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Austin Cline

Atheists Discriminated Against in Child Custody Cases

By March 30, 2006

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A couple of days ago I read a blog dismissing the importance of the survey showing atheists to be the most distrusted minority in America because there isn't any practical bigotry or systemic discrimination resulting from this. I wish I could find that blog again to point the author to how atheists are discriminated against when it comes to child custody cases.

A few days ago, Andrew Sullivan posted an email from a reader:

To make a long story short, the judge took away Sunday visitation from me permanently (I have my son every other week rather than every other weekend, so the change could have been much worse), so that the child “could get the religious instruction he needs” via my ex-wife. Similar verbiage actually appears in the court order. The repulsion I felt about all of this can never be described coherently.

I was verbally lambasted by a judge in the United States of America for my religious beliefs, and suffered punishment for it (or perhaps, my son did, depending on viewpoint)... This happened in Mississippi, and I know better than to fight it - given that the original lawsuit aimed to reduce my visitation to every other weekend, I could have fared much worse, and the judge rightly guessed I would not wish to appeal and risk losing more ground when the case is sent back for reconsideration. But still, I have never, never felt so violated.

Every witness only had good things to say about this man; the only reason he was attacked by the judge is because of his lack of religious theism.

A member of our forum writes:

I am an ex-Christian. I was also married to a Southern Baptist man who abused me throughout our entire marriage. I finally divorced him 4 years ago and left my religion, which I do not regret. However the divorce has been hard enough on the children and now my ex-husband is raising them in a church which is a cult to me.

I fear my children are growing up unhealthy in his religion. These are just some of things they have come home and told me daddy has told, “Mommy is your mom in hell because she was a Jew when she died?”

“Mommy Daddy said its against God’s law to live someone before your married but it isn’t against the law to hit a woman.” “Daddy said he is the leader of the household and wives are supposed to be submissive.” “If you don’t get saved you will burn in hell and the demons will get you.”

It truly breaks my heart just repeating this stuff. I do not currently follow any religion nor does my fiancee although he practices Buddhist philosophy. We both simply believe to each his own but for us we believe in love and living a good life. Anyway we are trying to teach beyond what my ex-husband is teaching them; however I’m finding it harder and harder because the church brainwashes them with fear. Does anyone have any advice or know of any good books that might help me in this endeavor with my children?

I am truly afraid of my children growing up in this religion. My son already has this idea that mommy is below daddy and that woman are less than men. What can I do?

The other thing that I wanted to interject is that my ex-husband threatened to take me to court for custody. Upon talking with my attorney, these were his exact words to me; “I think you and your fiancee should get married as soon as possible because the judge is Christian and will not look lightly on the fact that you two are living together and aren’t married. It just wouldn’t be good at all no matter how much your fiancee loves those kids.” Isn’t that biased and illegal? I suppose it doesn’t matter that my ex-husband has various police reports against him and is an abuser of women right? It just matters that I am not living up to the Christian dogma of the southern thinking?

Her lawyer is right — though merely getting married may not be enough. The fact that she is an atheist may be enough to deny her custody. A few days after the above email was received, Andrew Sullivan posted a link to a law article by Eugene Volokh detailing many cases where atheists are discriminated against in child custody — and these were just the cases which were appealed, so the actual numbers are likely much higher. A sampling:

Carson v. Carson, 401 N.W.2d 632, 635–36
(Mich. Ct. App. 1986) (quoting trial court as opining that it “was a little bit distraught in finding that there was no particular affiliation [held by either parent] with a church,” because “[p]robably 95 percent of the criminals that I see before me come from homes where there’s no . . . established religious affiliation,”

Sharrow v. Davis, Nos. 244043, 245117, 2003 WL 21699876, at *3
(Mich. Ct. App. July 22, 2003) (noting that “[father] never attended church and his older children were not baptized,” that “[father] felt [the children] should experience many religions and choose one when they were older,” and that though “[mother] did not attend church regularly, she attended periodically and would take all of the children with her”);

Goodrich v. Jex, No. 243455, 2003 WL 21362971, at *1
(Mich. Ct. App. June 12, 2003) (noting “that [father] has a greater capacity and willingness to continue to take the parties’ daughters to church and related activities,” and that trial court had been “concerned with [mother’s] belief that her minor daughters are capable of making their own decisions whether to attend church”);

Sims v. Stanfield, No. CA98-1040, 1999 WL 239888, at *3–*4 (Ark. Ct. App. Apr. 21, 1999)
(noting that lower court based award of custody to father partly on father’s having “‘rekindled’ a relationship with his church,” “regularly attend[ing] services,” and providing “a Christian home,” but declining on procedural grounds to review this);

Tweedel v. Tweedel, 484 So. 2d 260, 262 (La. Ct. App. 1986)
(noting that “The child attends church regularly with the mother and receives religious instruction. The father testified that he has not brought the child to church because the child did not want to go and that he would not force the child to go to church.”);

Staggs v. Staggs, No. 2004-CA-00443-COA, 2005 WL 1384525, at *6
(Miss. Ct. App. May 24, 2005) (noting that “[w]hile [father] is an agnostic and testified that religion is not important to him, [mother] testified that religion is very important to her”);

Weigand v. Houghton, 730 So. 2d 581, 587 (Miss. 1999)
(noting chancellor’s “weighing heavily” as factor in mother’s favor that “mother has seen that [the son] is taken to church and undergone religious training, along with the entire family” and that “[the son’s] best interest would be served by providing religious training”).

Gancas v. Schultz, 683 A.2d 1207, 1213–14 (Pa. Super. Ct. 1996)
(reversing lower court’s transfer of custody from mother to father, based partly on lower court’s “fail[ure] to consider ‘all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being,’” and in particular that while “[m]other . . . takes [daughter] to church whenever [daughter] is with her,” “[f]ather, an admitted agnostic, does not attend church”).

Myers v. Myers, 14 Phila. 224, 256–57 (Com. Pl. 1986)
(“Although the issue of religion is not controlling in a custody case, the religious training of children is a matter of serious concern and is a factor that should be considered in rendering a custody decision. ‘A proper religious atmosphere is an attribute of a good home and it contributes significantly to the ultimate welfare of a child.’ Where it appears that the religious training of the children will cease upon placement in a given custodial setting, courts lean in favor of the religious-minded contestant.”), aff’d without op., 520 A.2d 68 (Pa. Super. Ct. 1986);

Scheeler v. Rudy, 2 Pa. D. & C.3d 772, 780 (Com. Pl. 1977)
(awarding custody to mother, noting as factor in her favor that she often took children to church, while father rarely did, that “[t]his court has often noted the absence of any regular church attendance in the pre- sentence reports of those who have been convicted of some crime, which appear on our desk,” and that “a religious education and upbringing can have a substantial effect upon the outlook and attitudes of a child, and in turn upon the life of the adult he or she will become.”)

Pountain v. Pountain, 503 S.E.2d 757, 761 (S.C. Ct. App. 1998)
(upholding denial of custody to father whom court described as “agnostic,” and stating that “Although the religious beliefs of parents are not dispositive in a child custody dispute, they are a factor relevant to determining the best interest of a child”);

In re F.J.K., 608 S.W.2d 301 (Tex. App. 1980)
(noting “the mother’s neglect of the children’s religious upbringing,” and “[a]n atheistic philosophy [being] . . . discussed by the new husband to some extent with the daughter, prompting her to advise her nursery school teacher that she was ‘not a Christian or a Jew but an atheist’”).

These are some of the results of atheists being discriminated against in America: parents are denied custody of their own children for little or no reason beyond the fact that they don’t belong to any organized religion and would allow their children to make their own religious choices. According to American judges, children shouldn’t be allowed to make their own religious choices — they should be indoctrinated into religion and brainwashed by believing parents lest they become skeptics, atheists, or some other kind of criminal.

People who poke fun at religion can lose custody of their children, too. Rachel Bevilacqua is an active member of the Church of the Sub-Genius and a New York judge evidently called her a “pervert” when he took custody from her and awarded custody to her ex-boyfriend. WROC reports:

Bevilacqua walked out of the Orleans County Court stripped of just about all of her parental rights. This after County Judge James Punch learned of her involvement in a satire performance group that pokes fun at religion, called the Church of the Sub-Genius. Court transcripts back up her claims. “I’ve read through the transcripts a million times and he just said it’s obvious that I shouldn’t have my son. Obvious.” [...]

Bevilacqua believes Judge Punch used her to make a political statement. “I’m a good mother and you can’t play games with people’s lives like this,” she asserted.”

Judge Punch even went so far as to order to her to cease talking about her case online — she had developed a large outcry against the judge, and for good reason. She lost custody of a child who had lived his entire life with her, and was even denied all contact with her son initially. That gag order can’t last long and it’s no wonder that Judge Punch has recused himself from the case. He did something really stupid, it appears, and probably wants to distance himself from it as much as possible. I guess it would be asking too much for him to have the maturity and morality to admit error.

Imagine if Christians were commonly denied custody of their own children by judges who declared that attendance at Christian churches and maintaining a Christian education were contrary to the children’s best interests. The outcry against such a violation of basic liberties would be incredible — and the Christians would be right to be so upset. They are not upset, though, when Christian parents are benefiting from the same bigotry and discrimination aimed at atheists, agnostics, and parents who are simply apathetic about religion.


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August 9, 2009 at 11:10 pm
(1) E johnston, LCSW says:

If only more couples would turn to divorce mediation instead of divorce attorneys. Mediation allows couples to make decisions efficiently and in the best interest of themselves and their children. I can only wonder what would have happened if this couple had sought a means of crafting the terms of their divorce that focused on the areas of agreement and resolution, versus areas of conflict and disagreements. Through mediation couples make the decisions – not the lawyers.

December 5, 2010 at 6:18 pm
(2) Nigel A. Carruthers says:

I doubt mediation would have helped if the mother is a religious nut. But then, if you could reason with religious people… there wouldn’t be any religious people.

July 13, 2011 at 8:02 pm
(3) Andi Yanok says:

Actually I believe you have it backwards. It’s the other way around and if we can talk any reason into you guys then the world wouldnt have any problems or issues and it would be UTOPIA! But that is not possible when we have those who wont listen to the facts and listen to the voice of reason (GOD!)

September 8, 2011 at 3:51 pm
(4) P. Fiver says:

@Andi Yanok: You think God is the voice of reason? The same God that killed all the firstborn sons in Egypt? … speaking of a poor custodian!

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