for publication Thursday Aug 4th
Mr. Stephen Safranek
***Should civil courts prevent a mother from raising children in their faith?
An Ohio mother of four launched an appeal today against an Ohio divorce court decision by challenging her state’s civil divorce courts on religious grounds.
Marie “Bai” Macfarlane’s husband abandoned her and their four children in 2003 and began no-fault divorce proceedings. Bai is a stay-at-home mother who homeschooled her children until 2004.
Her potentially precedent-setting appeal was submitted by Ave Maria School of Law professor Stephen Safranek. The Constitutional Law professor argues: “The courts need to take into account the religious faith and practices that the couple agreed upon when they married. In this case, the court has allowed the father to place one child in daycare and is preventing the mother from caring for her children even though she is willing to do so. This failure is due to the court taking complete control of the children's lives through the father. Instead, the court should recognize that the nature of this marriage was such that the mother's role in the raising of her children was paramount. The court could avoid these problems by acknowledging the role the Catholic Church should play in Catholic marriages. The failure of the courts to recognize the agreement the parties made in a Catholic Church in front of God and a priest in this case not only violates the understanding Marie had when she entered upon this marriage, it necessarily entangles the court in issues relating to Catholic law, teaching, faith and belief.” Mr. Safranek further argues that Ohio law, “favors arbitration agreements and seeks to uphold them” and cites legal precedents in favor of arbitration, including cases where religious tribunals were the arbitrators.
“My husband and I didn’t agree to the minimal government marriage; we agreed to be under the authority of a third party, the ecclesiastic authority of the Roman Catholic Code of Canon Law,” says Mrs. Macfarlane, a devout Catholic. “We are obligated to follow the Church’s separation procedures, not the state’s minimum procedures.
The judge gave the father, who works full time, permanent custody and their stay-at-home mom visitation time. One of the children is in full-time daycare even though Mrs. MacFarlane wants to care for the child. Mrs. MacFarlane was punished for watching one of her children say, “Daddy broke our family” without correcting him in front of the court psychologist. "Her religious freedom, and her desire to instill good morals in her children were used against her in the proceeding" said Professor Safranek.
Mrs. Macfarlane has taken her case on a parallel track before the highest court at the Vatican, the Apostolic Tribunal of the Roman Rota.
Mrs. Macfarlane has founded the website www.marysadvocates.org for people concerned about no-fault divorce. A petition urging the US bishops to protect families from no-fault divorce is at www.defendusfromdivorce.com. To donate to the legal fund in this case contact Professor Safranek’s organization at www.truemarriage.net.