Court overturns custody order stating ‘neither parent will write down Christianity in front of or in front of children’

From Cochener and Metcalfe’s marriage, decided yesterday by the Washington Court of Appeals (Judge Ian Birk, along with Justices Stephen Dwyer and Janet Chung):

Metcalfe challenges a provision of the parenting plan that reads, among other things, “No parent shall disparage Christianity in front of or in front of the children, or allow other members of his household to disparage a parent’s spirituality.” Metcalfe argues that the language of the provision to religious education by the trial court violates the First Amendment.

The provision was only discussed in a subsequent hearing. Cochener’s attorney stated, “Ms. Cochener just wants to be sure that Mr. Metcalfe cannot prevent her from teaching the children their religion.” The court inquired about the parents’ religious practices. Cochener self-identified as a “practicing Christian” and Metcalfe stated, “I don’t identify with any particular religion.” Metcalfe stated that he had no problem teaching the children to respect Cochener’s religion and “I think we should introduce the children to different things so that they can find their own way in life and respect each other’s views.” Cochener explained, “[M]My only concern is that my children have reported being told slanderous things about Christianity at their father’s house. … I am not concerned about raising my children with respect for all religions, beliefs and non-beliefs.”

The court replied: “Any negative comment about Christianity made to the children or in front of the children … will therefore be sufficient reason to change the position to sole decision-making.” Subsequently, the trial court accepted the agreements of Metcalfe and Cochener said in the written resolution, “The parents have agreed to educate their children to profess all religious traditions, value goodness in the practice of other beliefs, and respect those who have no religious preference. No parent will “write down Christianity to or in front of their children or allow other members of their household to belittle a parent’s spirituality.”

Parents have the fundamental right to make decisions about the care, custody and control of their children. The parental right to determine the religious upbringing of the child arises from both the parents’ right to freedom of religion and to the care and custody of their children. A parent’s right to direct a child’s religious upbringing may be restricted “if parental choices are found to endanger the health or safety of the child or have the potential for significant social distress.” Article 1, Section 11 of the Constitution of the Washington State protects religious freedom more than the First Amendment. A Washington court may prohibit a parent from teaching children about the faith “only where there is substantial evidence of potential or actual harm to the children as a result of the children’s negative response to the parents’ conflict over the children’s religious upbringing.” , and only to the extent necessary.” prevent harm to children.”

Elsewhere, Massachusetts maintained a prohibition that a parent “should not share their religious beliefs with their children if those beliefs cause the children significant emotional distress or concern about their mother or themselves.” Kendall vs. Kendall (Mass. 1997). A Colorado court overturned a ban on homophobic religious teachings when the court’s findings failed to determine whether the trial court used the correct standard in restricting it [a parent’s] Right to determine the religious upbringing of the child. In the interests of ELMC (Colo. App. 2004). There, although the other parent argued that the limitation was merely a non-disparagement clause, the court did not uphold it on that basis “because it is not so described in the court’s decision. Nor is it mutual.”

As written, the contested provision restricts religious topics that parents may discuss with their children in potentially undefined and subjective ways and is not specifically designed to avoid disparaging the spirituality of the respective parents. The files do not show that the trial court analyzed whether parental decisions about religious discussions endangered the children’s health or safety.

The parties agreed at the hearing that their dispute was adequately resolved as long as the parenting plan stipulated that neither parent be allowed to belittle the spirituality of the other parent. Such a provision would be consistent with the upheld regulations on religious education. We reverse the religious education provision and call for a revision of the religious decision-making provision to reflect the parties’ agreement that mutual non-denigration of each parent’s spirituality is sufficient.

I’m not sure if general prohibitions on parents belittling the other parent’s spirituality are permissible unless the parties agree. Likewise, I think Kendall vs. Kendall is wrong; See my Parent-Child Language and Child Custody Restrictions for more on this. But I definitely agree that the ban on “put.”[ting] “Debasing Christianity” is too broad and vague, even though the parties have agreed on a narrower ban on “denigrating”.[ing] “The spirituality of the other parent” (which I understand as prohibiting personal disparagement of the other parent and not just mere condemnation of a wider religion). You can read more about this in the amicus brief written by my First Amendment Amicus Brief Clinic student Samantha Frazier, Katarina Rusinas, Philip Raucci and I submitted on behalf of the Pennsylvania First Amendment Center and myself (with the invaluable help local attorney Gary W. Manca of Talmadge/Fitzpatrick).