Adelle's Mom (was - Re: Circumcision/custody case in Oregon)




"Harry Weiss" <hjweiss@xxxxxxxxx> wrote in message
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Adelle <adNOstavis@xxxxxxxxxxxxxxx> wrote:

"Eliyahu" <lrooff@xxxxxxxxx> wrote in message
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On Aug 18, 7:37 pm, "Jonathan J. Baker" <jjba...@xxxxxxxxx> wrote:
In <> Eliyahu <lro...@xxxxxxxxx> writes:

On Aug 17, 2:38 pm, "Jonathan J. Baker" <jjba...@xxxxxxxxx> wrote:
Or does the father claim the mitzva of circumcision applies even
though the son is not Jewish (which is a possible, if not accepted,
reading of the bare law in the Shulchan Aruch: "it is a mitzvah on
the father to circumcise his son.")
But isn't it also implied or assumed in there that 1) the son is
Jewish; and 2) that it will be done on the 8th day per the
commandment?

That's my problem - it's an unstated assumption, and unstated in the
commentaries ad loc. as well. So why does everyone seem to assume it?
Is the son not his, if not Jewish?

The biggest halachic problem I see if one argues that he has the right
or duty to circumcise the son of a non-Jewish spouse is that, since a
bris is a sign of the covenant and of one's Jewishness, it provides
almost unassailable support for patrilineal descent. Can't have it
both ways.

Eliyahu




Dad is a Ger and from my reading, plans to raise the son Jewish. In
working
towards conversion, he is planning for the son to undergo brit milah. All
that seems standard for someone converting. All this other stuff about
whether the father is required to circumcise a non-Jewish child, etc,
seems
superfluous. If you are male and converting, part of the process is brit
milah, along with mikvah, beit din, etc., which many of you have reported
in
many previous posts. The issue is only partly about whether the father
can
insist on the physical act of circumcision. The primary issue is whether
the
father can choose a religious upbringing for his child different from the
child's original upbringing and that of the mother. And secondarily, if
that
decision includes circumcision, how does one factor in that rite as part
of
the parent's right to choose a religion for his child.

Putting on the dusty lawyer hat -

The Oregon Supreme Court is focusing on who gets to decide the religious
upbringing of the child. And by adding the issue 'welfare of the child,'
the
Oregon Supreme Court seems to be bringing in the basic standard for
decisions about children - what is in the best welfare of the child. In
this
case it means, can the father raise the child Jewish. And by also
considering "the weight that religious considerations should be given
when
considering the welfare of a child, " it seems the judge will examine
whether the religious nature of a rite overweighs the potential for and
impact of physical or emotional injury to the child. That's the part
which
has me concerned about whether the judge will draw analogy to FGM and
find
brit milah analogous.

Now, if I understand correctly, Mom is alleging son does not want a
circumcision but is afraid to tell dad. How many 12 year olds would want
to
have a painful procedure to their privates? But does that also mean the
child does not want to be Jewish? If I were the trier of fact (the judge)
I
would want to know whether son really wants to be Jewish? Or - is he
doing
it to please dad? Or - because he was angry at his mom and didn't want to
identify with her? Or - does son really want to be Jewish but is so
afraid
of the procedure that he can't get past it? Or - might he be saying he
doesn't want it out of loyalty to mom (doesn't want to reject her and/or
the
part of himself that is 'her')? But the current secular legal issue
actually
does not require the child's input at all, even if the sincerity of
conversion is a Jewish legal issue.

The legal issue is a parent's right to decide the religious upbringing of
his child. I think none of us would disagree that we parents get to set
the
religious and moral milieu for our children. Where both parents agree,
there
is no issue. But in families where there are two faiths (even two
Christian
religions) and when there is a divorce, the conflict becomes something
that
can wind up in court. So much for separation of church and state.

Which parent gets to decide the religious upbringing of the child?
Usually,
its the custodial parent. But with the advent of splitting custody into
two
components (physical and legal) and with more families endowing both
parents
with joint legal custody (which requires that both parents have equal say
in
the choices made for the child in health care, education, etc.,), there
is
no longer the supposition that whoever has physical custody gets to make
the
decisions (well, depending on the judge, how the parties present
themselves
in court, and all sorts of intangibles. Many of these cases get decided
in
motion session, without a full trial, and never get to the stage this
case
is in).

And what about the child's preferences? In Judaism, the child must ratify
this choice upon becoming 13. But the secular legal standard, whether the
child has a 'voice' in issues of upbringing, changes from state to state.
I
think most states say 14 or 15. As a rule, most judges I went before
would
solicit the child's input at a much younger age - not as a definitive
thing,
but to gauge maturity and to figure out how much parental coercion is
going
on. But judges are not bound by the child's preference. That changes at
the
age when a child may have input into decisions about their upbringing
(usually, physical custody). So if mom can drag this out long enough, she
makes the appeal issue moot. Once the child has the legal right to say
what
he wants, the issue of parental choice in this matter is nullified.

And as for which holds more weight, the religious rite or magnitude of
the
impact on the child's welfare? - Can't quite see where the court is going
on
that one. Will the court decide that the trial judge weighed the impact
already - and correctly - and the impact is not so great as to be a
negative
to the welfare of the child? Or will the judge find the trial judge was
wrong about the facts or didn't investigate the facts enough. If then,
will
the court remand to a lower court to investigate the issues of fact or
make
a decision as a matter of law. If the latter, will it be a matter of law
that a religious rite's benefits outweigh the impact? Or that this rite,
involving cutting of intimate parts of the body, is different than rites
with no cutting and requires different scrutiny - or should not be
required
at all as a matter of Oregon law.

Lots of ways the court can go with this.

Adelle

I think you gave an excellent summary, which shows this is not an issue
that we need to be concerned with. The issue is custody rights and
perhaps what decisions a 12 year old can make. It has nothing whatsoever
to with stopping a bris.

Well - I'm not positive about that. It depends on the courts reason for
taking the case out of the lower appeals process, something that is rather
unusual. Courts of highest appeal only do that when: 1 - there is a time
expediency; or they think something needs to be settled definitively; or if
they see an error an earlier court missed that isn't being addressed in the
Appeals motions.

If it's the first, a timeliness issue, they could come down either way
either saying its a religious issue and a settled issue as far as the courts
are concerned; or that as a matter of law, circumcision without medical
reason, and not of the choice of the subject, is not in the best interest
of children and is therefore not permitted by law. In that latter case,
there is huge impact for both Jews and Muslims. These are the same
possibilities under wishing to decide a subject with finality. The last
option, court error, may reflect on whether the original trial judge did
enough fact finding to determine what is in the best interest of the child.
The court may have grabbed the case to say the case is not 'ripe' (ready) to
be in the appellate courts because not all the relevant facts were presented
or that there was judicial error in not doing enough fact finding. Either
would would result in the case being sent back down to trial level for
further fact finding.



BTW, how is your mom?

Thanks for asking.

She's about what can be expected. The hospice says she is now stable enough
to be transferred to residential care. That means they finally have her pain
controlled and whatever issues are presenting themselves aren't acute. Mom
is near top of the list for the Jewish Nursing home, but needs placement
sooner. My sister is looking at places to see if she finds something
appropriate for now.

The saddest thing is seeing her lose important 'parts' of herself. Mom has
always been a voracious reader. Its partly how she taught herself English
when she came to the US. Well, the cancer is now affecting her optic nerve
and she can't focus long enough to read more than a page at a time; she
can't follow the plots for lack of continuity. With my husband's father, he
lost himself a little at a time, too. But with dementia, the self awareness
eventually is affected and the person isn't aware of what they are losing.
Sadly, my mom is acutely aware of each loss.

We are going out for RH. Just a whirlwind fly in, stay for chag, and fly
home on the red eye Saturday night so the kids won't miss more school. I
think it will lift mom's spirits, give her something to look forward to. And
it will obviously be important for the kids, even if they don't really
appreciate it in the short term. [Becca will be missing her turn leyning on
RH. She has been leyning first aliyah on first day of RH for two years now.
It is something she loves to do.]

Adelle


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