1993_Child Custody Litigation When Religion Is A Factor.pdf

TABLE OF CONTENTS

...............................

INTRODUCTION

CHILD CUSTODY LITIGATION

RELIGION AS A FACTOR IN CHILD

CUSTODY AND VISITATION DISPUTES ............. 3

The Best Interests of the Child ..................... 3

Religion-A

WHEN RELIGION IS A FA( :TOR

Factor In Custody Disputes ............. 5

Factor In Visitation Rights Cases ......... 10

Religion-A

.......................

LITIGATION STRATEGIES

..................................

Settlement

......................

Exclude Religious Prejudice

.........................

Use of Expert Testimony

.................

I Mental Health Experts 19

2 . "Religious" Experts ................... 20

...................

Character Witnesses

......................

Impact of Extended Family

SAMPLE CROSS-EXAMINATION QUESTIONS THAT

THE WITNESSPARENTCOULDFACE .............. 23

...................................

Holidays

....................................

Religion

.....................................

Blood

................................

Governments 30

.....................................

Satan

................................

Armageddon 31

.....................................

Isohtion

.............................

Disfellowshipping

..................

Practices of Jehovah's Witnesses

..................................

Education

Corporal Punishment ..........................

NOVEMBER 1993

.............................

Practice Sessions

SAMPLE CROSS-EXAMINATION QUESTIONS

FOR NON- WITNESS PARENT ..................... 41

PREPARATION FOR PSYCHOLOGICAL

.... .............

OR PSYCHMTRIC EVALUATION

'".

....................................

APPENDIX

INTRODUCTION

This booklet is designed to help parents and their attorneys

prepare for litigation involving child custody and visitation

disputes. The overriding concern in every custody suit is the

welfare and best interests of the child. In deciding which par-

ent will better provide for a child's best interests, courts can

examine all aspects of the child's physical, emotional, and

spiritual welfare in either household. Thus religious practices

and teachings may be a subject of inquiry by opposing counsel

and the court.

Jehovah's Witnesses believe that "[all1 Scripture is inspired

of God ,and beneficial for teaching, for, reproving, for setting

things straight." (2 Timothy 3: 16) Jehovah's Witnesses there-

fore devote themselves to the study of God's Word, the Holy

Bible. (John 1 7:3; Matthew 4;4) From heir study of he BMe,

jehovah's Witnesses have learned that marriage and family life

are divinely instituted arrangements (Genesis 2: 22- 24; Genesis

1:27, 28; Matthew 19:9), and that children are blessings from

God. (Psalms I 27:3 - 5) Witness parents therefore seriously

heed the Bible counsel to provide for their children's physical,

emotional and spiritual needs. (1 Timothy 5:8; Deuteronomy

6:4-9) It is the goal of every reasonable Witness parent to

raise healthy, well-adjusted children who know and love their

Creator, Jehoyah God, and who observe his standards of hon-

esty, morality and righteousness.-Ephesians 6:4; 1 Timothy

3:15; 1 Corinthians 6:9, 10.

Disputes over child custody can be an ordeal. But with

careful preparation and full reliance on Jehovah God, success

is attainable-Psalm

43 : 1 ; 1 Peter 3:1 2.

RELIGION AS A FACTOR IN CHILD

CUSTODY AND VISITATION DISPUTES

While there are many divorced parents, there are no di-

vorced children. Dissolution of a marriage does not dissolve

the parent-child relationship. To the extent it is within the

court's power, a minor child's association with both of his

divorced parents should be as open and unrestricted as possi-

., .?

ble under the circumstances. Any court orders that needlessly

suppress the development or continuation of full and rich

association between parent and chiid do not serve the child's

best interests.

>3??

A brief overview of the law is provided to assist an attorney

ih preparing a defense. It is not designed to equip the non-

attorney with the knowledge necessary to conduct his or her

cuw#case.~tkedecieIorttu~~~isa~

matter, it should be understood that this overview is not a

substitute for competent legal representation.

The 'Best Interests of the Child

AN jurisdictionst look to the child's welfare and best inter-

Ala., Code § 30-3-1 (1989); Alaska Stat. § 25.20.060 (1991); Ariz.

Rev. Stat. Ann. 9 25.332 {Supp. 1992); Ark. Code Ann. S 9-13-203

(I 991); CaI. Civil Code 1 4608 (West Supp. 1993); Colo. Rev. Stat. 3 14-

10-124 (1987); Conn. Gen, Stat. Ann, 5 461s-56 (West 1986); Del. Code

Ann. tit. 13, 3 722 (Supp, 1990); D.C, Code Ann. 5 16-914 (1989); Fla.

Stat. Ann. § 61.13 (West Supp. 1993); Ga. Code Ann. $ 19-9-1 (Supp.

1992); Haw. Rev. Stat. 3 571-46 (Supp. 1992); Idaho Code 332-717

(Supp. 1992); Ill. Ann. Stat ch. 40, para. 602 (Smith-Hurd Supp. 2992);

Ind. Code Ann. $ 31-1-11.5-2'1 (Burns 1987); Iowa Code Ann, 5 598.41

(West Supp. 1992); Kan. Stat. Ann. 8 60- i 61Q(a) (3) (Supp. 1992); Ky.

Rev. Stat. Ann. 3 403.270 (MichieDobbs-MerriN f 984); La. Civ. Code

Ann. art. 131 (West Supp. 19931; Me. Rev. Stat. Ann. tit. 19, H 752(5)

(West Supp. 1992); Md. Code Ann., Family Law 5 9-204(a)(2) (1991);

ests as the paramount consideration in child custody cases.

While ensuring a child's best interests is ideally the objective in

every custody or visitation dispute, attaining that ideal is diffi-

cult. Assessing which factors promote or hinder a child's best

interests2 is a highly subjective task.

customs. While such cultural influences are not inherently

problematic, they may allow stereotypes to color which inter-

ests are considered "best" for a child when one parent has

embraced the values of a misunderstood and consequently

unpopular minority. Courts must be careful not to consciously

or unconsciously adopt some standardized "all American"

ideal as their guide to ensuring a child's best interests. As the

Supreme Court said in Meyer v. Nebraska, 262 U.S. 390, 402,

43 S. Ct. 625, 628 (19231, the state's desire "to foster a ho-

mogeneous people with American ideals" does not justify

interference with fundamental constitutional right^.^

Assumptions about which interests are "best" for a child

undoubtedly have been shaped by history and dominant social

Mass. Ann. Laws ch. 208, 3 31 (Law. Co-op, Supp. 1993) ; Mich. Comp,

Laws Ann. 4 722,23 (West Supp. 19913); Minn, Stat. Ann. 3 518,lJ (West

Supp, 1993); Miss. Code Ann. 5 93-5-24 {Supp, 1992); Mo, Ann, Stat.

$ 452.375 (Vernon Supp, 1992); Mont, Code Ann. 3 40-4-212 (1991);

Neb. Rev. Stat. 5 42-364 (Supp. 1992); Nev. Rev. Stat. Ann. 9 125,480

(Michie 19931; N.H. Rev. Stat. Ann. 4 458:17 (1992); N.J. Stat. Ann.

3 9:2-4 (West 1993); N.M. Stat. Ann. 3 40-4-9 (Michie 1989); N.Y.

Lk*. M. hf 290.tM~mm.

Religion-A

Factor In Custody Disputes

While state and federal constitutional provisions protect

free exercise of religion, freedom of speech and association,

parental autonomy, and freedom from state imposed religion,

it is generally accepted that the child's best interests is a state

interest of superior importance to the parent's constitutianally

protected rights. Therefore, although trial courts endeavor to

maintain a position of impartiality toward religious affiliation

and training, religion may become a factor which is properly

considered by the trial court.

!W3>;fi.C. GeA. Stat. $SG--:3.2

(1987); N.D, Cent. Code § 14-09-06.1 (1991); Ohio Rev. Code Ann, Q

3109.04 (Anderson Supp. 1992); Okia. Stat, Ann. tit. 43, 9 109 (West

1990); Or. Rev, Stat. 3 107.137 (1991); 23 Pa. Cons, Stat. Ann. 3 5301

(1991); R.1. Gen. Laws 5 15-14-2 (1988); S.C. Code Ann. 3 20-3-260

(Law. Co-op. 1985); S.D. Codified Laws Ann, 4 25-5-7.1 (1992); Tenn.

Code Ann. 5 36-6-101 (1991); Tex. Family Code Ann. 8 14.07 (West

Supp. 1993); Utah Code Ann. 8 30-3-10 (1989); Vt. Stat. Ann. tit. 15, §

665 (1989); Va. Code Ann. 3 20-107.2 (Michie Supp, 1992); Wash. Rev.

Code Ann. 3 26.09.184 (Supp. 1993); W. Va. Code $ 48-2-15 (Supp.

1992); Wis. Stat. Ann. 3 767,24 (West Supp. 1992); Wyo. Stat. 3 20-2-

I 13 (1 987). See generally 1 1. Atkinson, Modem Child Custody Practice 3

4.02 (1986); 2 J. McCahey, M. Kaufman, C. Kraut, D. Gaffner, M. Silver-

man & J, Zett, Child Custody & Visitation Law and Practice $ 10.02

(1989).

Religion is properly considered in a custody determination-

only when one parent establishes that exposure to the other

'parent's religion is harmful to the child. This harm is not some

distant ill-defined emotional or psychological harm, rather

As 8 402 of the Uniform Marriage and Divorce Act, 9A U.L.A. 628

(1 970), shows, the "best interests" of the chiid typically includes (but is

not limited to) : (a) the wishes of the child's parent or parents; (b) the

wishes of the child; (c) the interaction and interrelationship of the child

with his or her parent or parents, siblings, and any other person who may

significantly affect the child's best interest; (d) the child's adjustment to

home, school, and community; (e) the mental and physical health of all

individuals involved.

See also Moore v City of E. Cleveland, 43 1 U.S. 494, 506,97 S. Ct.

1932, 1939 (1 977) ("Constitution prevents [the s tatej from standardizing

its children-and its adults-by forcing all to live in certain narrowly

defined family patterns."); Pierce v. Society of the Sisters, 268 U.S. 510,

535, 45 S. Ct. 57 1. 573 (1925) ("The fundamental theory of liberty upon

which all governments in this Union repose excludes any general pawer of

the state to standardize its children . , , . The child is not the mere creature

of the state.")

there must be an affirmative showing that the child's welfare is

imminently and substantially threatened by exposure to the

parent's religious beliefs. Once the threshold evidence has

been presented that harm exists, one commentator summa-

rized the court's task as follows:

Clift, 346 So. 2d 429 (Ala. Civ. App.), cert. denied, 346 So.

2d 439 (Ala. 1977).

The need for clear and affirmative evidence that the threat-

ened danger is immediate and substantial is especially irnpor-

tant when the court is faced with allegations of religion-based

harm to a child's "normalcy." Without the prerequisite of clear

and affirmative evidence of immediate and substantial danger,

expert and non-expert predictions of psychological harm due

to a parent's 'abnormal' religious beliefs can easily result in

curtailment of a parent's fundamental freedoms.

In cases where threatened harm resulting from religious

beliefs is alleged, the court should make a factual finding

regarding the imminence and substantiality of the threat. If

the threat is imminent and substantial, the court may con-

sider those beliefs in making the custody award, However, if

there is an alternative less restrictive than depriving the par-

ent of custody, then the court must pursue that less restric-

tive infringement on the parent's constitutional rights,

Civil courts Iack the competence to judge the "normalcy"

or relative merits of different religions. As the United States

Supreme Court emphasized over 100 years ago, "The law

knows no heresy, and is committed to the support of no dog-

ma, the estabfishmenr of no sect.' Watson v. Jones, 80 U.S.

(13 Wall.) 679, 728 (1 872). "[R]eligious beliefs need not be

acceptable, logical, consistent, or comprehensible to others in

order to merit First Amendment protection." Thomas v. Re-

view Bd. of Indiana Employment Sec,, 450 U.S. 707, 714,

101 S, Ct. 1425, 1430 (1981).

Mangrum, Exclusive Reliance on Best Interest May Be Uncon-

stitutiowl: Religion as a Fuctor in Child Custody Cases, 1 5

Creighton L. Rev. 25, 7 1 (1 98 1) [hereinafter, Mangmm, Ex-

clusive Reliance on Best Interest]. The crucial need for clear

and convincing evidence of immediate and substantial harm as

opposed to evidence that amounts to nothing more than reli-

gious prejudice or speculation about some uncertain emotional

or psychological harm to the child has been recognized by

numerous courts that have considered this issue. See, e.g.,

Pater v. Pater, 588 N.E.2d 794 (Ohio 1992); LeDoux v.

LeDou, 452 N.W.2d 1 (Neb. 1990); Zumm v. Zmrno, 574

A.2d 1130 (Pa. Super. 1990); Khalsa v, Khalsa, 751 P.2d 715

(N.M. Ct. App.), cert. denied, 751 P.2d 700 (N.M. 1988);

Hanson v. Hanson, 404 N.W.2d 460 (N.D. 1987); In re Mur-

riage of Mentry, 190 Cal. Rptr. 843 (Ct. App. 1983); In re

Marriage of Hadem, 619 P.2d 374 (Wash. 1980); see also

Felton v. Felton, 418 N.E.2d 606 (Mass. 1981); Waites v.

Waites, 567 S.W.2d 326 (Mo. 1978); Johnson V. Johnsun, 564

P.2d 71 (Alaska 1977), cert, denied, 434 U.S. 1048 (1978);

but see In re Marriage of Short, 698 P. 2d 1310 (Colo. 1985) ;

Mowis v. Mowis, 4 12 A.2d 139 (Pa. Super. 1979); Clift v.

By what standard is a secular court to judge the essential

features of competing religions? The federal district court in

Bamette v. West Virginia State Board of Education, 47 F.

Supp. 251 (S.D. W. Va. 19421, affd, 319 U.S. 624, 63 S. Ct.

1178 (1943)) described the futility of such an undertaking:

Courts . , . have nothing to do with determining the reason-

ableness of [religious] belief. That is' necessarily a matter of

individual conscience. There is hatdly a group of religious

people to be found in the world who do not hold to beliefs

and regard practices as important which seem utterly foolish

and lacking in reason to others equally wise and religious;

and for the courts to attempt to distinguish between religious

beliefs or practices on the ground that they are reasonable or

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