December 3, 2010

Republican? No Joint Custody with a Democrat!

Well, not really, but close.

Craig Scarberry is a recent convert from Christianity to Agnosticism. He had joint custody of his three children with his ex-wife, still a Christian, until she filed for sole legal and physical custody. In a ruling in favor of the mother by Madison County Superior Court 2 Commissioner, George G. Pancol, and affirmed by Judge Thomas Newman Jr, Mr. Scarberry was stripped of joint custody, and would have only visitation rights in accordance with the state guidelines. Mr. Scarberry is expected to appeal the ruling.

In an interview given to "the Young Turks" on MSNBC, Mr. Scarberry has complained that the ruling was discriminatory, and motivated by his agnostic beliefs:

Criticizing J.Pancol’s order, Indiana University law professor, Jennifer Drobac, commented:

I have read the order and am really concerned about why (Pancol) twice mentioned (Scarberry’s) religious beliefs,” Drobac wrote in an e-mail. Such discretion would be clearly unconstitutional unless the parent’s religious practices were actually harming or posed a substantial threat of harm to the children.

Defending his ruling, J.Pancol, said:

When considering joint legal custody, the Indiana statute requires the court to determine if the divorced parents can agree on matters such as education and religious upbringing. The case law requires me to make a decision whether or not the parties can communicate effectively about these matters and others concerning their children...

Apart from the fact that Mr. Scarberry is an agnostic, evidence cited in the ruling indicated that he had problems controlling his anger, and used profanity in the presence of the children. Weighing against this, there was evidence that the mother had left the children at home alone, did not feed them properly, and allowed them to ride in her car without buckling them down.

As for responsible parenting, it looks like a wash to me, perhaps in the father's favor. I don't understand why the risk of emotional affects of occasional angry outbursts of the father not specifically targeted at the children, should be any worse than the risk of physical endangerment due to occasional reckless behavior of the mother.

This leaves us with communication and coordination problems between Mr. Scarberry and his ex-wife regarding "matters such as education and religious upbringing", as the only plausible reasoning behind J.Pancol's order. The father denies that there has been any such problem. It is also interesting to note in this context, J.Pancol's observation that "the Mother and Father following the Dissolution of Marriage [in April, 2007?] did have intimate relationship up to and including February 2010"!

I quote here what I think are the relevant portions of Indiana Code [presumably, these are the ones that J.Pancol is referring to]:

IC 31-17-2-15
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;

IC 31-17-2-17
(2) as provided in subsection (b);
the custodian may determine the child's upbringing, including the child's education, health care, and religious training.

(b) If the court finds after motion by a noncustodial parent that, in the absence of a specific limitation of the custodian's authority, the child's:
(1) physical health would be endangered; or
(2) emotional development would be significantly impaired;
the court may specifically limit the custodian's authority.

I am not a lawyer, but judging from this code, it does appear that J.Pancol has made these determinations, solely on the basis that the father and mother in this case differ in their religious beliefs:

  • they are not "willing and able to communicate and cooperate in advancing the child's welfare"
  • the child's welfare generally is advanced by the mother's Christian beliefs, but impaired by the father's agnosticism in regard to the existence of a god, and everything else that goes with it
  • the child's physical health and/or emotional development will be specifically impaired by the father's agnostic methods of upbringing that exclude Christian indoctrination, but not the mother's methods of upbringing that include Christian indoctrination.

I must say, it does make me wonder if the judge's order would have been different, if the custodial dispute had been between, say, a Republican father and a Democratic mother. Considering what's going on in the U.S. Congress these days, communication and coordination between the two would be almost non-existent!

What is being protected here, the interest of the children or the interest of the religion? If it is the former, then, in light of recent advances in child development research, as well as several reported cases of child abuse by religious parents as well as clergy, and IC 31-17-2-17 (2b), there is a plausible argument for a specific limitation on the mother to exclude religious training from the child's upbringing!

Barring any new evidence to the contrary, I think that there is a reasonable cause for an appeal against J.Pancol's ruling as in violation of the father's right to equal protection and due process under the Fourteenth Amendment. On a broader note, I'd argue that the privilege accorded to a custodial parent to determine the religious training for the child, in itself violates the child's First Amendment right to freedom of thought and expression. If it is claimed that the First Amendment doesn't extend to children, then it should!

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