Apr 02, 2008

Religious Issues in Custody Cases, Revisited

Recently I posted here on the apparent rise in religious issues in custody disputes. One such case is working its way through the Oregon courts, where the Oregon Supreme Court recently addressed the question of whether a 12-year-old boy can be circumcised at his father's request over the objections of his mother.

As explained in more detail in the Oregon Divorce Blog, in Boldt and Boldt the Supreme Court remanded the case to the trial court for additional testimony regarding the boy's preference, which was never considered in the original proceeding. The parents divorced in 1999 and had ongoing disputes about custody, with the father obtaining custody when the son was nine years old. In the meantime, the father converted to Judaism, and stated his intent to have his son circumcised, consistent with the Jewish tradition. The mother asked for -- and got -- an injunction from the court, prohibiting the father from going forward with the circumcision until she could petition the court for a change in custody and a permanent injunction.

The Supreme Court ultimately held that "the decision to circumcise....falls within a custodial parent's authority, despite medical or religious objections by the non-custodial parent." However, the Supreme Court also ruled that the trial court made a mistake by not interviewing the now-12-year-old son about his preferences, and remanded the case to the trial court to evaluate the son's preference. If he does object, the trial court may transfer custody to the mother.

The most significant part of the ruling is the part that says a custodial parent has control over medical decisions, even over the non-custodial parent's objections. Even where one parent retains physical custody, it's far more common for parents to continue to share decision-making than for one parent to have sole power over important decisions like these. Where the fight is over the right to make decisions like this, it certainly raises the stakes in any custody dispute.

Have I mentioned before that mediation and collaboration are great ways to resolve disputes? And that sharing custody cooperatively is optimal for your kids? Sometimes it just can't happen, but once again, giving it your best effort may pay off in the end, when your kid doesn't have to go to court and tell a judge whether he wants to be circumcised.