Did a judge exceed her authority when she opined on the Biblical roles of husbands and wives, and whether children should have cell phones, in a divorce case in Stearns County? The comments by district court judge Mary Mahler drew criticism from at least one appellate judge -- though the Minnesota Court of Appeals decided late last month that Mahler's child custody decisions in the divorce case were OK.
The dispute relates back to testimony in summer 2011 by Sarah Peterson, who was arguing for custody of the three children she had with Adam Peterson, the husband of 13 years she was divorcing. Part of her concern, Sarah explained under questioning from her attorney, Marc Kurzman, was her husband’s Biblical interpretation of how wives should obey their husbands. Here is what was said:
ATTORNEY KURZMAN: With regard to the — this church issue that you bring up and you believe it’s going to be detrimental to [the children] as a result of what’s being taught. Can you actually explain to me what is being taught?
SARAH PETERSON: Ah — that the husband is the leader and controller of the family and that the wife has to submit and the kids have to submit to what the father says.
ATTORNEY: Okay. And is that some kind of a doctrine or is that out of the Bible or where is the — where do you get that?
SARAH: That’s a doctrine out of the Bible.
SARAH: That [the] Baptist church believes.
ATTORNEY: Except that what you’re—all you’re saying is you’re just restating what the Bible says; is that correct?
SARAH: No, that’s not correct.
JUDGE MAHLER: I think the Bible does say that.
ATTORNEY: Yeah, it does say that. I can get it out.
JUDGE: Just for the record, when I got married they said husbands obey your wives.
ATTORNEY: I can get it out for you if you don’t believe it.
JUDGE: Or wives obey your husbands.
SARAH: Right.
ATTORNEY: If you were a judge, you could have set that aside.
JUDGE: But I don’t profess to read the Bible often enough to know where it is. And after I heard it once, I dismissed it, so.
Ouch. So the judge essentially “dismissed” a belief of the husband, who relied on her to divide the couple’s assets and decide on child custody. Later, as the testimony turned to another key point of contention – whether the Peterson children should be allowed cell phones – Mahler noted that her own 12-year-old had a cell phone.
The context is lost in the transcript. You can’t tell if Mahler – a 2010 Pawlenty appointee – is joking. There is some humor at work. At one point, Kurzman declares that he “may be the only Jew in the county” but that even he knows the Bible’s reference to wives submitting to the leadership of their husbands.
The Appellate Court decided that the exchange didn’t affect the outcome. It agreed with Mahler’s decision to award primary custody of the children to Sarah and to grant Adam visitation. For a variety of reasons, the Appellate Court disagreed with the judge’s child support and financial calculations, though.
The panel noted that Adam’s attorney did not object at the time or ask Mahler to recuse herself based on her expressions about the Bible and cell phones. But in the dissenting opinion, Appellate Court Judge Kevin Ross didn’t let Mahler off the hook. In making her statements, Mahler “aligned herself with Sarah against Adam on the two most debated issues in the parties’ custody trial,” Ross said in his opinion. 
“The concern is not that the court announced that the passage is in the Bible. It is that, knowing that the doctrine had taken a lead role in the custody trial, the judge revealed her bias by volunteering that in her own marriage she had “dismissed” the doctrine. It would be less troubling if the district court’s consequent decisions were not so intertwined with the religious view. But the custody and parenting-time decisions mirror the judge’s personal disapproval. The decisions favor Sarah, who no longer wanted the children to attend the parties’ church of ten years and be influenced by the doctrine that the district court judge rejected. And they disfavor Adam …
We cannot overlook revealed judicial bias simply because it reflects a popular view. Married couples may freely choose how to resolve their disagreements, distributing the decision-making authority on any basis — religious, humanistic, egalitarian, democratic, random, or otherwise — apparently fair or apparently unfair, popular or scorned." 
The Appellate Court ruling was unpublished, meaning it is not precedent-setting, but can be found on the state court web site. Thanks to the blog of family attorney Christine Callahan for pointing out this intriguing case.


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