Can Agnostics and Atheists lose custody of their children for lack of belief?

Craig Scarberry of Indiana lost custody of his kids in 2010.  He and his ex-wife, Christine Porcaro, were divorced in 2007, but shared joint custody until recently.  The court has just given sole custody of the couple’s three kids to their mother, and ordered Scarberry to pay child support.  It’s a tragic story that’s repeated all too often.  But what makes this story remarkable is that it’s possible that Scarberry lost his children for not believing in god.

Reading stories like this is difficult.  While newspaper articles – and, when I can find them, court documents – tell the facts of a story, they don’t tell the whole story.  Where the articles discuss police reports of fights and restraining orders, between the lines are the echos of years of fighting and making up; the turbulent remains of a once loving relationship gone bad.

It’s clear this couple had serious problems.  The recent ruling granting sole custody to the mother was the second time the couple restructured their custody rights.  Court documents report,

“There was evidence that the Respondent/Mother had left minor children at home alone, did not feed them breakfast, and did not at time [sic] buckle them in their car seats.”


“There was evidence that the Petitioner/Father did use profanity in the presence of the children and at time failed to control and manage his anger.”

The couple split up in 2007, but still had an “intimate” relationship according to court documents until 2010.  Porcaro then obtained a protective order against Scarberry, claiming he made “attempts to harrass and intimidate me at my place of employment with abusive language and profanity.”  Scarberry appealed the protective order, and the couple renewed the original custody agreement.

Shortly after that, there was an incident when the Porcaro’s new fiance and the Scarberry got in a fistfight when the father was exchanging custody.  Scarberry then requested and was granted a protective order against the fiance.

I get the feeling this is only the tip of the iceberg for this family.

Then there’s the part about Scarberry being an agnostic.  In the court order granting full custody to the mother, there was a list of grievances against both parents, but one of the ones that stood out to me said,

“Further evidence indicated that the Petitioner/Father did not participate in the same religious training that the Respondent/Mother exercises and that the Petitioner/Father was agnostic. […] At the time of the Property Settlement Agreement, the Petitioner/Father considered himself a Christian and the parties were able to communicate relatively effectively.”

This strikes me as a very strange bit of information to put into a custody order.  In an interview with Cenk Uygu of The Young Turks, Scarberry made it clear that he could find no reason other than his beliefs for him to be denied custody.  He said,

“Well, I don’t see any other verifiable explanation. There are a few other things that were listed on the order. However, we were able to refute all those things with our own evidence while we were in court.”

I can’t say for sure what happened.  The more I read about this story, the more I think neither of the two are fit to be parents.  That, however, is irrelevant to my point.  If, in fact, the judge granted custody to Porcaro even partly because of Scarberry’s agnosticism, then that’s a shocking example of religious privilege, and a gross violation of the establishment clause of the 1st amendment.

It’s been argued that religious belief wasn’t the basis for the shift in custody. Though there are legal scholars who disagree with this point of view, I’m not one, and therefore can’t say for sure that their right.  It does, however, seem to be worth noting that Scarberry’s religion was brought up twice in the court order, and Porcaro’s religion was never mentioned directly.  To me it seems that there is pretty compelling evidence to say that the court overstepped it’s bounds by ruling based on Scarberry’s beliefs.

I understand how having parents of two different religions can be difficult.  I even get that since it was Scarberry who left his faith, a case can be made for the continuity of the children’s religious upbringing should be kept intact. But that shouldn’t be the court’s decision to make.  To say the children are less fit with their father than their mother because she’s Christian and he’s agnostic is a disturbing example of preference of one belief system over another.

If it is true, Scarberry is joining a long list of parents who lost custody of their children for their non-belief.  A New York woman once lost custody of her child for being part of a group that satirizes religion.  The judge, who called the woman “perverted” and “mentally ill”, ordered that she lose all custody of her son and have no contact with him.  When she spoke out against the ruling, the judged ordered that she cease all discussion of the court proceeding or her son online.  Too many judges equate Christian with being moral and atheist with being immoral despite the fact that evidence actually shows the opposite is more likely to be true.

Scarberry, however, didn’t help his case.  Instead of trying to stand up for his rights as a parent regardless of his beliefs, he attempted to appease the judges religious bigotry.  He said,

“I never posed a situation for my children or ever forced my beliefs onto the kids. Matter of fact, they continue to go to a christian daycare. When I had joint legal I agreed to take them to Church functions such as the Mother’s Day Choir. As well as allow them to go to church with my mother who attends on a regular basis, in addition to Church camp, those kinds of things. We were able to show that in no way, shape, or form do my personal beleifs and decisions reflect onto the children at all.”

It’s not my place to tell this man how to raise his kids.  However, the fact that he accedes to his wife’s wishes on the children’s religious upbringing shouldn’t sway the judge any more than the fact that he’s agnostic did in the first place.  Even if Scarberry decided that his kids should be raised in the church, the assumption that raising kids with religion is superior to raising kids without must stop.  I wish to hell Scarberry would’ve stood up more for his rights.  Being Christian doesn’t make people more moral, and lack of belief doesn’t make them less.

*** UPDATE***

Here’s the embarrassing part where I admit that I didn’t pay very close attention to the dates involved in this story.  Turns out that while this entire ordeal went down during November, it wasn’t last November.  No, it all happened in 2010.

The story itself became a complicated mess of appeals and stays, the original judge recusing himself from the case, appeals to higher courts which in turn sent the case back to lower courts and reinstated the original judge.  Look, I’ll be honest, I don’t entirely know what happened with this story.

The fact is, the trail seems to run cold after the summer of 2011.  I can’t find the outcome of all the various appeals, so I can’t say for sure what happened.

But none of that changes the fact that the courts too often consider atheists and agnostics to be less fit parents based solely on their lack of belief.  There would be an uproar if a parent was ever denied custody of their child for believing in god, it’s outrageous to think the reverse is true.


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