Divorced parents clash over 12-year-old son's circumcision

Three-year fight - The father, a convert to Judaism, sees it as a matter of religious observance

Friday, April 27, 2007
ASHBEL S. GREEN

A former Medford man who converted to Judaism wants his 12-year-old son to do the same. That requires circumcision -- something the mother adamantly opposes.

The divorced couple has been battling over the issue for three years, including whether the boy wants to undergo the procedure. So far, Oregon courts have squarely sided with the father, who has custody.

That doesn't surprise Kathy T. Graham, associate dean for academic affairs at Willamette University College of Law.

"The primary custodial parent is the one that makes the decisions about religion and education and about matters of child-rearing," Graham said.

Other family law experts agree, but say the courts should at least look into the situation to make sure the surgery is in the best interests of the child.

"You're talking about not just religious instruction or whether you're going to send the child to parochial school or public school," commented Lawrence D. Gorin, a Portland attorney. "This is a matter of permanent change of bodily structure. And it's irreversible."

The mother is running out of legal options.

The Oregon Supreme Court has been briefed, but has not decided whether to take the case.

Mark Johnson, a Portland lawyer commenting on the case, said the court shouldn't let the case be decided based only on the legal papers filed on behalf of the mother and father.

"Frankly, the child should have a lawyer," Johnson said.

The Oregonian is not identifying the family members, in order to protect the privacy of the minor.

The couple married in the early 1990s. She filed for divorce in 1998.

The man started studying Judaism in 1999 and eventually converted. He now lives near Olympia. The child initially lived with his mother, but the father later gained custody.

In court papers, the father claims the boy gradually concluded that he also wanted to convert to Judaism and understood that this required circumcision.

The father also claims as the custodial parent he had a constitutional right to raise his son in his religion.

The father made an appointment for a circumcision in 2004.

The mother responded by going to court, saying her son told her that he was afraid to defy his father, but didn't want the procedure.

She asked for a hearing where she could present evidence that the circumcision would be dangerous. She also sought custody of her son.

But Jackson County Circuit Judge Rebecca G. Orf sided with the father.

"I am still of the opinion that the decision of whether or not a child has elective surgery, which this appears to be, is a call that should be made and is reserved to the custodial parent," Orf said in a hearing.

More than a million U.S. infants are circumcised each year, but circumcising adults or teens remains relatively rare.

Despite her ruling, Orf ordered the boy not be circumcised until the legal proceedings were done.

The Oregon Court of Appeals affirmed Orf's decision without an opinion, often an indication that the three-judge panel found no merit to the appeal.

The lawyer for the mother has asked the Oregon Supreme Court to take the case, and gained an ally called Doctors Opposing Circumcision, which filed a brief last week.

There is no schedule for when the court will decide whether to review the case.

The mother's attorney declined to comment.

The father, an attorney who is representing himself, did not return a phone call seeking comment.

Oregon legal experts agree that judges generally defer to the choices of custodial parents.

"Judges traditionally have stayed away in getting involving decisions about the day-to-day upbringing of the child," said Gorin, the Portland attorney.

Still, there are limits.

"It may be that the religious belief is to engage in human sacrifice or kill animals, but we don't do that," he said.

But Julie H. McFarlane, a supervising attorney with the Portland-based Juvenile Rights Project, said that the child's consent for a medical procedure is not required until he turns 15.

"I think the dad has the legal right as the custodial parent to make those kind of religious or medical decisions," McFarlane said. "It's not much different from cosmetic surgery."

The bottom line, McFarlane said, is that "when you lose custody, you lose a lot of those things that go with custody -- deciding whether the kids go to school and the rest of the day-to-day parenting decisions."

Andy Dworkin of The Oregonian contributed to this report. Ashbel "Tony" Green: 503-221-8202; tonygreen@news.oregonian.com