Bob CollinsIf a father refuses a court-ordered psychological evaluation on the basis of religious belief as part of a parenting assessment in a custody dispute, does it violate a person’s constitutional right to determine custody of the children based partly on the refusal?
The Minnesota Court of Appeals said no in its ruling Monday (.pdf) in the dispute between Jamison Arend and Jill Newstrand, who had three children together, although they never married.
He gained custody of two children after the couple broke up in 2010 over Arend’s religious practices; the mother has sole custody of a third. Arend is a Rastafarian, a religion that includes cannabis use in its belief system.
Arend was told by a lower court several times that if he didn’t submit to the psychological evaluation, the court would “draw negative inferences” about his mental health. He didn’t, and it did.
“While [father] has exercised his First Amendment right to religious freedom, the Court cannot abandon [the child in the custody of the mother]’s right to have the legal protections afforded by examination of all factors in determining his best interests,” a judge wrote.
The father claims the testing violated his Rastafarian religious beliefs by forcing him to choose between violating religious freedom and having parenting time with a child. He cited this clause in the Minnesota Constitution.
The right of every man to worship God according to the dictates of his own conscience shall never be infringed; . . . nor shall any control of or interference with the rights of conscience be permitted . . . ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state . . . .
But the Court of Appeals said there are overriding concerns for the well-being of a child.
“On one occasion, father forced mother to be present with the children while he disparaged her and blamed her for the family’s problems,” Judge Heidi Schellhas wrote in today’s opinion. “As for the district court’s adoption of the parties’ stipulation that father would have physical custody of the two older children, the record reflects that the older children refused to remain in mother’s care as a result of father’s successful alienation efforts.”
“Both the legislature and the judiciary have recognized the importance of considering a parent’s mental health to ensure that a child’s best interests are served,” she said. “Here, the district court found that ‘[father]’s behavior has created clear and unambiguous concern about his mental health.’”
The couple was the subject of a 2013 City Pages article on Rastafarians.
Their then-16-year-old son, Jordan, also a Rastafarian, had been arrested with a Rasta pipe. A Minnesota Court of Appeals decision said he was not guilty because of his religious beliefs, reversing a lower court’s ruling.
The Minnesota Supreme Court declined to review the decision.
