Editor’s note: The following is a lightly edited transcription of an interview Libertas Institute conducted with a Utah mother of three whose parental rights have been violated by the judicial system. The comments in this interview do not necessarily reflect the views of Libertas Institute.
Amy Brown: I’m 33 years old, and was raised as a Latter-day Saint. My husband and I have been married for 10 years and have three children.
LI: You were recently issued a fairly controversial order by a commissioner. Before getting to that, can you explain how you got to that point?
AB: About a year ago, my husband and I began to extensively study the history of the LDS Church. In essence, we came to separate conclusions and it began to drive a wedge between us.
What I didn’t know until more recently is that he secured a divorce attorney nearly a year ago and began going behind my back to get affidavits against me—including from each of my own family members—for fear that I would expose our children to what I was studying.
We each filed a petition for divorce in September, and were living together at the time that the commissioner gave a temporary order which required me to leave our home; I was the primary care giver for our three children, including a nursing one-year-old infant.
Laura Fuller (Amy’s attorney): Both parties file motions for temporary orders in a divorce case, then a commissioner will put temporary orders in place until all of the evidence can get before the judge. So this was a hearing on temporary order on October 20, and her husband filed 21 affidavits a couple days before the deadline.
AB: What’s troubling is that I didn’t have a chance to respond to (and rebut) the affidavits he filed against me, because he filed them at the last minute thus denying me an opportunity to fight them.
LI: And the affidavits generally say what?
AB: They all had to do with religion, and one of them wasn’t even about me—it was entirely about the Apostolic United Brethren (AUB; a sect I am considering joining). Another one was so religious that it had scripture in it. They basically argued that I was attempting to change religion and that of my children.
LF (attorney): There are no allegations of physical or sexual abuse against my client. At that time, nobody was using the term “emotional abuse” but that is what the commissioner has decided to call it, saying that exposure to this other religion, and how upsetting it is to the children, is emotional abuse perpetrated by my client.
LI: What is the most concerning portion of the order?
10. The parties are mutual restrained from discussing other religions and politics with the children as these issues are inappropriate for young children.
11. The parties are mutual restrained from discussing other religions and politics at any family gathering during the holidays.
12. The parties are to permit the children to continue attending the LDS church.
13. Respondent is restrained from discussing other religions, including the AUB, with the parties’ children until such time as Respondent decides to join another religious group.
LI: Before we address the order, can you clarify for our readers the difference between a commissioner and a judge?
LF (attorney): In counties that are highly populated like Salt Lake County, Utah has enlisted a layer of commissioners to relieve the case load off of the judges. They rule on all the motions, temporary orders, all of the things that come up, and then the judge actually hears the trial.
A commissioner’s order is binding, and they give a recommendation to the judge. If nobody objects within 14 days, then judge signs it. Unfortunately my client hired me two days after the deadline had passed. I submitted one late and asked a judge to consider it anyway, explaining the circumstances, saying that because of the nature of the order it needed to be addressed. He declined to do so.
LI: So this order you just read a portion of is still legally binding upon Amy?
LF (attorney): It is, however it was recently modified.
AB: After the first hearing where temporary order was put in place, I was only able to see my kids while my accusers were present—people who are hostile to me.
LF (attorney): It’s called a supervised visit. In addition to the paragraphs we read, the commissioner ordered Amy to move out of her residence within two weeks, and allows her supervised visitation only, conducted by people selected by her husband. It also gave him sole physical and legal custody.
AB: I had supervised visitation, but I had the right of first refusal at that time, which means that if children are in surrogate care, I shall have access to them. So I had the right to go so them when they were with, for example, my mother. But she didn’t want me over there. My accusers were so bothered by the fact that I had the right to come see my children when they had them, that they wanted to get rid of my right of first refusal.
So here I am gearing up for the next hearing, thinking I’ll finally have the chance to present my defense to the court. I went to pick my children up on the first day of an 11-day stretch where I was going to have them. At the moment I picked them up, my attorney called me saying that an emergency hearing was ordered for a temporary restraining order.
I thought I had another two weeks at least, but here I am back in court for an emergency hearing so they can attempt to take away my right of first refusal.
LF (attorney): November 21st, a Friday, at 4pm is when they filed for this hearing. A temporary restraining order requires a very high standard of irreparable harm. This was her parent time weekend, and Thanksgiving was her parent time holiday. She would have had the kids—supervised, albeit—for that Friday, all the way around to the end of the Thanksgiving holiday.
But the judge, in this hearing, ordered absolutely no contact until a hearing could be held the following Monday, on the 24th. The temporary restraining order was granted which gave her eight hours of supervised visits with a paid supervisor if the parties couldn’t agree on a supervisor. It also removed her right of first refusal, and gave the supervisors the discretion to decide if Amy was acting inappropriately and end the parent time. So she wasn’t able to see her children until Thanksgiving for a couple of hours on that day.
The temporary restraining order remains in place for 14 days, and then it has to be heard again to determine if it should continue. That hearing was December 9.
LI: Did the result of this recent hearing substantively change what had been the arrangement under the temporary restraining order?
LF (attorney): It did. We actually won at that hearing. So the temporary restraining order was dissolved and is no longer in place. However, the commissioner modified her temporary orders from the first hearing—in some ways beneficial, in some ways detrimental.
She modified the order to give Amy’s husband what he asked for, and so she lost her right of first refusal which means she can’t go visit the kids when they’re at day care or with any other third party surrogate caregiver. She also modified the concerning paragraphs we read to say that Amy can talk about religion and politics as long as it’s age appropriate, but still limited the family gatherings so they can’t talk about them on Thanksgiving and Christmas.
AB: Here’s what the commissioner said in the recent hearing: “Thanksgiving and Christmas. I don’t want religion and politics discussed at Thanksgiving, which has passed, and Christmas. And I want it so the children can be excited about Santa Claus. And I find that to be a reasonable restriction.”
LI: What triggered those comments? Do you as a parent prefer not to teach your children about Santa Claus, and the judge was requiring you to?
AB: No, no. She was trying to find something to pin her order on, because she realized later that she couldn’t make these restrictions about religion. So what’s it’s about? She argued it’s about making the kids upset at holidays. She had to fish for something, and is grasping for straws.
LI: With the modified order, are you now able to speak to your children about religion and politics (except for Thanksgiving and Christmas), including the AUB?
AB: As long as it’s “age appropriate,” but who gets to determine that, right? That’s the question that hangs in the air.
LI: Ms. Fuller, have you ever seen an order like the initial one given by the commissioner?
LF (attorney): I did see one years ago, before I was an attorney, on a case that I was a paralegal for, regarding this same religion. In that case, it was an LDS man who was investigating the AUB. The judge gave mom primary custody and gave him visits, but it had to be done at mom’s house and the kids could not go to anybody’s house who belonged to the AUB, or to their church. Of course, that was very quickly overturned.
LI: Do you feel that this order would have been different if, say, you were both members of another faith but you were investigating the LDS Church and wanting to expose your children to its teachings?
AB: Oh, yes. I doubt there would have been any orders against me at all.
LF (attorney): I had a case in the exact scenario you described last summer. Mom and dad had four kids together, and mom was leaving their fundamentalist Mormon group. There were allegations of physical abuse against mom. Her parents were against her and his parents were against her. The commissioner gave mom everything and put a protective order against dad—despite allegations made by independent third parties, of physical abuse by mom.
LI: Do you consider these orders a violation of your rights as a parent?
AB: Oh, yes. It’s been tamed down, but not in a way that it ever was painful. Here I am completely stripped of my right to parent my children based on my religious beliefs. I’m still not able to be with my children.
LF (attorney): In order to require supervised visits, there has to be some kind of finding of abuse. In the first hearing, there was none. So we can say “oh, well, it’s fixed now because she can talk about religion on most days,” but first of all, it’s a big problem that there is a restriction on Christmas. How can any Christian celebrate the birth of Christ without talking about religion? How can any Christian get through all day long on Christmas without saying the name of our Lord and Savior? That’s a huge restriction on her on Christmas. So she is ordered to have her kids celebrate with Santa Clause, but she cannot speak one word of religion. That’s huge!
The other thing is that the commissioner backed off on the First Amendment constitutional problems with her initial order, but the real problem with that order is that these kids should never have gone to dad. When you weigh all of the factors, these kids should have gone to mom. They have ripped her kids from her—including the infant she was nursing—and if you weigh the factors under state law, they would have weighed in favor of mom. Big time. But because they don’t like the religion she is considering joining, they have ripped them from her, required only supervised visits, and she can’t talk about these things in front of the kids.
In the November 24 hearing we brought up all the reasons why the kids are upset and emotional. According to the children’s own statements, it’s because their parents are getting a divorce. It has nothing to do with their mom’s religion.
Another thing is, the commissioner is requiring Amy to go through a mental evaluation because everybody thinks she must be mentally ill if she’s getting into different politics and religion. So the modified order isn’t fixed. It has backed off a little bit—the commissioner recognized it was a problem, and she backed off a little bit—but it’s still a huge injustice.
And it’s presumed that both parties have joint legal custody. It is really hard to overcome a presumption for legal custody, because you can lose physical custody of the kids and still have joint legal custody to help make decisions about school, religions, medical procedures, etc. She lost that, and there were no findings to support why she was ripped from the presumption that she should share legal custody. The commissioner has given no reason why she removed legal custody—none.
LI: Has a judge intervened in this case, or has everything been before the commissioner?
LF (attorney): Everything has been before the commissioner. The judge issued one opinion as to why he wasn’t going to address our late objection after I was retained as Amy’s attorney.
LI: Your husband’s attorney claimed that the commissioner’s order is in the best interest of the children. Do you disagree?
AB: These orders are by far not in the best interest of the children. For example, my one-year-old was recently sick and my husband had the power to say that since he is sick, he cannot come to me, but rather send him to a day care center.
As for the religious angle, it’s beneficial for children to learn about the history of their own religion and to learn about a general diversity of religions around them. That’s a healthy outlook, to know what’s going on in the world and to be able to understand the world around you.
LI: Mrs. Fuller, it’s not uncommon to have a divorce involving a disagreement over religions between spouses. When children are involved, are judges generally unwilling to intervene in that issue and leave it up to the children and their parents?
LF (attorney): First of all, continuity for the children is always the biggest priority. That is to try to lessen the impact of the divorce. That is why the primary care provider gets children who are not yet in school, so they can continue with the same routine that they have always had. Kids in school are supposed to continue in that school; they’re supposed to continue in the same normality to help them adjust to the heartbreak and devastation that always impacts children in every divorce.
But, having said that, religion is almost always left up to the parents. Every parent that has joint custody is required to submit a parenting plan, which they sit down together (sometimes with a mediator) to outline how they’re going to parent their children. The agreement they come up with is enforceable.
I’m not criticizing at all that the kids were required to be allowed to continue attending the LDS Church, and Amy has no objection to that. Continuity for the kids is important. However, whenever there is a disagreement between parents, whether it’s in Utah or any other state, the Supreme Courts always hold that the children will be exposed to both religions. This has been held over and over again.
In Utah there was an adoption case, and in the ruling the Court said that being a polygamist is not a reason to deny them their parental rights.
LI: Amy, what do you want other people to take away from your experience?
AB: I’ll answer with what I told the commissioner in writing. The entire order should be overturned as soon as possible unless the court wants to find itself in the spotlight for stripping parental rights over religious beliefs of upstanding, law-abiding citizens.
I want people to recognize the double standard that the commissioner is holding and realize that this prejudice is harming families.
LI: Mrs. Fuller, from a legal standpoint, should Utahns be concerned that the government is violating rights to this extent? Or is the system self-correcting enough in your view to resolve these issues?
LF (attorney): It should be concerning. The system is not self-correcting, and this is why: these are young children. To have them ripped way from their primary care provider, especially the nursing baby, is not in their best interest and causes permanent, irreparable harm to their emotional and social development. It is a huge abuse of discretion, and if we get to a point where we can appeal it, then we will.
Even though the commissioner has backed off of this order, you have case after case after case that has gone to the United States Supreme Court because of one instance of the government violating somebody’s First Amendment rights. So if you have one time where a court said on this place on this date you can’t talk about this, even if that date comes and goes and it’s moot, because we hold our constitutional rights so preciously, such a violation is not tolerated and the U.S. Supreme Court will still hear it. It goes all the way up the chain for public policy reasons.
This order was in place from October 20 to December 9. That was a huge violation of my client’s constitutional rights. “Oh, I’m sorry, I was wrong” doesn’t fix it—especially when the children are still suffering, mom still has supervised visits only, and there’s no justification for it.
One more thing: Dad carefully planned and submitted tons of affidavits against mom. Still, there is nothing so egregious in there to support requiring supervised visits. There’s no physical or sexual abuse. The kids are upset, we don’t know why, so the court says it has to be mom.
But my client went to the first hearing and submitted things that the commissioner did not review. She had people there ready to testify who weren’t allowed to testify. And at this last hearing we were cut short by the commissioner and were unable to present all our evidence—there is evidence that the dad is abusive. It’s huge that we’ve got this double standard where because he is LDS the commissioner is assuming that the mom is the problem.