Mom Loses Custody Because a Judge Thinks She's not Funny
It's a blurb on Boing Boing that has renewed interest in the case of Rachel Bevilacqua and her son Kohl. Unfortunately, the blurb isn't entirely accurate.
The story about Rachel Bevilacqua (a.k.a. Reverend Mary Magdalen) lost custody of her son after a conservative custody judge was outraged at the fact that she is a member of the Church of the SubGenius. As a result of appearing in a adult-rated parody of Mel Gibson's "The Passion of the Christ," custody of her son was taken from her and awarded to the boy's father (the couple was never married). Rachel and her husband have fought a long, expensive battle to win custody of their son, while her ex-boyfriend's legal costs have been entirely been handled by a pro-bono lawyer (who is a friend of his). Legal costs have exceeded $70,000 as of March 2007.
The Church of the SubGenius is a satirical church that exists to ridicule organized religion. The blurb's mostly accurate and comes from someone who's been following the case closely, Modemac. To be fair, Modemac has been doing a great job of following this case and has condensed the story, rather than cover the same ground again and again on his blog. The blurb above is basically an update to the full story, which appears in full on the same page. But if all you have is the blurb on Boing Boing to go by, you really get the wrong impression of the case.
Kohl wasn't taken from Bevilacqua because she appeared in a joke video. He was taken because the birth father lied and told the court that she was homeless. I covered this story last year and quoted this from the Cleveland Free Times. The link to that piece has since expired.
Rachel Bevilacqua is a long way from homeless. She's back in Spencerport, New York, where she grew up, and where her parents still live in a modest frame house, nestled among trees on the banks of the Erie Canal. Sitting in the tiny office there, she talks while her father blogs, while her sisters play, and her mom cleans the kitchen after dinner, periodically stopping to show off family pictures.
Bevilacqua — known as Mary Magdelen to thousands of "worshippers" in the Cleveland-based, satirical Church of the SubGenius — has come home to get her son.
She's been in Spencerport since January, attempting to prove herself innocent so that 10-year-old Kohl can live in her house again, back in Georgia, with her husband, Steve Bevilacqua, whom her son has been forbidden in court orders from calling "dad." It's the family Kohl has lived with, except for vacations that roughly coincide with the school year, for most of his life, until he went to visit his biological father, Jeff Jary, for Christmas in 2005.
When Rachel took Kohl to the airport on December 18, she had no idea that a few days later Jary would tell a judge in Orleans County, New York that Rachel was homeless. No idea that without checking on the claim — without even sending a perfunctory notice of a hearing — the court would grant her son's father sole, temporary custody.
Now we're seeing how 'temporary' that custody is. Bevilacqua found herself in front of a small town judge with a tiny little mind, James Punch of Orleans County, New York. Punch was much more interested in her connection to the Church of the SubGenius than he was in the particulars of the case. In fact, transcripts show that neither Bevilacqua nor her son were the issue in his mind. It was the fact that her hobby was making fun of religion.
JUDGE PUNCH: Can I interject a question? Could you hand her the exhibits and just show me one thing in those exhibits that's funny to you? Would you just pick one out for me just so I, because the sense of humor is elusive to me I guess, and maybe you can help with that, OK?
RACHEL BEVILACQUA: Okay.
JP: Why don't you just the first thing you come to that's hilarious, pull it out and explain it to me?
RB: As I'm sure you realize, it's very difficult to explain humor.
JP: So why don't you just stop talking and just do what I ask you to do, OK?
RB: Yes sir.
JP: You're passing by a lot of pictures that apparently aren't funny then, is that correct?
RB: I'm passing them by because I'm not sure how to explain to your honor the humor value of them.
JP: They are all funny to you?
RB: The pictures themselves are not, but the events were.
JP: Okay. We will keep going until you can find something that's just going to knock my socks off with the humor of it, and we'll proceed. Since you have such a big organization devoted totally to humor, I would really like to learn more about it, so find the funniest picture and then explain the joke to me. How about the Barbie doll that's being crucified with the swastikas on the nipples, is that a pretty good one?
Hey Punch, here's a question; which one of the photos looks illegal to you? Of course, none of this had any bearing on the case whatsoever. Was the reason that Bevilacqua lost custody -- that she was homeless -- factual? No.
What happened was that Punch didn't like her attitude toward religion and the way she used her First Amendment right to expression. She lost her son to a man who'd lied to the court and the judge sided with the father because he disapproved of the mother's sense of humor. The government has the right to revoke custody if some moron on a backwater court doesn't think you're funny.
That this case has taken this long to straighten out is outrageous in itself. Punch has since recused himself, rather than face judicial review -- Bevilacqua filed a complaint with New York's Judicial Review Board. But, once you get your finger caught in that machine, it sucks you in and chews you up in the bureaucratic gears for a while. Punch managed to get the case into the system by ignoring the fact that the father's argument was false.
But how far away is having the wrong attitude about religion from just having the wrong religion? The belief that religion is worthy of ridicule is in itself a religious belief -- by association, anyway. Punch focused on whether or not Rachel Bevilacqua took religion seriously enough. Having the wrong attitude about religion isn't all that logically dissimilar from having the wrong religion.
When a court has the ability to deny custody because the judge doesn't like your opinions about religion, the court has the ability to deny custody because the judge doesn't like your religion.
UPDATE, 3/12/07: Since posting this, I've been contacted by Rachel Bevilacqua. She has a few clarifications for us.
Hello, I'm Rachel Bevilacqua.
You and Modemac both have parts of the story correct - the original accusation was that I was homeless, but I was able to disprove that through affidavits on January 17, 2006, our first court appearance.
However, the judge continued the case to February 3, 2006 and beyond, in order to allow my ex to "amend his petition" to include the photos of my performance art, which then became the focus of the case. The classic bait and switch, if you will.
This is why I originally thought I would have my son back within a few weeks without needing a lawyer - it's very easy to prove you're not homeless, but much harder to prove that your artwork does not "degrade family values" as Judge Adams (the second judge to get involved after Judge Punch recused himself) put it in his recent decision, which is under appeal now.
If anyone has any questions or anything, feel free to email me - I've been forbidden to update my own blog by a court order and so can only update people one at a time by email or commenting on other blogs.
2ND UPDATE, 3/12/07: I've also been contacted by Modemac who gave me a current link for the Cleveland Free Times story: http://www.freetimes.com/story/262