Hitler v. Hitler

Can a parent lose custody of his child because he’s a neo-Nazi?

Members of the American National Socialist Movement, a neo-Nazi group

Jeff Hall, a white supremacist leader in the Los Angeles area, was shot to death by his 10-year-old son on May 1. In an account of the neo-Nazi’s life, the New York Times notes that Hall managed to win custody of the children from his ex-wife. Can a judge take extreme political views into account when deciding a custody battle?

Yes. Custody disputes are decided under the vague “best interests of the child” standard, and judges are allowed to weigh just about any factor—excepting race, which is off-limits, and religion under certain circumstances. While few judges have assigned custody based solely on a parent’s politics, many have mentioned it as a major issue. During World War II, a father in New York was denied custody in part because he had been “contaminated with the germ of Nazism.” Garden-variety racist parents and sexual libertines have also lost out. Judges typically couch their decisions in terms of the day-to-day negative effects that a parent’s unpopular views might have on the child’s mental and social well-being, rather than the risk that the child will himself adopt the belief system. For this reason, warring parents sometimes hire child psychologists to testify that a spouse’s political views are causing the child turmoil. Living in a white supremacist household, for example, might lead to conflicts at school. Preparing for an imminent Armageddon could make a child confused or depressed.

Occasionally, a state won’t wait for a divorce to seize the children of a white supremacist. In 2009, the state of New Jersey took c ustody of three children named Adolf Hitler, Jocelynn Aryan Nation, and Honszlynn Hinler Jeannie from their parents, Heath and Deborah Campbell. In that case, however, extremist views were just a symptom of a larger pattern indicating serious psychological instability on the parents’ part. (The family wound up on the state’s radar when they tried to have a personalized cake made for Adolf’s third birthday.)

Canada has been even more aggressive. In 2008, Canadian authorities took two children into government custody after one of them was found marked with white supremacist symbols. The main issue in the case was not whether the father was unstable, but rather the simple fact that he was inculcating his children with fringe views.

Instead of denying custody outright, judges may order parents not to discuss certain views with their children. The verboten subjects are a virtual chronology of the American zeitgeist. In the 1930s and 1950s, many cases involved communism. There was a series of cases in the 1970s and 1980s in which judges ordered parents not to promote homosexuality to their children. In recent years, gay parents have petitioned judges to forbid ex-spouses from bashing homosexuals in front of the kids. A fews years ago, a New York court barred a father who had named his children Mujahid Daniel and Mujahid David from talking about militant Islam with his children. Many critics argue [PDF] that these restrictions violate the parents’ First Amendment rights to free speech.

Religion is the thorniest issue, because it’s tied up not only with free speech, but also the First Amendment right to practice religion without state interference. In 2003, a Pennsylvania judge prohibited a fundamentalist Mormon father from advocating polygamy to his daughter. Three years later, the state supreme court reversed the order, deciding that parents have a right to teach their faith to their children—even if the behavior in question is illegal—as long as the religious lessons don’t present an immediate danger. Parents have also been prohibited from trashing an ex-spouse’s religious views in front of the kids.

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Explainer thanks Joan Heifetz Hollinger of UC Berkeley School of Law, Sanford Katz of Boston College Law School, Charles Kindregan of Suffolk University Law School, and Eugene Volokh of UCLA School of Law.