowly tailored" when it reaches far beyond the compelling interest it is meant to address....

 Associate Chief Justice Pearce filed a dissenting opinion, joined by Justice Peterson.  They said in part:

[S]trict scrutiny is the wrong test to apply.... I would follow the Utah Code and analyze whether the district court found, by a preponderance of the evidence, real or substantiated potential harm to the child if the parent is allowed to participate in the child's religious upbringing.....

There is absolutely no evidence in the record that Ryan's objection to the district court's order is fueled by a desire to read the Quran to his children or to lead them in the Lord's Prayer....

... I respectfully dissent and would affirm the district court's order.

State's Removal of 16-Year-Old Transgender Child from Parents' Home Did Not Violate Their Free Exercise Rights

In In re A.C. (Minor Child), (IN App., Oct. 21, 2022), an Indiana state appeals court upheld a trial court's order removing from the home a 16-year old transgender child who suffered from an untreated eating disorder and who was emotionally abused because of their parent's unwillingness to accept their transgender identity. The parents testified that they could not affirm their child's transgender identity or use the child's preferred pronouns because of their religious beliefs.  In rejecting the parents' Free Exercise claims, the court said in part:

[T]he Dispositional Order was based on Child’s medical and psychological needs and not on the Parents’ disagreement with Child’s transgender identity....

Even if the Parents were able to demonstrate that the Dispositional Order imposes a substantial burden on their religious freedom, their claim that Child’s continued removal from the home violates the Free Exercise Clause would fail....  [P]rotecting a child’s health and welfare is well recognized as a compelling interest justifying state action that is contrary to a parent’s religious beliefs.

The court also held that the trial court's order requiring the parents to refrain from discussing Child’s transgender identity during visitation does not violate the parents' free speech rights.

Alaska Supreme Court Upholds Award Of Vaccination Decision-Making To Father Over Mother's Religious Objections

 In Lady Donna Dutchess v. Dutch, (AK, March 9, 2022), the Alaska Supreme Court upheld a trial court's decision awarding sole authority to make decisions regarding vaccinations to a divorced father. The mother objected to all vaccinations for the children on religious grounds. The mother contended that this violated her free exercise rights under the state and federal constitutions. Rejecting that argument, the Alaska Supreme Court said in part:

We are not convinced that heightened scrutiny necessarily applies to child custody determinations allocating decision-making authority between parents, nor did the parties brief this issue. We note that several other state courts have concluded that strict scrutiny does not apply to a custody determination between parents with divergent religious convictions.... [A] court’s application of custody statutes in a manner exhibiting “a preference for the religious over the less religious” would essentially place “government on the side of organized religion, a non-secular result that the establishment clause is designed to prevent.” ...[T]he superior court here properly considered how the mother’s desire not to vaccinate the children was contrary to the recommendation of the children’s pediatrician and counter to their best interests.

Even if we were to apply heightened scrutiny ... , the superior court’s ruling would withstand review. The Statehas “an undeniably compelling interest in protecting the health of minors.”

Michigan Statute Protecting Parents' Faith Healing Includes Subjective Religious Interpretations

Michigan's Child Protection Law (MCL 722.634) provides:

A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian.

In In re Piland, (MI App., April 15, 2021), a Michigan state appellate court held that the trial court erred in refusing to give a jury instruction based on this statute in a case in which parental rights for three children were being revoked.  The parents had allowed a newborn infant who developed jaundice to die rather than call for medical help. The trial court had refused the instruction because it interpreted the statute to relate only to the practice of beliefs of a religious organization, and not to individualized beliefs.  The appellate court disagreed, saying in part:

The trial court’s interpretation of the word “legitimately,” as used in MCL 722.634, is that the religious beliefs being practiced must be legitimate. And, that, in order to be legitimate, those beliefs had to be part of the doctrine or tenants of a religion as opposed to a parent or guardian’s subjective interpretation of scriptures. The trial court’s interpretation, however, renders the statute unconstitutional. It is well-established that “government has no role in deciding or even suggesting whether the religious ground” for a person’s actions “is legitimate or illegitimate.” 

Claim of Religious Targeting Against Child Welfare Worker Dismissed

In Glasser v. McCumbers, 2019 U.S. Dist. LEXIS 7541 (SD WV, Jan 15, 2019), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 219514, Nov. 30, 2018) and dismissed a suit against a Child Protective Services worker.  Plaintiff, whose child was removed from his custody, alleged that he was was subjected to an Abuse and Neglect charge in part because of the contempt for which the CPS worker Melissa McCumbers held his religious communal living conditions.  The court concluded that McCumbers failed to establish a substantial burden on the exercise of his religion.

Parents File State Court Suit Alleging Baptism of Their Son Without Their Consent

As previously reported, last October an Ohio federal district court dismissed a suit by parents of a minor child who contended that the mentor assigned by a juvenile court to their son coerced him into being baptized against the wishes of his parents. The court held that the various defendants were not state actors or had judicial immunity. Now the parents have refiled in state court, alleging causes of action that do not require a showing of state action. The complaint (full text) in Defibaugh v. Big Brothers/ Big Sisters of Northeast Ohio Board of Trustees, (OH Com. Pl., filed 4/24/2018), alleges civil assault and battery, intentional infliction of emotional distress, negligent training and supervision of employees and volunteers, and civil conspiracy.  American Atheists issued a press release announcing the filing of the lawsuit.

European Court Upholds Germany's Removal of Children From Religious Sect Parents

Last week in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany, (ECHR, March 22, 2018), the European Court of Human Rights in Chamber Judgments upheld the action of a German Family Court against claims by four families asserting their Article 8 Convention right to respect for private and family life.  A press release from the European Court described last week's decisions:

The cases concerned the partial withdrawal of parental authority and the taking into care of children belonging to the Twelve Tribes Church (Zwölf Stämme), living in two communities in Bavaria (Germany). In 2012 the press reported that church members punished their children by caning. The reports were subsequently corroborated by video footage of caning filmed with a hidden camera in one of the communities. Based on these press reports, as well as statements by former members of the church, the children living in the communities were taken into care in September 2013 by court order. The proceedings before the European Court have been brought by four families who are members of the Twelve Tribes Church. They complain about the German courts’ partial withdrawal of their parental authority and the splitting up of their families.

The Court agreed with the German courts that the risk of systematic and regular caning of children justified withdrawing parts of the parents’ authority and taking the children into care. Their decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in absolute terms under the European Convention.

Chamber judgments may be appealed to the Grand Chamber.

Mother Held In Contempt For Ignoring Custody Order Giving Father Control of Religious Decisions

The Charlotte Observer last week reported that a North Carolina state Superior Court judge has upheld a contempt conviction of 36-year old Kendra Stocks for disobeying a court order regarding custody of her daughter. One day after a district court judge gave full custody, specifically including decisions concerning religion, of Stocks' 3-year old daughter to the child's father, Stocks went ahead with a previously-planned baptism of the child. She did not inform the father of the planned ceremony; he learned of it through Stocks' Facebook postings. The Superior Court reduced Stocks contempt sentence from ten to seven days. [Thanks to Scott Mange for the lead.]

Court May Not Automatically Defer To Religious Objections Of One Parent In Deciding Child's Best Interest

In Arcella v. Arcella, (NV Sup. Ct., Dec. 26, 2017), the Nevada Supreme Court held that a trial court was wrong in the manner it resolved a dispute between divorced parents over the middle school their child should attend. the father wanted the child to attend a private Lutheran school, but the mother objected to the child's receiving a religious education.  The court, relying solely on the mother's religious objections, decided that the child should attend a public school.  In reversing, the state Supreme Court said in part:

When a district court decides a child's best interest, "[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." ... The district court violates this principle of neutrality when it treats one parent's religious objection as dispositive when deciding between a religious school and a nonreligious school....

In sum, a district court does not violate the First or Fourteenth Amendments by ordering a child to attend a religious school over a parent's religious objection. Indeed, the district court must order a child to attend the religious school if attendance at that school accords with the child's best interests.

Las Vegas Review Journal reports on the decision.

Court Dismisses Parents' Complaint of Coerced Baptism of Son

In Defibaugh v. Big Brothers/ Big Sisters of Northeast Ohio Board of Trustees,  (ND OH, Oct. 16, 2017), an Ohio federal district court dismissed a suit by parents of a minor child who contend that the mentor assigned by a juvenile court to their minor son coerced him into being baptized against the wishes of his parents. They also claim that their son's guardian ad litem preached to the family about Christianity. The court held that the various defendants were not state actors or had judicial immunity.  Friendly Atheist blog has more on the case.

Appeals Court Refuses To Order Recusal of Fundamentalist Christian Judge

In Ex parte Tiara Brooke Lycans, (AL App., July 28, 2017), an Alabama appellate court refused to issue a writ of mandamus ordering a trial judge who also serves as a preacher of a fundamentalist Christian church to recuse himself in a divorce action in which the wife, a lesbian, feared bias in the judge's custody ruling.  The court said in part:

Judge Bell's expressed belief that homosexual relationships and marriage are contrary to God's law, ... that God's law takes precedence over man-made law, and his placing paramount importance on the moral environment in which a child will live ... would tend to indicate to a reasonable person that a reasonable basis for questioning Judge Bell's impartiality in the divorce action exists; however, the standard is not whether there are some facts that would tend to indicate ... a reasonable basis.... Rather, the issue is "whether a reasonable person knowing everything that [Judge Bell] knows would have a "reasonable basis for questioning [Judge Bell's] impartiality."...  Judge Bell, in his pendente lite custody order ... granted the mother and the father joint physical custody of the child, with custody alternating weekly, and ... [he] has granted two other lesbian mothers and the fathers of their children joint physical custody.... [A] reasonable person who knows everything that Judge Bell knows would not have a reasonable basis for questioning Judge Bell's impartiality....

Christian Post reports on the decision.

Federal Court Dismisses Challenge To State Custody Order

In Goffstein v. Sieve, (SD OH, June 2, 2016), an Ohio federal district court dismissed a suit claiming that an Ohio domestic relations court judge in removing custody of four children from their Orthodox Jewish mother had infringed the mother's right to control the education of her children and the children's right to practice their religion. The court gave custody to the father who was no longer practicing Orthodox Judaism and who sent the children to public school instead of to yeshivas. The court held that its review of the claims is precluded by the Rooker-Feldman doctrine which bars lower federal courts from conducting appellate review of final state-court judgments.

Divorce Decree Restrictions Violate Mother's Free Exercise Rights

In Black v. Black, (WA App., March 8, 2016), a Washington state appeals court held that a trial court imposed improper conditions on the non-custodial parent in a divorce action.  Charles and Rachelle Black had three children whom they raised in a conservative Christian home and sent to religious-based schools.  After 17 years of marriage, Rachelle informed Charles that she is a lesbian, and two years later filed for divorce. The court's final parenting plan designated Charles as the primary residential parent, awarded him sole decision-making as to the children's religious upbringing and required Rachelle to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyles. The appeals court reversed, saying:

While the best interests of the children is a trial court’s paramount concern ..., here there is no indication that Rachelle’s prior speech related to her sexual orientation or her religious views ... would cause harm to the children if such speech or conduct occurred in the future. Therefore, we hold that the restrictions are an unconstitutional burden on her freedom of speech and her free exercise of religion. 

Mother's Move To Eskimo Village Does Not Justify Reduction In Her Child Support Obligations

In Sharpe v. Sharpe, (AK Sup. Ct., Jan. 8. 2016), the Alaska Supreme Court in a 3-2 decision upheld a trial court's denial of a mother's motion to reduce the amount she is required to pay under a child-support order. The mother, who is the non-custodial parent of an 10 year old daughter, gave up her high-paying Alaska pipeline job to move back to her Yup'ik Eskimo community.  She adopted a subsistence lifestyle there to meet her her cultural, spiritual, and religious needs and help her in her battle with alcohol. Under Alaska rules, the court can order a parent to pay more than would otherwise be justified by his or her current income level if the parent is "voluntarily and unreasonably" unemployed or underemployed. The majority concluded that this was a voluntary and unreasonable decision by the mother to earn less than she is capable of earning.

On appeal, the mother also argued that the child support order burdens her free exercise of religion as protected by the Alaska Constitution.  She contended that the order in effect requires her to give up her Native religious and cultural heritage to maintain a stressful job in Anchorage. The majority rejected her claim because it had not been raised at trial.

Justice Winfree dissenting argued in part:

Today’s decision has enormous negative implications. It trivializes and devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages and their subsistence lifestyle.  It requires a non-custodial Native parent in rural Alaska to pay child support based on what the parent could earn in urban Alaska regardless of the legitimacy of choosing to live in rural Alaska.... [I]t infringes on constitutionally protected religious and privacy rights.