Columnists > Voices

Live with the consequences

Custody issues, like divorce, are too complicated for our courts

Issue: "The Road to Damascus," Sept. 21, 2002

I got a glimpse last week of how a contemporary American court dispenses justice in the context of domestic law. If what I saw was typical, you should shiver a little at some influences now at work in our American courts. Domestic law, of course, has to do primarily with divorce, support, and custody issues. The questions are almost always outrageously complex-and I don't get the sense that the courts take matters lightly. They face a genuinely impossible task.

Suppose, for example, that after Mr. A becomes involved in an openly adulterous relationship with Mrs. B, he leaves Mrs. A and their three children to marry Mrs. B. The court gives Mrs. A primary custody of her children. Then, a couple of years later, Mr. C appears on the scene and marries the original Mrs. A, seeking also to be a helpful father-figure to her children.

Not so fast, says Mr. A-who in spite of his original desertion of his wife and children has enjoyed regular court-appointed visitation privileges with his children. Mrs. A, who now is Mrs. C, has cooperated fully with those visitations, even with the emotional pain and inconvenience they inflict. But now Mr. A is asking for more. He misses his children, he says, and therefore petitions the court to amend its original awarding of primary custody to his first wife, and instead authorize joint custody-with each original parent getting 50 percent of the children's time.

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The request, of course, is a great distress to Mrs. C. It means that any effort to reconstruct some sort of normal family life for herself and her children is down the drain. It means the children will be constantly shuttled back and forth between two households. It means they will never know wholeness and a truly peaceful home.

The natural response, of course, is for Mrs. C to protest that this isn't her fault-that Mr. A chose this situation for himself, and that he should be required to pay the consequences. Shouldn't she be permitted, at the very least, to put the broken pieces of her life back together without constant intrusion from the man who has destroyed so many of her dreams?

But into this real-life soap opera you must now allow to enter a startling new legal doctrine referred to as "parental alienation." It is, according to some attorneys we have talked to, one of the newest fads in courts dealing with domestic problems. The argument is that whatever other bad things may have happened, the one thing the courts should never allow is for a parent to be alienated from his or her children. We can't sit in judgment, the courts tend to say these days, on whatever issues may have led to the breakup of a home. We are in no position to say whether adultery is good or bad. But we are prepared to say that almost no matter what he has done, no parent should be denied an equitable share of the company of his children-or of their goodwill and esteem.

Profound consequences spring from the doctrine of parental alienation.

The first is that Mr. C is put in an impossible situation. If he does bad things to the children he is informally fathering, he is of course a bad father. But if he does good things to those children, guess what-that is also bad, for now, simply by the contrast he is drawing, he is alienating the children from their biological father!

A second serious consequence is that Christian parents, and the churches where they are members, find themselves fearfully restricted in their teaching of biblical truth. May we tell our children that adultery is wrong-or that marriage is intended by God to be permanent? May we call it "sin" when those standards are broken? "Well," the courts seem to be saying, "you can say what you want. But there are consequences if we catch you reflecting negatively on anyone-and those consequences might include your losing custody privileges you now enjoy." (In this case, as a matter of fact, the mother did lose the primary custody she once enjoyed.)

So much for meaningful religious freedom. In the case I watched, the tape of a sermon preached at the family's church was played for the judge, to help determine whether the tone of that sermon might have tilted the children's thinking against their father. If that practice doesn't produce what civil-liberties folk have often called a "chilling effect," it's hard to imagine what might be any more icy.


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