April 17, 2007

Should a parent's Amish belief in no high school education determine a custody decision?

A Wisconsin Court of Appeals says no:
Gove, the mother, had legal custody of the child and Petty had regular visitations with her until 2004, when he sought sole legal custody because of differences over her further education.

The mother’s Amish faith also caused friction with the father’s attempts to do things with his daughter, court records said. For example, Gove refused to allow the teen to go to Europe with her father because the Amish faith forbid her from swearing an oath, which was required to get a passport, and from flying on an airplane, court records said....

[T]he three-judge appeals court said Amish parents cannot be penalized under state school attendance laws because doing so violated their constitutional right to practice any religion of their choosing.

“Nothing in the record justifies ordering (the girl) to enroll in high school, so nothing exists to justify changing custody and placement to facilitate such a requirement”....

27 comments:

Smilin' Jack said...

[T]he three-judge appeals court said Amish parents cannot be penalized under state school attendance laws because doing so violated their constitutional right to practice any religion of their choosing.

Well, not quite any...I doubt Gove would have had much luck flouting the truancy laws based on a belief in the Flying Spaghetti Monster. That's because, per David Souter in Board of Education of Kiryas Joel Village School District v. Grumet (1994) "government should not prefer one religion to another, or religion to irreligion,"...except when it feels like it. In other words, it has to be a religion established as legitimate by the government...that's what the Establishment Clause means.

Seven Machos said...

Actually, the Establishment Clause merely means that the federal government can't establish a religion. Nothing in the federal Constitution disallowed the States from doing so. Arguably the 14th Amendment does. Arguably not.

I love how people do all manner of cartwheels to try to interpret clear, unambiguous language, where "interpret" always means "find what I think should be the law."

Guys like Souter are the kings of this. And that makes him a chump.

Revenant said...

So basically there are two kinds of laws:

There are the really important laws, which everyone has to obey.

Then there are the less important laws, which it is ok to go ahead and ignore, but only if you have a sufficiently superstitious reason for ignoring them. If you have a rational reason for ignoring them, that's still against the law.

So if you want to keep your kid out of school because you think teaching him how to build a house is more important than teaching him the meaning of the hero's quest motif in Charles Dickens' "Great Expectations", that's very naughty and entirely illegal. But if you want to keep your kid out of school because you think an invisible spirit has told you that sending him to school endangers his "soul" and puts him at risk of going to "hell" in the "afterlife", then that's quite alright -- you can go right on ahead and keep him out of school.

Crazy crazy.

lurker2209 said...

You would think, with respect to the passport issue that rumspringa would allow the girl to bend the rules a bit and get the passport.

Don't courts typically allow teens to live with whichever parent they like? If the girl has had regular visitation with her father and some exposure to his culture and lifestyle it's hard to argue that she's being brainwashed by the mother. Even if we don't understand that decision, I think we have to respect it.

reader_iam said...

I recognize that there are many differences between the two situations, but still I find it interesting to read about this on the same evening as reading this, about the Metropolitan Airport Commission's decision to crack down on cabbies refusing service due to their religious objections.

Revenant said...

You would think, with respect to the passport issue that rumspringa would allow the girl to bend the rules a bit and get the passport.

Er, did you read the article at the link you provided? Here's a quote from it:

In a narrow sense, the young are not bound by the Ordnung, because they have not taken adult membership in the church, but they remain under the strict authority of parents who are so bound, and there is no period at which it can be said that Amish adolescents are "released" from these rules.

reader_iam said...

About your post: Strictly not from a legal perspective, but it does make a difference to me that the mother joined the religious community many years after the child was born and the original custody arrangements were set up. That decision on her part sort of changed the rules, including, the article implies, how the father was able to use his visitation time and spend time with his daughter. The mother seems to want her rules to apply even when the daughter is on "father" time.

As for the school issue--this is a really troubling one for me. I get the religious principal--but what about the girl's future? What does she want, I wonder, now and, more important, for herself in the future? I hope it's not something that involves a high school education. Oh, when she gets to be 18, she could make her own decision and get a GED, pursue college--but what an additional burden that could be. It could be that the father has a better grasp on the best interests of this particular child. (Or not--I don't know why the mother had sole custody to begin with, prior to the ruling two years ago, now overturned.)

Again, please note that my comment is explicitly not from a legal standpoint.

Donna said...

I have known the Goves since before they converted to the Amish faith. Their conversion date was several years after they begin living in the Amish community because acceptance into an Amish community is a lengthy process during whicih the converts learn German and study the theology. The child in question had lived in the Amish community and been schooled there since she was 6 or 7. Neither the court or the guardian ad litem took into account where the child wanted to live (she wanted to live with her mother, and expressed that opinion to the GAL and in several letters to the judge). The belief is that allowing children (including teens) some say in this process "puts too much pressure on them." My own belief (admittedly I am biased) is that the child would have been off continuing to live with her mother (who was willing to homeschool her through high school with an accredited curriculum, a compromise the father rejected) because she was thoroughly Amish at the time of the decision and I believe the culture shock of moving from an Amish way of life into a typical urban or suburban high school would have been damaging.

Sloanasaurus said...

I agree somewhat with Revenant.
The only difference is that the Amish were here long before Wisconsin was a state and were here long before states starting making kids go to school. If they were excepted from the law say in the 1940s... why should it apply to them now.

In contrast, immigrants who arrive here and then cry religion to circumvent the law - that is a different story. They should be given a choice. Comply and adopt our culture or move back to where ever you are from. Maybe the Amish should say this same thing back to us....

joe said...

She is old enough to choose, that should be the end of it.

Downtown said...

Actually, the Establishment Clause merely means that the federal government can't establish a religion. Nothing in the federal Constitution disallowed the States from doing so. Arguably the 14th Amendment does. Arguably not.

Arguably not? What planet are you living on. What reputable scholars are actually arguing that it doesn't apply?

Just a typical example of how extreme the right-wing has become.

vnjagvet said...
This comment has been removed by the author.
Simon said...

Seven Machos said...
"Actually, the Establishment Clause merely means that the federal government can't establish a religion. Nothing in the federal Constitution disallowed the States from doing so. Arguably the 14th Amendment does. Arguably not."

Well, that's Justice Thomas' view, from Newdow and Cutter. But that view has not prevailed, historically, and as I've said before, in the context of the second amendment, I share Justice Black's view that "the Fourteenth Amemdment clearly prevents the states from 'mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States,' and it seems no less clear that the peculiar "priveleges or immunities" peculiar to citizens of the United States in 1868 were the Constitutional restraints enforcable against their government, the most important of which are of course the restraints contained in the Bill of Rights."

Of course, as I conceded then, that "view, to put it mildly, has not prevailed; rather, the Court has incorporated its favored parts of the Bill of Rights (and anything else that has taken its fancy) by way of 'substantive due process'"; but for our purposes here, whichever road one arrives at the conclusion by, the court has (and should have) applied the establishment clause against the states as a consequence of the fourteenth amendment. I see no particularly compelling reason why the establishment clause, unique among the guarantees of the first amendment (all of which are equally subject to the opening clause that "Congress shall make no law...") should resist incorporation, even if its purpose when ratified was only to prevent federal establishment and to thereby protect state establishments. And in view of stare decisis, the case that the Fourteenth Amendment does not incorporate the establishment clause would have to be a lot more compelling than the arguments marshalled by Justice Thomas manage to overturn that body of precedent.

Simon said...

^ That is to say, I believe the 14th amendment makes the protections of the first eight amendments enforcable against the states, jot for jot. And that includes the 7th amendment.

Galvanized said...

Maybe it varies from state to state, but isn't the child old enough to choose with which parent she wishes to reside? In this situation, the adolescent should have the choice of whether to further pursue her education. Of course, she would have the burden of "leaving the faith." Poor kid.

Smilin' Jack said...

Actually, the Establishment Clause merely means that the federal government can't establish a religion.

No, that's what it says. What it means is whatever seven bozos chosen by a dubiously democratic process decide to claim it means. Ann appreciates it if their decision is accompanied by enough well-written sophistry to make it interesting to teach in class, but that's not a requirement.

Smilin' Jack said...

Oops...meant five, not seven...doing my taxes online at the same time--hard to keep all the numbers straight.

Kirk said...

Revenant,

Maybe crazy, but then so is all that old "deriving their just powers from the consent of the governed" stuff, isn't it?

AllenS said...

Sloanasaurus said...
I agree somewhat with Revenant.
The only difference is that the Amish were here long before Wisconsin was a state

That's incorrect. The first Amish in WI settled near Medford in 1925. It wasn't until the 1960's and after that they started to move into WI with any sizeable numbers. There are a lot of Amish in WI presently.

Donna, I've never heard of Amish accepting English into their church.

AllenS said...

I don't believe that Gineen Gove is Amish. Doing some investigative work, the Gove's lived next to the Ann Woods Hay River Community Co-op. Which is a bunch of hippies. Being a member of the Amish church is one thing, living like an Amish (except for the fact that they drive cars to their jobs in the Twin Cities) is another. There are no Amish anywhere near the co-op.

reader_iam said...

I found a number of articles, from various POV's, that all say that she's Amish.

But boy, did they disagree on some interesting bits of information in some areas of interest.

However, the ruling is the ruling, and so that other stuff is irrelevant.

fran said...

OK folks - I am the attorney who represented the Goves. There are some errors floating around that I would like to correct.
First, Gineen Gove and the father of the girl did live near a commune as stated by Allen. However, that was a quite a number of years ago. Secondly, when the girls father moved to Minneapolis, contact with his daughter was fairly minimal and gradually INCREASED over the years to such a degree that in the last full year before he commenced the court action, he had his daughter 24 or 25 weekends - I do not remember for certain. Thirdly, there is absolutely no doubt that the girl expressed a desire to remain with her mother. Fourthly, the Amish do NOT oppose formal education beyond the 8th grade. They do not, as a routine matter, provide that type of education. However, in this case, Gineen had actually investigated and made arrangements to provide schooling beyond the 8th grade level.

I would be glad to answer any questions that anyone may have unless it impinges upon client confidentialities or might have some bearing on future proceedings.

AllenS said...

fran,

Looking in my 2000 plat book of Dunn County, I noticed that the Gove's owned 95.67 acres. There are no Amish nearby. Somethings are not adding up. You do not apply to be Amish, and then take some classes to become Amish. I'll be willing to bet that the Gove's are not Amish. This is a child custody battle, where things are said sometimes that are not true. Is there any verification from the Amish community north of Mondovi that will testify that they (they Gove's) are Amish? My BS detector is going off. I know a little about the Amish.

Jack said...

Yeah, you do know a little. Very, very little, as it happens.

Of course, anyone can join the Amish. It isn't limited by race or ethnicity, it's limited by whether or not you are willing and able to subscribe to their confession, accept the Ordnung (church rules), and, in many but not all cases, understand the German dialect used in church.

I personally know at least five families that have joined New Order, Old Order and even ultra-conservative Amish groups.

Ann Althouse said...

Sorry, Makons, I don't want private facts about others revealed on this site.

Mindful Waste said...

Justice was served. I won sole custody and placement. My daughter stayed with her mom. Unfortunately I have not had contact with her in three years. I pray she gets all she is capable of in her spiritual and material life.

Smallfarmer76 said...

I do know the Goves and know that they did in fact become full members of the Amish church near Gilmanton. They have since moved to Black River Falls after a new community was started. In case that clears up any "BS detector" false alarms anyone was having. And justice was served, Gineen's daughter was able to remain where she wanted to be. End of story.