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Judge Bars Divorced Man from Taking His Kids to Mormon Temple

Apr 28, 2010

By: Sarah Fenske\ e-government-can-interfere-with-a-man-s-freedom-of-religion-in-divorce-court/

Hmmm ... So does this means the government favors the Catholic religion over the Mormon religion????

Judge Bars Divorced Man from Taking His Kids to Mormon Temple

Published on April 28, 2009 at 5:15pm

Two years ago, Maricopa County Superior Court Judge Robert Budoff decreed that Richard Franco could not take his children to a Mormon church.

Never mind that Franco had been a Mormon his whole life. Or that on weekends when he had custody of his 14-year-old son and 10-year-old daughter, the extended Franco clan attended Sunday services together. Nope, Judge Budoff ordered in writing that the Franco kids' "only religious training shall be in the Catholic faith and that they not be taken to an LDS church or LDS church training."

I didn't know judges could do that. But they can, clearly. Budoff's decision was upheld by the appellate court in December. More recently, this spring, the Arizona Supreme Court took a pass, refusing to give Franco so much as a hearing.

And the appeals court didn't just rule against Franco — it socked him with a $14,000 bill for his ex-wife's attorney fees.

Reading that, you might wonder whether Richard Franco was a bad father, or at least a bad Mormon. Maybe a polygamist in Colorado City, forcing his kids into early marriages and unflattering hairstyles.

Rest assured: This guy is about as mainstream as they come. The 44-year-old lives in Mesa, works in finance, and volunteers as a coach of his son's football team. He and his wife were married 13 years before she filed for divorce in 2006.

Reading the court file, it's clear that Judge Budoff found Franco abrasive, arrogant, and annoying, which certainly seems possible. (In our conversations, he's always been perfectly pleasant, but he swears like a sailor — and I couldn't help but notice that his e-mail address begins with "macho.")

But Budoff never found Franco to be an unfit parent. The children's parenting coordinator, in fact, described the kids as "thriving, intelligent, and articulate" and said that they "remain bonded to both their parents," despite a difficult divorce.

So why did the judge need to step in save the kids from their father's religion?

In Budoff's own words, to "avoid further confusion and conflict in the children's lives."

The children, it seems, felt anxious about their father's request that they attend church services with him. Well, cry me a river.

Don't misunderstand me here. I myself am a Catholic, and one who takes a dim view of the Latter-day Saints' theology. I don't let proselytizing Mormons into my living room for a reason: I think Joseph Smith was a total goon.

But since when do we have to protect children from the faith of their father? Trust me, even though the courts have affirmed Judge Budoff's decision, I'm not the only one who finds this a bit ridiculous.

"Without a finding that he was unfit, he was informed — make that, flat-out told — 'You can't expose these children to your religious beliefs,'" says Mike McCormack, executive director of the Washington, D.C.-based American Coalition for Fathers and Children. "That's over the top. Do we want that micromanagement from our judiciary?

"From our perspective, this was a real over-reach."

When Richard Franco first met his ex-wife, he was a good Mormon boy with a mission to Brazil under his belt. She was a good Catholic girl. And with that, their problems began.

That, perhaps, and the fact that neither was quite as "good" as their religion might strictly proscribe. They were pregnant before they were married, he tells me, leaving no time to discuss that crucial question: What faith do we choose for the children?

Do I compromise? Do you compromise? Is it wise for two people with such starkly different views of heaven and hell to start breeding?

Those questions were never discussed, let alone answered.

So they married, in a civil ceremony at a Mormon temple. A son was born and then a daughter. And all the while, they fought about religion. "It was a standoff from day one," he says.

Divorce took a bad situation and turned it toxic. And while Tolstoy had it right — every unhappy family really is unhappy in its own way — the details of the Franco divorce are numbingly familiar.

So I'm not going to get into who's right. In almost any divorce, it's none of the above.

But I am troubled by the judge's interference in the children's religious training.

It's one thing to formalize what had long been accepted in the Franco home: The children were being raised as Catholics. It's another thing entirely to bar them from exposure to another point of view.

Typically, courts don't like wading into religion during custody cases. They know the First Amendment — and they clearly understand prohibiting a man from freely exercising his religion with his children is getting into dangerous territory.

Franco's appellate court lawyer, Phillip Escolar, cites a precedent from 1958 calling interference in custody matters involving religion a "perilous adventure upon which the judiciary should be loath to embark." That sounds just about right.

Indeed, Judge Budoff protested throughout early hearings in the case that he didn't want to choose a faith for the children.

"I will not choose the children's religion," he declared, according to court transcripts. "That is not what I view to be a court's responsibility."

Incredibly, the judge changed his mind on that point after custody was supposedly settled.

The lawyer for Franco's ex-wife, Sandra Fromm, puts the blame on Franco for that: "He was a jerk and denigrating to his wife. The judge kept saying, 'I don't see how you think you can have joint custody,' but my client just wanted to make it work. Of course, we were back in court in six months because the father just can't control himself."

Here's what happened: Judge Budoff granted joint custody in March 2007, with the children's mother serving as the primary residential parent and their father getting the usual every-other-weekend schedule.

The agreement fell apart, quickly. He wanted to take the kids to see his parents in Heber on one of his weekends — but she objected because the boy had a school activity. When he tried to take an extra "make-up" day over the Memorial Day weekend, she freaked out.

Naturally, it was back to court.

The problem is, judges aren't supposed to modify custody within the first year of it being settled. (The idea is to enforce a cooling-off period.) The only exception is in cases where there's an allegation of domestic violence — "reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health."

Franco's ex-wife claimed that he'd slapped their daughter and pulled her hair. The claim may have been spurious. (Franco denies the slap; there was never a police report or testimony from his daughter, much less an eyewitness.)

But the allegation was enough to reopen the case. And, at that point, Judge Budoff wasn't messing around.

The judge gave Franco's wife sole custody of the children. Franco still gets every-other-weekend visits, but decisions about the children's upbringing rest solely with his ex.

And then the judge ordered not just that the children be raised Catholic, as he had in his original order, but literally barred them from attending LDS services with their father or grandparents.

I don't care how messy this divorce was. That simply wasn't necessary.

McCormack, director of the coalition that advocates for fathers, believes the law needs to be changed so that questions of religious training are off the table in custody matters.

"This is an area where judges are getting ahead of themselves," he says. "To say that children will or will not be raised a particular way . . . The religious training question should be left in the hands of the parents."

After all, as McCormack points out, parents would never be allowed to sue each other during a marriage to enforce a particular religion for their children. It shouldn't be any different in divorce.

"I think people are often unwilling to compromise if they feel like they can go into court and get what they're seeking without it," McCormack says.

He's got a great point. And though we'd certainly need to carve out an exception for a faith that was showing demonstrable harm to a child — arranged marriage at 14, say — there's real merit to leaving religion up to the parents, period.

At Mom's house, she can enforce her rules. At Dad's house, he enforces his. Same with church attendance.

Back in the day, maybe, you could argue that exposure to several different religions was bad for a child. In those days, if you were Lutheran, you went to Lutheran services and perhaps even a Lutheran school, and then you married a Lutheran and had little Lutherans. And if you were rebellious enough to propose to a Baptist instead, well, someone was going to have to convert — under duress, if necessary.

These days, as the Franco marriage proves, that isn't how things work. I've been to Presbyterian/Greek Orthodox weddings, Bahá'i/Episcopalian weddings, Jewish/Catholic weddings — and I'm betting no one had any intention of switching to their partner's team once the "I do's" were done.

That plurality can make things rough once the kids reach school age. But it can also be awesome. How better to learn tolerance than to have relatives with whom you disagree? How better to sort out how you really feel about God than understanding that good people see Him in different ways?

As I mentioned earlier, I've chosen sides on the God question. I'm a practicing Catholic, and not for the usual reasons of family or marriage.

No, I went searching. After attendance at a fundamentalist grade school, a Lutheran high school, a Presbyterian college, and stints in both Congregational and Methodist congregations, in my late 20s I finally found the faith that made sense to me.

Rather than confuse me, I think, exposure to different ideas helped.

The more time you spend checking out different religions, the more you understand that God is bigger than all of them. You understand that we're all struggling with the same questions. In many instances, we've found different paths to the same God.

My staunch Lutheran grandparents were pretty much convinced that Catholics were going to Hell. But I've had the luxury to explore things a little more: In Mass every week, despite all the incense-flinging and the bowls of holy water, I'm saying the same words that my grandparents faithfully intoned for decades on end: We believe in one God, the Father Almighty, maker of Heaven and Earth . . .

For years, I thought I didn't believe in God because I couldn't see Him the way my parents did. "There is always an alternative to the faith we lose," wrote the British novelist Graham Greene. "Or is it the same faith under a different mask?"

Understanding that changed everything.

Despite the intensity with which my family approaches religion, I know that Lutheranism and Catholicism are closely linked. That's not altogether true when it comes to Catholicism and the Church of Latter-day Saints.

But it doesn't hurt to explore those differences. Closing ourselves off to other faiths is no way to heighten our own belief.

Let's give the Franco kids the benefit of the doubt and assume they weren't just complaining about going to church with their grandparents because the Mormon services are three freakin' hours long. Let's say it really was a source of anxiety to go and hear Joseph Smith's take on God and man.

Well, what better preparation for life in the United States in 2009? This country has found a zillion ways to get to God, and yet we all manage to live more or less in peace.

A family shouldn't be any different. Even if that family is unhappy in its own way. Even if that family is in divorce court.