A mom from upstate New York has been ordered to remove a rock painted with a Confederate flag from her driveway or risk losing custody of her mixed-race daughter.
Judges from the Appellate Division's Third Department in Albany said that the flag was 'a symbol inflaming the already strained relationship' between the girl's parents - even though it wasn't considered to be a source of tension during previous hearings in the long-running custody battle.
In a 5-0 decision released this week, judges also instructed the mother - identified only as Christie - on how to teach her elementary school-age child, who was born in 2014, about race.
'Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance,' the judges ruled in a judgment released Thursday.
They ruled the parents should continue to share custody, but if the rock has not been removed by June 1, it shall 'constitute a change in circumstances', and that 'the parents' custody agreement could be revisited'.
The girl's lawyer Jason Leifer told the New York Post the rock had not been a factor in the parent's disagreements, and it seemed as though the judges had pulled 'something out of a hat'.
The Confederate flag, long a symbol of racism and southern pride, was painted on a rock at the home of a mother involved in a custody battle
Despite not being raised as a source of tension in earlier hearings, appellate judges said the flag was 'a symbol inflaming the already strained relationship' between the girl's parents
Jason Leifer, the child's attorney, said the ruling would encourage parents to 'raise objections to many symbols and opinions held by the other party, including some that the majority of society does not find offensive'
Leifler, who represents many children in custody cases, said it was appropriate for the rock to be removed.
But he warned the ruling could encourage warring parents' to voice their political views in custody disputes - a move which would ultimately harm their children.
'I think parties will now raise objections to many symbols and opinions held by the other party, including some that the majority of society does not find offensive,' Leifer told the Albany Times-Union.
Leifer said he wasn't even sure if the mother had placed the rock there.
The parents have had joint legal custody of the girl, who was born in 2014 and attends school in the Dryden Central School District east of Ithaca, but have both been seeking to have her full time.
The father - referred to as Isaiah - wants sole custody, while the mother only wants him to have the daughter every other weekend.
The mother told a fact-finding hearing that 'she had a rock with a Confederate flag painted on it at her home,' Justice Stanley Pritzker, who authored the decision, said in the ruling.
'In response to questioning, the mother testified that she has never used any racial slurs in front of the child or at all,' the ruling said.
The father had raised the rock as part of a broader argument about why his home was more suitable for the girl to live in.
In its ruling, the appellate court then made the rock the central issue in the custody dispute.
'Although not addressed by Family Court or the attorney for the child, the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway,' Pritzker wrote.
'Further, and viewed pragmatically, the presence of the Confederate flag is a symbol inflaming the already strained relationship between the parties,' he continued.
'As such, while recognizing that the First Amendment protects the mother's right to display the flag if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.'
All of the remaining four Justices - John Egan, Sharon Aarons, Molly Reynolds Fitzgerald and John Colangelo - concurred.
During a ceremony outside the Mississippi State Capitol building in Jackson in July 2020, the flag was taken down for the final time and brought to a museum (File photo)
It is not yet clear how the order will be implemented in private spaces such as individual barracks rooms, desk drawers or lockers or whether such spaces will be exempt from the rules but it will be banned in all public and work areas on Navy bases, ships, aircraft, and submarines
Confederate flags have recently been banished from state houses, military bases and public spaces during the recent reckoning on race.
In July 2020, Mississippi's state flag was retired and brought to a museum after Republican Governor Tate Reeves signed a law stripping its official status.
The Confederate battle flag was removed from the South Carolina state capitol grounds in 2015 after the racist shooting of nine black churchgoers in the state's city of Charleston, by a 21-year-old who proudly displayed the rebel flag.