Indiana Child Custody Victory

While this shouldn't be surprising (and certainly isn't to me), it's good news nonetheless!

As some of you may recall, Thomas Jones and Tammy Bristol were taken by surprise last year when the judge overseeing their divorce included in the divorce decree an order -- supported only by his personal beliefs -- prohibiting either parent from exposing their child to "non-mainstream religious beliefs and ritual."  Because both parents are Wiccan, religion had not been an issue in the divorce.

Jones and Bristol appealed the ruling, with the help of the Indiana ACLU.   Yesterday the Indiana Court of Appeals issued a unanimous decision striking the court's requirement from the divorce degree and upholding the parents' rights to share their religion with their children.

Although the parents included a constitutional argument in their appeal, the court did not need to address the constitutional issue.  Rather, it held that the lower court violated the Indiana statute governing decisions about a child's upbringing in divorce/custody proceedings:

[T]he statute expressly reserves for the custodial parent the authority to determine his child's upbringing, which includes religious training, unless otherwise agreed by the parties at the time of the custody hearing....  The statute also provides a mechanism for limiting the custodial parent's authority in this regard -- following motion by the noncustodial parent, the trial court may limit the custodial parent's authority if the trial court finds that the absence of a specific limitation would endanger the child's physical health or significantly impair the child's emotional development.

The Court of Appeals acknowledged that there was no written agreement, and that the noncustodial parent (in this case the mother) did not move to limit the father's authority with regard to the child's upbringing.  Moreover, the court noted that there was no specific finding that this limitation of the father's authority was necessary to prevent the child from being endangered.  Thus, the trial court "lacked the authority to specifically limit the parents' ability to direct their child's religious training."  As the court concluded in striking the offending paragraph from the divorce decree:

Because the trial court did not find that a limitation on Father's parental authority to determine the religious training of his child was necessary to prevent endangerment to the child's physical health or significant impairment of the child's emotional health, we hold that the trial court abused its discretion in ordering the parents to shelter the child from involvement in and observation of "these non-mainstream religious beliefs and rituals[.]"

According to an article in the Indianapolis Star, even the Superior Court judge who signed off the decree ultimately realized that Wicca didn't pose a threat to the child:

Bradford said he gave the case a brief review before approving it last year, indicating there were initial concerns that some of the Wiccan rituals may have endangered the boy's health. Later, after a more thorough review of the court record, he discovered that wasn't the case, Bradford said.

I can only hope that the Indiana ACLU bore all the costs and fees of the appeal, especially in light of the judge's apparent change of heart.

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