CASES OF INTEREST click here to go back to the Cases of Interest         FAMILY LAW: CHILD CUSTODY ISSUES   Issue: Religious ceremony/ custody   Issue: Hague Convention/habitual residence     Issue: Religious ceremony/ custody SEJAL M. SAGAR vs. MAHENDRA K. SAGAR. APPEALS COURT OF MASSACHUSETTS 57 Mass. App. Ct. 71; 781 N.E.2d 54; 2003 Q. Does a denial of a parental request to perform a religious ritual upon a child during divorce proceedings violate the parent's right to free exercise of religion as guaranteed by the First Amendment to the United States Constitution and the Constitution of the Commonwealth? A. No. Where neither parent demonstrated a compelling State interest justifying intervention, the Probate Court's order should be affirmed because it intrudes least upon both parents' fundamental rights while remaining compatible with the child's health. The father wanted to perform Chudakarana, a ceremony involving tonsure and prayer. The due process clause protects certain fundamental rights and liberty interests, including the right of a parent to direct a child's education and upbringing. When the religious beliefs or practices of parents conflict and one parent seeks to have the court intervene and order that his religious inclinations be enforced to the exclusion of the other parent's, the parent seeking enforcement bears the burden of proving that the conflicting beliefs or practices cannot coexist without harm to the child such that a compelling State interest justifies restricting the correlative fundamental rights of the other parent. Here, the husband failed to demonstrate a compelling State interest for performing the ceremony on the child. The Order that the child would have to reach sufficient age to make the determination herself absent a written agreement by the parties leaves open to the parties the opportunity to agree in the future and does not bar future court intervention on this issue should the child be suffering from physical or psychological harm. back to the top     Issue: Hague Convention/habitual residence JEREMIAH W. HOLDER v CARLA R. HOLDER UNITED STATES COURT OF APPEALS, FOR THE NINTH CIRCUIT No. 03-35595 December 9, 2004 Q. Under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501, does a family's short-term residence on an American military base in Germany renders Germany the children's habitual residence. A. No. In order to acquire a new habitual residence, there must be: (a) A settled intention to abandon the one left behind, looking to the subjective intent of the parents, not the children. (b) Acclimatization over a sufficient period of time for the children's lives to become firmly rooted in their new surroundings. The Holders were in Germany for only eight months in 1999 and early 2000 before Carla returned to the United States with the children. Soon after Carla's return, Jeremiah filed for divorce and filed a petition under the Convention in federal court alleging that Carla had wrongfully retained the children. Jeremiah and Carla lacked a shared intention to abandon the United States as the children's habitual residence and shift it to Germany. Neither child had developed deep-rooted ties to the family's new location. back to the top