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Court of Appeal:
Trial Court Must Decide if Children’s Hair to Be Uncut
Justices Say Father’s Religious Convictions Were Accorded Inadequate Deference in Leaving Choice to Minors
By a MetNews Staff Writer
A trial judge evinced insufficient regard for the religious convictions of a father who, as a practicing Sikh, wanted his children’s hair uncut, Div. One of the Fourth District Court of Appeal declared yesterday, holding that it was an abuse of discretion to leave the choice to the children, a girl, 7, and a boy, 5.
Justice Terry B. O’Rourke authored the unpublished opinion. It affirms an order by San Diego Superior Court Judge Terrie E. Roberts denying the father’s motion that joint custody be terminated and that it be shifted to him, but reversing the order allowing the mother to clip the children’s hair, though prohibiting giving the boy a crew cut.
O’Rourke’s opinion orders a determination as to whether harm would be caused to the children by adhering to the father’s wishes that the children’s hair be uncut, that they wear religious bracelets, and that the boy wear a head covering, known as a “patka.”
As to the bracelets and the patka, Roberts said at the hearing on custody and visitation:
“So what I’m going to be ordering is that they will go to Mom’s house with their bracelets on. [The boy] can go to Mom’s house with his head covering on. And that Mom—I want you—I am encouraging you to have a conversation with your children about the importance of the bracelets to their dad and that you are going to respect it. So if the children once they are in your home and they express that they want to take the bracelets off, then you can let them take the bracelets off.”
Addressing the matter of the hair cuts, Roberts told the father, family-medicine physician Narinder Singh:
“…[W]ith respect to the hair that is so personal to the children, sir, you are going to have to compromise on that.”
Appellant’s Brief
Singh, in a brief by attorney Ronald B. Funk of the firm of Holstrom, Block & Parke in Riverside County’s City of Corona, protested:
“This case presents a stark and unsettling question: to what extent may a court compel a parent to ‘compromise’ his religious faith in the name of co-parenting? The answer should be obvious—constitutional freedoms are not bargaining chips. Yet the trial court’s ruling forces Appellant, Dr. Narinder Singh, to accept the continued erosion of his Sikh faith in his children’s upbringing, permitting Respondent, Heather Cornwall, to cut their hair in direct violation of his beliefs.”
The doctor maintained:
“The ‘compromise’ is between Father’s personal religious beliefs and Mother’s social preferences.”
In a footnote, he remarked:
“Dr. Singh maintains that the children are not yet capable of forming a meaningful or independent preference regarding their religion or religious practices. Accordingly, the trial court’s reliance on their purported preferences was not only misplaced but fundamentally inappropriate.”
O’Rourke’s Opinion
The footnote proved persuasive. O’Rourke said that Roberts “nowhere explains, and the record fails to show” that the children “had sufficient maturity to hold informed views about the religious observances at issue here.”
He pointed to Family Code §3042(a)—which provides that “[i]f a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation”—and commented:
“We are not aware of any reported decision holding that a child of the ages of son and daughter had such capacity.”
Determination of Harm
O’Rourke declared:
“The evidence shows father has a sincere belief in his Sikh faith, which he practices, and that he has tried to raise his children in that faith from an early age. The court implicitly recognized this by ruling that it is in the children’s best interests that mother acknowledges and respects father’s Sikh faith. Despite thoughtfully grappling with the issues presented here, the court erred by failing to determine…whether mother had made a clear affirmative showing that if the children adhered to father’s Sikh faith as regards the haircuts, patka and bracelets, it would be harmful to them.”
The opinion sets forth:
“The court is directed to conduct new proceedings specifically to ascertain whether the children’s adherence to father’s Sikh religion regarding the cutting of their hair, the use of bracelets, and son’s use of a patka would harm the children.”
O’Rourke said Singh failed to show such a change of circumstances as would warrant shifting legal custody to him, alone.
The case is N.S. v. H.C., D084798.
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