Did Father Lose Custody of Children Because of his Agnosticism? November 21, 2010

Did Father Lose Custody of Children Because of his Agnosticism?

How depressing is this story…?

An Anderson father says that because he professed religious doubt in a custody hearing, a judge took his children from him.

Craig Scarberry, 29, this month was stripped of joint custody of his three children, Kaelyn, 7; William, 6, and Ayvah, 4, because he changed his religion from Christian to agnostic.

“I’m a good, loving father, and this ruling has taken my children away,” Scarberry said. “I wasn’t interfering in their right to be brought up in a Christian environment,” he said, noting that the children still attend Christian school and church services as they have done in the four years that he has had joint custody.

Here’s an excerpt from the court order (found in full here, here, and here), in which the evidence for the decision is discussed (Note #10 and #12):

There is more to the decision, but I can’t understand why religious belief was a factor.

For now, Scarberry has until December 1st to appeal the ruling. He has scheduled a demonstration a couple weeks after that:

A Navy veteran and health-care worker, Scarberry has obtained a permit for a demonstration in support of fathers’ rights for Dec. 16 at the Madison County Courthouse. He said he believes his religious liberty has been violated.

Has his religious liberty been violated? Am I missing something else major?

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  • Well… first we have to keep in mind that mothers almost always get custody in these arrangements, pretty much by default. This makes it hard to argue that anti-agnosticism was the primary reason behind it (not that sexism is any better). But whether or not he would have lost custody anyway (which I can make no judgment on), those two reasons should not have been there. A case should be made independent of religious concerns. Otherwise it’s simple bigotry.

  • Data

    If the order listed is the order of importance the “justice” places on the issues, then there’s a serious problem with his priorities. Religion should play NO part in the decision. The anger management issue I can see being a valid reason – though surely some arrangements could be made. As for the “numerous text messages” sent, that really depends on the content of the messages. As for swearing in front of the kids – again depends how often and the circumstances. You could excuse swearing if you hurt yourself, for example.

  • Iason Ouabache

    There was a similar case here in Indiana five years ago where a father was prohibited from exposing his children to “non-mainstream religious beliefs and rituals” (i.e. paganism). So there is precedent for religious bias in Indiana divorce courts.

    The father’s agnosticism probably isn’t the deciding factor but the fact that it was even mentioned is upsetting.

  • Miko

    Sexual discrimination was probably more of an issue than religious discrimination. Women typically win custody of children (of an age where this is not biologically necessary) around 90% of the time.

  • NotYou007

    I think there is a lot more to this than just him being agnostic. I’m one of the lucky divorced fathers though as I do have joint custody of my daughter.

    The only thing that pisses me off is that I pay 120 dollars a week for just one child and this guy is paying less a week for three. Even if he was forced to pay the 150 a week that is still only 50 bucks per child.

    Now I know why I live in a hole. I’m getting screwed.

  • James

    Simply find a judge with a brain and point out that the judge made his ruling based on religious preferences, which are of course protected and not something the father can be punished for.
    He gets a new hearing where the case is tried on its merits and the other judge gets a lesson in how the law really works.

    Not that any of this will actually happen.

  • Philbert

    If the original joint custody agreement contained an agreement to continue participate with the children in religious activities, then the father’s failure to do abide by the terms of the earlier agreement would be relevant.

    That’s about the only reason I can think of that would be constitutional. Awarding custody because the judge prefers religion over agnosticism would be unconstitutional.

  • No offense, infophile, but that train, while once was true, is getting derailed across the country. See, there was this series of studies done which proved that children who were raised by mom alone, with dad being only a check, created more problems than previously thought… hence, the courts are now drifting into the bizarre idea of equal/shared custody as the default.

    Now, in reference to the specifics in this case, I note that the ONLY issue that would be a strike against him is #13… since anger issues are considered endangerment to the children. #9 and #11 cancel each other out. The big kicker here for me is that #8– which is NEGLECT, and hence, child abuse, is ignored in favor of focusing on his religious beliefs.

    I see this judge being removed from the bench for even entering the religious notes as some factor in this case… especially since he gave sole custody to someone who left her 3 children, ages 7, 6, and 4 unsupervised on more than one occasion.

  • Brice Gilbert

    He used profanity in front of the children!!!?!?! What a monster!

  • For those of you who don’t know, full legal custody is rarely awarded to any woman, even if her ex is a convicted felon. Something is definitely wrong with this scenario. Legal custody only refers to the right have to a say in the basics: school, geographical location, etc. I have partial legal custody of my daughter, even after I made it clear I didn’t want her attending church while in open court. Even if I had gone to prison for robbery, I would still maintain partial legal custody. This is way different than physical custody, which defines the living arrangements of the child.

    If this judge took away both his legal custody and his physical custody, then it was almost definitely a bad decision, especially if his religion played any part of it. Unless he had a history of abuse, sexual molestation, or something else very nefarious.

  • Eddie

    Well it is either sexism or (non-)religious intolerance, either way, it’s not acceptable.

    Paternal participation has been seen to improve a child’s development. A father must interact adequately with their child.

  • It’s inappropriate for the religious affiliation of the father to be one of those factors. I can’t see why the judge would do it. #12 and #10 just smack of improper judicial bias. He just has to win on appeal. (Right?)

  • Laura

    I grew up in this county. It would not surprise me in the least if the judge ruled entirely on the basis of the father’s non-christianity. In most of Madison County, Indiana, failing to take your kids to church is considered a form of child abuse. That’s one of the reasons why I left.

  • I just don’t understand how everything was fine between them, UNTIL he became agnostic. That is what tells me that the ruling is unconstitutional.

    I hope he wins his appeal. No child should be denied time with their father over his agnosticism.

  • cat

    Jesus was right. Wait, did I just say that? I mean, Jesus the commenter was right. In disputed custody cases, men get partial custody in almost every case, and primary custody in just below half. The vast majority of child custody cases in the US are not contested, so, the women aren’t ‘winning’ custody, they are getting it by default when men don’t want it.

    That said, no one should lose custody because they became less religious. This is discrimination (if the reason is, in fact, his religion and not some other factor).

  • Yes! That’s exactly why I use this name. So one day someone would end up writing “Jesus is right” or “Jesus is a total idiot with no idea what he’s talking about”.

    Because either of those would make me laugh.

    And I can attest to the fact that I’m right because it was a judge who told me these things to my face. My ex was fighting for full legal custody and the judge basically said “Practically nobody gets full legal custody. Not even convicted felons who are currently incarcerated lose all legal custody. Unless someone presents a danger to the children and communication between father and mother is simply impossible.. those are the only cases where anyone gets full legal custody.”

    So apparently this judge feels that these two will never communicate properly and that he presents a greater threat to the children since he is agnostic and sends too many text messages to the mother. Sounds like he was cheated.

  • Anna

    I think he needs to contact the ACLU. My brother is fighting for custody and struggling depsite the fact that she is the one who yells and screams at her kids. The courts are definitely biased against me and it appears against non-christians too.

  • Anna

    I think he needs to contact the ACLU. My brother is fighting for custody and struggling depsite the fact that she is the one who yells and screams at her kids. The courts are definitely biased against men and it appears against non-christians too.

  • Lauren

    Thank you jesus!

    (so excited to write that)

    I was reading up on that the other day on another blog, but didn’t have the link. (they linked lots of studies.)

    he should probably get a re-trial since this was in the ruling. But I have a hunch there is a bigger issue. So I don’t know that he will win. but losing for the wrong reasons is not a precedent that we want set.

  • Robert W.

    As a lawyer who practices family law, there is most assuredly more to this story. First it is apparent that they have been in court multiple times before, probably before the same Judge. This shows a continuous problem between the parties.

    The most telling portion of the order is the inability of the parties to communicate after he became an agnostic. No telling what he was saying but it had to be in relation to the children’s religious upbringing because the judge ties the two issues together.

    I would assume that he took away legal custody to stop the fights between them so that she would have the only say.

  • Blaine

    Don’t make the court or the judge out to be the bad guys here …. most judges are not the idiots some people want to present them as … present all the facts and then try to get rid of your confirmation bias … but then the story wouldn’t give you a chance to preach your sermon of how wrongfully Scarberry was treated …

    The victim gambit gets a little old after a while …. come up something a little more substantial next time

  • h.c.

    “God bless you and science heals you.”

  • If anything, he deserves full legal and physical custody, as the “mother” is actively abusing the children by forcing them to go to church and participate in explicitly Christian activities. The children have a right to an upbringing free of indoctrination.

  • Nick Andrew

    There’s another case of belief-based discrimination on the books:

    Subgenius mother loses custody of sun for wearing papier-mache goat mask”

    At trial the Judge was most concerned with why it was a goat mask – perhaps suspecting devil worship and completely misunderstanding the Subgenius religion. This story starts over 4 years ago but Rachel fought for custody of her son and won, and the doorway of appeals from her ex-boyfriend (who initially won custody) finally closed on September 22nd, 2010.

  • This is old news. I’ve been reading of cases for years that lost on religious belief. I’ve also read of mothers losing custody for being single when daddy remarried and acquired a stay-at home wife.

    Both make my blood boil.

    I can’t speak to other areas but here in New York, as of six and a half years ago, when my daughter and boyfriend stop cohabiting, court automatically granted shared custody but physical custody to the mother.

    This is where I am sexist. I’m sorry but if all else is equal, women have a closer biological tie to the children and, therefore, should have physical custody with dad having generous visitation rights. New York does it right in my opinion.

    I don’t dismiss what good dads do and there are certainly dads out there that should get custody over some moms out there. Like this case, given #8, the facts presented to us (and only if you don’t take into consideration that we don’t have them all and that Robert is probably right). To claim that being a mother is identical to being a father is laughable.

  • CJ

    Legal decisions are lacking in detail and it’s hard to draw a conclusion based on them. There is more to this story than is reflected in what is published here.

    I think the most telling part of it is “…Petitioner/Father…failed to control and manage his anger.” That can mean so much in so few words.

  • Inthewater


    I think the issue is more about rights, than biological issues.

    Biologically speaking, men and women have a lot of differences between them, but they should have the same rights.

    Do you agree?

    Should this ideal not apply when men are to have rights limited, or just when men and children are concerned?

    What qualifies this as okay, as far as descrimination goes?

  • I agree with others that there is more to this story. And, at risk of being made into a pariah, I’d like to add that I wonder if he’s publicized the agnostic aspect of things in order to garner sympathy and draw attention away from his anger management issues and his texting (stalking?).

    Whatever the case his agnosticism (or any other religious or not beliefs) should not be considered at all.

  • @Gwydion Frost: Ah, nice to know that that’s changing. It’s always possible that it’s happening on an individual level still (one need only look at muggle’s comment to see that some still exhibit this bias), but at least progress is being made.

    @Sarah: That certainly is a valid suspicion. A lot of the reasons for denying him custody are potentially valid, and the invalid reasons that are also included shouldn’t make those irrelevant. In the end, none of us have the full facts of this case. This case should be appealed for the strong possibility of religious bias influencing the decision, and it should receive a fair trial. Beyond that, I can’t say who deserves custody more.

  • CatBallou

    The reference to “fathers’ rights” is a big red flag. I quit practicing family law several years ago, but unless the situation has changed substantially, fathers who contest (ask for) custody will receive it in a significant percentage of cases. Many “fathers rights” organizations just cite the statistics about mothers having custody, without mentioning that the fathers didn’t seek it! Very dishonest.
    Custody decisions have always been based on some nonscientific notion of which parent is the most suitable. There was a time when the father was the default custodian. Determining the best interests of the child is an incredibly difficult task, and rarely are both parents happy with the outcome!

  • Robert W.

    WMD Kitty,

    If anything, he deserves full legal and physical custody, as the “mother” is actively abusing the children by forcing them to go to church and participate in explicitly Christian activities. The children have a right to an upbringing free of indoctrination.

    So its child abuse to raise a child in a Christian home?

  • Daniel Miles

    First off, I have great sympathy for people who loose custody of their kids, I can only imagine that it’s the most horrible thing the legal system can do do someone.

    To answer the question at the bottom of your post directly, I think you *are* missing something, but not something obvious. Psychologists often look to changes in interests, eating habits or energy levels to indicate depression or other psychological difficulties. I don’t think it’s unreasonable for judges to use similar heuristics. Essentially, since the judge was able to see a person give up something that had previously been important to him, I suspect the judge saw it as an indication of potential mental or emotional problems. That, combined with other warning signs (failure to control temper, use of profanity, etc) and the fact that men *ALMOST* never get custody of children makes this ruling unsurprising.

  • Terry

    If religion is the sole basis then there should be some action he can take against the ruling mainly to appeal but I think that the ACLU might be of some help.

    I see in note 13 that he used profanity and failed to control his anger as well as sending text msgs to the mother, if there was any danger then there should be some reason as to why this was an issue in note 13

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