Law Review: How the Varying Legal Standards Fail to Protect Mothers and Children from Polygamy’s Abuses

Polygamy in American: How the Varying Legal Standards Fail to Protect Mothers and Children from Its Abuses
Amy Fry, 54 St. Louis U. L.J. 967 (2010)

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Although polygamy is clearly being practiced in shadowed corners, it is a long-established criminal act in the United States. As a result, polygamy has always had an impact on child custody proceedings when practiced by one or both parents. Its controversial presence has had a strong yet varying effect on child custody rulings, as courts struggle to weigh the child’s best interests against parental rights and the freedom to practice one’s own religion. A highly-publicized recent battle is the In re Texas Department of Family & Protective Services case, for which final custody proceedings are still pending. This Note examines the ways courts have balanced these interests and why, what impact this most recent Texas case has on polygamy’s standing in the United States, and where the legal stance on polygamy should be headed. Part I focuses on the problem: how much of an impact should the practice of polygamy have on a child custody ruling? Fleshing out this question requires analyzing the history of the FLDS, the impact the FLDS has on mothers, and the malleable, varying ‘best interests of the child’ tests. Part II examines the impact of the recent Texas polygamy case, discussing the majority stance and the distinction made by its concurring opinion. Part III turns to a 1955 Utah Supreme Court case that exemplifies the position the United States once had towards polygamy. Part IV then compares the recent Texas ruling to the older Utah Supreme Court decision, examining the dangers of the current standard and emphasizing why courts should revert back to taking a stronger stand against polygamy. The illegality of polygamy and its abusive impact on children outweigh a mother’s right to raise her children and practice her religion in an FLDS polygamous sect more often than courts acknowledge. The Utah decision should be strongly considered in future child custody rulings involving polygamy as it signifies a better balance between religious freedom, parental rights, and child custody than the current legal standard.