Arkansas Blog: Wicca and custody

A lawyer calls attention to a Court of Appeals decision this week not to rehear an earlier ruling upholding a change of custody of a two-year-old from his mother to his father.

The Court of Appeals' original decision affirming the change of custody noted that the trial judge was influenced by the mother's statement that she followed Wicca -- although she later said it was just a casual remark and that she really was a Baptist. The opinion cited Judge Robert Vittitow's concern about care of the child, but also said:

"Finally, he stated his concern over her testimony regarding the Wicca religion, stating she probably was more involved in it than she led the court to believe."

Judges Robert Gladwin, David Glover, Wendell Griffen and Pryce Marshall formed the all-male majority in favor of the mother losing custody. Judges Jo Hart and Sarah Heffley formed the all-female dissent.

(Note for Judge Vittitow and the Court of Appeals: Wicca is a belief based on nature. At least one soldier killed in the Iraq war is buried under a Wiccan headstone at Arlingotn National Cemetery with a symbol like the one inserted here. Just because it's OK for the Army and its fighting men does not, of course, mean it's acceptable to Arkansas jurists.)

The mother asked for a rehearing. It was denied yesterday without comment, except a stinging dissent from Judge Hart, who still believes a religious prejudice -- irrelevant to the law -- was the contributing factor in Vittitow's decision.

From Judge Hart's dissent:

As the appellant points out, this court committed a clear error by ignoring the obvious fact that the trial judge based his change-of-custody decision in large part on his finding that the appellant was a participant in some nefarious “cult.”

...As I stated in my dissent, even if it were proven that the appellant was a practicing Wiccan, that conclusion can have no bearing on the decision to change custody. The majority makes a clear mistake of fact because there is absolutely no evidence that practicing Wicca was in any way harmful to the child or even that there were any practices conducted in the child’s presence. Accordingly, this cannot be a reason for changing custody.

... Finally, I am compelled to mention that the appellee’s intemperate response to the appellant’s rehearing petition was not only inappropriate but was vile and slanderous. He argues, among other things, that the majority was correct to allow the trial court to make a custody decision based on his perception of the appellant’s religious beliefs because not all religions are worthy of constitutional protection. He denigrates Mormons, asserting that “Mormons practice incest and child marriages,” and proclaims that “Wicca is a cult, not a religious belief.” He admonishes that “this court is committing a grievous error if it allows cult activities to be protected” and that the “trial judge appropriately ruled in this case after carefully considering the facts.” In light of the appellee’s further illumination of this issue, I simply cannot say that the trial court’s decision was “appropriate.” I lament that this court has accepted the appellee’s invitation to embark on a grand inquisition.

Comments

"although she later said it was just a casual remark and that she really was a Baptist."

As if being a Baptist was a good thing....

I mean how do you respond to religous bigotry like this from Judges?
I wake up, it is a lovely morning, the sun is shining, fresh ground coffee is brewing and then I come here and am reminded, yet again, that I live in the nutbag part of the South.

Posted by: Any*Mouse | November 20, 2008 10:04 AM

Wicca = bad, um kay

Posted by: Mr. December | November 20, 2008 10:21 AM

The Arkansas Injustice System is an egriegious affront to any intelligent assessment of fairness, equality, and, of course, ' the rule of law ' and appears to require serious reform. Perhaps Judge ellen Brantley could take up the challenge of spearheading said cause.
The tardiness of the Arkansas Judicial Discipline and Disability Commission action regarding the Judge Willard Proctor travesty, Judge Burnett's clearly prejudicial actions regarding the WM3 case, and this present case regarding the actions of Judge Vittitow's case and his Wiccan " concerns " are but current concerns I have . It is sadly unsurprising the four male Appellate Judges would support Vittitow's blatant ignorance at the apparent expense of a mother's desire to maintain custody of her two-year-old toddler. Vittitow's inappropriateness appears to me clearly intended by his own remarks : "stating she probably was more involved in it than she led the court to believe." Huh, how can Vittitow determine the young mother was a more devout Wiccan than she proclaimed herself in sworn testimony? But not only is Vittitow a mystic discerner of truth but Appellate Judges Robert Gladwin, David Glover, Wendell Griffen and Pryce Marshall must be true believers in Vittitow as well. Sounds kind of " witchy " to me !

Posted by: Roym | November 20, 2008 11:56 AM

So if the Apellate court refuses to hear it, are there other options available. It seems to me this is a blatant case of religious discrimination. Perhaps the ACLU may want to get involved. Just a thought.

Posted by: Arkansas Hillbilly | November 20, 2008 12:21 PM

Somebody at the Onion needs to do a riff on this.

Posted by: Eureka Springs, AR | November 20, 2008 01:23 PM

If it makes you feel better, Vittitow is retiring.

Another reason to be embarrassed by Arkansas. Thanks Arkansas Supreme Court.

Posted by: Melissa | November 20, 2008 01:30 PM

What did the Arkansas Supreme Court have to do with this ? They can still appeal this case to the Arkansas Supreme Court, which might have a very different take on the issues.

I haven't read the briefs, but the attorney who apparently had issues with Mormons was James Watkins Haddock who wrote that "Mormons practice incest and child marriages." That doesn't sound like any Mormon I've ever met.

Posted by: hoglawyer | November 20, 2008 01:39 PM

The Arkansas Supreme Court has been getting sort of nasty lately. Here's an opinion from September where Griffen and Baker joined Hart and Heffley in dissenting vocally in another child custody case. The dissenters even aired some internal court dirty laundry about procedures that the court uses.

http://courts.arkansas.gov/court_opinions/coa/2008b/20080917/published/ca07-587.pdf

The Hicks case, by the way, is not over. The mother also filed a petition for review--not really an appeal, hoglawyer--with the Arkansas Supreme Court, which has the authority to assume control of the case and overrule the Court of Appeals decision. The petition for review remains pending in the Arkansas Supreme Court.

Posted by: Gaddis | November 20, 2008 01:53 PM

Talk about enforcing a religious belief system! This is just appalling. I hope this poor child who has been ripped from it's mother's arms for no good reason will be returned very soon.

Posted by: rablib | November 20, 2008 04:07 PM

Wicca or Baptist -- Wicca hands down! Born and reared southern Baptist of which I have no fond memories. However I do remember one thing they taught me -- "Religion binds you. It's like being horrendously constipated."

Judges with integrity are suppose to be impartial obviously some are neither. Apparently some judges even forget that we all have

Inalienable Rights

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

In their formulation by the Enlightenment philosophers of the 17th and 18th centuries, inalienable rights are God-given natural rights. These rights are not destroyed when civil society is created, and neither society nor government can remove or "alienate" them.

Posted by: BWC | November 20, 2008 05:09 PM

Hoglawyer,

Move to Idaho, Utah or Washington. Within three to six months you will meet some Mormons that may shake your disbelief in Haddock's statements. That was the amount of time I spent stationed in Idaho and Washington in the seventies and there was a lot of circumstantial evidence that "celestial marriage" with what might be classified as children was not just a rumour or historical story.

Posted by: docholliday | November 20, 2008 08:57 PM

Arkansas Blog

Wicca and custody

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