Litigating Child Custody with Religious Cults
Cultic Studies Journal, Volume 6, Number 1, 1989, pages 69-75
Litigating Child Custody with Religious Cults
Ford Greene, Esq.
San Anselmo, California
Litigating child-custody or visitation disputes is a complex endeavor. Because of the special protection the law accords religious beliefs, attorneys must carefully collect relevant facts and use appropriate language. Without questioning the truth or falsehood of a group's religious doctrines, attorneys should try to demonstrate that the group's practices are physically or psychologically detrimental to the child. Information from a variety of sources, including teachers, school psychologists, social workers, therapists, etc., should be considered. Several case examples are discussed.
Litigating a child-custody or visitation dispute involving a religious group presents certain difficulties which must be recognized and handled properly. Ignore them and you will become bogged down in the "LaBrea Tar Pit" of religious liberty disputation and do a great disservice to clients by giving the other side a chance to obscure the real issues. As it is, attorneys and their clients have two strikes against them before they even begin: the universal tendency to show deference to religious groups and beliefs; and a general disbelief that ideological molding or thought reform -- not simply normal social conditioning -- exists. But if attorneys can refrain from questioning the truth or falsity of a religious doctrine -- which cannot be litigated -- and avoid being drawn into a `heresy' trial -- which cannot be successful -- They can win a cult-related child custody dispute for a non-cult-member spouse.
Religious activities are by law generally granted greater protection than secular ones in matters related to the well-being of children, and more exacting judicial standards of factual determination and burdens of proof are demanded. Fortunately, however, religious protection is less extensive where minors are concerned. In California law, to which the present discussion applies, a parent's religious ideology and practice must be accommodated unless the best interests of the child require otherwise.
In California, a standard more exacting than the one which ordinarily refers to "the best interests of the child" is applicable when one challenges the impact of a religious practice/ideology on the well-being of a minor: one must affirmatively show that the practice is "detrimental" to the mental, emotional, or physical health of the child, that, in fact, such practices hurt the child. Further, proof must be made not simply by "a preponderance of the evidence," but by "clear and convincing evidence."
The first step is to collect facts about the child's behavior by interviewing in detail the client and all persons in frequent and continuing contact with the child. The goal is to determine all of the facts of the child's behavioral features before, during, and after the cult influence was brought to bear. Often the contrast is clear, with the healthier features dominating pre-cult associations, and "acting out" and other unhealthy features coequal with the cult influence. A temporary restraining order keeping the child from the cult parent will allow a behavioral analysis of the child which may well demonstrate this.
Anyone with considerable first-hand contact with the child -- teachers, school psychologists, after school adult supervisors, social workers, therapists, and the like -- can be a fertile source of valuable information stemming from interactions with both the child and the parents. Such individuals have the advantage of presenting more credible testimony than the parent litigant challenging the cult's effect on the child and the cult-member spouse.
Next, if not concomitantly, the practitioner should gain detailed knowledge of the ideology and practices of the group in question. One goal of this exacting scrutiny must be to identify specifically and precisely how the group's ideology and/or practice is coercive. Then an attempt must be made to link the nature of the cult's coercive behavior to unhealthy behavior manifested by the child.
Regarding the coercive features identified, one must give attention to each evidentiary path through which one will be able to introduce the salient features of the cult and the cult-involved parent into evidence. All the knowledge in the world is useless unless it is admissible in evidence before the court. This is critical. Here, objections based upon religious liberty are likely to arise. Such objections should be anticipated, and arguments in response should be prepared well in advance. (Note 1)
There are three basic evidentiary approaches to the introduction of coercion-specific information which can be fruitful. The necessary evidence can be presented through 1) ex-members, 2) expert testimony, or 3) effective cross-examination of the cult parent based upon literature published by the group in question.
After doing one's homework, one should incorporate appropriate language, raising the necessary issues which should be incorporated into the legal papers required to start the judicial process. Remember, accurate characterization of the facts and proper framing of the legal issues can go a long way toward determining how the litigation will proceed. In this regard, judicious use of language is imperative. One must be ever mindful not to use words which connote consent when one is attempting to describe the lack thereof. (Indeed, this principle should be applied throughout.) Dealing with coercion is tremendously difficult. The task should not be complicated by language that lacks precision. Say what you mean and mean what you say because, more than usual, the credibility of the litigator assumes tremendous importance in what amounts to a constitutional minefield.
A theme should always be identified which can then be woven throughout the testimony presented. One valuable theme can be that of stress, and the effect of excessive stress on the child's development. Lay people as well as experts can recognize stress and its effects. And it is beyond contention that the coercion and manipulation employed by many groups engender great stress. Too much stress, moreover, can hurt children far more than it can hurt already calloused and life-damaged adults. And of added importance, the concept of stress is easy for a judge to understand.
At the judicial starting gate it is important, if not critical, to go before an appropriate judge. Some judges are less likely than others to be intimidated by the inevitable cry that the opposition is attempting to conduct a "heresy trial". Any information one can get that bears on the judge's attitude in this regard should be obtained before the case is finally assigned.
While recognizing that the religious nature of the organization will likely have to be confronted directly at some point, an effective approach is to leave this for late in the proceeding. Maintain credibility by being ready to speak to the religious dimension of the case and acknowledge its presence. But do not invite it. Rather, leave it alone unless forced to deal with it. Then deal with it straightforwardly.
The facts presented first, then, would be those that pertain to the difference in the child's behavior before and after his exposure to the psychological coercion employed by the group. The non-cult parent seeking the court's protection of the child at risk is a logical first witness. Since this witness is likely to be the weakest -- in that he or she will be emotionally distraught and subject to accusations of interest and bias -- use the testimony as a basis for supportive statements from other persons, such as school officials, who are more objective.
In the middle or toward the end of the presentation, the cult-member parent can be called as an adverse witness and subjected to close cross-examination. Using the coercive religious group's own literature, ideology, and practices, one should be able to extract testimony from the cult parent about the group's coercive practices. Usually, the cult-member parent will evade relevant questioning here. Be tenacious until fully truthful responses are obtained. A proper factual foundation should already have been laid as to the relationship between the child's behavior and the nature of the group.
One approach can be particularly effective here. As a rule, the practices of the group are manipulative. It is also common for the cult-member parent to use the manipulative techniques employed by the group to turn the child against the non-cult parent, and even to exacerbate long-standing conflicts between the spouses. Demonstrating that this kind of manipulation is going on will help prove the point that it is not the cult which is on trial, but rather the cult-member parent's use of cult ideology and practices to put the child "in the middle" as a weapon in the parental conflict. Arguing in this way, one can attack the ideology and practices of the group indirectly as they are manifested through the cult-member parent while minimizing the contention that what is being litigated is the truth or falsity of the teachings claimed to be religious.
One should also attempt to reveal inappropriate behavior by the cult-member parent, particularly if the behavior is not cult-related. To do this will not only apprise the court of the impact on the child of the cult-member parent's character, but will also tend to move the litigation away from the religious arena.
Expert testimony, finally, should be saved for the end of the presentation in order to tie together all of the preceding testimony. The expert can also be more fully responsive to questions that the judge will almost inevitably ask about the meaning of the evidence presented in the case.
With one strategic exception, the foregoing model format succeeded in a recent case of mine. A divorced and remarried mother was the physical custodian of a ten-year-old boy from her prior marriage to the cult-member father. The latter was a member of the Church of Scientology, and for almost a year he had used much of his substantial visitation time to involve his son in Scientology. As time passed, the boy increasingly exhibited certain adverse behavioral features that are associated with stress. His grades fell; his relationships with his peers, while always shaky, deteriorated. It became impossible for his custodial parents as well as school authorities to deal with him. Upon his return from 6 weeks of summer vacation with his Scientologist father, his mother described him as emotionally "beyond contact." Whenever he returned from a vacation with his father, he was "out of touch" for two or three days. He started to refuse to kiss his mother goodnight at bedtime. Finally, one day after school he rode his bike 10 miles to a ferry, sailed across the bay, and then rode through a bad area of a major city to the Scientology headquarters where his father was waiting.
The mother obtained a temporary restraining order from a superior court judge who temporarily prohibited the father from having any contact with his son. Two or three months later, the issue of whether or not the Church of Scientology was detrimental to the boy's mental and emotional well-being was fully litigated over the course of a ten-day hearing. The Church of Scientology tried unsuccessfully to intervene in the suit on the basis that it was being characterized in a pejorative light. The boy's mother testified, as did the school psychologist, a social worker, the cult-member parent, the mother's new husband, a friend of the cult-member parent, and the cult parent's parents. There was no expert testimony. Through cross-examination, based on a Scientology policy paper, the cult-member parent testified that Scientology characterized individuals who "opposed or impeded the advancement of Scientology or a Scientolgist" as having committed "Suppressive Acts," and that such individuals were characterized in these documents as being "Suppressive persons." He further testified that any Scientologist who had a relationship with such a "Suppressive Person" was characterized in the Scientology literature as a "Potential Trouble Source." The witness refused to admit that one characterized as a "Potential Trouble Source" was required to "disconnect" from the "Suppressive Person," although this requirement is also part of the doctrine contained in the documents. The judge, however, understood this.
The court in the end awarded sole legal and physical custody (in California, sole legal custody is rarely awarded, since joint legal custody is by statute presumed to be in the best interests of the child) to the mother, and further issued the following findings of fact and custody order that I wrote and submitted.
Under the circumstances of this case, and as used herein by petitioner [father] the doctrines and tenets of the Church of Scientology, whether such doctrines and tenets are designated by that name, by the name Dianetics, or any other name which describes the ideological doctrines and tenets which are in any way affiliated or connected to the Church of Scientology, have been in the past and in the future are likely to be dangerous and detrimental to [name], the minor herein whose interests, health, and welfare have been at issue...[Father] is prohibited from: a) In any way communicating [minor], or influencing [minor] with the doctrines and/or tenets propounded by the Church of Scientology, Dianetics, the Delphian School, the Real School or any other source of psychological influence which is related to or connected with Scientology, Dianetics, the Delphian School, the Real School or other similar related entity; b) Taking [minor] to Scientology, Dianetics, Delphian School, the Real School or any other similar entity, activity or other influence which is connected with or related to the inculcation of the tenets and doctrines propounded by said or similarly related entities; and c) Taking any other action, of whatever kind or nature, which will bring [minor] into physical or psychological contact with Scientology, Dianetics, Delphian School, Real School or other similar related source of psychological influence which is related to or connected with Scientology, Dianetics, Delphian School, Real School or related entities
While one has the absolute right to believe whatever one wants, one does not necessarily enjoy the same liberty with respect to putting such beliefs into action. Although the truth or falsity of religious belief cannot be litigated, the impact of particular beliefs upon the mental or emotional status of a child can be.
Ford Greene, Esq., an attorney in private practice in San Anselmo, CA, has successfully argued a number of civil and criminal cases involving clients enmeshed in one way or another with cultic groups. He recently led a successful effort to persuade the California Supreme Court to deny a lower court dismissal of the celebrated Molko case -- in which two Unification Church members allege they were fraudulently manipulated into joining -- thus making possible a trial on the charges.