Neo-Nazism, flat earthers, and vaccine deniers. Custody disputes when a parent has nontraditional views.

Neo-Nazism, flat earthers, and vaccine deniers. Custody disputes when a parent has nontraditional views.

Most, if not all, neo-Nazis were not alive when National Socialist German Worker's Party, the "Nazi" Party, was active from 1920 through 1945 in Germany. However, neo-Nazis still claim allegiance to the Nazi Party and espouse and embrace their abhorrent views and beliefs. Even though most, if not all religions (including Catholicism, which persecuted Galileo and Copernicus for their views) hold that the Earth is neither flat nor the center of the universe, many people still claim both opinions to be accurate based on their faith and religious dogma. Vaccines have been around for hundreds of years since Edward Jenner demonstrated immunity to Smallpox in 1798. Yet, many people claim they are unsafe; they cause secondary medical issues (i.e., autism) or are unnecessary in this modern world (i.e., others are vaccinated, so my child does not need to be) and, therefore, refuse to get their child vaccinated.

So when are a parent's nontraditional or extremist views so detrimental to the child's health, safety, and welfare that they should be denied legal or physical custody of their child?

Consider this hypothetical:

Mother and Father were never married but were together for over ten years. They have two minor children (Luke, age 11, and Leilani, age 9). When their relationship ended, Mother filed a paternity action against Father. Mother also filed a Request for Order seeking sole legal and physical custody with supervised visitation to Father.

Mother alleges during their relationship; that they were active members in the "Red Devils," a violent motorcycle gang with views and actions closely tied to the neo-Nazi movement. Mother alleges that white supremacist indicia were present throughout their home, including a photograph of Hitler, Nazi flags, books, and news articles, and a large noose hanging on the wall.

Approximately three years ago, Mother was incarcerated for drug possession and narcotics sales for sixteen months. While incarcerated, Mother took parenting classes, participated in substance abuse counseling, obtained her GED, and took classes from the local community college. She will graduate in six months from a local community college. Although her kids were previously indoctrinated into the white supremacist lifestyle, she now lives differently and no longer allowed weapons in the house or people who are "unhealthy for her children." Mother currently lives in a two-bedroom apartment with the minor children. She works full-time, continues attending drug and individual counseling, and fully complies with her probation requirements.

Father was also incarcerated at the same time as Mother but for 24 months. While incarcerated, Father got two new tattoos in prison (a large swastika on his back and an "SS" on his chest). After his release from prison, Mother states that she and Father's relationship ended because he would not change his lifestyle. Mother has allowed Father to see the children sporadically since his release but always under her supervision.

Father alleges that the "Red Devils" are a motorcycle club, not a gang, and they have no affiliation with the neo-Nazi movement, nor are they violent. Father states since his release, he is still an active motorcycle club member though less involved. He admits that he got the tattoos in prison, but that was only to "survive" the prison life by affiliating with the "Aryan Brotherhood," but he has no intention of having them removed. He states he does not discuss white supremacist views with the minor children, but he does not believe it's his job to prevent people from speaking their minds even if the kids are around. He admits that they did have Nazi memorabilia around the house, but it was just stuff he bought at a garage sale, and Mother had no issues with it. He contends he works full-time in the construction industry. He has a two-bedroom house not far from Mother's apartment and near the children's school. He admits to using drugs in the past but states he has been clean and sober for the past two years. Father is off every weekend, and there is no basis for supervised visitation.

How should the Court rule on the issue of custody and visitation for Father?

Legal and Physical Custody

California Family Code Section 3003 states that "joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of the child." Section 3011(a) provides: "In making a determination of the best interests of the child ... the court shall ... consider ... [t]he health, safety, and welfare of the child." Section 3020(a) states: "The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children." Section 3100 states, "(a) In making an order pursuant to Chapter 4 (commencing with Section 3080 ), the court shall grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child, as defined in Section 3011, and consistent with Section 3020 ."

Section 7030 (a) holds that "(a) The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children." Section 7030 (b) provides "[t]he Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents . . ." Section 7030 (c) states "[w]hen the policies set forth in subdivisions (a) and (b) of this section are in conflict, a court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members." In other words, frequent and continuous contact with both parents is in the child's best interest unless said contact is detrimental to the child's health, safety, or welfare.

The court has broad discretion in making a child custody determination and may award custody to either parent based on "the best interest of the child." See Montenegro v. Diaz, 26 Cal. 4th 249 (2001). Appellate reversal of custody and visitation orders is justified only for abuse of discretion. In re Marriage of Burgess, 13 Cal. 4th 25 (1996); In re Marriage of Fajota, 230 Cal.App.4th 1487 (2014). In determining whether the trial court acted reasonably in making the order, the reviewing court must also determine if there is a "reasonable basis on which the court could conclude its decision advanced the best interests of the child." F.T. v. L.J., 194 Cal. App. 4th 1, 15 (2011). The trial court's exercise of its discretion "must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." Id. The 'frequent and continuing contact' policy does not constrain the trial court's broad discretion (consistent with the child's health, safety, and welfare) to determine what type of custody arrangement will serve based on all the relevant circumstances in the child's best interest. [See Marriage of LaMusga (2004) 32 C4th 1072, 1095, 12 CR3d 356, 373; The Rutter Group, Civil Practice Guide, Family Law, (2022), 7:370, et seq.)

Nontraditional views

In Palmore v. Sidoti, 466 U.S. 429, 430, 104 S.Ct. 1879 (1984), the Mother, Linda Sidoti, lost custody of her 3-year-old daughter when the lower court found that "Mother was then cohabiting with a Negro, Clarence Palmore, Jr., whom she married two months later." The court then concluded that the best interests of the child would be served by awarding custody to the father. The court's rationale was that "[t]he father's evident resentment of the Mother's choice of a black partner is not sufficient to wrest custody from the Mother. It is of some significance, however, that the Mother did see fit to bring a man into her home and carry on a sexual relationship with him without being married to him. Such action tended to place gratification of her own desires ahead of her concern for the child's future welfare. This Court feels that despite the strides that have been made in bettering relations between the races in this country, it is inevitable that Melanie will, if allowed to remain in her present situation and attains school age and thus more vulnerable to peer pressures, suffer from the social stigmatization that is sure to come." (Id.)

The Supreme Court held that "the question is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural Mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect" (Id. at 433).

To ensure that personal prejudices, biases, and beliefs are not considered in making family law decisions, the California Legislature enacted Family Code, Section 7030(d). Section 7030(d) provides "[t]he Legislature finds and declares that it is the public policy of this state to ensure that the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child.

In In re Marriage of Wellman, 104 Cal.App.3d 992, 996 (1980), the Court stated that "[i]t is useful to recognize at the outset of our analysis that the state has no general authority to dictate to parents the manner in which they should rear their children." "The 'right to parent,' if it can be called that, is of course subject to limitations. The Legislature has determined, for example, that a child living in a home found in accordance with specified procedures to be an "unfit place" by reason of neglect, cruelty, depravity or physical abuse may be made a ward of the court. But the doctrine of parens patriae does not provide the state with authority or the courts with jurisdiction to impose governmental views of child rearing simply because the parents happen to be before the court in a dissolution proceeding." (Id.). "The courts have frequently warned that a judge should not base his decision upon his disapproval of the morals or other personal characteristics of a parent that do not harm the child." This admonition seems particularly appropriate where what is involved is freedom of association and sexual conduct between mature, consenting adults." (Id. at 998)

In Nadler v. Superior Court, 255 Cal.App.2d 523, 525 (1967), the Court held it was reversible error for a trial court to decide that a mother was not a proper person to have custody because she was a "homosexual" in the absence of evidence as to the bearing of her sexual proclivities upon the welfare of the child involved. In In re Marriage of Birdsall, 197 Cal.App.3d 1024 (1988), a father was denied overnight visitation with his minor child "in the presence of any friend, acquaintance or associate known to be homosexual" In overturning this custody order, the Court held that "the unconventional lifestyle of one parent, or the opposing moral positions of the parties, or the outright condemnation of one parent's beliefs by the other parent's religion, which may result in confusion for the child, do not provide an adequate basis for restricting visitation rights. Evidence of one parent's homosexuality, without a link to detriment to the child, is insufficient to constitute harm." (Id at 1031).

Many who believe in theories regarding the nature of the Earth and creationism find their arguments supported by religious scripture, nonsecular texts, and their faith and beliefs. As such, parents with these deeply held beliefs often find conflict with what their child learns in secular classrooms. The United States Supreme Court has explicitly held parental authority in matters of religious upbringing may be encroached upon only by a showing of a "substantial threat" of harm to the "physical or mental health of the child or to the public safety, peace, order, or welfare." (Wisconsin v. Yoder, 406 U.S. 205, 230 92 S.Ct. 1526 (1972). The Court explained "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." (Id. at p. 215). In In re Marriage of Murga (1980) 103 Cal.App.3d 498, 262 (1980), Mother objected to Father involving their minor children in the Mormon faith. Mother obtained a court order which prohibited Father from engaging the children "in any religious activity, discussion, or attendance during visitations and from providing them with articles, publications, or other religious material, while they are in his presence." The court held, "[A] court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed. In the case at hand, there was no evidence that exposure to the father's religious practices and beliefs during visitation periods would be harmful to the child ... While the mother testified to some problems with the child's behavior there was no persuasive evidence that any such problems were caused by the child's involvement in the father's religious activities during visitation." (Id., at p. 505.; See also In re Marriage of Urband, 68 Cal.App.3d 796, 797-798 (1977), Marriage of Weiss, 42 Cal.App. 4th 106 (1996) dealing with mixed religious upbringing).

There is no reported case either in family law or dependency directly related to extreme political views or hate speech and/or conduct, resulting in the denial of custody or visitation. However, in Altafulla v. Ervin, 238 Cal.App.4th 571, 581, (2015), the Court stated that "[s]tatutes that purportedly 'restrict or burden the exercise of the First Amendment must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.'" "[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. The term prior restraint is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. [P]ermanent injunctions - i.e., court orders that actually forbid speech activities - are classic examples of prior restraints." (In re Marriage of Evilsizor & Sweeney, 237 Cal.App.4th 1416, 1427-1428 (2015).) "Although stated in broad terms, the right to free speech is not absolute. There are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend because they 'are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" (Id.) Given the distaste for custody and visitation decisions that run afoul of other protected categories (religious exercise, right of association, gender or sexual orientation discrimination), it would be hard to fathom that extremist political views would be treated any differently by the courts. As such, unless the conduct or speech is demonstrated to be detrimental to the minor child, the court most likely could not use a parent's political views, beliefs, or behavior, even if abhorrent to society at large, as a basis to deny custody or visitation.

Conclusion

So is Father's alleged association with a motorcycle gang (or club), past conduct, tattoos, and refusal to prevent others from using extremist speech around the children enough to deny Father custody and/or visitation?

It depends . . .