Wow. The third divorce of the highest paid actor in Hollywood is already
settled. Tom Cruise and Katie Holmes reach a lightning fast agreement.
Best thing for their 6-year-old daughter, Suri.
I predicted that they would settle on Steven Skurka’s radio show, “Closing
Arguments,” Sunday, July 8, 2012. The very next day, they settled.
Even I was surprised by the speed at which this case moved. The drama
barely lasted two weeks. I guess Tom is reserving drama for his movies.
Celebrity breakups rarely end so quickly or cleanly. When was the last
time you remember thinking, “wow, that celebrity couple really handled
their divorce with dignity and maturity.”
How could this happen so fast, you ask? Well, Cruise and Holmes had a prenuptial
agreement governing the distribution of assets; accordingly, Holmes is
apparently entitled to $3 million for every year of marriage to Cruise,
as well as their Montecito, California, home. So, talks between the two
sides largely centred on who would have legal custody of Suri, and how
physical custody would be shared.
The question now becomes: will the TomKat settlement last? Let’s look
at it more closely.
On Monday, July 9, 2012, Tom and Katie released this joint statement:
We are committed to working together as parents to accomplishing what is
in our daughter Suri’s best interest. We want to keep matters affecting
our family private and express our respect for each other’s commitment
to each of our respective beliefs and support each other’s roles as parents.
Although neither Tom nor Katie personally released a comment, Tom’s
lawyer, Bert Fields, stated that “Tom is pleased we got here, and
so am I.” Katie’s lawyer, Jonathan Wolfe, stated: “the case
has been settled and the agreement has been signed. We are thrilled for
Katie and her family and are excited to watch as she embarks on the next
chapter of her life.”
As is common in Hollywood divorces, the settlement was made in such a way
that none of the terms would be contained in publicly available court
documents. According to TMZ, what turned the aggressive battle between
the spouses around was a “series of conversations that Suri would
be irreparably damaged by parental warfare.” According to the source,
this registered “big time” with both Tom and Katie.
Although the contents of the settlement are largely unknown, the couple’s
representatives told People Magazine that Suri will likely live with Holmes
in New York (as opposed to with Tom in Los Angeles). According to TMZ,
Holmes will “have what amounts to primary physical custody, but Tom
[will have] significant custodial time with his daughter.” The source
reported that one condition Tom had for settling was “meaningful,
significant” contact with Suri.
TMZ also reported that the issue of religion, perhaps the most contentious
issue, is restricted to the settlement agreement and will not be divulged.
Nevertheless, a source told
RardarOnline that “under the terms of the settlement, Suri isn’t permitted
to be exposed to anything Scientology-related and this includes going
to any Scientology churches, parties, etc. Katie made sure that this was
ironclad in the agreement.”
Although Tom seems to have won significant access time, a report from the
Los Angeles Times seems to indicate that Katie has won legal custody (decision making power).
According to that source, the agreement “gives Holmes the lead role
in choosing how Suri will be educated.” This is significant given
that Tom allegedly wanted to send Suri to Scientology school.
Religious instruction and children in Canada, the US
In the United States, family law judges look to ensure that the interests
of children are protected in matters, such as housing and medical care;
in contrast, the courts try to give both parents broad leeway in choosing
a religious upbringing.
While the
issue of religion was touched on briefly in last week’s blog, it bears further consideration.
In the US, courts generally will defer to the parents unless the consequences
are truly detrimental to the health of the child. Jeffrey Shulman, a professor
of law at Georgetown University, argues that this standard doesn’t
sufficiently protect children.
In Ontario, the role of the access parent varies with respect to the issue
at hand. In general, when it comes to the broader rights of parents to
talk about religion, the courts try to remain neutral, but inevitably
they say something about the place of religion in the state in doing so.
Droit de la Famille 1150 and
Young v Young (1993) were Supreme Court of Canada decisions for which judgement was
released on the same day with contradicting results; the issue before
the court was whether a mother could get a court order restricting a father
from engaging their child in religious practices and discussions in religion
during his visit.
The ultimate test in matters of access is the “best interests of the
child.” In Young v Young, the court held that s. 16(10) of the
Divorce Act regarding the “best interests of the child” does not violate the
Canadian Charter of Rights and Freedoms right to religious and expressive freedom.
In that case, Justice McLachlin and Justice Sopinka debated that test for
imposing restrictions on an access parent’s ability to engage in religious
practices. Justice McLachlin asserted that the test was whether there
was “risk of harm” to the child, but not necessarily actual
harm. In contrast, Justice Sopinka argued that the broader
Charter rights should be respected and so a parent’s right to restrict freedom
of religion should be limited to cases of “substantial harm.”
Although the test remains somewhat uncertain, courts have tended to follow
McLachlin’s “risk of harm” analysis. In cases where a parent
is said to have a “fanatical zeal,” such as a Jehovah’s
witness taking a child door-to-door, the courts may restrict certain activities,
but will not ban the parent from discussing religion with the child (Droit de la Famille 1150).
Thus, while Tom might not have the ability to send Suri to Scientology
school, it is unlikely that the courts will prevent him from continuing
to discuss Scientology with his daughter, or bringing her to Scientology
functions.