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Monday, March 12, 2007

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?


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: Rachel Bevilacqua left a comment at my other blog, Griper News.

Rachel Bevilacqua said...

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.

Technorati tags: ; ; ; ; Judge didn't think 's opinions about were funny -- so he punished her for them


kathy said...

HAs she tried to have ACLU pick up her case? This sounds like freedom of speech/religion rather than just another child custody case.

Anonymous said...

What bugs me the most is that this case wasn't decided on any legal merit. It was never decided on facts or matters of law. What the decision was based upon was whether or not the judge could play a better parent than Rev Mags. How is it that either of these judges gets to play parent, not only to this child but to this woman and her current husband? He's basically playing the father-figure, scolding his children for being a pair of doodieheads and believing in a made-up religion that parodies other religions and wanting to take grandbaby away so grandbaby doesn't get caught up in all this foolishness.

Really, it comes down to this: The Catholic/Christian Religion is the One True Religion that everyone should practice, so don't piss off the folks in power who all believe in the One True Religion or they'll steal your kids from you. I'm glad to be an American, cuz at least I know I'm free. Yeah, right.

Modemac said...

Fortunately, the original piece in the Free Times has not expired; they simply changed the link. You can read the original article here:

Thanks to you and all your readers once again for all your help.

Unknown said...

We're Iran now. Dunno what else to say.

Unknown said...

We're Iran now. Dunno what else to say.

Lenny said...

As the parent of a child whose mother still cannot get past things that happened between us 13+ years ago, I can really sympathize with what Rachel is going through. When will America finally become "mature" enough to the point where our former lovers are not seen as enemies, but rather people we shared a piece of our lives with? Really wish Rachel's plight was more an oddity rather than the norm.

Rev. Ivan Stang said...

BRAVO! Mike, you are my Short Duration Personal Savior as a writer. You just did the best, most direct and TRUE description of this case I've seen yet. I've followed all the press about it, and I've had to try to explain it myself many times. You really nailed it.

You will be glad to know that we were able to raise $2500 in 48 hours this weekend. However, this only solves Rachel's most immediate and serious financial problem. There will be more bills, and she and Steve are going to be in debt the rest of their lives without help. Their relatives are tapped out, and most of their friends are far from rich,
so at this point the generosity of GOOD STRANGERS would be accepted very gratefully, I'm sure.

Coincidentally, minutes before I read your article (which Modemac noted in alt.slack), another friend had forwarded me this excellent article about the American Taliban:

Thank you for your continued interest in this story, and your great skill in presenting it!

Wisco said...

Thanks Rev. Stang, good to hear something like success in this story.

How'd I get named Mike, though?

Anonymous said...

This Case has very serious implications for the advocates of free speech and free expression everywhere. When a sitting Judge can decide who can and cannot be fit to be a parent or legal guardian of a minor child, based soley on the adult's participation in a public or private artistic and/or entertainment venue, then we have crossed the line into the worst kind of political authoritairin fascism there can be. What is next perhaps? Parents who are deemed to be "unfit" because they believe in or belong to a minority political party or belief? The Founding Fathers must be shaking their heads in utter disbelief.

Anonymous said...

Everyone being stunned that this happened is somewhat alarming - this is not an isolated incident. I've been following Rachel's case since it became with interest, as she chose Path B to my Path A.

I was drug into court by my ex-husband who refused to pay for our sick sons medical bills per our original decree. The foundation, however, was that my pagan beliefs made me an immoral mother, likely to sexually abuse my son. The only evidence against me was my admittance of my path, and my journal talking about my path. Despite being cleared of any abuse or neglect in a CPS investigation, the Judge was alarmed by Paganism, and granted my ex (who had no job and was living with his parents and had just months before been evicted for non-payment of rent) temporary custody, and I became a weekend Mom (I owned a business, owned a house, and a car, in stark contrast to my ex).

I was devastated at the turn of events. I thought because I was a good person and we had a Bill of Rights, I would be ok. I was wrong. And so I chose path A - I humbled myself, changed, left my path, and sucked up to the system. I've often wondered what would happen to me if I fought and was defiant - and looking at what Rachel and her son are going through, I can see.

Eventually, the ex that I had my son given to while my parenting was questioned was arrested for assaulting our son. CPS took his visitation rights away, and in a few short years, I went from fighting to prove that I was not a sexual deviant because of my path to sole legal custody - I have no doubt, though, were I still Pagan in any manner that I never, ever would have gotten that, even with the Ex arrested on a felony. The prejudice was just too deep in the Judge.

While I went through it, I heard from many others who had gone through the same thing, who didn't fight, and who couldn't go public because the Judge that slammed them still had control over their life. We are silenced - I, too, cannot post any information to the internet about what happened.

I admire Rachel's defiance, though am comfortable with my selling out if it meant I could have my son back. No, the system is not fair.

But no, folks - this is not an isolated case.