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What Is in the Child’s Best Interests?Awake!—1997 | December 8
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What Is in the Child’s Best Interests?
TO DIVORCE or not to divorce? That is a big question on the minds of many unhappily married people. Many years ago divorce was frowned upon, if not condemned, for moral and religious reasons. And any unhappily married parents usually stayed together for the sake of the children. However, this world’s standards have changed radically in more recent times. Today divorce is widely accepted.
Yet, despite the acceptance of divorce, more parents, judges, social scientists, and others are expressing concern about the bad effects of divorce on children. More voices of caution are now being heard. Growing evidence shows that divorce can have a devastating impact on a child. Parents are being urged to think of the consequences of divorce for themselves and for their children. Sociologist Sara McLanahan, of Princeton University, states that “between two-thirds and three-quarters of the families who divorce should probably give it more time and more thought about whether they’re doing the right thing.”
Recent studies show that children of divorce are at greater risk of teenage pregnancy, dropping out of school, depression, divorce in their own marriages, and joining the ranks of welfare recipients. In the Western world, 1 in 6 children is affected by divorce. Historian Mary Ann Mason, in her book on child custody in the United States, observed: “A child born in 1990 had about a 50 percent chance of falling under the jurisdiction of a court in a case involving where and with whom the child would live.”
Sadly, hostilities do not always end with the divorce, as parents may continue to fight in the courts over custody and visitation rights, inflicting further stress on their children. These emotionally charged encounters in the adversarial courtroom atmosphere test the children’s loyalty to their parents and often leave them feeling powerless and fearful.
A family counselor said: “Divorce does not rescue children. It does sometimes rescue adults.” The reality is that by divorcing, parents may resolve their own dilemmas, but at the same time, they can deliver a blow to their children, who may spend the rest of their lives trying to compensate for the damage.
Child-Custody Options
In the hostility and emotional stress of a marital split, it is extremely difficult to negotiate the future custodial placement of the children in a calm and rational way. To minimize parental confrontation and avoid adversarial litigation, some jurisdictions offer an alternative way to resolve disputes, such as out-of-court mediation.
When properly handled, mediation allows the parents to work out an agreement rather than leave the decisions for placement up to a judge. If mediation is not possible, parents may be able to work out an arrangement for custody and visitation through their lawyers. Once the parents come to an agreement and put it in writing, the judge can sign an order that contains their wishes.
When the parents cannot agree on a custody arrangement, the legal system in most lands will provide means to try to ensure that the children’s best interests are protected. The judge’s paramount concern will be the children, not the parents. The judge will consider many relevant factors, such as the wishes of the parents, the relationship of the child to each parent, the preferences of the child, and each parent’s ability to provide day-to-day care. Then the judge will determine where and with whom the child will live as well as how the parents will work out important decisions about the child’s future.
In a sole-custody arrangement, one parent may have the authority to make decisions. In a joint-custody arrangement, both parents must agree on significant decisions, such as the child’s health care and education.
Questions That May Be Faced
When faced with child-custody litigation, parents who are Jehovah’s Witnesses must also consider what is in the best interests of the children’s spirituality. For example, what if the non-Witness parent is against any Bible-based training for the children? Or what if the non-Witness parent has been disfellowshipped from the Christian congregation?
These scenarios can make decision-making more complex for Christian parents. They want to act in a wise and reasonable manner, and they also want to maintain a good conscience before Jehovah as they prayerfully consider the best interests of the children.
In the following articles, we will look at such questions as these: When awarding custody of children, how does the law view religion? How can I meet the challenge of a custody case successfully? How do I cope with losing custody of my children? How do I view a joint-custody agreement with a disfellowshipped parent?
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Child Custody—Religion and the LawAwake!—1997 | December 8
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Child Custody—Religion and the Law
IN DIVORCE and child-custody cases, religion can be an important factor—and a complex one. For example, questions such as the following may arise.
Should a judge consider testimony claiming that one parent is unfit to have custody of a child because that parent is a member of a certain religion, especially a minority religion? Should a judge consider testimony about the religious beliefs and practices of the parents so that he can determine which religion, in his opinion, would be best for the child? Should he then order that the child be raised in that religion and forbid the child’s exposure to other religions?
Today, more and more people marry outside their own religious and ethnic backgrounds. So when these couples divorce, the children may already have ties in two religious communities. Sometimes, a parent who is involved in divorce proceedings may have recently adopted a particular religion that is different from what that parent had before. The new religious association may be a stabilizing factor in the life of that parent and very important to him but unfamiliar to the children. So another question arises, Can the court forbid the parent to take the children to the religious services of this religion just because it is different from the religion that the parents practiced previously?
These are difficult questions. They require that a judge consider not only the needs of the child but the interests and rights of the parents as well.
Fundamental Rights of Parents and Children
It is true that judges may be influenced by their personal religious views. But in many lands it is not likely that the parents’ or child’s religious rights will be ignored. These lands may have constitutions that prohibit the judge from restricting the parents’ fundamental right to direct the upbringing of a child, including the child’s educational and religious instruction.
In turn, the child has the right to receive such training from his parents. Before a judge can lawfully interfere with the religious training of a child, the court must hear convincing evidence that “particular religious practices pose an immediate and substantial threat to a child’s temporal well-being.” (Italics ours.) Mere differences about religion or even hostility between the parents over religion is not sufficient to justify State intervention.
In Nebraska, U.S.A., the reasonable position taken by a mother who is one of Jehovah’s Witnesses in a custody dispute illustrates how these legal provisions protect both the parents and the children. The non-Witness father did not want their daughter to attend the religious services of Jehovah’s Witnesses at the Kingdom Hall. A lower court agreed with the father.
The mother then appealed to the Supreme Court of Nebraska. The mother argued that there was no evidence of immediate or substantial threat to the well-being of the child in any of the activities of Jehovah’s Witnesses. The mother testified “that attendance and participation in the religious activities of both parents would . . . provide a basis for the child to determine which religion she would prefer when she reaches a sufficient age of understanding.”
The higher court reversed the lower court’s decision and held that “the [lower] court abused its discretion in placing limitations on the custodial mother’s right to control the religious upbringing of her minor child.” There was absolutely no evidence that the child was being harmed by attending religious services at the Kingdom Hall of Jehovah’s Witnesses.
Rights of Noncustodial Parents
Sometimes, divorced parents try to use disputes about religious training as a means of gaining control of the children. For example, in Khalsa v. Khalsa, a case in the state of New Mexico, U.S.A., both parents had practiced the Sikh religion during their marriage. But shortly after they divorced, the mother converted to Catholicism and began to discourage the children from practicing Sikhism.
The father was upset and took the matter to court in an attempt to obtain more authority to direct the children’s religious training toward his Sikh religion. How did the trial court respond to the father’s request? It refused his request. The trial court ordered that “when the children were with [him], they could not voluntarily or involuntarily participate in any Sikh activity, including any church activity, Sikh camp or Sikh day care center.”
The father appealed this decision to the New Mexico Court of Appeals. This higher court agreed with the father and reversed the trial court’s decision. The appeals court stated: “Courts should adhere to a policy of impartiality between religions, and should intervene in this sensitive and constitutionally protected area only where there is a clear and affirmative showing of harm to the children. Restrictions in this area present the danger that court-imposed limitations will unconstitutionally infringe upon a parent’s freedom of worship or be perceived as having that effect.”
Such a decision follows a long line of principles that are well established in many lands. A reasonable parent will consider these principles. In addition, the Christian parent will carefully reflect on the child’s need for interaction with both parents, as well as the child’s obligation to show honor to both mother and father.—Ephesians 6:1-3.
Out-of-Court Mediation
Although out-of-court mediation may be less formal than a hearing before a judge, a parent should not approach it casually. Any mutual agreements or stipulations reached in this custody process can be made binding by subsequent court orders. Therefore, it would be advisable for a parent to consult an experienced family law attorney to ensure that all matters pertaining to custody are handled properly and fairly.
Each parent should take time to prepare for the mediation process. A parent’s demeanor and conduct during the mediation process can greatly influence the outcome. Too often, divorcing parents are so emotionally involved in the divorce action that they lose sight of the important issues: What is in the best interests of the child? What does the child need so that he can develop mentally, emotionally, and physically?
Remember that from the legal point of view, the primary issue in mediation is, not religious or other personal differences, but how the parents can find common ground and work out an agreement for the good of the children. A parent will perhaps face religious or other prejudices, unexpected questions, or manipulations designed to agitate and fluster. Each parent’s shortcomings may be exposed or even exaggerated. When those involved remain reasonable, however, a resolution can be reached.
At times, the mediation process may seem prolonged and frustrating. The alternative is extended court action with its embarrassing publicity, financial burden, and damaging effect on the child. That is certainly less desirable. As with all serious problems in life, a Christian parent will want to approach the mediation process prayerfully, remembering the inspired invitation to “roll upon Jehovah your way, and rely upon him, and he himself will act.”—Psalm 37:5.
But what if a solution cannot be reached and the judge awards custody of the child to the other parent? Or what if one of the divorcing parents is disfellowshipped from the Christian congregation? Also, how should one view joint custody and sole custody? These questions and related Bible principles will be discussed in the following article.
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Three Important Qualities
A family-court judge interviewed by Awake! said that among the important qualities he looks for in a parent are the following three:
Reasonableness—a willingness to grant maximum access to the child by the other parent (where there is no physical or moral threat to the child)
Sensitivity—an awareness of the child’s emotional needs
Self-control—a balanced homelife that would contribute to a calm atmosphere in which the child could flourish
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Judicial Guidelines
By setting guidelines, some judges have tried to avert needless disputes over a parent’s religious values. For example:
1. A meaningful relationship should be encouraged between a child and both parents. Canada’s Supreme Court Justice John Sopinka noted that each parent should be allowed “to engage in those activities which contribute to identify the parent for what he or she really is [including the practice of his or her religion]. The access parent is not expected to act out a part or assume a phony lifestyle during access periods.”
2. To prohibit the access parent from teaching the child his/her religious beliefs is a violation of the parent’s freedom of religion, except where there is clear, affirmative evidence of imminent and substantial harm to the child.
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Judges bear a heavy responsibility in custody cases
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A mediator can help parents resolve differences without lengthy court proceedings
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Child Custody—A Balanced ViewAwake!—1997 | December 8
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Child Custody—A Balanced View
OFTEN, the real challenge comes after the divorce, in a struggle for the affection and control of the child. The saying “It takes two to fight” is not always true. It may take only one domineering parent who wants his or her own way. A family attorney in Toronto, Canada, observed: “In family law, everything is very emotionally charged and close to the heart.”
Instead of thinking of the child’s best interests, some parents keep the dispute going by filing motions on irrelevant issues. For example, some have tried to prove that custody should be changed because the other parent is one of Jehovah’s Witnesses and will deprive the child of a ‘normal way of life.’
The non-Witness may make an issue of celebrating birthdays, Christmas, or even Halloween. Some may complain that the child’s association and social adjustment would be restricted if the child decided not to salute the flag. Or some may suggest that the child would be psychologically damaged by accompanying the parent in talking to others about the Bible. Some non-Witness parents have even alleged that the child’s life would be endangered because the Witness parent would not give consent for the child to receive a blood transfusion.
How does a Christian meet the challenge of such emotionally charged arguments? An emotional response—“fighting fire with fire”—will not be effective. If the matter is taken before a judge, each parent will have an opportunity to be heard. It is most important to keep in mind the Bible counsel: “Throw your burden upon Jehovah himself, and he himself will sustain you. Never will he allow the righteous one to totter.” (Psalm 55:22) By meditating on this and by applying Bible principles, parents can, with Jehovah’s help, cope with any eventuality involving child custody.—Proverbs 15:28.
Reasonableness
The best interests of the child are the key issue. If a parent is overly demanding, he may lose custody and even find his visitation privileges restricted. The wise parent conducts himself in a peaceable manner, keeping in mind the Bible counsel: “Return evil for evil to no one. . . . Yield place to the wrath . . . Do not let yourself be conquered by the evil, but keep conquering the evil with the good.” (Romans 12:17-21) Whether in court, in a lawyer’s office, or with a child-custody evaluator, parents need to “let [their] reasonableness become known to all men.”—Philippians 4:5.
Sometimes an estranged spouse will try to deceive others by introducing misleading and speculative problems. It is wise to fight the human tendency to overreact to these verbal attacks. Health, religion, and education are favorite subjects that estranged spouses use to fabricate mischief at a custody-dispute hearing.—Proverbs 14:22.
Reasonableness includes the ability to consider the facts and negotiate a fair agreement. No parent should forget that even after divorce, the child still has two parents. The parents have divorced each other but have not divorced the child. Therefore, except in extreme circumstances, each parent should have the freedom to act as a parent when he or she has the child. Each should have the freedom to express his or her feelings and values and have the child share in the parent’s lawful activities, religious or otherwise.
Let us consider the possible outcomes of a hearing: (1) joint custody, (2) sole custody, and (3) limits on visitation privileges. What is the difference between joint custody and sole custody? How can you cope when you lose custody? What if one parent is disfellowshipped?
Joint Custody
Some judges feel that it is important to maintain contact between the child and both parents. Their reasoning is based on research studies showing that children may suffer less stress and emotional harm after divorce if the parents are able to share custody. Rather than feeling abandoned by one parent, the child would have a sense of being loved by both parents and of being involved in both households. “Joint custody is a way of keeping both parents involved,” says a family law attorney.
However, Dr. Judith Wallerstein, executive director of the Center for the Family in Transition, in Corte Madera, California, warns that to make joint custody work, you need parents who are cooperative and a child who is flexible and gets along with people. These qualities are essential because in joint custody both parents retain the legal right to share decision-making on major issues involving the health, education, religious upbringing, and social life of their child. But this works only if both parents remain reasonable in considering what is in the best interests of their child rather than what is in their own personal interests.
Sole Custody
The court may award sole custody to the parent who, in its opinion, is better equipped to provide for the needs of the child. The judge may decide that the custodial parent be the sole decision-maker regarding important issues concerning the child’s well-being. Often, the court arrives at the decision after listening to the findings of assessors—these are usually psychologists, psychiatrists, or social workers.
Proponents of sole custody feel that the arrangement gives the child more stability. When parents are unable or unlikely to communicate effectively with each other, many trial judges prefer this custodial arrangement. Of course, the noncustodial parent is not cut out of the child’s life. Visitation rights are generally awarded to the noncustodial parent, and both parents can continue to provide the child with needed guidance, love, and affection.
Visitation Privileges
It is unrealistic for parents to view child custody as having a “winner” and a “loser.” Parents are successful and “win” when they see their children grow into mature, competent, respectable adults. Success in child rearing is not directly tied to legal custodianship. By heeding court-ordered conditions in child-custody matters, even when these appear to be unjust, a Christian shows “subjection to the superior authorities.” (Romans 13:1) It is also important to remember that this is no time to vie for the affection or loyalty of your children by belittling the other parent in an attempt to destroy his or her relationship with them.
There are Bible examples of God-fearing parents who, for various reasons, were separated from their children. For example, Amram and Jochebed, the parents of Moses, acting in the best interests of their child, placed him in a little floating ark “among the reeds by the bank of the river Nile.” When the infant was retrieved by Pharaoh’s daughter, they maintained their trust in Jehovah. These wise and faithful parents were rewarded with generous “visitation” privileges that they effectively used to train the boy in Jehovah’s way. Moses grew up to be an outstanding servant of the true God.—Exodus 2:1-10; 6:20.
What, though, if one of the parents is disfellowshipped? Should the Christian parent make the child available for visitation? The disfellowshipping process of the congregation only alters the spiritual relationship between the individual and the Christian congregation. In fact, it severs the spiritual bonds. But the parent-child relationship remains intact. The custodial parent must respect the disfellowshipped parent’s visitation rights. However, if the noncustodial parent poses an imminent and substantial threat to the child’s physical or emotional welfare, then the court (not the custodial parent) may arrange to have visitation with the child supervised by a third party.
You Are Never Alone
Divorce proceedings and subsequent child-custody disputes are emotionally draining experiences. A union that started so promisingly has been shattered along with the couple’s dreams, plans, and expectations. For example, infidelity or extreme abuse may force a loyal wife to seek legal protection for herself and her child. Yet, feelings of guilt and inadequacy may persist as she contemplates what went wrong or how the matter could have been handled more effectively. Many couples worry about their children’s reaction to the family breakup. The court struggle for custody may become an emotional roller-coaster ride that not only tests one’s integrity as a caring parent but also tests one’s faith and trust in Jehovah.—Compare Psalm 34:15, 18, 19, 22.
When an innocent mate chooses to take action because of child abuse or extreme spousal abuse or to protect his or her health against the risk of sexually transmitted diseases from an unfaithful spouse, there is no need for that innocent mate to feel guilty or to feel abandoned by Jehovah. (Psalm 37:28) The unfaithful or abusive spouse is the one who has violated the sacred contract of marriage and “dealt treacherously” with his or her mate.—Malachi 2:14.
Continue to “hold a good conscience” before man and Jehovah by applying Bible principles, treating your estranged spouse honestly, and showing flexibility in your custody agreements. “It is better to suffer because you are doing good, if the will of God wishes it, than because you are doing evil.”—1 Peter 3:16, 17.
As for the children, they need reassurance that the breakup of the family was not their fault. Sometimes things just do not work out as planned. But the application of Bible principles can soften the impact of divorce by encouraging open and understanding dialogue between parents and children. For example, this can be done by letting the children have an active part in planning for postdivorce family life. By being patient and kind and by being interested in the children’s feelings and listening to their expressions, you will do much to help them adjust to new schedules and living arrangements.
Others Can Help
Parents are not the only ones who can help a child who experiences the breakup of a family. Family members, teachers, and friends can do much to support and reassure children of divorce. In particular, grandparents can do much to contribute to the children’s stability and emotional well-being.
Christian grandparents may offer the children spiritual instruction and wholesome activities, but they must be respectful of the parents’ decisions about religious training, for it is the parents, not the grandparents, who hold the moral and legal authority to make these decisions.—Ephesians 6:2-4.
With such support, children of divorce can survive the breakup of their parents’ marriage. And they can continue to look forward to the blessings of God’s new world, where all families will be free from “enslavement to corruption and have the glorious freedom of the children of God.”—Romans 8:21; 2 Peter 3:13.
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