Rudy and Linda were married
with two kids. They decided to become Jehovah's Witnesses, but Rudy got
excommunicated for smoking cigarettes.
Linda stayed with the
religion.
Rudy filed for divorce and
asked for custody of the kids.
Jehovah's Witnesses believe
that an excommunicated person is under Satan's control and members of the
church will not associate with them.
Rudy argued that this meant
he would never see his kids if they stayed with Linda.
Rudy argued that the
children's best interests would be
served by not having them grow up indoctrinated in Linda's strict
religion.
The Trial Court awarded physical
custody of the children to Linda.
Rudy appealed.
The Trial Court applied the tender
years presumption, which awards the
custody of younger (7 years or less) children to the mother.
The tender years
presumption basically says that a
mother of young children will generally be given preference for custody
if other factors are evenly balanced.
Rudy argued that the tender
years presumption violates the Equal
Protection Clause.
The Alaska Supreme Court
reversed and remanded for a new custody hearing.
The Alaska Supreme Court
found that under Alaska law (AS 09.55.205) the Courts are to award custody based on the best interests
of the child. The tender years presumption is inconsistent with the delicate weighing and balancing process
required to determine best interests.
Btw, the Court noted that
Linda's religion was not a basis for awarding custody to Rudy.
However, certain factors
about Linda's religion, such as the fact she wouldn't have contact with
the excommunicated Rudy, and she didn't believe in sending the kids to
college or giving them vaccinations, are factors that courts can
consider in a best interests
determination.
However, custody
determinations can only be made on the basis of conduct, not conjecture. At the time being, Linda hadn't done any of
the things that Rudy claimed she might do. If Linda began actually doing those
things, then the courts could step in and modify the custody
determination, but until she does, then they can't be held against her.
The Court allowed the
children to stay temporarily with Linda.
