The Herald Bulletin

Afternoon Update

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November 27, 2010

Custody ruling raises legal concerns

IU law expert: Order against agnostic father a reason for concern

ANDERSON­ — A court ruling in which an Anderson father’s religion was a determining factor to strip him of joint custody of his three children is cause for concern, an Indiana University law professor said.

Craig Scarberry of Anderson lost joint custody of his three children this month after Madison County Superior Court 3 Commissioner George C. Pancol issued an order that included court evidence that Scarberry, formerly a Christian, had become agnostic. The order was affirmed by Superior Court 3 Judge Thomas Newman.

Jennifer Drobac, an Indiana University professor specializing in family law, said a parent’s religion has no place in custody decisions.

“Father has a reason to be concerned,” Drobac wrote in an e-mail, suggesting the ruling might violate Scarberry’s First Amendment constitutional right to freedom of religion.

“I have read the order and am really concerned about why (Pancol) twice mentioned (Scarberry’s) religious beliefs,” Drobac wrote. “Such discretion would be clearly unconstitutional unless the parent’s religious practices were actually harming or posed a substantial threat of harm to the children.”

The ruling reduced Scarberry’s custody of his elementary-school-age children to alternating weekends plus four hours a week. Scarberry has until Dec. 1 to appeal the ruling.

Scarberry has obtained a permit for a fathers’ rights rally at the Madison County Courthouse on Dec. 16.

Pancol, who previously declined to discuss the case, said again Tuesday that it would be unethical for him to comment.

“This country was established, in part, because of a desire for religious freedom. The First Amendment protects all religious perspectives, not just Christian ones,” Drobac wrote.

Contact Dave Stafford: 648-4250, dave.stafford@heraldbulletin.com

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