------------------------------------------------------------------- F.A.C.T.Net, Inc. (Fight Against Coercive Tactics Network, Incorporated) a non-profit computer bulletin board and electronic library 601 16th St. #C-217 Golden, Colorado 80401 USA BBS 303 530-1942 FAX 303 530-2950 Office 303 473-0111 This document is part of an electronic lending library and preservational electronic archive. F.A.C.T.Net does not sell documents, it only lends them according to the terms of your library cardholder agreement with F.A.C.T.Net, Inc. ===================================================================== NEW YORK LAW SCHOOL JOURNAL OF HUMAN RIGHTS Copyright 1987 by New York Law School VOLUME V Part One Fall 1987 ARTICLES [Here, in a Table of Contents, the names of more than a half dozen articles are listed. The name and text of one of those is given below.] [This article was printed with footnotes at the bottom of each page. On many pages the footnotes and the main text are about equal in space. However, in this computer version, the footnotes are interspersed with the main text, set apart by horizontal lines.] THE BEST INTEREST OF THE CHILD AND THE CONSTITUTIONAL RIGHTS OF CULT MEMBER PARENTS: RESOLUTION OF A CONFLICT by Richard Barnes Montana, page 97 I. INTRODUCTION Child custody determinations are arguably the most difftcult task to face the judiciary.1 A jurist, in an attempt to vindicate "the best interest of the child,"2 though accorded great discre- tion,3 must not only be cognitive of and sensitive to the child's interests, but the parents' interests as well.4 Deciding precisely what a child's best interests are, "often eludes understanding."5 ---------------------------------------------------------------------- 1. Waites v. Waites, 567 S.W.2d 326, 330 (Mo. 1978). See J. GOLDSTEIN, A FREUD & A. SOLNIT, Byond The Best Interests of the Child (1979) (hereinafter J. GOLDSTEIN); Musetto, Standards for Deciding Contested Child Custody, J. OF CLINICAL CHILD PSYCHOLOGY, (1981), reprinted in CHILD CUSTODY DISPUTES 431 (G.E. Stollak & M.G. Lieberman ed. 1985) [Hereinafter Musetto].- 2. "The paramount conisderation in child custody disputes is the 'best interest of the child.'" Note, Religion and Child Custody Disputes, 82 MICH. L. REV. 1702 (1984) [hereinafter (Child Custody]. A multitude of custody decisions recite this maxim. See, e.g., Waites, 567 S.W.2d at 331; In re Marriage of Short, 675 P.2d 323, 325 (Col. Ct. App. 1983); Burnham V. Burnham, 208 Neb. 498, 501, 304 N.W.2d 58, 61 (1981). 3. Child custody, supra note 2. See generally Karst, The Nature of Intimate Association, 89 Yale L. J. 624 (1980) [hereinafter Karst]. 4. A custody dispute resulting in an award to one particular parent (not all disputes end this way, however, see Beck v. Beck, 86 N.J. 480, 432 A.2d 63 (1981) (where the court awarded joint custody of the child); Birch v. Birch, 11 Ohio St. 3d 85, 463 N.E.2d 1254 (1984) (where the court awarded custody of the child to the state due to the appar- ent unfitness of both parents) necessarily entails inhibiting noncustodian's ability to enjoy the love and companionship of his child, Smith v. Smith. 90 Ariz. 190, 193, 367 P.2d 230, 233 (1961), and to raise his child as he sees fit. See Roe v. Doe, 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567 (1971). Though it is generally within the discretion the parent to decide the manner by which to raise and educate his child, Zablocki v. Redhail. 434 U.S. 374 (1978); Pierce v. Society o{ Sisters, 268 U.S. 510, 535 (1925), this general proposition is upheld by courts only in the event that no abuse or neglect is employed. 29 N.Y.2d at 191-92, 324 N.Y.S.2d at 74-5, 272 N.B.2d at 570-71. 5. Musetto, supra note 1, at 431. The court's role in child custody detetminations falls within the rubric of parens patriae, literally, "parent of the country." This concept originates from the English common law where the king had the prerogative to act as guardian to persons such as infants and the psychologically impaired. In the United States, parens patriae refers to the traditional "role of the state as sovereign and guardian of persons under legal disability." West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1089 (2d Cir. 1971). ---------------------------------------------------------------------- Certain statutes6 and judicial decisions7 do, however, offer guide- lines by which to fashion custody orders. In no instance is a custody decision more critical and prob- lematic8 than when it may serve to contravene an individual's fundamental rights9 guaranteed by the U.S. Constitution. This note examines such a situation: when one prospective custodian is a member of a cult.10 Furthermore, the social and constitu- tional considerations and ramifications involved when a judge must accommodate the child's best interest and the cult mem- ber's rights will be analyzed. ---------------------------------------------------------------------- 6. The National Conference of Commissioners on Uniform State Laws has approved and recommended the uniform Marriage end Divorce Act; $ 402 provides: The court shall determine custody in accord with the best interest of the child. It shall consider all relevant factors including: . . . the interaction and interrelationship of the child with his parents, siblings, and any other person who may significantly affect the child's best interest; . . . and the mental and physical health of all individuals involved. The court shall not consider conduct of the proposed custodian that does not affect his relationship to the child. This model act has been adopted in many states. See, e.g., MONT. CODE ANN. $ 40-4-212 (1983); COL. REV. STAT. $ 125-480-124 (1973); MO. REV. STAT. $ 452.375 (Supp. 1975); NEV. REV. STAT. $ 125.480 (1983). 7. Almost every custody decision prolaims, in one form or another, the need to protect from impairment the physical and psychological health and welfare of the child. See, e.g, Cliff v. Cliff, 346 So. 2d 429, 435 (Ala. Civ. App, 1977); In re Marriage of Hadsen, 27 Wash. App. 566, 571, 619 P.2d 374, 379 (Ct, App. 1980). 8. See supra notes 2, 6 & 7. 9. Those rights which are delineated in the express terms of the United States Constitution, or that are necessarily implied by those terms, are deemed fundamental rights, Sidle v. Majors, 264 Ind. 206, 341 N.E.2d 763 (1957). See generally Roe v. Wade, 410 U.S, 113 (1973); Gilswold v. Connecticut, 381 U.S. 479 (1965). 10. "The term 'curt' increasingly is applied to disparate collection of groups and movements, and consequently has become unsuitable as a precise legal . . . category." Robbins, Religious Movements, The State, and The Law: Reconceptualizing the Cult Problem, 9 N.Y.U REV. L. SOC. CHANGE 33 & n.1 (1979-80) [hereinafter Robbins]. "[C]ult" remains a "vague and unsatisfactory concept." Eister, Culture Crisis and New Religious Movements: A Paradigmatic Statement of a Theory of Cults, in RELIGIOUS MOVEMENTS IN CONTEMPORARY AMERICA 613 (Zaretsky & Leone ed. 1974). The dictionary defines "cult" as: "worship; reverential honor [of], . . . devoted attachment to, or extravagant admiration for, a person, principle, etc. . . ." WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY UNABRIDGED 443 (2d ed. 1980). For the purposes of this note, however, a precise formulation of the definition of a cult is unnecessary if not unrealizable. Whether a particular group is accurately labeled a "cult" is unimportant. Whether a group so labeled engages in conduct which threatens the health and welfare of a child is all important. The term will be employed here to refer to unconventional religious, political, and psychotherapy groups which are often communal, authoritarian, and totalistic in nature. See Molko v. Holy Spirit Ass'n, 179 Cal. App. 3d 450, 457 n.12, 224 Cal. Rptr. 817, 828 n.12 (1986) (setting forth this general definition of a cult). In short, "a cult is any group stigmatized as a cult." Robbins, supra. ---------------------------------------------------------------------- Although all courts agree that it is necessary and permissi- ble to abridge a parent's religious11 or associational12 freedoms through a custody award when concomitant practices threaten ---------------------------------------------------------------------- 11. The first amendment of the Constitution states: "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof." U.S. CONSTITUTION amend. I. This prohibition applies via the fourteenth amendment to the states, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940l; Murdock v. Pennsylvania, 319 U.S. 105 (1943), and includes judicial decisions as well as statutes. NAACP v. Alabama, 357 U.S. 449, 463 (1958). The purposes of the two religion clauses, the establishment and free exercise clauses, are distinct but related. Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973). "The clause against the establishment of religion by law was intended to erect 'a wall of separation between churrh and state.'" Marsh v. Chambers, 463 U.S. 783, 791 (1983) (quoting Everson v. Board of Educ., 330 U.S. 1. 16 (1947)). The establishment clause serves to ensure that no religious activity is sponsored, favored, or commanded by the state. Walz v. Tax Comm'n, 397 U.S. 664 (1970). This clause requires that the state "'may not be hostile . . . to the advocacy of no religion, and it may not aid. foster, or promote one religion . . . against another.'" Child Custody, supra note 2, at 1703 n.6 (quoting Ep- person v. Arkansas. 393 U.S. 97. 103-04 (1968)). The free exercise clause mandates that no state shall act in a manner which serves to inhibit the exercise of an individual's religious beliefs merely because it disfavors a particular denomination. Nyquist, 413 U.S. at 756; Cantwell, 330 U.S. at 296. In short, "[g]overnment may not interfere with organized or individual expression of belief or disbelief." Minersville School District v. Gobitis, 310 U.S. 586, 593 (1940). The Supreme Court has asserted that the free exercise clause requires that an individual not be forced to choose between adherence to her religious beliefs and secular law. Sherbert v. Werner, 371 U.S. 398, 404 (1963). The Court has stated that it "repeatedly has recognized that ension inevitably exists between the free exercise and establishmeut clauses . . . and that it may often not be posslble to promote the forrmer without offending the latter. As a result of this truism, our cases require the state to maintain an attitude of neutralily, neither advancing or inhibiting religion." See Child Custody, supra note 2, at 1702 n.2 (quoting 413 U.S. at 788). 12. The Court has long maintained that the first amendment carries with it a peripheral right: freedom of association. NAACP v. Alabama, 357 U.S. 449 (1958). Though this right "is not expressly included in the first amendment, it is necessary in making the express guarantees fully meaningful." Griswold v, Connecticut, 381 U.S. 479. 481 (1965). The freedom to associate protects from governmental intrusion those associations that are designed to facilitate express first amendment rights of religion and speech. Such protected associations, however, are not limited to religious and political groups. Associations which accrue social, legal, or economic benefits to its members may be included as well. See Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984); NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama. 357 U.S. at 452. The Court has also recognized a freedom of intimate associational right protects from governmental intrusion "choices to enter into and maintain intimate human relationships." The characteristics of such associations are " relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others." 468 U.S. at 618, 620. ---------------------------------------------------------------------- impairment of a child's health or welfare,13 cult membership poses uniquely complex questions in determining the existence of physical or psychological harm to a child. From amidst emo- tion and controversy, this note attempts to discern actual danger from incrimination, fact from prejudice or stereotype, so that clear standards may emerge to guide the courts in the endeavor of constitutionally and socially responsible child placement.14 II. CONSTITUTIONAL, ANALYSIS A religious belief, as articulated by the Supreme Court, is that belief "based . . . upon a power or being, upon faith, to which all else is subordinate or upon which all else is ultimately dependent."15 The Court has also stated that a religious belief is one that "'occupies a place in the life of its possessor parallel to that filled by orthodox belief in God.'"16 This definition is suffi- ciently broad to encompass many cults.17 The first amendment protects the holding of any religious ---------------------------------------------------------------------- 13. See supra notes 6-7. 14. For the purposes of this note, we shall assume that one potential custodian is a member of a cult and the other may or may not be a member of a conventional group not generally considered to be a cult; and that upon divorce or separation each parent desires custody and is otherwise a fit parent. 15. United States v. Seeger, 380 U.S. 163, 176 (1965). Dr. Paul Tillich holds the essence of religion is captured in the phrase "ultimate concern." P. TILLICH, DYNAMICS OF FAITH 1-2 (1958). "One's views, be they orthodox or novel, on the deeper and more imponderable questions--the meaning of life and death, man'a role in the universe, the proper moral code of right and wrong . . . are his ultimate concerns." Malnik v. Yogi, 592 F.2d 197, 208 (3d Cir. 1979). See generally Note, Toward a Constitutional Definition of Religion, 91 HARV. L. REV. 1056 (1978) [hereinefter Definition of Religion]. 16. Pfeifer, Equal Protection for Unpopular Sects, 9 N.Y.U. REV. L. & SOC.CHANGE 9, 13 (1980-81) (quoting United States v. Seeger, 380 U.S. at 166). See also United States v. Welsh, 398 U.S. 333 (1970). 17. See generally Definition of Religion, supra note 15. The religious cults include: the Church of Scientology; the Children of God; the Unification Church; ISKCON (Hare Krishna); the Divine Light Mission; the People's Temple; Love Israel; the Northeast Kingdom Community Church; the River of Life Tabernacle; Black Hebrews of the Children of Israel; and The Way International. See generally D.G BROMLEY & A. D. SHUPE, STRANGE GODS; THE GREAT AMERICAN CULT SCARE (1981) [hereinafter D.G. BROMLEY & A.D. SHUPE]; A.J. RUDIN, PRISON OR PARADISE: THE NEW RELIGIOUS CULTS 31-97 (1980); C. STONER & J. PARKE, ALL GOD'S CHILDREN (1977). This list is by no means exhaustive as there have been reported to be "200--1,000 religious cults." Delgado, When Religious Exercise Is Not Free: Deprogramming and the Constitutional Status of Coercively Induced Belief, 37 VAND. L. REV. 1071, 1072 n.2 (Oct. 1984) [hereinafter Deprogramming] (citing Lanier, America's Cults Gaining Ground Again, US NEWS AND WORLD REPORT, July 5, 1982, at 37, 39). ---------------------------------------------------------------------- belief no matter how unorthodox or bizarre it may appear to so- ciety at large.18 Courts may not question the authenticity nor weigh the merits of an individual's religious beliefs or doc- trines.19 Moreover, the government, through its laws or courts, is absolutely forbidden from interfering with an individual's reli- gious belief merely because the religion is the object of public derision."20 The constitutional grant of associational freedoms, as inter- preted by the Supreme Court,21 is broad enough to include cer- tain secular cults whether they be deemed "expressive"22 or "in- timate"23 association. The first amendment protects expressive association against governmental intrusion based upon the con- tent or subject matter of the political or social expression.24 The government may not regulate such expression merely becuase ---------------------------------------------------------------------- 18. United States v. Ballard, 322 U.S. 78. 86 (1943); Reynolds v. United States, 98 U.S. 145, 162-67 (1878); Turner v. Unification Church, 473 F. Supp. 367, 371 (D.R.I. 1978), aff'd, 602 F.2d 458 (1st Cir. 1978) (citing Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940)). 19. 322 U.S. at 86; Clift v. Clift, 346 So. 2d 429, 435 (AIa. Civ. App 1977). 20. Davis v. Beason, 133 U.S. 333, 342 (1890); Contwell, 310 U.S. at 303-04; Reynolds, 98 U.S. at 166. This applies to both the free exercise and the establishment of religion. Governmental preference for a particular religion may interfere with religious belief of another through intimidation. 21. See Roberts v. United States Jaycees, 468 U.S. 609 (1984). 22. "Expressive associations" include those groups which by design serve to bring individuals together "in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts, 468 U.S. at 622 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886,907-09, 923-33 (1982)); see Larson v. Valente, 456 U.S. 228, 244, 246 (1982); In re Primus, 436 U.S. 412, 426 (1978). Cults which may be included in this group are the Political Cults: The National Labor Federation; The New Alliance Party; The U.S. Labor Party; and the Symbionese Liberation Army. See Deprogramming, supra note 17, at 1702 n.2.; Conason, Psycho-politics: What Kind of Party is This Anyway?, Village Voice, June 1, 21982, at 1; Labor Group: Saga of a Cult. East Hampton Star, Sept. 18, 1986 at 1. Also falling into the category of expressive associations are the "Psychotherapy Cults": The Center For Feeling Therapy and the Sullivanians to name just two. See Conason, Escape From Utopia, Village Voice, Apr. 22, 1986, at 19, col. 1; Feeling Therapy: Dream Goes Sour, L.A. Times, July 16, 1981, pt. V, at 1, col. 1. 23. The psychotherapy cults may also fall undert the heading of "intimate associations." Though the Supreme Court definition of intimate association appears to be limited to those relationships witltin the context of one's family, such as marriage and child rearing, arguably therapy cults and the concomitant patient therapist relationships are sufficiently small, selective, and seclusive to fulfill the definition of an intimate association. See supra note 12. See generally Karst, supra note 3. 24. See Grayned v. City of Rockford. 408 U.S. 104 (1972) (considering individual political and social expression). ---------------------------------------------------------------------- the message conveyed is unpopular or controversial.25 Although the Supreme Court maintains that a "careful assessment" of the nature of a particular "intimate" association is necessary to de- termine whether it is to be accorded full first amendment pro- tection against governmental regulation,26 this assessment should not be premised upon prejudice or stereotype. Freedom to practice one's religitm or engage in expressive or intimate association is not completely immune to governmental restriction.27 Although the beliefs of a religion and the expres- sive ideas of an association are protected absolutely,28 the con- duct or practices related to them are subject to infringement through regulation adopted in pursuit of compelling public in- terests.29 Likewise, governmental action that serves to advance a particular religious denomination may be justified only by com- pelling public interests.30 Thus, in the context of child custody disputes, the first amendment prohibits the courts from designating a custodial parent based upon an evaluation of the comparative merits of his religious beliefs.31 This is, of course, the case regardless of ---------------------------------------------------------------------- 25. Id. at 115. 26. Roberts, 468 U.S. at 620. 27. Proffer, supra note 16, at 15. 28. See Davis v. Beason, 133 U.S. 333, 342 (1890); Cantwell, 310 U.S. at 304. 29. See Bob Jones University v. United States, 461 U.S. 574 (1983). The Court determined that a compelling public interest in eradicating racial discrimination in education justified denial of tax-exempt status to the university although such denial would place a burden upon the exercise of religious beliefs. See also Prince v. Massachusetts, 321 U.S. 158 (1943), where, in order to vindicate the compelling public interest of child safety, the Court upheld a statute that criminalized the selling of religious newspapers by a child in public despite the fact that the child believe it was her religious duty to engage in such conduct. This prescribed standard also provides that the governmental action fashioned to vindicate a compelling public interest must be closely tailored to that end. That is, the governmental action not only must pursue a compelling public interest, but also must do so without undue infringement of rights protected by the Constitution. Bob Jones University, 461 U.S. at 604; Thomas v. Review Bd., 450 U.S. 707 (1981); Cantwell, 310 U.S. at 303.04. In the context of child custody determinations, however, it is unnecessary to address the second prong of this test or standard because, as a practical matter, only one course of action is presented to a court. In the event it finds that a potential custodian's religious or associational practices pose a threat to the physical or psychological health and welfare of a child, a court may deny custody to that parent. Such judicial intervention is ipso facto closely tailored or "least restrictive." 30. Larson v. Valente, 456 U.S. 228, 246-47 (1982). 31. Clift v. Clift, 346 So. 2d 429, 435 (Ala. Civ. app. 1977). ---------------------------------------------------------------------- the unpopularity or unconventionality of a prospective custo- dian's religion.32 Courts should likewise be forbidden from deter- mining child placement based upon the intent to suppress or in- hibit the expression of ideas or lifestyles connected with protected associations.33 Because the state has a compelling in- terest in "safeguarding the physical and psychological well-being of a minor,34 the first amendment does not prevent a court from examining the religious or associational practices of pro- spective custodians in order to determine whether such practices entail harm or endangerment to the child's health or welfare.36 Clear evidence indicating "a reasonable and substantial likelihood of immediate or future impairment" of a child's phys- ical or psychological welfare as a consequence of a prospective custodian's religious or associational practices, justifies placing the child with the other parent and serves to ameliorate any ap- parent violation of first amendment proscriptions.36 If, however, ---------------------------------------------------------------------- 32. Harris v. Harrivs, 343 So. 2d 762, 764 (Miss. 1977). See Child Custody, supra note 2, at 1704 n.13 (citing Pfeffer, Religion in the Upbringing of Children, 35 B.U.L. REV. 333, 366 (1955)). 33. See Karst, supra note 3, at 656-59 (discussing generally the first amendment protection of intimate and expressive association and the expressive aspect of intimate association). 34. Child Custody, supra note 2, at 1705 n.15 (quoting New York v. Ferber, 458 U.S. 747, 756-57 (1982); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)). 35. Osier v. Osier. 410 A.2d 1027, 1030 (Me. 1980); Battaglia v. Battaglia, 9 Misc. 2d 1067, 1068 N.Y.S.2d 361, 362 (Sup. Ct. 1958). "To hold that a court may not consider religious factors under any circumstances would blind courts to important elements bering on the best interests of the child." Bonjour v. Bonjour, 592 P.2d 1233, 1238 (Alaska 1979). Courts may also consider the content of one's association as well as one's religious beliefs, but only so far as they are probative of practices. See Reimann v. Reimann, 39 N.Y.S.2d 485, 486 (Sup. Ct. 1942), in which a New York supremem court denied a prospective custodain custody of his child because "there was sufficient proof for the court to find that he has been contaminated with the germ of Nazism." The court reasoned implicitly that such a finding would entail detriment to the child's welfare. Se also Child Custody, supra note 2, at 1705. Cf. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). 36. In re Marriage of Hadeen, 27 Wash. App. 566, 580, 619 P.2d 374, 382 (Ct. App. 1980). In Clift, however, the Court of Civil Appeals of Alabama adopted a less stringent rule which stated that in the event "the prospective custodian hold[s] views which might reasonably be considered dangerous to the child's health," denial of custody to that parent is justified. 346 So. 2d at 435. In Osier, the Supreme Judicial Court of Maine proclaimed that in order for a court to be justified in awarding custody based upon consideration of a potential custodian's religious practices, the same must "pose[] an immediate and substantial threat to the child's well-being." 410 A.2d at 1030. And in Quiner v. Quiner, 59 Cal. Rptr. 503, 516 (Cal. App. 1967), the court of appeals adopted an "actual impairment" standard which [This note is continued after the next section of text.] ---------------------------------------------------------------------- a court merely recites adverse or potentially adverse effects which might inure to a child and, in actuality, there exists no substantial evidence to support such apprehensions, then suspi- cions may be raised regarding the true motives of the court in awarding custody as it did. Did the court act permissibly, in fur- therance of a compelling public interest -- child safety -- or did it act impermissibly, based upon mere approval or disapproval of a prospective custodian's religion or association in contravention of the first amendment?37 If the court does in fact cite as the basis of its placement decision impairment of a child's physical or psychological health and welfare due to the custodial parent's religious or associa- tional practices, or asserts that it has based its determination upon any such considerations, the order, on its face, does not violate the first amendment. The placement of the child with a religious parent may appear to promote one parent's religion over the other's, and if the noncustodian is religious, inhibit his free exercise of religion by dint of apparent judicial disapproval thereof. Likewise, if the placement is with a nonreligious parent, it may appear to restrict the free exercise of religion or freedom of association of the noncustodian. Such "indirect" impact upon first amendment freedoms does not, however, offend the Constitution.38 ---------------------------------------------------------------------- required that manifest, present harm be evidenced in order to justify a denial of custody founded upon parental religious practices. It is the opinion of this writer that the standard enunciated in Hadeen, best fosters an accommodation of the competing interests of the welfare of a child and the first amendment rights of the parent. The rule set forth in Clift, appears not to afford sufficient protection to a prospective custodian's religious freedom in that it may invite mere speculation as to any potential danger inherent in particular religious tenets. The doctrines outlined in both Osier and Quiner, on the other hand, seem inadequately to safeguard a child's health and welfare in a situation which indicates a likelihood of future harm though none is actually present or immediate. 37. Smith v. Smith, 90 Ariz. 190, 194, 367 P.2d 230, 233 (1961) (stating that "[a] judgment supported only by the tenuous threads of . . . possible [detriment to a child] derived from deviation in normal activities will not withstand the thrust of constitutional guarantees"). 38. The Supreme Court has on many occasions proclaimed that governmental action which has only an incidental effect of either advancing or inhibiting religious activity is not violalive of the first amendment. See, e.g, Mueller v. Allen, 463 U.S. 388 (1983); Widmar v. Vincent, 454 U.S. 263 (1981) (both cases were decided in the context of the establishment clause); Braunfeld v. Brown, 366 U.S. 599 (1961) (the Court stated that so long as the state is advancing a secular goal "indirect burden on religious observance is permissible unless the state may accomplish its purpose by means which do not impose ---------------------------------------------------------------------- The argument may be made, however, that any judicial ac- tion that has the effect of curtailing an individual's right of free exercise or association, no matter how incidental stands in vio- lation of the first amendment rubric.39 In the context of child custody disputes, however, only those custody orders which are based upon an evaluation of the potential for visitation of harm upon a child due to a parent's religion or protected association can have the effect of impermis- sibly abridging a prospective custodian's first amendment rights. When custody is determined in this manner, an individual's reli- gion or protected association may be designated as the reason for the denial of custody. Only in this event is a parent justified in viewing the decision as forcing him to choose between gaining custody of his child and maintaining his affiliation with a reli- gion or protected association.40 Only when harmful religious or associational practices form tlxe basis for denying a cult member custody could it be possible for that parent to forego such prac- tices and rationally hope then to be awarded custody of his child. For if custody is determined in accordance with considera- tions other than religion or association, altering one's beliefs and/or practices should, of course, have no bearing upon the ---------------------------------------------------------------------- such burden"). The Supreme Court has enunciated a three-prong test designated to evaluate laws and judicial decisions which may be viewed as protecting a particular religion, or religion in general. The test, first laid down in Lemon v. Kurtzman. 403 U.S 602 (1971), provides: "First, the statute must have a secular legislative purpose; second, its principle or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster 'an excessive government entanglement with religion.'" 403 U.S. at 612-13. Although this test has long been the center of gravity of establishment clause jurisprudence, it is "no more than [a] helpful signpost." Hunt v. McNair, 413 U.S. 734, 741 (1973).This is quite an apt characterization of the Lemon test, for its proscriptions have scarcely served as an obstacle to the promotion of religion. In Mueller, the Court was completely satisfied by the showing of any permissible secular purpose behind a Minnesota statute granting a tax deduction to parents of children enrolled in private schools, though 95% of such schools were sectarian institutions. The Court made no real inquiry as to the existence of an impermissible religious purpose behind the statute. It must be noted, the Lemon test and current establishment clause jurisprudence notwithstanding, that scrutiny of legislative and judicial actions appearing to promote religion should focus upon discerning the genuine intent behind such measures. Only if substantial evidence exists to support a governmental entity's action as constitutionally permissible, should an adverse impact upon certain protected rights be endured. 39. See Sherbert v. Werner, 374 U.S. 398, 403 (1963) (the Court appeared to have adopted this view, but in an apprehensive if not confused manner) 40. See infra note 47 and accompanying text. ---------------------------------------------------------------------- award. If, however, altering one's lifestyle in regard to religious or associational practices does appear to have an effect on a cus- tody order, then it becomes evident that a court is in fact basing its determination upon an evaluation of a prospective custo- dian's religion or association and it must, therefore, cite a com- pelling public interest, i.e., protection of the child's health and welfare, served by such action.41 If no clear, substantial evidence exists to support a custody order purportedly based upon con- siderations other than religion or protected association, then doubts may be raised regarding the courts true motives. The less evidence that exists to support such determination by the court, the more justified the noncustodian is in viewing the deci- sion as demanding that an unconstitutional choice between cus- tody and adherence to his religion or association he made.42 If, however, it were not the case that only those custody orders which are based upon consideration of a prospective custodian's religion or protected association may be viewed as engendering such a choice, any subjective reaction on the part of a cult-mem- ber parent claiming violation of his first amendment rights pur- suant to any custody decision would unnecessarily and unjustifi- ably cast a shadow over the decision. In the event that the judicial record presents no substantial evidence upon which to support a custody award professed to be founded upon considerations other than religion or protected as- sociation, then suspicions may be raised as to whether the court did, in fact, make the decision free of an evaluation of a prospec- tive custodian's religious or associational affiliation. In such a case, when the court has failed to cite as the reason for its deter- mination the religious or associational practices of a prospective custodian, two extremely troubling scenarios arise: 1) where the court has acted upon impermissible consideratiun of the merit of a parent's religion or protected association; or 2) where the court was apprehensive to cite the genuine reason for its decision, i.e., visitation of harm upon a child pursuant to religious or associa- tion practices, for fear of being called upon to justify any appar- ent contravention of first amendment doctrines. The first scenario embodies an unconstitutional judicial act, ---------------------------------------------------------------------- 41. See supra notes 36-37 and accompanying text. 42. See infra note 47 and accompanying text. ---------------------------------------------------------------------- a court not citing the religion or protected association of a par- ent as the basis for its determination because no harm to the child was evident from testimony regarding concomitant prac- tices and, therefore, the required compelling public interest did not exist to justify placement away from a prospective custodian based upon her religion or association. ln other words, the court based its directive upon disapproval of a particular religion or association in clear contravention of the first ammendment.43 The first scenario may also translate into an unconstitutional judicial act in that the court does not cite religious or protected associa- tion as the reason for its order because it was endeavoring to promote a particular religion, or religion in general, and no com- pelling public interest existed to justify that apparent abridge- ment of the establishment clause.44 The second scenario embodies an unconstitutional judicial act in that the court found that a parent's religious or associa- tional practices endangered the health and welfare of the child, justifying the court-ordered placement with the other parent and any apparent infringement of the noncustodian's first amendment freedoms, but avoided enunciation of this as the ba- sis for its decision as is constitutionally mandated,45 in an effort to eschew controversy. This scenario may also translate into an- other unconstitutional judicial action: a court apparently disre- garding findings of physical or psychological endangerment to the child and placing the child with a religious parent in an at- tempt to promote that religion, or religion in general, without support of a compelling public interest to justify such action. In fact, this version flies in the face of not only the establishmemt clause and the compelling public interest of protecting against impairment the health and welfare of the child, but also the par- amount consideration of all custody determinations: the best in- terest of the child.46 To reiterate, a court that has founded its custody directive upon an evaluatitm of a particular prospective custodian's reli- gious or associational affiliation, or any practices concomitant therewith, and is unable or simply chooses not to cite substantial ---------------------------------------------------------------------- 43. See supra notes 31--33 and accompanying text. 44. See supra notes 11, 12, 30 and accompanying text. 45. See infra note 47 and accompanytog text. 46. See supra nates 2, 6, 7, 11, 29-30, 34-35 and accompanying text. ---------------------------------------------------------------------- evidence of the likelihood of harm to a child's physical or psy- chological well-being as the reason for placement away from such parent, has abridged the noncustodial parent's right of free exercise or association by impermissibly placing that parent in the position of choosing between actively engaging in activity protected by the first amendment and suffering the loss of cus- tody of her child.47 Although courts normally engage in ad hoc balancing of first amendment rights and competing state interests,48 in a custody dispute, once it has been established that a prospective custo- dian's religious or associational practices may visit harm upon his child, a judge has no choice but to place the child with the other parent.49 A custody determination based upon genuine concern for the child's health and welfare may not be challenged through an attempt to vindicate a parent's constitutional rights. This is so, provided that the court is able to cite substantial evi- dence indicating actual or likely danger to the child.50 The cen- tral concern, therefore, becomes a court's ability accurately to define that which is physically or psychologically harmful to a child, and in what manner a parent's membership in a religious or secular cult may contribute to this danger.51 ---------------------------------------------------------------------- 47. See, Smith v. Smith, 90 Ariz. 190, 193, 376 P.2d 230, 233 (1961); Gay Litigants and Child Custody, 19 HARV. C.R. - C.L.L. REV. 497, 523 (1984) (discussing this issue in the context of protected association). 48. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Bob Jones University v. United States, 461 U.S. 574, 602-06 (1983); Prince v. Massachusetts, 321 U.S. 158 (1944); Reynolds v. United States, 98 U.S. 145 (1878). The drawback of balancing competing interests lies in the inevitable necessity for a jurist to invoke his own personal values and in effect choose that which he deems more important. 49. Almost every custody decision, at least implicitly, adopts this role. See, e.g., Waites v. Waites, 567 S.W.2d 326 (Mo. 1978); In re Marriage of Short, 675 P.2d 323 (Col. Ct. App. 1983). 50. See Burnham v. Burnham, 208 Neb, 498, 502, 304 N.W.2d 58, 61 (1981). 51. As has been illustrated, courts disagree as to what constitutes harm from religious or associational practices. See supra notes 36-37 and accompanying text. See also infra notes 181-197 and accompanying text. Due to her dependent status in society,52 a child requires a "family"53 to provide "on a continuing basis . . . an environment which serves her numerous physical and mental needs."54 This view, which recognizes the child's needs as controlling in custody disputes,55 serves society's interests as well.56 The child of ade- quate parents stands a better chance of becoming an adequate parent herself in the future.57 Although courts "disagree on the certainty and amount of physical harm that must be shown" in ordr to justify denial of custody,58 the fact remains that recongition of physical harm in general is not problematic. Courts have been slow, however, in delineating a clear and concise strategy for recognizing what constitutes the more complex danger of psychological injury to a child.59 The most critical elements of a child's psychological well- being are that she is wanted60 and that the child has an opportu- nity to maintain "on a continuous basis a relalionship with at least one adult who is or will became [the child's] psychological parent."61 Though the hallmark of a healthy "parent-child" relationship is the continuity of contact between the psychological parent and child, this concept should not be viewed as so absoluate as to countenance the complete separation of the child from ---------------------------------------------------------------------- 52. J. GOLDSTEIN, supra note 1, at 3. This phrase is indicative of the fact that society views children as unahle to be fully responsible for themselves or to determine and safeguard their best interests. Id. 53. "Family" refers to the "fundamental unit" responsible for the care of the child. Id. at 13. 54. A child is "in need of direct, intimate, and continuous care by those whoa re personally committed to assume such responsibility." Id. at 3. See infra note 162 and accompanying text. 55. J GOLDSTEIN, supra notes 1, at 7. See also supra notes 2, 6 and accompanying text. 56. J. GOLDSTEIN, supra note 1, at 7. 57. Id. 58. Child Custody, supra note 2, at 1705 n.l8. 59. J. GOLDSTEIN, supra note 1, at 4. 60. Id. at 98 (para. 10.2); See also Musetto, supra note 1 at 436, 443. 61. "A psychological parent is one who, on a continuing, day-to-day basis, through interaction, companionship, interplany, and mutuality, fulfills the child's psychological needs for a parent." J. GOLDSTEIN, supra note 1, at 98 (para. 10.3); See Jordan v. Jordan, 302 Pa. Super. 421, 448 A.2d 1113 (Super. Ct. 1982). ---------------------------------------------------------------------- her other parent.62 An equally important element of a child's psychological health is maintaining contact with the noncus- todial parent.63 In short, religious or associational practices that mandate that a custodial parent forego the contintuity of con- tact64 with his child or sever all ties between his child and the noncustodial parent, constitute psychological harm to the child and justify denial of custody.67 A more subtle element of a child's mental health is the ne- cessity of permitting "the child to be a child in accord with his or her age."66 A prospective custodian's religious or associational practices that do not allow a child to engage in natural, "age- appropriate pursuits" impede her sound psychological develop- ment and therefore justify denial of custody.67 The final consideration involves the recognition of how im- portant it is that the child be confident in the belief that her custodian is "in charge and in control."68 A child's secure psy- chological existence must not be menaced by external forces that threaten to breach the continttity of contact with her custo- dian.69 Any examination of the prospective custodian's religious or associational practices must include a searching inquiry into the possible existence of the conditions necessary for the child's psychological well-being. IV. CHARACTERISTICS OF CULTS A. Overview The literature regarding cults is replete with documentation of physical and psychological abuse of children.70 Commentators ---------------------------------------------------------------------- 62. See Musetto, supra note 1, at 442. 63. See In re Marriage of Hadeen, 27 Wash. App. 566, 580-81, 619 P.2d 374, 382 (Ct. App. 1980); Quiner v. Quiner, 59 Cal. Rptr. 503, 513-14 (Cal. App. 1967); Devita v. Devita, 145 N.J. Super. 120, 129, 366 A.2d 1350, 1355 (N.J. Super. Ct. App. Div. 1976) (Antell, J. dissenting). 64. This phrase refers to the relationship between a wanted child and psychological parent. See supra notes 60-61 and accompanying text. 65. See Burnham v. Burnham, 208 Neb. 408, 304 N.W.2d 58 (1981); see also supra notes 60-63 and accompanying text. 66. See Musetto, supra note 1, at 438. 67. Id. 68. J GOLDSTEIN, supra note 1, at 116. 69. Id. at 118. 70. See infra notes 75-108 and accompanying text. ---------------------------------------------------------------------- have offered explanations for these practices including the totalistic71 and authoritarian72 nature of cults, as well as mind control or brainwashing.73 This portion of the note, however, reviews those practices that on their face pose danger to the physical and mental health and well-being of a child and would thereby justify denial of custody. For the purposes of this section, the precise causality of the abusive practices is not of central concern; what is critical is the mere existence of such practices in conformity with religious or associational beliefs.74 B. Physical Endangerment The most harrowing documentation of child abuse relates to the People's Temple.75 Reports tell of frequent and severe public beatings with a heavy wooden paddle for such transgressions as holding hands or stealing food.76 The now defunct People's Temple is by no means the only cult to be accused of practicing such abuse.77 One particular article describes fatal beatings of children in three separate cults in accord with the teachings of the group.78 In addition to beatings, the brutal discipline of children in certain cults includes torture. One cult practices torture by ---------------------------------------------------------------------- 71. See infra notes 112-17 and accompanying text. 72. Id. 73. See infra notes 129-36 and accompanying text. 74. The recitation of physically and psychologically harmful practices of particular cults is merely meant to inform, not inflame, the reader. It is not the purpose of this note to imply that all cults engage in such abusive practices as depicted below, but rather to point up the fact that such unfortunate activity is a reality. 75. The People's Temple was a religious communce founded by the late Jim Jones. As most readers will recall, it eventually established itself in the jungle of Guyana where, in 1978, Jones commanded his disciples to ingest poison-laced Kool-Aid. Approximately 300 of the over 900 dead were children. See F. CONWAY & J. SIEGELMAN, SNAPPING: AMERICA'S EPIDEMIC OF SUDDEN PERSONALITY CHANGE (1979) [hereinafter SNAPPING]; Markowitz & Halperin, Cults and Children: The Abuse of the Young, 1 CULTIC STUDIES J. 143, (Fall/Winter 1984) [hereinafter Cults and Children]. 76. SeeSNAPPING, supra note 75 at 237; W. APPEL, CULTS IN AMERICA: PROGRAMMED FOR PARADISE 108 (1983) [hereinafter APPEL]. 77. See Clapp, The Children of Cults, Christianity Today, March 4, 1983, at 61, col. 2 [hereinafter Calpp]; Landa, Hidden Terror: Child Abuse in Religious Sects and Cults, Justice for Children, Fall, 1985, at 2 [hereinafter Landa]; Rudin, Cult Phenomenon: Fad or Fact, 9 N.Y.U. REV. L. & SOC. CHANGE 17, 28 (1980-81) [hereinafter Cult Phenomenon]. 78. See Landa, supra note 77, at 4. ---------------------------------------------------------------------- electro-shock79 and another by locking children in closets.80 Members of the People's Temple were reported to have engaged in the practice of tying up children and leaving them overnight in the jungle, and dropping them into deep wells where other members would terrorize the child.81 There exists a large store of reports of sexual abuse of chil- dren in certain cults.82 Instances of rape,83 child sex, adult-child sexual relations and incest84 have been described.85 Such con- duct is openly tolerated, if not encouraged, in some groups.86 Perhaps the most frustrating of all accounts of physical abuse are those describing the denial of medical care to chil- dren.87 Many reports depict the tragic scenes of children dying due to treatable, if not curable, diseases and infections.88 Certain cults dispense with the use of physicians and hospitals and deny children immunization from common childhood disease.89 Finally, certain cult doctrines and/or rituals result in depri- vation of adequate sleep and/or dietary regimens.90 C. Psychological Endangerment91 The practices of many cults include the separation of chil- dren from their biological parents.92 Children may be reared by ---------------------------------------------------------------------- 79. See SNAPPING, supra note 75, at 237 (describing the methods of the People's Temple). 80. See Cult Phenomenon, supra note 77, at 28 (describing the Church of Armageddon). 81. See W. APPEL, supra note 76, at 107-08. Punishment also included solilary confinement to cellars, rooms, and boxes resembling coffins. Cults and Children, supra note 75, at 148. 82. See Clapp, supra note 77, at 61, col. 3. 83. See Cult Phenomenon, supra note 77, at 28. 84. See Landa, supra note 77, at 4. 85. Though these abuses are categorized as "physical," one can well imagine the concomitant psychological injury visited upon the child. 86. Clapp, supra note 77, at 61, col. 3. 87. See HOUSE COMM. OF THE ILL. GEN. ASSEMBLY (1985) (testimony of John G. Clark, Jr.) [hereinafter HOUSE REPORT]. 88. See Ostling, Matters of Faith and Death, TIME, Apr. 16, 1984, at 42; Indiana Sect's Children Dying, Chicago Sun Times, Sept. 30, 1984, at 1, col. 1. 89. Landa, supra note 77, at 3. 90. See Cults and Children, supra note 75, at 146. 91. See supra notes 59-69 and accompanying text. 92. See Cults and Children, supra note 75, at 146; Pappo v. Hoy, Transcripts, Mar. 21, 1986, at 8 (testimony of Miss Jody); Mar. 21, 1986, at 8 (Testimony of Mr. Putz); Apr. 1, 1986, at 30 (Testimony of Miss Jody). ---------------------------------------------------------------------- other members of the group "or even geographically separated from their parents."93 Parents and children may be prohibited from forming meaningful relationships,94 or "parental absorption within cult work may well make it difficult for parents to involve themselves in rearing their children."95 This separation of parent and child effectively precludes the parent from fulfilling the child's psychological needs of affection and nourishment.96 Thus tbe parent cannot fulfill his role as psychological parent,97 and the child will not feel wanted, knowing that his parent's alle- giance is first and foremost to the cult.98 Cult doctrine often requires that members dissociate from the rest of society.99 This normally entails the complete separa- tion of a child from a parent outside the group.100 Thus, a child in the custody of a cult member may have no opportunity to cultivate a meaningful relationship with the noncustodial parent.101 In many cults, psychological abuse takes the form of depriv- ing children of their natural expression of sorrow, want and even hunger.102 This emotional deprivation may also include forbid- ding children from entertaining fantasies103 or engaging in psy- chologically beneficial play experience.104 In short, very often, children of cults are not permitted to behave as any normal ---------------------------------------------------------------------- 93. Cult Phenomenon, supra note 77, at 28. 94. Id. 95. Cults and Children, supra note 75, at 146, 152. 96. Id. at 146. 97. See supra note 61 and accompanying text. 98. This is clearly detrimental to the child's psychological well being and, therefore, justifies denial of custody to the cult member. See Burnham v. Burnham, 208 Neb. 498, 501, 304 N.W.2d 58, 61 (1981). A wanted child is one who receives affection and nourishment on a continuing basis and who feels that he or she is and continues to be valued by those who take care of him or her. See J. GOLDSTEIN, supra note 1, at 98; Musetto, supra note 1, at 436-37, 442-43. 99. See SNAPPING, supra note 75, at 155-58; W. APPEL, supra note 76, at 91. 100. See Cult Phenomenon, supra note 77, at 28. 101. In Devita v. Devita, 145 N.J. Super. 120, 129-34, 366 A.2d. 1350, 1355-57 (Super. Ct. App. Div. 1976), Judge Antell issued a powerful dissent which implored the court to adopt a rule that fostered the continuous relationship between the child and the noncustodial parent. 102. See Landa, supra note 77, at 2. 103. See Harrison, The Children and the Cult , NEW ENGLAND MONTHLY, Dec., 1984 at 58, col. 1. 104. See HOUSE REPORT, supra note 87, at 3. ---------------------------------------------------------------------- child would or should.105 Such psychological deprivation is suffi- cient in its own right to justify denial of custody to the cult member engaging in such conduct.106 The unfortunate truth is, however, that cult members have been depicted as engaging in physical abuse in order to deter the emotions and conduct of children which they deem undesirable.107 This nexus of physical and psychological abuse represents the most tragic of situations involving the children of cults.108 When a cult member allows another member to abuse his child,109 or allows his allegiance to the cult to upset his relationship with his child,110 the child can- not be secure in the feeling that her parent is "in charge and in control."111 Although physical and psychological endangerment is not a necessary consequence of cult affiliation, "the very character of the cult organization and lifestyle provides significant predispos- ing factors."112 The fundamental trait of a cult is the near abso- lute control over the members' lives by the leadership.113 Through isolation and doctrine, cult members develop an appre- hension, if not hostility, toward the outside world, which is viewed as misguided and a threat to the group's very exis- tence.114 The only way for the cult member to thrive, therefore, is to adhere to the teachings of the cult. Members develop a ---------------------------------------------------------------------- 105. Musetto, supra note 1, at 438. 106. See supra note 98 and accompanying text. 107. See Landa, supra note 77, at 5. 108. Physical abuse in and of itself may result in an array of psychological disorders. In no instance is psychological injury more damaging than when it is the product of physical and psychological abuse. Children have no outlet for their intense emotions and therefore turn them inward, transforming those feelings into contempt for themselves. Id. 109. Often cult leaders will designate those who are to administer the abusive measures or undertake the task themselves. See Cults and Children, supra note 75, at 149. 110. See supra notes 61, 92-98 and accompanying text. 111. See supra notes 68-69 and accompanying text. 112. Culls and Children, supra note 75, at 145. 113. Id. at 147 (citing West & Singer, Cults, Quacks, and Non- professional Psycho-therapists, in COMPREHENSIVE TEXTBOOK OF PSYCHIATRY III (Kaplan, Freedman, & Sadok ed. 1980)). This control may be exerted by a single leader claiming divinity, and main- tained by a hierarchical structure of leadership as is the case in most religious cults. See D.G. BROMLEY & A D. SHUPE, supra note 17, at 23-56. Control may also be exerted by a single leader or group of leaders claiming to possess knowledge of the correct or enlight- ened manner by which to conduct one's life, as is the case in many political and therapy cults. See Labor Group, supra note 23. 114. See Cults and Children, supra note 75, at 148-49; APPEL, supra note 76, at 91. ---------------------------------------------------------------------- deep dependency upon the group and begin to welcome the guidance that answers all questions regarding conduct and thought.115 In the context of child endangerment, "the immen- sity of the group'a task makes questions of child abuse pall in comparison."116 Any perceived deviance from the cult's princi- ples is viewed as deserving the harsh measures necessary to maintain the group.117 D. Judicial Determination A judge whose responsibility it is to determine whether to place a child with a cult member must not allow his decision to be premised upon mere rumor, accusation, prejudice, or stereo- type regarding cults. By the same token, a judge, when con- fronted with hard evidence of abusive practices as described above, cannot risk passing it off as exaggerated. There is no doubt that particular cults engage in perverse treatment of chil- dreu.118 The onerous task remains -- determination whether the cult with which the prospective custodian is affiliated does, in fact, practice such abuse. The determination must be based upou hard evidence indi- cating the credibility of all witnesses acquired through thorough examination by party attorneys. The evidence not only must in- dicate the existence of harmful practices, but also must reveal that the cult member will allow himself or others to engage in such practices.119 A decision based upon the finding of abuse when such de- terminations are questionable raises suspicions about the court's motivation and may stand in violation of the Constitution. A de- cision allegedly based upon considerations other than cult mem- bership may raise similar concerns when the award of custody to the non-cult member cannot be supported by the evidence presented. Finally, a decision based upon considerations apart from cult membership that places custody with the cult member and flies in the face of evidence presented as to potential harm to the child, risks contravening the paramount rule of all cus- ---------------------------------------------------------------------- 115. See Cults and Children, supra note 75, at 153. 116. ld. 117. Id. See also Cult Phenomenon, supra note 77, at 28. 118. See supra text accompanying notes 75-108. 119. See infra notes 126, 181-85 and accompanying text. ---------------------------------------------------------------------- tody disputes -- placement in accord with the best interest of the child.120 Placement in a potentially harmful environment is com- pletely unjustifiable although it may serve to preserve the reli- gious and associational freedoms of the cult member.121 V. BRAINWASHING IN CULTS122 The discussion thus far has focused on manifest harm to the physical and psychological health and well-being of the children of cult members.123 A more complex problem arises, however, when there is substantial evidence to support a cult member's testimony that although the group may engage in harmful prac- tices, she herself does not, nor will she allow others to subject her child to these practices.124 Aside from the contention that the cult member's testimony is not credible in general,'as a judge must he prepared to hear the argument that the cult member is a victim of brainwashing and therefore is helpless to resist en- gaging in abusive conduct in the future.TM A similar problem arises wbeu m~ evidence exists indicating hnrlnful practices by the cult, but it is asserted that tile cult member is the victim of brainwashing and therefore should be denied custody in general. It could be argued that some time in the future the cult may dictate that abusive measures be employed and the custodian would be powerless to resist.'~7 It could also be argued that brainwashing in and of itself renders a parent unfit because it prevents her from fulfilling her role of psychological parent.':s The term brainwashing was apparently coined in tile early 1950s to explain the technique used by tile North Koreans to radically change belief and behavior in order to extract informs- 120. See supra n..tes 2, 6. 52-69 and accompanying text. 121. See Osier v. Osier. 410 A.2d 1027, 1030 (Me. 1980). 122. See inlra notes 129-36 and accompanying text. 12:1. See sttpra notes 75-90.92-96. 98-108 anti accompeaying text; ace o/so .supra text accompanying note 97. 124. It is, of caurse, obvious that few potential custadians will coafess t{, employing abusive measures or allowing others to do so. Our discussion thus far. however. has fo- cused upon those situatians in which substantial evidence indicates that the cult member parent would engage or alh~w others to engage in abnsive c{~odoct toward her child. 125. See supra m~tes 112-17 and accompanying text. 126. For a general discussion of alleged brainwasl~ing in cults. sl'e Depr~gramming. supra note 17. 127. Id 128. See supra notes 60-61 and accompanying text. 1987] NOTES 117 tion from U.S. Servicemen during the Korean, War.'~s The most widely recognized study of brainwashing is ~ ;.,at of t{~bert Jay l.ifton, a psychiatrist. Lifton analyzed the ! 'hniqtie as it was employed by the Communist Chinese in the late 1941)s.'so The method entailed control of the surrounding e~tvinu~ment incliitl- ing: isolation; physical and emotional stress ,'~'~signed 1~ destroy the individual's senses of guilt and anxiety; a~;c{ threat:~ of death and brutality followed by sudden reprieve or leuiency.'~' Whereas Lifton used a psychoanalvticai model .~f brain- washing,'~ Edgar Schein employed a s;~cia!-p:ychologi,-al model to focus on the processes employed by the C,~Inlntu|isi Chinese to alter beliefs.'n In accurd with tilts gelleral !uodel of b~,~inwashi~g, many commentators assert that what distinguishes ,'ldts from otlier re- ligions or protected associations is the use ~.~ brainw,lshing.,s. Accounts by former cult members and obse~ers des,~ribe such methods as "stress, overwork. sleep deprival.,,n, isola'~iou front the rest of society. and in some cases abtise .~= threaLs .... sen- sory bombardment of variotis forms alld in,~,!eqilate "liar .... isolation from frientls and family .... depri~,'ati~m oi privacy. repetitious chanting and lectures. inst. illatio~ of gaily. suhmis- sirenass, and dependency,",s~ and, fittally, "~ispensin~: of exis- tence.''~'s These techniques in various c~mbin;"iotis an, reported to "produce an individual who has neither tl,~ opport~ltlity nor capacity to assess critically his or her en~ ~ement with the [cultl.""' 129. See SNAeVlNC. supra nnte 75, at 99. 130. R t,IFTnN, 'J'11n111;llT |{EFI}I(M ANt) 11i1.; ~RAINWA5111N(; IN CIIINA ( 1961 ). 131. Id. See also SNAI'I'ING, SUl)rO n~te 75, R(I{)(). 132. [.if'tan emplt,yecJ ternIs such as "egu-destrurth~;l" t~ ~l. ~il;t. flu' en~'lln,~ls (d Ibe c-mmtulist Chlneee. See I{. I,IFTON. supra n~te 133. E SCIIEIN. COERCIVE I'ERRIIASlUN 11961). '['h,~,sgh S,.I. :,~'s s~,c. ial-i,syclu,h~gical ~n~el focused up~,n the group processes employed. hls findi,',~ were quile similar to those of Lifton. See Deprogramming. supra note 17. 134. See. e g . I)elgado. Religious Total|am Gentle sad Unc ,Ilia Persuasion. 51 CA l. R~v I (1977); l,ab,,r Grtiup. supra note 22. 135. Deprogrammiog. supra note 17. at If)80 81 (~ilath~na . ,iliad). 136. Lifton. The Appeal o/the Death Trip. N.~. 'l'imes ?' :Pazine. ,Ja~,. 7. 1979. at 15. col. I (describing cult d,,ctrine that holds that oniy thos. ':ha follow the gr.mp's hachingn are "entitled to exist"). 137. Deprogramming. supra note 17. at 1081. 118 dOURNAL OF ItUMAN RIGttI'S [Vol. V Tttough no dnuht exists that certain cults employ these co- ercive inetht>{]s to olte degree or another, nulnerous commenta- tors staintats that actual brainwashing is hath very rare and ex- treme.'s' These observers hold that those who claim that cults brainwash their meml~ers make such accusatiot~s based not upon informed or scientific scholarship, but rather upon popular jour- nalistic, sociological and biased accounts of cult activity.'" Edgar Schein's own study of brainwashing reveals that though highly successful in regard to obtaining "cooperation done to avoid punishment or obtain amen,ties," actual idealogi- cal conversion was extremely rare.'' Research also indicates that the voluntary turnover rate in most cults is quite One can only ask the question: if cults do brainwash their mem- bers to the point of annihilation of the calmcity for critical re- fleet,on, how is it. that so many members leave nf their owu volitinn?"' Actual brainwashillg requires ilnprisonlnent and force, but such eleme111s 1!re generally Illeking in the nxetln~ds tlf ct111s,"' and for good teastat. One is that they require great e/fort on tim part of those doing the brainwashing;'" another is that they are inefficient.'" Even if cults had refined the technique to the point 138. See. e.g.. DG BRantEe & A.D, Saves, supra note 17, at 115; Panel Discussion: Regulation o[ Alternate Religions By Law or Priuate Action: Can and Should We Regu- late?. 9 N Y.U. !lv~v 1. & Sac. Cn^s{:s 109. 120 (1980-811 Iheteinafter Regulation Panell; A,tthony. TI, e Fact Pattern Ilehit, d tl, e Deprogramming Cot,,rover,y: An At,sly,is at, d on AtternaZive, 9 N Y U. lily 1. & Sac CtI^nGE 73.79 tl9S0-Bi) there,nat,at Antht~nyl; Male.on. Dilemmas in the Evaluation and Manages,eat o[ Religious Cult,st.. 138 As. J ]'SVCHIATRY 7 (1980). 139. See Anthony, supra note 138. at 79. 140. D G. Bnoul.tv & AD. Suns, supra note 17, at 99; on the order off I%. "'[Olne can only conclude that. considering the effort devoted to it. the Chinese program was a feih~re.'" Id. (rluotiog Scl,ein. The Chinese Indactrit, atian Prograin Far Prisoners War: A Sfu{ly t,[ Attempted HrainwashinL ill I/EADIN(;S In SOCIM. !'Svt:tnlt.t}t~v 332 (Maccol,y, Newr,,lul}, & Ihtrlly :ld ed. 195H). 141. S,.c Anthony. sups. note 13H. at HIL As Itigh as 15"/. in certain gnn,ps. Ilcgula- lion Panel. supra note 138, at 118. 142. See [).G BROMLt~ & AD. Sttuvv.. sitpea note l~. at I 143. Rol,hins. A Comment On Ash's Conception O/Extremist Cults: With A I'ost- script On Models 0[ Thought Re[term, ! CULT~C STUD~S J. 120. 124 (Fall~inter 19841. The only available account that mention. the use t~f physical restraiot is tale in which a disillt,.io,,ed inductee was prohibited from leaving the ct, Ws coml,ou,,d for a perlad ~f approximately one hour. D.C. BROMLSY & A 13. SIlIIPE. supra note 17. at 105-12. 144. DG Baout~v & AD. Straps. supra note 11. at 105-12. 145. See ,upra note 140 and accompanying text. 19871 NOTES 119 of elliciency, they would not want robots nr zonxl~ies as ,nero- hers."' Such individuals would not possess the e,~thtlsiasm and commitment necessary to fulfill the demands of t~eir group."' Firsthand observation of cults did not find ~,,;ndless robots kept subservient due to inadequate diet.''s Rath,~r, interviews revealed members of the Unification Church wh~ had entered and remained for varied reasons and possessed a "high degree of introspective sensitivity and reflective candor in discussing res- ervations ahout [the group]."~'' The fact remains, however, that mental health professionals claim, based upon interviews wit.h former cult members, that brainwashing is a reality in many groups.'~ One p~,ssible expla- nation for the discrepancy of opinion lies in the misinterpreta- t,on of thought reform as brainwashing.'a' Cttlt me,t~l~ers do un- dergo personality change--give up prior cm~mittne,~ts, goals and lifestyles~due to tire intlt~ence ol their respectiv~ groups, but this cannot he :nistaken for conversion tu nnthinkinl: a~llo- 1nat, ms titspossessed of all cltpacity for relict,ire lhnttght.''~ Many individuals in our society come under the influence of a variety of forces of persuasion, such as: the adnl}tion of more conventional religious doctrines; the entering into conven~, monasteries or seminaries; the adoption at alternate lifestyle, and modes of dress in accord with fad and fashion: and the in- fluence of public education, mass media, and varl,,us forms of literature.'" The degree to which these inHuences are deemed dangerous is as much based upcm an observer's prejudice as it is upon objective appraisal.'" Several reasons can be offered to account fo~ former cult 146. DG. BROMLgV & AD Snueg, supra note 17, at 109. 147. Id, at 211. 148. Id at Ill. Illlannltul,ced visits to grimit hom,,$ fo~utd nleals I,, lie "lu,tritio,ts." 149. Id at 110-11. 1511. See. e g., Singer, (?~m~ing Out o/Cttlts, I~svt IIt)IA~;Y 'l'On^W. J.n.. 1979. at 72; House lieport. supra note 87. 1,51. I}G Baout.tv & AD Stttl~,~. sttpro note 17. at 107-1118. 152. Id. at I08-109. 153. See Shapiro. O/Robs,s. Persons and the Protecti~., o/RelU.'~,,lts lielie/s. 56 S C^ L |lv~v 1277. 1291)-95 ~198:11 Ihereinalter Shapiro] See also. S.M Aodersen & P.G. Zimbarda. On Resisting Social Influence. I Cutv.c ST,~a~S J 196, 197-202 IFall/Winter 1984~. 154. See Pond Discussion E~ects o! Cult Membership and ActWiti~'s. 9 N YU Ray. L. & Sac. Cn^n6~: 91, 105 (1980-811 {comments by Than, as Robl~insl. 120 JOURNAL OF ttUMAN RIGHTS [Vol. V members' assertions of brainwashing in cults.16a Incltlded among tbem is the desire to spare themselves and their families the em- barrassment of having to admit the making of a mistake in join- ing tile ct111'6a or accept blame for the tindertaking.''7 Stutlies show that oldy those former cult melnbers who were subjected to "deprogramming"'" believed they were brainwaslled to begin will{.'~a Those who left cults voluntarily maintain tbat their ini- tial conversion did not occur against tlxeir will.'" These facts do not merely indicate that certain cult members were subjected to brainwashing and others not, but rather that one's conception of his cult experience is in large part determined by the need to rationalize membership.'" A court, faced with {be acctlsation that a prospective custo- dian is the victim of brainwashing and devoid of the capacity to resist the abusive practices of tile cult, must make a painstaking inquiry into the credibility of testimony as it pertains to ttxe cult member's capacity for critical reflection. This inquiry is only necessary, of course, if no substantial evidence exists to buttress a finding that the parent will engage, or allow otl~ers to engage, 155. See generally, EDWARDS. CRAZY FoR GOD (19791 (former member of the IInifica- tion Church discussing his alliliation with the group, including the use of brainwashing). 156. One's ability to proclaim t}mt he was in fact brainwashed el{actively relieves the responsibility for any of his actions in the first place. D.C. Bnot~l. tv & A D. Sl~uPs, supra note 17, at 201, See also, Robbins sopra note 10, at 38. Robert J. Lifton has himself stated that the "loose usage/of the term hrainwashing[ makes the word a rallying point for fear. resentment, urges toward suhmissi{m, land] j~istitication for failnre." I,Inos. supra note 130, at 4. 157. I)G |l{{ns41.nv & A!). SIIUPE, supra note 17, at 201. Anti-cult liters{tire fails tu acknowledge that most cult members join respective groups due tu specilic personal needs often manifested as a consequence of disenchantment with conyeat]anal society as they know it. including preexisting familial relationships. Id. at 110; LB. Sullivan. (7ouR- scling And Involvements In New Religious Groups, I Ct~Lvlc STumtzs J. 178, 187 89 (Fall/Winter 19841. 158. This term refers to the often forcible capture and detention of cult metal,era in an el{art by friends, family. and/or hired aleprogrammers to reconvert them to their prior lifestyle. For a general discussion of this procedure, see T. PATRICK & T !)utacR. LET OIlS f'.HILDREN GO! (19771. 159. Regulation Panel. supra nute 138, at 120. 160. Id 161. "q'here are competing vetsluRs of a general psycho|ogical theury that says hnmsn beings have a need tu make their attitudes consistent with their actions .... [Alttitudes abuut these actbins are usually fornted to explain them in ways that are ideu- sihle 10 the actur-thinker." I) G. BaoML~v & A.D SntlrE. supra note 17. at 2:14 n.29 (cit- ing I.A FZSTiN{;ER. A '!'~lgorv OF COC. N~T~vZ DISSON^NCE (19571; Bern. Indocing !tel]c/in False Con/ass]oRs, 3 J PERSONAIATY Sac. PSCHOLOC, y 707 (1977)). 19871 NOTES 121 in abusive practices toward her child. If such evidence does in fact exist, custody should be denied that prost .active custodian further iuqttiry notwithstanding. Absent such l~ ,~dings, bowever, only in tile eveut tbttt a prospective ctlstodian ;q witoily Itlcking capacity for critical ratlee{ion, is a juige jttstilie~; in denyiltg cus- tody in the interests of the child's physical or F'~ycltological wel- fare. The finding that a parent is witbotlt fa,,Ity to think or reason critically, ixowever, makes speculation i:~to tile eventuai- ity of abuse to the child unnecessary. For once ;~ has been estab- lished that a prospective custodian has been svbjected to brain- washing, thereby manifesting lack of ability to maintain a meaningful relationsbip with the child, the court may justifiably reason that someone other than the parent is controlling the up- bringing of the child. This determination indicates that the cult- member parent cant{at achieve the role of psy,yhological parent to his child and justifies denial of custody.'a' In addition, the fact that someone other than the parent is responsible for rear- ing her child indicates that tile child will not ~,e conlitlent that his parent is in control and in cbarge. This too '~vould justify the denial of custody."' Of course, any custody or,!er based upon a prejudicial and, tberefore, not factual detern,;nation titat tile parent is brainwashed and thereby unable to ~tllfill Iris proper role, constitutes a violation of tile religious or associational rights accorded the parent by tile first anicndtnent of tile Constitution.'" If there is no credible and substantial evh!ence to support a claim of brainwashing, then tile parent outside the cult is left only with the argument that due to the {,attire of many ctllts,''s the cult member should be denied custody because harmful practices may arise in the future, though none may be evident 162. Though no custody decision has yet addressed dire. tly the issue of brain- washing, co{iris have determined that the cantin{led presence of a fit parent who through daily alfec|ion, guidance. companionship. and disciplirm fulfills the child's psychol,,gical and physical needs is crucial to the child's emotional well-being. Jutdan v..lordan, 302 P~. Super. 421,425. 448 A.2d 2113. 1115 {Super. Ct 19821. lu the event a particular parent is unalde to fulfill these needs, custody shl~uld he placed with the ~.ther parent. J.E.I.v. I,.M.I., 314 S.E.2d 67, 72 (W. Va. 1984l. 163. In re Maxwell. 8 Ohio App. ;Id 302, 456 N.E2~l 121~ (Ct. App. 19512). See also ,I GalaSTEIN, supra note 1, at 98, 116; Muse{to, supra note I, at .136-37, 443. 164. See supra notes 18-20, 24-26. 31-33 and accompanying text. 165. See supra notes 112-17 and accompanyh~g text. JOtII~NAL 0~' H{IMAN RIGtITS IVol. V tinting the cttsit,dy pn~ceeding. 'Fhis argulnent faust fail, how- ever, because the court may only base a decision tt|1on firm evi- dence indicating harm will he visited upon the child. Tim Con- stitution demands that in a custody dispute of tiffs nature, there exists no mere speculation as to impairment of a child's bealth and welfare.'as This must be the rule, for any custody decision premised upon speculation and not hard evidence is open to at- tack on the grounds that it was, in fact, not based upon a genu- ine concern for the best interest of the child. No custody decision to date has addressed the issue of braitlwashing. Courts have oll occasion, however, grappled with this perplexing issue in other contexts. In Katz v. Superior Court."' the California appeals court was pressed to determine whether petitioners (specific members of the Unification Church) bad in fact been successfully subjected to braitxwashing, thereby justifying respondants (parents of the respective cult ineml~ers) appointment as conservators.,as The court received i111o evidence expert testimony as to the mental coatlitton of eacb church !neroher viz. alleged infliction of mind control tech- niqttes.'as A psyctliatrist and clinical psychologist each submit- ted testimony asserting tbat each cult malabar was in fact sub- jected to "coercive persuasion" similar to that en4ployed against A1nericall prisonlets of war during the Korean conliter,~ and that each suffered froln consequent emotional and cogllitive im- psifluent ilecessitating tretltlnent and appointlne!lt of cullserviitt)rs.s~' At the same time, however, the court received into evidence the expert testimony of another psychiatrist who pointed out that an attenxpt at "'coercive persuasion' in the absence of drugs. hypnosis, pixysteal captivity or some greater fear was no more than speculative theory-""' This expert witness also main- tained that tlxe cult members suffered from no psychological 166. Quiner v. q~ziner, 59 Csl. Rptr. 503 (Cal, App. 1967). 167. 73 Cal. App. 3d 952, 141 Cal. Rptr. 234 (1976). 168. Id 169. Id at 971-8(t, 141 Cal. Rptr. at 245-50. 170. Id. at 975-77. 141 Cal. Rptr. st 248-9. See supra notes 129, 134-36 and accompa- nying text. 171. 73 Cal. App. :ld at 975-78. 141 Cal. Rptr. at 248-51). 172. Id. at 9'/9, 141 Cal. Rptt. at 250. See supra notes 138-39, 143-46 8~d accompany- ins text. 19871 NO TES 123 pathological condition and directly contradicted the parents' ex- perts regarding tbeir conclusions as to sub. iection to coercive persuasion anti the need to appoint conservqtors."' In addition, the prospective conserrate' q offered testitnony of a clinical psychol~gist who stated tbtlt 11,,,~e of the cult mem- bers psychologically tested exhibited %ylnptoms sialliar to tltose experienced by prisoners of war who were ~ubjected to silnilar tests." T!xis psychologist "expressly reptld~,~ted the tindings of the parents' experts ... and made it ~:lear there was no emergency.""' The court beld that tbe very inqtliry into tim existence ~f brainwasbitxg was in effect questiolxing the validity of the church members' faith, and was, therefore, a violati,~n of the petitioners' first amendment rigbts and must be ahand.~ned.''s The disposition of tbe brainwasi~ing is~te in Katz not only illustrates the contlicting nature of opinion regarling this issue and the dilllenity that is sure to confront a ~'t~urt in its endeavor to qualify the !nental state of a prospedivc custodian, but also the care a court must take in addressil,,~ concomitant first amendment freedoms. A court engaged in ,-ustody proceedings, however, must not follow the lead of the California court in Katz and shy away froln engaging in a specific in,~xtiry and deterlnina- lion as to tile inental state of ttle prospectre ctlstodian. This is so no matter how htlrdensolne such a det~.~ minatio11 is or 11uw sacred first anlcndlnent rights are dealned t'; be. A cntlrt is ct111- stittltiollally pernlitted to, and, illdeed, nit, :t illquire into reli- gious and associational practices, such as ,;!aged brainwashing of memt~ers, ill order to insure that tim phF+cal altd psychologi- cal health and welfare of a chi!t is prolacteal.''~ Any discussion of brainwashing in culi~ must of necessity address the question whett~er the children of cults are them- selves subjected to brainwashing. The curre~' ly available litera- ture a11d case law concerning cults discloses no express analysis of this issue. A determination that a child h,$ been brainwashed 173. 73 Cal. App :ld at 979. 141 Gel. Rptr. at 250. 174. Id. at 980, 141 (_'el. Rptr. at 250. ' 175. Id at 988, 141 Cat. lipft. at 256. The court also hell~ that the di.~l}~,sith~n of the issue would stand even if the petitio~ers' organizati,~n was i~! .'~n associationel nature. Id. See supra notes 21-26 attd accompanying text. 176. See supra uotes 2, 6, 7, 34-36 and accumpanying te~t 124 JOURNAL OF ttUMAN RIGHTS [Vol. V must, however, be prernised upon the same findings as those re- quired regarding adult members: that coercive me(ha&7~ have been employed to suclt an extent that all capacity for autono- mous thought or reflection has been extinguished. It is submit- ted, however, that a determination of this nature is unnecessary if not impossible. The inquiry into the brainwashing of chilllien need not fo- cus upon the manifestation of complete want of autonomous thought,"' but rather upon the coercive means which must nec- essarily be invoked in order to realize this end.~' The utilization of any one or combination of such means may amount to abuse in and of itself, thereby mandating placement of a child outside the cult. 'this metho{t of inquiry thtls short-circuits the ex- tremely burdensome task of qualifying tim mental state of a child regarding her capacity for critical thought--a task even more onerous than in the case of an adult due to a child's incom- plete social alxd psychological development. Many children in light of their age simply do not yet possess significant capacity for autonomous thought regardless of sub- jet(ion to mind control teclmiques. Many children, no matter their age or intelligence, simply do as they are lostrut(ell based upon various sociological reasons. A judicial determination whether a clxild is in fact brainwashed is fraught with uncer- tainty and thereby provides an inadequate basis upoll which to fashion a custody decision. Fortunately, the interests of a child may be protected through an alternate finding of physically and/ or psychologically harmful cult practices. VI. CulTs ~nt~ C~,sn L,w A sampling of case law involving religious groups which may very well be considered cults's reveals a strong judicial predis- position towards protection of nlen~bers' lirst alnendment rights. In Burnham o. Burnhath,"' the Supreme Court of Ne- braska maintained that sufficient evidence indicated: (1) that 177. See supra notes 134-1:17 and accompanying text. 17S. This mental condition may. of course. be coaxsidereal a threat t,~ tit- he,(lib a~ttl welfare af the child, jttstifying place~aent away ft{~m s ~'ult ,netnhet. 15'9. See supra notes 135-37. 143 and accompanying te~t. 180. See supra notes t0. 17.22. 1141. 208 Neh. 498. 3(14 N.W.2d 58 (19811. 19871 NOTES 125 the cult member would "cut [her child] out of her life if she disobeys tim rtlles of the Tridentins Cburch;''''* (2) tbat she planned to send the child to a churclx school which engaged in corporal punistunent;''s C~) that she believed her child to be ille- gitinxate bectttlse sl~e and her hushand were not married in tim Tridenth~e Church;'a' and (4) that she would separate the child from her father.'" The court determined that such a state of affairs posed a hazard to both the physical and psychological health and welfare of the child, thereby awarding custody to tim nonmember parent.'" The Burnham decision vindicated the best interest of the child by placing her away from the very real potential fi~r psyclx~logical harm and, therefore, justilietl the ap- parent ilnposition tipoil tbe lirst alnendmeut rights of tim noncustodian viz. a custody order faundad upon an unfavorable ,evaluation of tire impact of bar religiot|s I~diefs tt|)on her child.'" In ttarris v. ltarris,'~s the Suprente Court of lxAiss~ssippi held that althougb the Free Will 1toliness !'entecostal Cllnrch believed in snake han{lling, custo{ly should m~ be lienled the men~ber parent. TIts opinion stated that because no subst. antiai evidence existell intlicating that tile cult me~,,ber herself en- gaged in snake handling nor that the child would be exposed to the practice, tile Constitution guaranteed ttxe ~,xeml~er parent's freedom to attend the church of her choice and raise her child as s!le saw fit."' The court's determination that there existed a lack of substantial evitlence indicating a likclilit~od of harm to the child supported tim lindlug that the best interests of tim elllid were served through the custody order. Moreover, it illus- trated tim cotlrt's ability to avoid being swayell by the tinortho- dox beliefs of tim cult member in its attempt to delicately hal- 182. Id. at 51)1, :104 NW.2d at 61. I11:1. lit st 500, :101 N W.2d at 60. 184. Id at 501,304 N W.2d st 61. 185. Id st 502, :1(}4 N.W.2d at 62. 186. Id. 187. IJut see Mangroan, l':xclusive Reliance on Best Interest Afay IJ~' [bict~nstitu- ti,,nt:l. II,'lig#{,n as n F~n tl,r in ('hild ('t,sto~ly {Yases. 15 ('nt~{:ttrou I.. I{}:v 25,26-31) (19HI). hi which Ihe ~tulh~r n~ainttli~ts thai the court's order iu Itltrnharn eeltailed users speculali~. as Io the threat ~f Itarm to the child and. therefore. c,,n.stituted an unc~,nsti- tutit,nsl infringement( ~,1 the nt,n-cust~Mian's first amendment rights. 188. :143 So. 2d 762 11977). 189. Id at 71;4; s,'~, also Smith v. Smith, 90 Ariz. IS(I, 167 1'.2d 23/) 1191i1~. C 126 dOURNAL OF ttUI~IAN RIGIt2'S IVol. V ance bar first amend~nent freedom with a concern for the Itealth and welfare of the child. In In re Marriage o[ Hadcan,'s the Court of Appeals of Washington found "substantial evidence to support the finding that Mrs. Hadeen's first fidelity was to the [First Con~mtmity Church of America], even to the extent of reiecting her chil- dren.''~~ There was also evidence that Mrs. Hadcan would com- pletely separate her children from their father if she were given custody.~ss In addition, the records indicated that First Column- nity Church doctrine prescribed, and Mrs. Hadcan engaged in, beatings, withholding of food, and forced isolation as discipli- nary measures designed to combat the children's rebellious be- havior.'s' Despite ttxese findings and the adoption of the rule "that the requirement of a reasonable and substantial likelihood of immediate or future impairment best accommodates the gen- eral welfare of a child and the free exercise of religim by the parents," the court remanded the case for a new trial because the mother's church membership did not "pose a threat to the mental or physical welfare of the children."'" The appellate court's decision in Hadcelt represents a troubling scenario: that of a court apparently lax in its duty to promote the best interest of the children due to an apprehet~sion toward cantravening the free exercise rights of a prospective cus- todian.'' Such solicitude, however, may serve to compromise not only the establislxment clause of the first amendment,TM but the ultimate concern of all child custody disputes--preservation of the physical and psychological health and welfare of the children.'" 190. 27 Wash. App. 566. 619 P.2d 374 (Ct. App. 1980L 19l. Child C~tst~g{y, sttpra m~te 2, at 1706 n.18 (qtn~ling 27 Wash. AIIp at 1'.2d st 382). 192, Id. 193. 2~ Wash. hpp. at 5ti8, 619 P.2d at 375. 194. Cltild Cust~y, supra note 2, st 1706 n. I8 (q~totiog 27 Wash AIq~. at 58il-gl, 619 P.2d st 382). 195. See supra note I I and accompanying text. 196. Id 191. See Quinet v. Q~tiner, 59 Cal Rlrtr. 503, where the facts indicated a likelih~,,,d of psychological harm to s child at the hands of a cult member parent whose beliefs in- chided reading only the Bible, dissociation of the child from his father, and cagtiag her son in the event he became disobedient; nevertheless, the ct,urt of appeals adt>l>ted en "actual impairment" standard and since no physical or psychological damage had yet 19871 NOTES 127 VII. Cot~cn~sio. Child custotly determinations involving a ctdt-member par- ent are preeminently difficult. because they encompass the ex- treately delicate issues of fundamental constituti~}ua] rights; rup- turing the bond between parent and cltild; protecting the health and welfare of a child; and, to a rather great extent, an evalua- tion of cults~a topic that evokes fear and hostility in many. This note has examined the theoretical and rather convoluted analysis in which a court must engage in order to accommodate these various interests. Only one concel~t enterges as al}solute, however, and tbat is the need to insure the safety of our chil- dren. If substantial evideDce indicates a {ikelih,~od that placing a child with a particular parent would impair tb~ health and wel- fare of that child, a court must deny c,~tody ~o tbat parent no matter what additional interests hitrig i~, ~he ~ 7~lance. Such judi- cial actitm vindicates the compelling public in~ "rest of protecting the well-being of the child. Though a full un,~"rstanding of the cult plxenomenon is elusive, many comtnenta;,~rs i}aint a grim picture. It can only be urged that the judiciar~ not succumb to accusations not supported in fact. Tbo~gh m,'ml~ers of certain cults do exltibit changes of personality and lil~style,'"" changes which may, indeed, justifiably elicit concern o}~ the part of fam- ily, associates, and society at large, it rottat be ,emancipated that "society does not always get the type at person, it wauts,"'ca and mere disapproval or prejudice is never a stlffic~ut substitute far findings of actual danger to a child's safety, nor a sound basis for a judicial determination to sever the relationsbit} o~ parent and child. Those who begin coercive eHminatio~t of dissent soon fiud themselves exterminating dissenters. Compulsory tmifica- tion of npinioB achieves only tmanimity of the graveyartl .... . . . But freedom to differ is not limited to things that do not matter much. That would be a n~ere shadow of free- become manifest, reversed the trial court, placing the ct~ild with the cult-meml}er parent. Quiner, 59 Cal. Itptr. at 513-L8. 198. See supra note 152 and accompanying text. 199. Shapiro, sttpra n~te 153, at 1318. C 128 JOURNAL OF HUMAN RIGHTS [Vol. V dora. The test of its substance is the right to differ as to things that touch the heart of the existing order? Finally, neither may a court be overly solicitous toward a par- ent's first amendment rights if it is to realize the objective of socially and constitutionally responsible child placement. Richard Barnes Montana 200. We.~t Va. State Bd. of Educ. v. Barncite, 319 U.S. 624, 641-42 (t943). COMMENTS CONSTITUTIONAL LAW--THE RIGtiT TO PP~VACY--Bowers v. Hard- wick -- The Supreme Court held in Bowers v. tIardwick' that a Georgia statute' making consensual sodomy a crime is constitu- tional. The statute provides that "a person commits the offense of sodomy when he performs or submits to any sexual act in- volving the sex organs of one person and the mouth and anus of another."s The statute carries a maximum penalty of twenty years imprisonment if convicted.' In the wake of controversy over the Supreme Court's summary affirmance in Doe v. Com- rnonwealth's Attorney [or the City o[ Richmond,~ the Court granted certiorari in Bowers to justify the proposition that sod- omy is not protected as a right of privacy? Both the common law and religious doctrine bare long held that sodomy is a detestable and criminal act.~ In addition to the i. 106 S. Ct. :~841 (1986). 2. G^ COD~ A,t4 ~ 16-6.62 (1984). 3. ld. it is important to no~ tha~ the s~tute i, gender neutral 'l'he decision of the Supreme Court holds, however, that the s~tu~ is ~nstitutionsl s~ far ss s~omy ~- tween homosexuals is concerned, bu~ d~s not answer ths question whether the s~tute as applied to heterosexuals is equally enforcesbla. 4. 5. 403 F. Supp. 1199 (E.D. Va. 1976), summarily aft'd, 425 U-S. ~'~)t ~1976}. The deci- sion in l)oe involved an action brought by hom~e~uals in Virginia wh~ sought declara- tory relief a. t~, the unct}nntitutionality of the Vi~ginla anti-a~m~y law. The distrlct caurt found that the statute was constitutional and ths~ the s~*s right to enforce such e law is predicated upon the right of the sMte to promote morality and decency among it citizens. Repeal of the law, according to the co,~rt, was a ~sk for tho legislature, not the judiciary. The controversy that arose ~cause of the S:~preme Cour;'s summary affirm- srice was the inability of many S~te end Federal courts to determine the meaning in- tended by the affirn~ance. Indeed, in Hardwick v. Bowers, 760 F.2d 1202 (I Ith Cir. 1985L the circuit court held tbat the Doe decision was based on plaintliFe lack of etariding ~ b~in$ suit and not on any constitutional issue. Contra Baker v. Wad~, 769 F.2d 289 (Sth Cir. 1985) which held that the Doe decision was based on constitutional grounds. 6. 1~ S. Ct. at 284243. 7. See Note, Doe and Dronenburg: Sodomy Statutes ore Cm~,ttfufe~nal. 26 WM & MAnY L Hey. 645 (1985); Comment, The Right to Privacy anti ;,thcr Constitutional Challenges to Sodomy Statutes, 15 U. ToL. L. Rgv. 811 (1984). 129 C ================================================================= If this is a copyrighted work, you are acknowledging by receipt of this document from FACTNet that on the basis of reasonable investigation, you have not been to obtain a copy elsewhere at a fair price, and that you are and will abide by the following copyright warning. WARNING CONCERNING COPYRIGHT RESTRICTIONS: The copyright law of the United States (Title 17, United States Code) governs the making of photo copies or other reproductions of copyrighted material. Under certain conditions specified by law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement. FACTNet reserves the right to refuse to accept an order for copying or other duplication, or delivery of copied or duplicated material if, in its judgment, fulfillment of the order would involve violation of copyright law. ------------------------------------------------------------------- CARD CATALOG ENTRY DOS FILENAME OF TEXT FILE: E:\PCB\GEN\FILES\GENLEGAL\IM.TXT DOS FILENAME OF IMAGE FILES: ADMINISTRATIVE CODE: SECURITY CODE: DISTRIBUTION CODE: NAME FOR BBS: SORT TO: CONTRIBUTOR: LOC. OF ORIG: NOTES: For additional verification see image files contained in the file with same name and .ZIP extension. UPDATED ON: UPDATED BY: =================================================================