Debunking Allegations of Anti-atheist Discrimination in Child Custody – Part 1

18 Aug

Blevins v. Bardwell – Mississipi, 2001

Read the full case.

This case concerns a mother and father who were never married. The mother re-enlisted in the military, but in order to do so she had to give custody of their daughter to someone else. At the time, both parents planned to marry once the mother had finished her military training, and it was also agreed that the transfer of custody to the father was only temporary.

After some time, the mother and father ended their relationship. When the mother was assigned to an air force base in San Antonio, Texas, she decided that she wanted to take the daughter with her. The father refused to allow her to do so, as he had custody at the time. When the case went to court, joint legal custody was established with the mother as the primary custodian and the father granted visitation and ordered to pay child support.

The father appealed the judgment. In the appeal, the court answered the following questions:

  1. Did the trial court correctly determine that the [original] custody agreement was temporary?
  2. Did the trial court properly apply the Albright factors to the evidence presented at trial?
  3. Did the trial court use custody determination to penalize Adam Blevins, and if so applied, was it manifestly erroneous?

In the first question, it was determined that, although the original grant of custody by the mother to the father did not state that it was temporary, both parents agreed at the time that it was temporary and so it could therefore be treated as temporary and thus be revisited in court.

The Albright factors referred to here are a list of criteria that are used in Mississippi for purposed of determining the best interests of a child in custody cases. The best interests of the child are the primary concern of all child custody cases. The Albright factors are as follows:

  • age, health and sex of the child
  • determination of the parent that had the continuity of care prior to the separation
  • which parent has the best parenting skills and which has the willingness and capacity to provide primary child care
  • the employment of the parent and responsibilities of that employment
  • physical and mental health and age of the parents
  • emotional ties of the parent and child
  • moral fitness of the parents
  • the home, school and community record of the child
  • the preference of the child at the age sufficient to express a preference by law
  • stability of home environment and employment of each parent
  • other factors relevant to the parent-child relationship

In this case, only a handful of factors were contested in the appeal.

The father argued that the child’s age (under 2 years) was given undue weight, as the mother had voluntarily granted him custody when she entered the military. The appeals court found that, while the previous court may or may not have given this factor undue weight, it could not be shown that it was “manifestly wrong, clearly erroneous, or the result of the application of an erroneous legal standard.”

The father claimed that the court gave the mother an edge in health because the father smokes and that the court did not correctly consider the mother’s health records, specifically regarding a couple of mental health issues that the mother had in 1996, before the daughter was even born. Apparently the mother had some issues with depression and trouble adjusting when she originally joined the military, and the father was trying to use these issues to show that she was an unfit parent. The original court found that these issues didn’t have bearing on the mother’s current ability to care for the child, and the appeals court found that these factors had been properly considered.

Finally, we get to the part that seems to have merited this case’s  inclusion on The Volokh Conspiracy’s list:

The Court slightly favors Dawn when considering Darby’s future religious example. Although Adam does at times pray with Darby and has attended a non-denominational `house of prayer’, Dawn seems much more committed and consistent in her Catholic upbringing.

It turns out that both parents in this case are at least nominally Catholic, although the father complained that there is no evidence of the mother being especially committed to her faith. His argument is that the mother never went to church or took the child to church while living in Mississippi. Additionally he complains that the mother’s committing adultery (with him, by the way) while married is against Catholic beliefs.

The mother says that the original court made the right choice, pointing out that the father says he’s Roman Catholic but admits that he doesn’t attend church at all. The father “also testified that he thought religion was important and that if he received custody he would send her to a private Catholic school.”

The appeals court had this to say on the matter:

Future religious example” is not a factor listed in Albright, although it could theoretically fall within “other factors relevant to the parent-child relationship” or under “moral fitness of the parents” as found in Albright. Albright, 437 So.2d at 1005. This Court, in McLemore v. McLemore, 762 So.2d 316, 320 (Miss. 2000), stated “[b]oth the mother and father should be vitally interested in seeing that their children get regular and systematic spiritual training. Whether it be by attending Sunday School each Sunday or Church or both is for the parents alone to decide.” The Chancellor did not abuse her discretion when considering future religious example in the custody determination of Darby.

My opinion is that the court was faced with a situation where both parents (1) claimed that religion was important to the; (2) tried to show in court that they were best suited to provide the child with religious upbringing; and (3) willfully put the determination in the hands of the court. The court made a decision, and the father is unhappy with that decision. In this case, I would also say that it’s difficult to even determine which parent was in actuality the less religious parent, as both parents claim to be religious and claim to have plans to raise their child in the Catholic faith.

The court probably could have decided either way, and likely would not have figured this into the decision at all if it was not brought to the court by the parents themselves. In any case, this was not the determining factor of the case. The father was not denied custody because he was less religious; he was denied custody based upon an assessment of all of the evidence presented.

The next point the father contested was that the mother’s home environment was judged better, claiming that the court focused to much on the fact that the father lived with his disabled father, an HIV-positive hemophiliac with terminal cancer. However, the main objection to this living situation was not the grandfather’s HIV-positive status; rather the objection was that both the father and grandfather smoked, with the grandfather smoking 4 packs of cigarettes a day, creating an unhealthy environment for a child to live in. The father would also sometimes leave the child at home alone with the disabled grandfather, which counted against the father.

The appeals court found that there as no clear error or abuse of discretion in the original court’s judgment of the Albright factors.

The next issue the father raises is that the court was basically punishing him for two reasons: (1) that he didn’t execute a medical waiver in order that the court could access his medical records and (2) that he (allegedly) was uncooperative with allowing the mother visitation with the daughter prior to trial.

The appeals court had this to say about the medical waiver issue:

What Adam is being penalized for by the Chancellor is for making an agreement with the other party to have both waive their privilege; getting the sought after medical records from the other side; and subsequently deciding to not waive the medical privilege, leaving the other party at a disadvantage. Such conduct by a party should not be condoned or ignored by a Chancellor.

About the visitation issue, the appeals court also found the previous court made no mistakes. The father argued that his failure to allow visitation did not constitute a change that would necessitate a change in custody. The court decided that since there was never a permanent custody agreement to begin with, no material change in circumstances was required to justify a hearing to make a permanent agreement.


Religion or lack thereof was not the deciding factor in this case. To the extent that religion was considered at all, it was because the parents of the child were arguing who was better equipped to provide “future religious example,” leaving the court to decide between them. Under the circumstances, I would not consider this to be out of line on the part of the court, and there is no evidence, explicit or otherwise that the father was specifically discriminated against because of his religious beliefs or lack thereof.

This case has nothing to do with anti-atheist discrimination whatsoever.

5 Responses to “Debunking Allegations of Anti-atheist Discrimination in Child Custody – Part 1”

  1. agrajag 08/20/2012 at 12:07 AM #

    I watched Harry Potter I with my son yesterday. It takes courage to stand against your enemies, but even more so, to stand against your friends. 20 points for Bridget !

    I think you succeeded in demonstrating that describing this case as “atheist loses custody over his lack of faith” – that said I’m left with the same impression I always am when someone sets out to show that US courts are not as batshit crazy as some claim.

    I end up with the impression that okay, they’re not -that- crazy, but the craziness that they *do* show still has to be seen to be believed, these two quotes from a court are completely outrageous:

    The Court slightly favors Dawn when considering Darby’s future religious example. Although Adam does at times pray with Darby and has attended a non-denominational `house of prayer’, Dawn seems much more committed and consistent in her Catholic upbringing.


    mother and father should be vitally interested in seeing that their children get regular and systematic spiritual training. Whether it be by attending Sunday School each Sunday or Church or both is for the parents alone to decide.

    They *should* ? No, I don’t care if the parents themselves where the ones to put this issue on the courts table, the court would *still* have been perfectly in its right in essentially saying: “the court don’t see religious instruction, or lack of same, as relevant at all.”

    • bridgetmckinney 08/20/2012 at 7:24 AM #

      That second quote was very borderline for me as well. I simply felt that in the context of the case it was irrelevant, as both parents in this case claimed to be religious as it was. I would also agree that religious instruction or lack thereof should be the sole deciding factor in any case.

      As far as how this type of thinking could potentially effect atheist parents… I think it definitely could, but I’m very skeptical as to whether it actually does. I would also point out that a religious parent can have a legitimate interest in providing their children with religious instruction. An atheist or otherwise non-religious parent being granted custody can allow them to interfere with or prevent that religious instruction (especially church attendance and other church activities), whereas I would argue that there’s very little way a religious parent can prevent a non-religious parent from teaching a child their beliefs.

      I think that this SHOULD be a consideration in determining primary custody, but only if it seems likely that the non-religious parent plans to try and prevent the religious parent from sharing their faith with the children. Because frankly that’s a dick move.

      • agraja 08/20/2012 at 10:45 AM #

        Agreed. There’s no need to anyway – because children who grow up learning that different folks believe different things, doesn’t tend to end up as fanatical anything.

        Nevertheless, we’ve got court-documents that say that parents SHOULD observe “regular and systematic” “spiritual” training, the examples given are both christian, and to me it feels as if “spiritual” is a weasel-word meaning, in essence, “religious”. I’m atleast not aware of the existence of any atheist systematic and regular spiritual training.

        If we should do this, it follows that we’re doing a poorer job if we do *not* do this, and I object strongly to that idea. Certainly none of my children attend “regular spiritual training”. We do discuss moral and ethical questions regularly, whenever they arise basically, but is that the same as “spiritual” ?

        • GreaterThanLapsed 08/20/2012 at 11:19 AM #

          That’s actually something that I’m planning on discussing a little later in this series, or possibly at the end of discussing each individual case. I agree that “spiritual” is a bit of a weasel word.

          I’m also in the same boat you are in regard to discussing morality and ethics with my child but not actually taking her to church, although the local Unitarian Universalist church has some programs that I’ve considered (like comparative religion type stuff rather than instruction in a particular faith).

          I guess I just think that it’s fine for a court to consider the involvement of each parent in the child’s upbringing, and that’s something that includes religion a lot of the time. In a couple of other cases, religion seems to fall under “community involvement” or “moral training.”

          I think that it’s fair to consider church involvement a positive aspect of the child’s life and a factor showing stability in the home if contrasted to the other parent’s home. E.g. If one parent participates with the child in church activities and the other parent tends to isolate the child, I would say that the church activities are a positive. If one parent takes the child to church and the other parent involves the child in, say, Girl Scouts, I think that those activities should be counted equally positively.

          The problem, of course, then becomes that atheists aren’t exactly well-known for our community building. There aren’t many non-religious analogs to church involvement, and I can see that being an issue. I think the fundamental problem, however, is that “atheist” is not a belief system in itself. Rather, it’s a rejection of theistic belief systems in general, and there are numerous atheist philosophies, many of which are basically complete opposites. As a far-left feminist and socialist, I don’t have enough in common with an objectivist to ever want to be in the same room with one, even if we are both atheists. As a parent, this is actually pretty frustrating, since I’d love to get involved with some kind of like-minded community with my daughter but I’m not sure that one even really exists. If there is a like-minded community, it’s certainly nothing so convenient as a church where we could go every Sunday, and that sucks.

          Child custody cases leave a lot up to the discretion of the court, and they are asked to make difficult and almost necessarily subjective decisions on a case-by-case basis all the time. As I’ve already said, I don’t particularly have a problem with religious issues being figured into that as long as it’s not done in such a way that a non-religious or less-religious parent will always be at a disadvantage compared to a religious parent.

          • agrajag 08/21/2012 at 12:43 AM #

            I think you’re being very kind in your interpretation. The court did explicitly say “regular systematic spiritual training”, and not “community involvment” or similar.

            If they *had* said the latter, then yes, you could see regular involvment in local affairs, and attachment to the community as a good thing. But if “community involvment” was the measuring-stick, then being a trainer on the boys football-team, taking your kid along on the wednesday-trek of the trekking-association or being elected parental-representative of the class your kid is in, would all count as positive to atleast the same degree as taking your child to church, but ofcourse none of these are “spiritual training”, so don’t count. (atleast if they do count, they’re not mentioned – religious-related activities are the *only* ones mentioned in the documents)

            “The Court slightly favors Dawn when considering Darby’s future religious example. Although Adam does at times pray with Darby and has attended a non-denominational `house of prayer’, Dawn seems much more committed and consistent in her Catholic upbringing.”

            They explicitly *favor* a “consistent committed” catholic upbringing, if you’re a less committed catholic, then this is *disfavored*.

            My knowledge of US law is limited, but isn’t the government explicitly forbidden from giving preference to religion ? To me it does sound like this comes dangerously close – even though I agree with you that it doesn’t sound as if the religious issue was all that important in the overall outcome of the case.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


Get every new post delivered to your Inbox.

%d bloggers like this: