N.Y. Court to Mom: Remove Rock Painted With Confederate Flag Or It Will Be Considered In Custody Hearing

[James Madison]

“Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.

As such, while recognizing that the First Amendment protects the mother's right to display the flag, if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.”
Christie BB. v. Isaiah CC., No. 527802
https://reason.com/volokh/

“The upstate woman has been told she needs to ditch a driveway decoration painted with a confederate flag or risk losing custody of her mixed race child — even though a family court judge didn’t consider it to be an issue when it was raised during trial...[T]he father wants sole custody. While he raised the issue of the rock previously during their custody trial, the father made a broader argument to the court that his home was more suitable for the girl.“ https://nypost.com/2021/05/07/how-a-confederate-flag-painted-on-a-rock-could-cost-a-mom-her-kid/amp/

The intermediate appellate court has advised the mom is to choose between her free speech rights or having her protected free speech factored into the “best interests” calculus. The intermediate appellate court attempts, ostensibly, to base their decision not on the content of the speech but the non-speech elements of the mixed race of the child and concluding that “it would seem apparent that the presence of the flag is not in the child’s best interest...”

But more is needed to establish the court’s assumption the mother’s speech of a rock painted with a confederate flag has any bearing to the “child’s interests.” There’s no evidence the child has suffered some harm, harmful impact, or likely potential harm of some kind because of the confederate rock.

Assuming the trial facts, as recounted by the intermediate appellate court, are correct, the mother’s political or ideological beliefs, and expressing those beliefs either symbolically, expressively, or in written form, as a factor in the best interest analysis isn’t lawfully proper on the basis of these facts. (The Volokh link recounts some of the facts).

As an ethnic minority, with brown skin, I’m not thrilled by the mom’s act of a confederate flag painted onto a rock on her property. However, the mom has a constitutionally protected right to choose what kind of political, religious, moral, and economic belief system to raise her child in.

 

[zorq]

As an ethnic minority, with brown skin, I’m not thrilled by the mom’s act of a confederate flag painted onto a rock on her property. However, the mom has a constitutionally protected right to choose what kind of political, religious, moral, and economic belief system to raise her child in.

Sure,... AND the court has the right to choose the BETTER option for the child when there is a choice that must be made.

A parent has the constitutionally protected right to tell a child that they are "a worthless sacks of shit" on the hour, every hour of the day, but that doesn't mean that it doesn't affect the child or shouldn't be considered as a factor when picking the better home for a child.

 

[repoman]

Why was this particular mother down with the swirl in the first place?

So odd.

 

[TV and credit cards]

According to NYP this was not a point of contention between the parents. Then it should not be a factor for the court to consider. The court is concerned the child embrace her racial diversity. And if as a teen the child denied her white heritage “ because it’s not cool to be white”, should the court intervene? Force the parent to move to a whiter neighborhood? Shop at REI? Teva and Patagonia anyone?
As parents we limit our right to speak freely around our children. At least we good parents do. Few children in intact homes are raised under ideal conditions. It seems the court is placing an unreasonable burden upon separated parents not demanded of parents of intact homes.

 

[Jimmy Higgins]

According to NYP...

At this point, the topic should be dropped as it involves the NY Post, which can't be trusted at all as a news source. Custody battles can get pretty nasty, and are bad enough as it is, without the NY Post trying to add gasoline to the flames. There are way too many things involved with this that likely can't be know, because it is a custody battle, so I won't even try to make forth with an opinion.

I will say, the amount of, at best, ignorance required to present the battle flag of traitors to our nation is bad enough, regardless if you have a mixed race child or not! However, this in no way speaks to the quality or suitability of the father.

 

[untermensche]

As an ethnic minority, with brown skin, I’m not thrilled by the mom’s act of a confederate flag painted onto a rock on her property. However, the mom has a constitutionally protected right to choose what kind of political, religious, moral, and economic belief system to raise her child in.

Not when the child's welfare has become a matter for the courts.

The other parent is now aggrieved and damaged by the speech.

A remedy for this reasonable grief, this harm, must be reached.

A very reasonable remedy is to remove the speech.

The speaker is harmed but speech that harms another is not free speech.

Incitement to riot is not free speech.

 

[Politesse]

So she cares more about the rock than the kid?

 

[Elixir]

So she cares more about the rock than the kid?

She can grow another kid. Do you know how long it takes to make a rock?

 

[Politesse]

So she cares more about the rock than the kid?

She can grow another kid. Do you know how long it takes to make a rock?

Ah. A geologist.

I'm glad my father never had to choose, I wouldn't want to know.

 

[Jokodo]

However, the mom has a constitutionally protected right to choose what kind of political, religious, moral, and economic belief system to raise her child in.

As does the father.

The court has the job to determine which of the two offers a healthier environment for the child.

 

[TomC]

So she cares more about the rock than the kid?

I don't know anything about this particular bit of domestic dysfunction.

But I remember when my sister was fighting a battle with her ex husband over their daughter. Race wasn't involved, but she(and he) did plenty of stupid, destructive, things to each other out of spite. Much worse than a rock along the driveway with an irritating message.

I can't help but think that there's a lot more to this story than reported.
Tom

 

[Politesse]

So she cares more about the rock than the kid?

I don't know anything about this particular bit of domestic dysfunction.

But I remember when my sister was fighting a battle with her ex husband over their daughter. Race wasn't involved, but she(and he) did plenty of stupid, destructive, things to each other out of spite. Much worse than a rock along the driveway with an irritating message.

I can't help but think that there's a lot more to this story than reported.
Tom

Isn't there always? The media doesn't pick stories for their facts.

 

[T.G.G. Moogly]

If I was genuinely and sincerely interested in the child's welfare, and if I believed I could provide the best environment for same compared to my spouse, and if whether I gained custody mattered only infinitesimally wrt my pet rock, I sure as hell would pitch the fucking rock.

 

[TomC]

If I was genuinely and sincerely interested in the child's welfare, and if I believed I could provide the best environment for same compared to my spouse, and if whether I gained custody mattered only infinitesimally wrt my pet rock, I sure as hell would pitch the fucking rock.

And, similarly, if I thought that some paint on a rock would make that drug dealing meth head less inclined to show up on my property, I'd do it.

I've watched angry exes battle over children. It gets ugly.
Tom

 

[Don2 (Don1 Revised)]

This is a custody battle. Shit gets complicated and real.

Mom and Dad are battling for custody.

Mom was supposed to take parenting classes but didn't.

Dad was supposed to take parenting classes AND DID.

Mom claims when daughter with dad she often misses school.

Dad says the daughter misses school because she is sick.

Dad also says the daughter often has bruises and injuries when he picks up the daughter from Mom's.

Mom claims when it is time for daughter to go with Dad she cries.

Mom has moved around many times but CLAIMS she is now in a stable location.

Dad might have less stable residence.

Dad mentions the rock with the white supremacist terrorist flag on it.

Mom says she is not a racist and never uses racist words.

The girl's guardian says Mom only recently moved there and so the rock might not even be hers. [The alternative is that Mom painted a rock with a white supremacist terrorist flag as soon as she got there or carried it from her previous residence and put it in her driveway to show how proud she is of her "heritage."]

By the way, Mom lives nearby to Ithaca, New York, not South Carolina.

 

[Don2 (Don1 Revised)]

Does anyone else find it interesting how conservative media is choosing to report on this from the mother's perspective as a victim?

Remember the baker thread. What would be the analogy here, if reporting it from the daughter's perspective?

Should bi-racial girl be forced to idolize racist flag every day?

 

[James Madison]

As an ethnic minority, with brown skin, I’m not thrilled by the mom’s act of a confederate flag painted onto a rock on her property. However, the mom has a constitutionally protected right to choose what kind of political, religious, moral, and economic belief system to raise her child in.

Sure,... AND the court has the right to choose the BETTER option for the child when there is a choice that must be made.

A parent has the constitutionally protected right to tell a child that they are "a worthless sacks of shit" on the hour, every hour of the day, but that doesn't mean that it doesn't affect the child or shouldn't be considered as a factor when picking the better home for a child.

Well, you’re assuming there’s a “better option.” However, the facts here do not support the assumption. You’re also assuming a “better home” but again, the facts do not support this assumption.

You may dislike a painted confederate rock, but your dislike doesn’t establish the mother as a harmful to the child and it doesn’t establish the mother’s home as harmful to the child.

Neither is there any evidence to justify the decision by the court to threaten a lower court to take into consideration the mother’s exercising her free speech rights in a specific expressive manner.

 

[James Madison]

As an ethnic minority, with brown skin, I’m not thrilled by the mom’s act of a confederate flag painted onto a rock on her property. However, the mom has a constitutionally protected right to choose what kind of political, religious, moral, and economic belief system to raise her child in.

Not when the child's welfare has become a matter for the courts.

The other parent is now aggrieved and damaged by the speech.

A remedy for this reasonable grief, this harm, must be reached.

A very reasonable remedy is to remove the speech.

The speaker is harmed but speech that harms another is not free speech.

Incitement to riot is not free speech.

Oh brother. First, there isn’t any “incitement to riot” at issue here. Neither is incitement relevant.

The child’s welfare is a matter for the courts but this is a truism, not some fact or statement justifying what the court did. There is no evidence the “child’s welfare” was jeopardized by this rock. None.

There’s no evidence the other apparent is “damaged.” There’s no evidence the other parent is “aggrieved” beyond the typical aggrievement bickering parents experience in what is customarily acrimonious, spiteful, custody disputes. Family law, especially child custody, is reputed to be where some of the nastiest features of humanity manifests itself. A parent not experiencing the state of being “aggrieved” in a child custody matter is likely the anomaly.

The remedy you advocate is for a harm and injury that isn’t supported by the facts.

 

[Jimmy Higgins]

So umm... how many child custody cases in New York reach the New York Supreme Court?

The child’s parents, who never married, were ordered to have joint custody of their daughter by a court in July 2017, according to the six-page ruling obtained by The Washington Post. When an attorney for the child recommended that the mother’s home be the primary residence for schooling purposes, the father appealed.

The girl, who is not named in the ruling, was born in 2014 and attends school in the Dryden Central School District near Ithaca, N.Y.
At a fact-finding hearing, Christie BB acknowledged that “she had a rock with a Confederate flag painted on it at her home.” The appeals court noted that the Confederate flag-decorated rock was not addressed by the child’s law guardian or the family court.

“In response to questioning, the mother testified that she has never used any racial slurs in front of the child or at all,” the decision said.

The court added that the Confederate flag was “a symbol inflaming the already strained relationship” between the girl’s parents.

The woman testified that the girl’s father “does not communicate well,” while the man told the court his daughter’s mother has frequently moved residences over the years. They shared concern for what they described as the young girl’s behavioral issues, including “kicking, spitting, hitting and swearing a lot.”

Really, the child has behavioral problems and there is a custody battle for the child since the kid was born? No way!

The lawyer (Guardian ad Litem?) for the child said to have the child be in the school district of the mother. So that carries some weight.

Neither is there any evidence to justify the decision by the court to threaten a lower court to take into consideration the mother’s exercising her free speech rights in a specific expressive manner.

Based on the crumbs provided for the custody issues, who should have custody seems like it is on a knife's edge. And a mother's judgement of having the symbol for a rebellion to institutionalize black slavery for good in the yard is certainly up for grabs in a 'which parent is apparently less bad' award ceremony. It could be very likely neither parent is worthy of custody to provide a heathy home for the child.

And the child is clearly the loser in all this.

 

[Jimmy Higgins]

Child's law guardian is cool with decision, but thinks this is heading the wrong direction (clearly seems to have been a dumpster fire for years).

The child's law guardian, Ithaca-based attorney Jason Leifer, told the Times Union he believed the mother had moved into the residence only recently and was not sure if she was responsible for the rock's presence. But he supported the court's reasoning.

"I think it's appropriate," Leifer said.

Pretty much their opinion is the only one I really would put much weight with, as they represent the interests of the child.