Child custody court case decisions typically are lengthy and complex, and deal with a multitude of legal issues. The following case summaries will generally include only those issues in which religion was a factor. Some summaries may omit issues relevant to the court's decision, but not relevant to the theme of this website.
BETTY JO GRECO v. VINCENT GRECO was a 1951-53 Ohio divorce and child custody case. It is not known when Vincent Greco and Betty Jo Colyer, both of Cincinnati, Ohio, married, but their son, Gary Lee Greco, was born in May 1950, when Vincent was 20 years-old and Betty Jo was 18 years-old. About the same time, Vincent Greco wound up in the United States Marine Corp, and was sent to fight in the Korean War, where he was promoted to the rank of Sergeant. Betty Jo Greco filed for divorce from Vincent while he was away at war. Betty J. Greco was such a fine mother that Gary L. Greco was placed in the custody of her parents, Jesse and Maude Colyer. However, after marrying a Jehovah's Witness Male named "Hamburger", of Williams Corner, Ohio, the two JWs succeeded in getting custody of Gary Greco, in May 1952. Not having enough to keep him busy, in November 1953, Sgt. Greco obtained "leave" and sought to have custody of his son restored to the Colyers, so that Gary Greco would not be subject to the anti-American WatchTower Cult beliefs and practices of Betty J. Hamburger and her JW Husband. Outcome unknown.
GRIESHABER v. GRIESHABER was a 1958 Missouri appellate court decision which stands as a testament to the tens of thousands of marriages that have been destroyed after Jehovah's Witnesses came door-knocking while the husband was at work. Although this specific case should be interpreted within the environmental context of the 1950s, there are thousands of divorces that occurred in the 1960s, 1970s, 1980s, and right up to 2011, whose names could be interchanged with the Grieshabers.
Elzie Grieshaber and Alice Mae Grieshaber were married in August 1948. While this was Elzie's first marriage, it was Alice Mae's third marriage, and she had two children from a prior marriage. Elzie owned a small farm about six miles outside Saint Genevieve, Missouri. The farm was about a mile off the main road, and the closest neighbor was about a half mile away. Alice Mae was used to living on a farm -- probably having been reared on such, and doing so during her first two marriages. Alice Mae was perfectly acquainted with Elzie and his farm before she agreed to marry Elzie. Alice Mae was a typical farm wife who raised a garden, and helped Elzie with raising the crops and feeding the animals.
In addition to caring for the farm, Elzie was a iron worker. Elzie regularly traveled to the greater St. Louis area to help erect steel frame buildings -- some as tall as 30 stories or more. This was dangerous, exhausting work that required Elzie to leave home around 4:30 AM and return around 6:30 PM. In addition to being a hard worker, Elzie was a moral, non-drinking man who took his family to the Methodist Church on Sundays. The couple soon had two children of their own, and in 1954, Elzie constructed a new home on the farm for his expanding family.
In 1955, several strangers stopped at the Grieshaber's farm, spoke to Alice Mae about the Bible, and either sold or left some Bible literature. Typically, they intentionally failed to identify themselves as "Jehovah's Witnesses". However, their identity quickly became known as those JWs repeatedly returned in their efforts to convert the naive farm wife. Alice Mae became the "backcall", and thereafter the "bible study" of Kenneth Smedstad and Dorothy Smedstad, and slowly but surely Alice Mae became a JW convert.
Knowing little about Jehovah's Witnesses, and the consequences of associating with them, Elzie initially was cordial with the Smedstads after they started to also visit when he was at home. Elzie even drove Alice Mae and the children to a few Sunday afternoon meetings at the closest Kingdom Hall of Jehovah's Witnesses. However, the true nature of the beast gradually displayed itself. Not only did Elzie gradually notice a change in his wife as she spent more and more time studying WatchTower materials, attending meetings, and pestering him about such, but one day while the Smedstads were visiting, one of the Grieshaber children accidentally kicked Kenneth Smedstad's leather briefcase. Smedstad blurted out, "I don't see why people don't make their kids mind, ... ." (This editor has personally experienced numerous similar instances over the decades of JW Elders sitting in my own home speaking down to me in a similar fashion. The only reason those JWs walked away unscathed was because I was a "true believer" at the time.) Being a smarter, stronger person than I, Elzie Grieshaber quickly told Kenneth Smedstad that he was not going to come into his home and tell him how to raise his children. The Smedstads got up and left. However, little did Elzie Grieshaber know, he had won the battle, but lost the war. (Interestingly, during the divorce hearing, Kenneth Smedstad testified that this incident never happened.)
Thereafter, the JWs had no further chance converting Elzie, but Elzie still did not fully understand the consequences of Alice Mae's conversion. While Elzie nagged Alice Mae about her conversion, he grudgingly drove her and the four children to the Kingdom Hall on Sunday afternoons, while the family ceased attending church on Sunday mornings. Elzie specifically told Alice Mae that he didn't want his own two children to join the JWs, because he wanted them to live a normal childhood at home and at school without all the burdens of the WatchTower religion.
Things came to a head in June 1956 when Alice Mae wanted to attend a weekend WatchTower Convention being held in Farmington, Missouri. Elzie told her that she could go, but that she could not take the two younger children. However, Alice Mae left with all four children when the Smedstads came to pick her up. That evening, when Elzie got home from work and discovered noone home, the enraged father went after his own two children. Arriving at the convention, Elzie finally located Alice Mae and the children. Elzie walked right up to her during the program and demanded his two children. When Alice Mae refused to allow him to take the youngest, he slapped her. The ironworker also challenged any of the watching JW Males to try to stop him. No one tried. When Elzie got home, he burned Alice Mae's WatchTower literature. Alice Mae spent that night with the Smedstads and attended the next day's convention program. The Grieshabers had it out that next night, but things calmed down thereafter.
At some point, Elzie had ordered the Smedstads to stay off his property, but the Smedstads continued to visit Alice Mae when Elzie was at work. However, one day in August 1956, the Smedstads made the mistake of coming to the farm on a day when Elzie did not have to work. Elzie grabbed Kenneth Smedstad by the shirt collar, shook him, and threatened to beat his arse. Alice Mae grabbed Elzie long enough for Smedstad to run to his car. Unbelievably, the Smedstads called to Alice Mae, and she left with them, before returning later in the day. Thereafter, Alice Mae would continue to meet with the Smedstads in their car out on the public roadway.
On September 5, 1956, the Smedstads helped Alice Mae and the four children leave the Grieshaber home. As has been done time and again, the Smedstads took Alice Mae and the four children to the home of other JWs who Elzie did not know. Elzie eventually learned their whereabouts through one of Alice Mae's ex-husbands -- the father of the two oldest children. Elzie tried to get Alice Mae to return home, but she refused. Shortly thereafter, Alice Mae filed a lawsuit for separate maintenance claiming "constructive abandonment" in that Elzie had made her life as his wife intolerable. Elzie responded with a cross suit for a divorce. After a trial, the trial court denied both actions, and Alice Mae appealed. In June 1958, the Missouri Court of Appeals affirmed the trial court's ruling, stating in part:
We are convinced that prior to plaintiff's affiliation with Jehovah's Witnesses the home life of plaintiff and defendant was serene and surrounded with the happiness described by the defendant. What we have to say in this opinion is not to be characterized as an objection by us to plaintiff's affiliation with her newly found religious group. She was free to follow her religious beliefs in any manner or with any group she pleased. This was the attitude of her husband. While he tried to dissuade her from attending the meetings of this group, he nevertheless took her to the meetings and this continued after the assembly incident and it seems until the separation. The evidence clearly demonstrates that the only real objection defendant had was the effort of plaintiff to raise the two children born of this marriage under the influence and teachings of the Jehovah's Witnesses. Defendant resented her efforts and the efforts of the Smedstads in this direction. In connection with the Smedstads it must be said that they knew and acknowledged in their testimony that defendant did not want them on the farm. Despite this knowledge they persisted in calling on the plaintiff. It is our thought that under the circumstances they should have been satisfied with plaintiff's presence at the meetings.
As to the slapping incident at the assembly meeting, defendant had told plaintiff not to take the two children, but she stubbornly followed her own desires. Defendant had as much to say as plaintiff about the religious training of the children. While we do not approve of the slapping of his wife, we do believe that plaintiff's action in taking them to the meeting and in squeezing the child in an attempt to keep it from the defendant provoked the slapping incident and that defendant's action under the circumstances was excusable. Nor was the occurrence of the following night of any consequence. Plaintiff said defendant did not strike her but merely raved, cursed and shook her. Defendant denied that he shook plaintiff and denied that he raved at or cursed her. We defer to the trial court's finding on this occurrence.
The Smedstads must have known they were causing an estrangement between this husband and wife, because they called at the farm in August with the knowledge that defendant did not want them on the farm. Their visit on this occasion precipitated the rather vigorous warning given to them by the defendant. However, the Smedstads were not to be discouraged for they continued to visit plaintiff on the road outside the farm and aided plaintiff in her departure from the home. We see nothing wrong in defendant's conduct on the occasion of the August incident at the farm. It was an effort, as he said, to keep someone else from taking over in his own home.
Non-JW readers should understand that not only have there been tens of thousands of "Grieshabers" over the decades, but that such is due to the fact that there have existed thousands of "Smedstads" over the decades. There is one local JW Elder that I have known only sporadically over the years, who has been an instigator in at least 5 divorces of which I know, and I have no doubt that if I wanted to update my info with local JWs, that number might very well be doubled.
"A few years ago the oldest boy, which is nine now, went to school, and when she had joined the Jehovah's Witnesses, she refused the boy the right to say the allegiance to the flag, and in turn that made him nervous, and we have taken him to doctors to find out what was the matter with him, and we found out there was nothing the matter with him, outside of a nervous condition, and then I found out that she went so far as to go down to school, and refused for the boy to say the allegiance to the flag, and then she kept the boy from playing in the yard, by making him read the literature, which took him around an hour and a half. ... That particular part there, was last summer, and she threatened to whip him, or if he didn't go to the meetings, she would put him to bed. Then they don't believe in voting. They don't believe in saluting the flag, and they don't believe in fighting, and they don't believe in hell, and they don't believe in the blood, and they don't believe in Thanksgiving, and they don't believe in Christmas, New Year's or any type of celebration."
"The basis of the objection, your Honor, is that this is not proper cross examination, and further, that this line of questioning is going into the merits of the particular religious sect and that in no place in the petition or notice filed herein is there any objection made so far as Mr. Bond is concerned as to her religion. In asking the Court to restrict - not to restrict - but to limit the use of this dwelling house for residential purposes only is not to restrict Mrs. Bond in any form whatsoever in her religion, and I believe that the testimony in the cross examination here is away off base and has nothing to do with the matters contained in the notice and petition and further, that it delves into the merits which I believe that none of us possibly should entertain at the present time. I object to that line of questioning."
"Q. How do you reconcile your position as not voting as a citizen of the government of which you are a member?
"A. Jesus didn't vote and he sets the example for us.
"Q. Is that one reason why you will not pledge allegiance to the flag?
"A. That is an act of worship to an image, saluting or pledging of allegiance."Q. Is that your interpretation of pledging allegiance to the flag, that you are worshipping the flag of the United States?
"A. Yes, sir.
"Q. And not acknowledging it as the symbol of the sovereign under which you live and breathe and have your being?
"A. Yes, sir, I know it is the symbol of the sovereign, but we owe our life to God and we breathe by God's grace and not by the laws of the lands.
"Q. Do you intend to bring [the children] up in that belief that you have just stated? "A. Yes, sir, I do."
"The Court upon consideration of the testimony and evidence submitted herein does find that the Plaintiff, Marjorie M. Bond, did, after said divorce decree was entered awarding to her the custody of the said children and exclusive use of said residence together with all the household goods and furnishings therein to be used as a home for Plaintiff and the said children, hold and permit others to hold meetings of Jehovah's Witnesses in said home, and designated said home as a regular meeting place of said Jehovah's Witnesses, and did while said meetings were being held require said infant children to be present and in attendance at said meetings, and that said meetings sometimes continued for periods as long as three hours during which periods the said children were required to be in attendance, and that said children ranged in ages from five to nine years and while many of said meetings were being held manifested displeasure, discomfort, and nervousness; that said children were instructed in some of said meetings by said Jehovah's Witnesses in the home set apart for the Plaintiff and said children not to pledge allegiance to the flag of the United States of America, not to vote in matters pertaining to Government and not to bear arms in defense of their country, even if it were being attacked by a foreign power seeking to destroy or subject same to capture and ruin, to which ruling of the Court the Plaintiff objects and excepts."Upon consideration of the testimony taken herein the Court is of the opinion and does decree that the holding of said meetings in said residence jointly owned by the parties hereto is detrimental to the best interests and welfare of the said three children, and that by reason thereof this Court does award the injunction prayed for, to which ruling of the Court the Plaintiff objects and excepts, and it is therefore adjudged, ordered and decreed that the plaintiff, Marjorie M. Bond, be and she is hereby enjoined, restrained, and prohibited from holding, or permitting others to hold meetings of Jehovah's Witnesses in the home owned jointly by the said Plaintiff and the said Defendant at 1809 Jefferson Avenue, in the City of Huntington, Cabell County, West Virginia, to which ruling of the Court the Plaintiff objects and excepts.
"It is further adjudged, ordered and decreed, that the defendant, William J. B. Bond, Jr., be and he is hereby granted the right of visitation with the said children on Saturday of each week from six o'clock P. M. to nine o'clock P. M., at said home owned jointly by the said Plaintiff and the said Defendant or elsewhere without the said Plaintiff being present during said time or times of visitation, to which ruling of the Court the Plaintiff objects and excepts. ... ...
"It is further adjudged, ordered and decreed that the issues joined by the parties in the pleadings found herein do not require a decision of the Court concerning the right or rights of the Plaintiff, Marjorie M. Bond, to worship as a Jehovah's Witness, to which ruling of the Court the Plaintiff objects and excepts.
"The husband now seeks to restrict or limit that custody. [Where did those fools get that? The only custody issue in this case was the time of Bond's visitation.] It is not shown that the children are being neglected in the usual sense; that they are abused or mistreated; or that they are subjected to any evil or immoral influence. While it appears that the home is used somewhat infrequently for small religious gatherings of Jehovah's Witnesses, it does not appear that such gatherings are characterized by loud noises, misconduct or any other sort of lack of decorum. Nor does it appear that the dwelling property is being defaced or abused. In essence, the husband displays a keen impatience with the tenets, teachings, beliefs and practices of Jehovah's Witnesses; he does not want his children reared in that religious faith; and, obviously, it is for this purpose that the defendant seeks to restrict the nature of the use the plaintiff and the infant children shall make of the home. [Did these fools stop to think that William Bond has the same constitutional rights and property rights as does his ex-wife?] ... ..."Plaintiff occupies the home in question, not only as a joint-owner thereof, but also by court order. She has a property right therein. It is her home, in which, by court order, she is charged with the responsibility of rearing, directing, training, instructing and caring for the infant children whose custody has been committed solemnly to her care. The use she is making of the home in instructing the children in the religious belief which makes the strongest appeal to her conscience is a normal use of a home. That home is her 'castle' in the sense that this Court has no constitutional right or authority to 'cross the threshold' in order to restrain her in the free but orderly and lawful exercise of her religious freedom. ..."For the reasons stated, this Court holds that the provisions of the decree of the Domestic Relations Court of Cabell County which are designed to restrict plaintiff in the use of her home in matters pertaining to her religious faith is in violation of the letter and spirit of Article III, Section 15 of the Constitution of West Virginia, and, for that reason, such provisions of the decree are void and unenforceable. [Again these Mountaineer judges are idiots. William Bond simply asked that the home he jointly owns, and pays for, not be used as a church. William Bond did not asked for anything that restricted his wife or children from exercising their own constitutional rights within the home.]
"During the fall of 1957, the petitioner joined a religious sect known as Jehovah's Witnesses. Largely as a result of the change in petitioner's religious faith, a clash developed between the parties which led to their ultimate separation. Respondent claims that the petitioner has been absorbed by activities in her newly embraced faith, attends meetings of the sect, and engages in work for it, as a result of which she has allegedly neglected the child.
"Respondent has also contended that one of the tenets of Jehovah's Witnesses bars blood transfusions, however essential such device may be deemed by medical experts. He has claimed that petitioner would not permit a blood transfusion for the child even though the child's life might be thereby saved, and further contends that the sect accepts the principle that the death of the child constitutes 'saving the child'.
"Petitioner, of course, enjoys her constitutional right to freedom of religion and may practice the religious faith of her choice without interference. She has not, however, the right to impose upon an innocent child the hazards to it flowing from her own religious convictions. The welfare of the child is paramount. If medical science requires a blood transfusion to preserve the child's life, the child should not be deprived of life because the mother's religious persuasion opposes such transfusion.
"The child has a right to survival and a chance to live and the court has a duty to extend its protecting arm to the child. It is of no concern to the court what religious preference the parents may elect. The best interests of the child are the primary concern in all custody conflicts and not the desires of either the mother or father. In this case, the father has demonstrated great interest in and affection for the child. He has previously had the custody of an infant son from a prior marriage, whom he has reared and who is now a college student. ... "
"Since plaintiff properly raised no constitutional question in the trial court and properly presented no such question in this court, we have neither reason nor excuse to accept the invitation of plaintiff's counsel to browse through the judicial pastures of other jurisdictions from California to New Hampshire for examination of cases involving the [Jehovah's] Witnesses and their doctrines. Nevertheless, with freedom of religion so basic to our way of life and so cherished by all free people, we would deem it a duty and count it a privilege to deal with plaintiff's purported point in the exercise of our discretionary power to consider 'plain errors affecting substantial rights' under Supreme Court Rule 3.27, if plaintiff's constitutional guaranties of freedom of religion had been denied by the judgment under review. However, we can discover no basis for plaintiff's charge that the decree nisi was based upon her religious beliefs and practices. On the contrary, the record shows that every objection of plaintiff's counsel to inquiries concerning those matters was sustained by the trial judge, who in some instances pointedly commented that such inquiries were not material or relevant. There was ample evidence to justify and support the award of custody of the two children to defendant, wholly disregarding plaintiff's religious beliefs and practices, and certainly our affirmation of the decree nisi, upon review de novo, is in no wise and to no extent predicated upon or influenced by any religious consideration. The simple truth is that there has been and is no constitutional question in this case.
"The tenor of plaintiff's argument on appeal is exemplified by these bold, sweeping affirmations in the opening paragraph:'There is not the slightest suggestion that [Agnes Ragan] was guilty of any immorality. The record nowhere even faintly suggests that she did not properly care for her children. The evidence shows that she was diligent in providing them with religious guidance. Nowhere can it be found in the record that she neglected her children.'On this false premise (asserted in the teeth of a record fairly bristling with testimony to the contrary), plaintiff contends that, while 'both parties were qualified' to have custody of the children, 'lack of proof of disqualification made mandatory the award to the mother.' But, sound and fury are sorry substitutes for fact and evidence, and plaintiff's counsel cannot, by his own bootstraps, lift himself and his client above the transcript here presented. Although our courts have said many times that, "all other things being equal," custody of a child of tender years should be awarded to the mother ... , the paramount and controlling consideration in every child custody case, to which all other principles and presumptions must yield, is the welfare of the child."In the homely language of the old adage, "the proof of the pudding is in the eating"; ... And, upon our independent and painstaking review of the entire record in the instant case ... with primary concern for the welfare of the children involved ..., we are convinced beyond peradventure of doubt that the judgment of the trial court, awarding custody of the two children to [Elmer Ragan], was justified and proper, finds ample support in the evidence, and should not be disturbed."
"15. The emotional and nervous instability and abnormalities of the Defendant Vena Irene Jackson are being and have been transmitted to the three children, and the same has had adverse effect upon the emotional development of the children and should not be continued."16. Plaintiff's home, as now constituted, is the best place for the children. Plaintiff's wife, by reason of training and experience, is especially fitted to aid in overcoming the emotional disturbances of the children, and a transfer of the children to the Plaintiff's home is necessary for their future welfare."18. Defendant, by reason of her nervous and emotional instability, cannot provide the children with as good home environment as the Plaintiff can at this time."
"9. In each interview the Court mentioned the question of military service. The older boy, Stephen, of the age of 9 years, used the answers of the other witnesses testifying as to the beliefs of the Jehovah's Witnesses, to the effect that the choice of military service was left up to the individual and he would make up his mind when he was eighteen years old, and at the time he was required to register."10. The boy James, of the age of 7 years, when asked the same question, stated that he would be a conscientious objector and when asked what would happen in such instance answered that he would have to go to prison, but that he preferred going to prison to being in the army. When asked why he had such preference he stated that he knew what the army would be like, but he did not know what prison was like, and he wanted to see what prison was like, just like `Gene Harvey' (a Jehovah Witness who served a term in the federal penitentiary for refusal to accept noncombatant labor service in lieu of induction). He stated that Gene Harvey served a term in prison, and that he wanted to be like Gene Harvey.""11. The five-year-old girl, when military service was mentioned, asked the Court if it was not wrong to kill, with which the Court agreed, and she then volunteered the statement that in the war men cut off women's breasts and carried them around in their pockets. When asked who told her that, she stated that it was Mrs. Planque. Mrs. Planque was a witness in the case on behalf of the defendant. She and her husband are Jehovah's Witnesses, and her husband, who also testified, was what they call a 'servant.'"12. The evidence disclosed that the defendant, during the two days hearing on this motion, stayed with the Planques."13. The defendant joined the Jehovah's Witnesses approximately 18 months ago, and since the original divorce hearing in February of 1953. She stated that she and the children had studied with the Planques and other Jehovah's Witnesses many times, and on an average of about two times a week."14. Pursuant to her faith as a Jehovah's Witness, Defendant does not teach the children to salute the flag. She will not teach them to accept military service when the two boys become of age when they are subject to Selective Service laws. The defendant, however, testifies she respects the flag, will stand at attention when the flag passes, but will not raise one hand in salute, or place her hand over her breast. The children will not have pressure placed upon them as to what their own decision will be when they become subject to military service. The Jehovah's Witnesses do not make gift exchanges at Christmas, under the belief that Christmas is a religious occasion not to be commercialized. Neither do they participate in Easter Egg hunts and similar modern day observances, on the ground that such observances are pagan in character. The children are taught these beliefs, but are permitted to make their own decisions as to whether they will participate in such celebrations. The family has gift exchanges on other dates not religious in character."
"1. Religious freedom, as guaranteed by our Constitutions, should be faithfully upheld, and religious teachings to the children by a parent or parents, regardless of how obnoxious the same might be to the Court, the other parent or the general public should not and must not be considered as basis of making child custody orders."2. The Court does not believe that affiliation with the Jehovah's Witness organization, of itself, disqualifies a person from having custody of children. Neither does the Court feel that such affiliation is a necessary qualification for such custody to the effect that other elements should be eliminated from consideration."3. It is the order of the Court that the Plaintiff should have the care, custody and control of the minor children, effective at the end of the school semester in January 1956. ...
In its conclusions of law, the district court apparently regarded the rule of religion in custody cases, but the findings of the court are so inconsistent with the rule that the record cannot be allowed to stand as it is. In this custody case, the record affirmatively shows religion was in it from beginning to end. The court may have had other good and sufficient reasons for changing custody, but they cannot be distinguished from those of religion. We must hold from the record that the court abused its discretion and that its order changing custody must be set aside.
"Q. How many hours during the day or week would she be absent from your home in connection with this religious matter?A. Three or four times a week from half a day to a full day. She stated that sometimes she had been over in Kansas recruiting members, other times here in town getting in her hours. Usually she went on Sunday evening, Tuesday evening and Friday evening. That was meeting night. She stated she went down there. Where she went I don't know but she was gone mostly every Sunday, Tuesday and Friday evening from 7:00 until almost midnight.
"Q. What about the children? A. When I was there I would keep them. ... I would take care of them when I was working the midnight to morning shift. When I was working 4:00 to 12:00 she took them with her ... .
"Q. And that continued for a number of years? A. That is right ... . When I was working 4:00 to 12:00 I didn't know where she went. She said she went to the hall ... . I drove past there several times and I saw her in the hall several times. ... Sometimes she missed and didn't go out but may be once or twice during the week, but she was pretty determined and she made it most of the time."
"While each divorce action based on alleged general indignities must be determined on its own facts, the courts have said repeatedly that indignities, such as to warrant the granting of a divorce, ordinarily must amount to a continuous course of conduct. A single act, or occasional acts, will not suffice. The acts relied upon must amount to a species of mental cruelty, and must evidence a course of conduct by one of the parties toward the other whereby the other's condition is rendered intolerable through acts of such character and frequency as to be subversive of the family relation. ..."In the case at bar there was a direct conflict in the testimony on almost every charge and countercharge. If plaintiff's evidence be accepted as true, he was entitled to a decree of divorce. Plaintiff's evidence, as a whole, was substantial. It disclosed a course of conduct on defendant's part extending over a period of about four years, the cumulative effect of which may well have rendered plaintiff's condition intolerable. It is our duty, of course, to review the whole record and reach our own conclusions in divorce cases, but where, as here, the decision depends largely upon the credibility of the witness, we must give due deference to the conclusions of the trial judge who saw and heard all of the witnesses, and we are not authorized to set aside the judgment unless clearly erroneous. ... Applying this rule, we defer to the conclusion of the trial court that plaintiff was the innocent and injured party and therefore entitled to a decree of divorce.
"We turn to defendant's contention that the court erred in awarding the custody of the parties' children to plaintiff. As stated, after the separation plaintiff took the younger boy, Stephen, to the home of plaintiff's parents and Stephen has been living there since that time. Plaintiff's mother testified that she was employed 'in the daytime' at 'Montgomery-Ward'; that her husband did not work and was at home 'all the time'; and that plaintiff always stayed at home with Stephen when he was not on duty. Plaintiff testified that he was living with his parents; that their home was a modern six-room house with three bedrooms, located a block and a half from Webster School; that if he were awarded the custody of the children they would be 'properly supervised and have all their care and affection, and one of us will be with them at all times'; that his mother had been taking Stephen to Sunday School at the Second Presbyterian Church; that his mother was a member of a church at Halleck, Missouri, and about ten miles from St. Joseph; that when he was a boy he attended services at a Presbyterian Church; that when he was in the Navy he attended church services every Sunday, and continued: 'I study the Bible but I haven't been attending church.' As we have seen, at the time of the trial, defendant, Gary and the parties' older son, Dennis Michael, were living in the home at 3738 South 11th Street. Defendant testified that if she were awarded the custody of the parties' children she would need money for their support, and that she 'could get a job very easy'. She did not say who would care for the children when she was working.
"Defendant insists that the best interests of a child of tender years requires that it be placed in the custody of its mother. Ordinarily, as between the father and mother, the mother will be awarded the custody of such a child unless it be shown that she is unfit to take charge of the child or that she cannot provide it with a suitable home. It is well settled, however, that 'the findings of the trial court in matters involving the custody of a minor child of divorced parents, while not binding upon the appellate court which must review the record for itself, are nevertheless not to be lightly disturbed, and will be deferred to unless the appellate court is firmly convinced that the welfare of the child requires some other disposition.' ... Under the record in this case, we cannot say that the trial court abused its discretion in awarding the custody of the children to plaintiff."
"During all the time Lee Salvaggio has had the custody of the child he has cared for her with kindness and attention, and has provided a home for the child and also has adequately provided for all her physical needs. Both Lee Salvaggio and his present wife are devoted to the child and have given it love and care. Lee Salvaggio has only the one child who lives with him and his wife in their own home separate and apart from that of Lee Salvaggio's parents. ...
"Lee Salvaggio is a fit and proper person to have the custody of his child except that he and his present wife, because of their belief that the Bible requires it, propose to teach Judy Suzzan Salvaggio that it is wrong to salute the American Flag, and that it is wrong to celebrate and exchange gifts at Christmas and that it is wrong to kill others even in defense of the United States. Lee Salvaggio did not formerly follow such beliefs and was in the late war during which time he was in several battles and saluted the flag. ... ..."The Court is of the opinion that conditions affecting the welfare of Judy Suzzan Slavaggio since the rendition of the decree of divorce have materially changed so that it is now to the best interests of said child that her natural mother, Betty James Barnett, should have the custody of said child. (The father of said child, Lee Salvaggio, should have the right to visit said child.) ... The changes of condition affecting the welfare of such child include the change in the financial circumstances of Betty James Barnett and her ability to provide a suitable home for her child. However, in arriving at its conclusions, the Court is primarily influenced by the proposed teachings of Lee Salvaggio and his present wife with reference to saluting the flag, fighting in defense of the United States and celebration of Christmas. The Court judicially knows that the overwhelming majority of other children in this state and in the community where Judy Suzzan Salvaggio will reside and go to school will be taught to salute the American Flag, to defend the country against enemies, and will exchange gifts and celebrate Christmas. The Court concludes that such fact would produce problems and conflicts adversely affecting the welfare of such child. Without in any way infringing upon the right of Lee Salvaggio and his present wife to interpret the Bible as they see fit, the Court is of the opinion that as between the natural parents of such child, the best interests of the child would be served by her being placed in the custody of the parent who will rear her in the normal atmosphere of an American home."
"1. That the court's order depriving appellant of the custody of his child is illegal in that the changed conditions relied upon by the court for ordering the change of the custody to appellee relate primarily to the adoption by appellant of certain religious beliefs disapproved of by the court as being harmful to the child.
"2. That the court's order is illegal in that it denies the father, having legal custody of his child, of the right to raise the child according to the tenets of his faith primarily because the court disapproves of the same as being bad for the child, contrary to the First and Fourteenth Amendments to the Constitution of the United States.
"In choosing between parents who are contending for the custody of the child, a magistrate has only such powers as the law has conferred upon him to determine whose custody would best promote the interest and welfare of the child. Under the American principle of separation of Church and State, the secular power is so shackled and restrained by our fundamental law that it is beyond the power of a court, in awarding the custody of the child, to prefer, as tending to promote the interest of the child or surround it with a more normal atmosphere, the religious views or teachings of either parent. ... It is in no way contended that appellant's religious teachings to his child would be immoral or illegal, but merely that they would be unpopular.
"However, insofar as the court's order giving the custody to the mother is based on his discretion that a mother's care and attention for a young female child is for that child's best interest, the court's order finds ample legal support. The court committed no reversible error, and the judgment is ordered affirmed."