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Jul 13

This father did not have a prayer! Ordering a father to give up a few hours on every one of his Sunday mornings so that the mother can take the children to religious education does not violate the Establishment Clause of the First Amendment.

The San Antonio Court of Appeals found that giving the father a few extra hours on Sunday evenings made interrupting his weekends every Sunday morning  for the mom’s religious preferences acceptable. Stop and think about this — the father cannot ever leave town over a weekend because the mother gets three hours of possession of the kids every Sunday morning. Why? To accommodate one parent’s religious beliefs! How can that not be giving one parent’s religious beliefs priority over the other parent’s beliefs? What if Dad has a church he wants to take the kids to on Sunday mornings or what if he is an athiest? Rosenstein v. Rosenstein, No. 02-09-00272 (Tex. App. – Fort Worth, 8/11/2011)(mem. op.) should have decided this case but it was distinguished because the father here gets to keep the children until 9 pm on Sundays. This decision does not even address Knighton v. Knighton, 723 S.W.2d 274 (Tex. App. – Amarillo 1987, no writ). In Knighton, it was held:

These constitutional provisions mandate a zealous protection of an individual’s untrammeled right to religious belief so long as the teachings and practice of that religious belief are neither illegal or immoral. Accordingly, the courts of this state would have no more power to, directly or indirectly, attempt to effectuate by decree a conformance to, or condemnation of, certain religious teachings or practices, than would the Legislature or the Congress have the power to establish a state religion by law. As relevant here, that means that one’s religious beliefs, teachings, and practices, per se, are not grounds for depriving a parent of his or her children unless the teachings and practice of such beliefs are illegal or immoral. Thus, it is beyond the power of a court, in awarding the custody of a child or children to prefer the religious views or teachings of either parent, even though the beliefs and practices of one parent might be more “normal” or more in accord with majority religious views or practices. Therefore, as this Court earlier stated in the first appeal of this case, it is a fundamental principle that the State cannot prefer the religious views of one parent over the other in deciding the best interest of a child. This principle, we believe, must also be subject to the qualification that if the religious doctrines and practices of an applicant for custody do in fact seriously threaten the physical or mental well-being of the child, or would lead the custodian to neglect such a child, this might be a basis for favoring a different custodian.

For what it is worth, Article I, section 6 of the Texas Constitution, in pertinent part, provides:

No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship.

This is what the San Antonio Court of Appeals said in upholding the preference given the mother’s religious beliefs over the father’s:

Just as the court has discretion to mold the decree to accommodate activities such as soccer games and music lessons if it finds them in the child’s best interest, it may accommodate a parent’s desire for the children’s religious education, provided that it does not favor one parent’s religion over another or over a preference for no religion. Martin has not directed us to, nor have we located, any evidence in the record that the court’s decreed visitation schedule, accommodating, inter alia, the children’s current religious education, in any way favors Margaret’s religion. Both parents are given the right to direct the children’s religious education. Martin has additional time on Sundays to compensate for the time the children spend in religious studies on Sundays during his possession period. Therefore, the court did not abuse its discretion in crafting this visitation schedule and did not run afoul of the Constitution. Accordingly, we affirm the trial court’s inclusion of the religious instruction clause.

I certainly hope this case is taken up to the Texas or U.S. Supreme Court. Interestingly, another aspect of this opinion upholds the trial court imposing a “morality clause” injunction on the father but not the church-going mother.
Roberts v. Roberts, No. 04-11-00554-CV (Tex. App. – San Antonio 5/1/2013)

Category:Child Custody, Constitutional Rights, Visitation and Possession |

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