Three senior judges on the bench in New Zealand ruled that neither the father nor the mother of a child conceived out of wedlock should be given custody of the new born baby girl.
It was the result of an unusual case that involved alleged infidelity, religious views and cultural traditions that the judges thought might result in harm to the child.
It all began when a married man had an affair with a single Muslim woman. The woman then became pregnant, but kept the pregnancy secret from her parents and brothers.
In many Third World countries, cultural tradition takes a severe view of unmarried women having affairs, let alone having a child out of wedlock. It is common in many countries, including in some parts of the Muslim World where the woman is from, that the family would punish the woman for bringing “shame” on the family name.
In many cases, the women involved are murdered by family members in a grisly practice dubbed “honor killings.” Honor killings are banned in many Muslim countries but the practice continues outside of the law and often without any punishment for the offenders.
In fact, even some families who have immigrated to Western nations like New Zealand and the United States, where the practice is considered a crime, continue to practice “honor killings.”
In this case in New Zealand, the already married biological father sought custody of the child when he learned that the woman he had the affair with had a baby as a result of their affair.
But the New Zealand courts concluded that despite the fact that the father would have been the most responsible parent to raise the child, they denied the request. They also directed that the child be placed in foster care and be removed from the mother.
In their ruling, the judges, according to media reports, expressed concern that the process might result in identification of the mother and that would put the unwed Muslim woman in jeopardy of becoming the victim of an honor killing if her parents and relatives discovered her secret.
It’s an extreme example of where safety is given priority over custody in parental rights cases. In this case, the father clearly should have been given custody, but the judges feared doing so might result in the identification of the woman he knew as being the mother. That would have started a chain reaction that could have resulted in the mother being punished.
As a lawyer who represents fathers in child custody cases, I recognize that the safety of all of the principles in a relationship must be protected, including the safety of the child.
This is an unusual case where the judges believed they made the right call for everyone’s protection.
While we often do not encounter such safety issues stemming from cultural traditions here in the United States, they can happen.