It does not take a cynic to note a high correlation between people becoming involved in custody cases and “finding religion.” So long as judges confuse religion with morality and morality [the duties we owe God] with ethics [the duties we owe each other], there are advantages to be had in family court by claiming newly-found piety. Too bad we assume that any person proclaiming religion has more to offer on “righteous behavior” than a thoughtful committed atheist such as local gadfly Herb Silverman.
There’s actually a great argument that injecting religious observance into custody decisions is a violation of the First Amendment. In Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968), the United States Supreme Court notes:
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion, and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.
Despite this, and as discussed in Roy T. Stuckey’s Marital Litigation in South Carolina 458-66 (3d ed.2001), there is a long list of South Carolina appellate decisions which appear to approve a parent’s religious commitment as a factor (if not the controlling factor) in deciding custody. But, if we are going to allow religion to be a factor in deciding custody, I believe it fair to test the sincerity of a parent’s religious beliefs.
To do this I ask religious parents three simple questions: 1) Name your favorite story in the Bible (or whatever religious text they subscribe to); 2) What do you like about that story?; 3) How has the lesson from that story affected your behavior? For example, if I was asked that question, I would answer “The Book of Ruth.” I love how the non-Jewish, recently-widowed Ruth follows her widowed, Jewish, mother-in-law, Naomi, back to Israel with these words:
Entreat me not to leave you, or to turn back from following you; For wherever you go, I will go; And wherever you lodge, I will lodge; Your people shall be my people, and your God, my God. Where you die, I will die, and there will I be buried. The LORD do so to me, and more also, if anything but death parts you and me.
I love how Boaz, on whose fields Naomi and Ruth are gleaning [collecting leftover crops from farmers’ fields after they have been commercially harvested], falls in love with Ruth after hearing of her kindness towards her mother-in-law. The lessons I take from this story are: treat your older relatives with kindness and take steps to assuage their loneliness; be kind to strangers and outsiders and welcome them as you would welcome kin and neighbors and; take steps to help the poor and downtrodden so that they might live with dignity.
You’d be surprised–perhaps not–over how many newly-religious parents give facile answers to these questions. I once deposed a woman who had given my client custody of their child to engage in an adulterous relationship, and become pregnant with her paramour’s child before the divorce from my client was finalized. After their divorce, she married the man with whom she had cheated and now she wanted the older child returned so she could reunite her family. I asked this mother for her favorite Bible story and she answered,“The Book of Job.” That was surprising on two counts. First, few Christians name an Old Testament story as their favorite. Second, in the Book of Job, God kills Job’s children as part of an elaborate bet with Satan to prove whether Job is righteous or merely acts righteous because God has treated him so well.
When I asked this woman why she liked The Book of Job she replied, “Because God took everything from Job and then gave him everything back.” Indeed, in The Book of Job, God ruins Job’s crops, destroys his reputation, his wealth, and his and his wife’s health, and kills his children. For a time Job suffers in silence but finally he can take it no further, demanding to know of God why he has been forsaken. God does not answer the question directly but instead demands of Job:
Where were you when I created the foundations of the earth? … Where were you when the morning stars sang together? … Have you shut up the sea with doors? … Have you made the cloud the garment thereof? … Have you commanded the morning? … Have the gates of death been opened unto thee or hast thou seen the doors of the shadow of death? … Hast thou perceived the breadth of the earth?
Upon completing this verbal smackdown, God restores Job to his formerly illustrious position and actually increases his wealth, reputation and number of children.
A God who toys with innocent humans and human life for his [or her] own amusement is profoundly disturbing. It is not the story I would expect a newly-religious person of limited education to select as her favorite. When I later reminded her that God had done for her what he had done for Job–taking her old child and giving her a new one–and asked why she could not be satisfied with the status quo–everyone went apoplectic. However, I believe the point I was trying to make–that those finding religion in order to bolster their custody claim are sometimes facile, if not insincere, in their beliefs– was pretty well established.