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DIVORCE, BLOOD TRANSFUSIONS, AND
OTHER LEGAL ISSUES AFFECTING
CHILDREN OF JEHOVAH'S WITNESSES
There is no such thing as a "national child custody law". Although similar, each state's legislature has established its own state laws regarding child custody, and each state's courts interpret those laws using legal standards that may vary from that used by courts in other states.
As site visitors will quickly see from reading the following summaries, state courts apply one of the following three different legal standards when deciding these cases:
1. Actual Or Substantial Harm: Existing actual or substantial harm to the child must be proven to have been caused by a parent's religious practices before the court will restrict that parent's constitutional rights. Such states include California, Colorado, Florida, Idaho, Indiana, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont and Washington.
2. Risk Of Harm. For a court to restrict a parent's constitutional rights, it only has to be proven that that a parent's religious practices pose a risk of harm to the child. Such states include Minnesota, Montana, North Carolina and Pennsylvania.
3. No Harm Required. In only a few states, such as Arkansas and Wisconsin, a parent who has sole legal custody also has the exclusive right to determine the child's religious education.
Child custody court case decisions are typically lengthy and complex, and tyically deal with a multitude of legal issues. The following case summaries will generally include only with those issues in which the WatchTower/Jehovah's Witness religion was a factor. Some summaries may omit one or more issues relevant to the court's final decision(s), but not deemed relevant to the theme of this website.
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1995-1999 COURT DECISIONS
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This is an action for custody of a three and one-half year old child who has been residing with the maternal grandparents since the sudden death of the mother twelve days after giving birth to the child. This appeal requires us to determine the appropriate standard for deciding a custody dispute between a biological parent and a third party following the death of the custodial parent. Specifically, we must determine whether it was appropriate for the lower courts to consider the best interests of the child as the appropriate standard in awarding custody of a fit biological father's child to the deceased mother's parents. Approximately nineteen months after the mother's tragic death, the Chancery Division, Family Part, determined that it was in the child's best interest to award custody to the maternal grandparents. In a published opinion, a divided appellate panel affirmed. ... This appeal is before the Court as of right by reason of the dissent. We now reverse.
We hold that the courts below applied the improper standard to this custody dispute. Upon the death of the custodial parent, in an action for guardianship of a child pursuant to ... a presumption exists in favor of the surviving biological parent. That presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of ”exceptional circumstances,” but never by a simple application of the best interests test. Because that presumption in favor of the biological father has not been rebutted, and because of the need for finality to these proceedings, we direct the immediate transfer of custody to the biological father, plaintiff Lawrence Watkins. Consistent with the biological father's concession to this Court that the Nelsons should have visitation with the child, we direct the trial court to establish a visitation schedule for Beverly and Kevin Nelson, the maternal grandparents.
"It is well-settled that divorcing spouses have more flexibility in crafting their own property settlement agreements than do divorce courts. ... Parties may agree to provisions which a trial court could not order. ... A property settlement agreement which is merged and incorporated into a divorce decree is a binding contract. ... A trial court should not interfere with a property settlement agreement provision for child custody and support unless the agreement, even where less than ideal, is clearly against the best interests of the child. ..."Here, our review of the record reveals that, at the time of the dissolution, Julie anticipated conflict with Larry over Wesley's religious training because of Larry's previous involvement in the Jehovah's Witnesses. Because of her concern, Julie had some reservations about a joint custody arrangement. Therefore, she requested a provision in the property settlement agreement giving her the authority to determine the religious decisions as to Wesley. There is no evidence that Larry objected to the custodial provision providing Julie with the right to make the normal religious and medical decisions for the minor child. As a result, this provision was incorporated into the parties' final dissolution decree.
"Against the wishes of the mother, Larry subsequently began taking Wesley to Jehovah's Witnesses meetings and on door to door solicitations. The evidence is unrefuted that after attending such meetings, Wesley became very critical of his mother. Wesley also demonstrated confusion and distress about religion. Specifically, Julie's counsel explained as follows: "The child comes home saying things like, church is bad, and when mother tries to tell him that's not appropriate, that church is not a bad thing, he argues and appears to be very confused about these things." ... Wesley has also been having problems at school. Julie expressed her concerns to Larry, reminded him about the provision in their settlement agreement and asked him not to take their son to Jehovah's Witnesses meetings. Larry responded that the provision "didn't mean anything."
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"The trial court's findings that Robert's actions caused Theresa to feel depressed, frustrated, lost, abandoned, and hurt are supported by the evidence. Theresa testified that she felt abandoned by Robert and that his religion was like a 'mistress'. She felt like she and the children were living in a 'Gestapo' environment. Robert would tell Theresa that she would not live in paradise on earth if she was a nonbeliever and that she would 'just lay in the dirt'. Theresa claims she is no longer able to have a normal conversation with Robert, as he continually states he is there to teach her and the children. He is always quoting Bible verses to her. Theresa also became depressed and felt abandoned because Robert is no longer involved in their former family practices. His religion does not allow him to celebrate holidays and birthdays, or be concerned with other worldly things. This, she claims, has caused a severe rift in the family. She also is concerned over the effect this has had on their children. She specifically worries about some of his beliefs, i.e., he would never permit them to have a blood transfusion should it be necessary."Robert claims the United States Constitution and the South Dakota Constitution prevent his religious beliefs from being the basis of grounds for divorce. However, he mischaracterizes the trial court's decision. Robert's beliefs are not the basis of the extreme cruelty, his own actions are. As recognized in Pochop, religious backgrounds may be considered in looking at the marital relationship and whether extreme cruelty exists. ... As the trial court found, Robert has a right to his own beliefs, but he does not have the right to force those beliefs on Theresa. ..."It must also be stressed that this is not a situation where Robert was a Jehovah's Witness at the time of the marriage. It was the drastic change through Robert's conversion, coupled with his personal actions towards Theresa, that caused the extreme cruelty, not his religion itself.
... ..."... the trial court did not deny Robert any visitation on any holidays which he celebrates. Therefore, it cannot be said the trial court was favoring one religion over another.
"It is also important to note that the holidays considered under the visitation plan are not all religious holidays. Further, the ones that are religious also have significant secular meaning and, to the extent that Robert were to recognize a secular celebration of those holidays, he would also have visitation rights. Holidays are typically allocated in visitation arrangements because of parents' strong desires to celebrate the holidays with their children, and vice versa. Robert does not celebrate any holidays, so there is not that same need to be together with his children on those days.
"He has also been granted very liberal visitation, so there is no apparent favoring of Theresa and her religion over Robert's. The trial court specifically stated that it was offering no direction on what religious training to provide the children, and was leaving that decision ultimately up to both parents and the desires of the children. The visitation order in no way inhibits Robert's religion, nor does it advance Theresa's. Indeed, for purposes of the visitation order, the holidays specified are either secular or recognized for their secular aspects.
"This is not a situation where the trial court favored one religion over another. Robert is not being prevented from practicing his own religion, nor is he prevented from sharing his religion with his children. Granting holiday visitation to a parent, for secular purposes, does not run afoul of the constitution. ... In the present case, the visitation order merely accommodates the parent who celebrates the holiday. Robert has been granted liberal visitation, and not having custody of the children on a holiday he chooses not to celebrate does not infringe on any of his religious rights."
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1. Patricia Sue Baker Sanders has the primary right to determine the religious faith the children are exposed to, influenced by, and educated with.
2. Paul Baker is specifically prohibited from taking the children to any religious services conducted by the Jehovah's Witnesses. This prohibition shall also include any home bible studies conducted by him or any other member of that congregation. However, Paul Baker is not prohibited from discussing his religion with the children, if the children make legitimate inquiries about the same.
3. Paul Baker shall be prohibited from criticizing the Baptist religious faith and from attempting to undermine the children's religious training received from the custodial mother.
"Although individuals possess a Constitutional right to the freedom of religion, these rights can be overbalanced by interests of the highest order by the several states. ... The protection of its children is of the utmost importance to states. In visitation cases, the welfare and best interests of the child are the paramount considerations. ... Additionally, courts must also balance the rights of the parents whenever making decisions that will affect the parent/child relationship. However, when the parents remain at odds regarding the children's religious upbringing, the best interests of the child may require some limitations on the rights of either or both of the parents. ...
"In cases involving religious disputes between divorced parents, courts must maintain strict neutrality. ... This neutrality reflects the importance of both parents' religious beliefs. The law tolerates and even encourages, to a point, divorced parents to expose their children to their religious influences, even if divided in their faiths. ... Therefore, a court shall not prefer one parent's religion over another unless the children's health and well being are threatened by one of the parent's religious practices and beliefs. ...
"The majority of courts decline to interfere in religious disputes between divorced parents. However, courts can intervene when a non-custodial parent exposes his or her religious beliefs to minor children upon a clear and affirmative showing that these activities and expressions of belief are harmful to the children. ... The parent that moves to restrict the other parent's right to expose the children to a different religion shall bear the burden of showing clear and affirmative harm.
"The harm to the children resulting from exposure to their parents' conflicting religions must be demonstrated in detail and not simply surmised or assumed. ... A court should consider several factors to determine whether the children's welfare has been adversely affected. Corroborated testimony should be provided as to the children's general demeanor, attitude, health, school work, appetite, or outlook resulting from the alleged religious conflict. ... In support of the alleged harm resulting from the religious conflict, corroborating testimony should be heard from church, school, medical or psychiatric authorities, or any of the children's associates, whether in or out of school. ...
"... In the present case, two expert reports, one from a psychologist and the other from a licensed clinical social worker, were presented as
well as the testimony of several individuals, family, friends, a psychologist, and clergy, regarding the resulting affects from the children's exposure to Mr. Baker's religion. The Trial Court held that the conflict between the parents affected the children. Although the Court held that the testimony conflicted somewhat, it nonetheless reached the conclusion that the children were affected by the conflict resulting from exposure to Mr. Baker's religion. The Court based its holding on facts such as Amanda's stomach problems, changes in the children's attitudes, and difficulties in
disciplining the children. These facts are sufficient to support a clear and affirmative showing that the conflict resulting from exposure to Mr. Baker's religion is harmful to the children. We decline to require that the children of this state be harmed more than in the present case to satisfy the clear and affirmative harm standard.
"Upon a clear and affirmative finding of harm, a court can issue an order that limits the rights of parents to expose the minor children to their religious beliefs and practices. Courts should devise visitation orders, to the extent possible, that interferes with the parent/child relationship as little as possible. ... The Trial Court prohibited Mr. Baker from taking the children to any Jehovah's Witness religious services or home Bible studies.
However, we find that this order adequately protects the children while still allowing Mr. Baker the opportunity to introduce the children to his religion if the children show an interest. The provision allowing Mr. Baker to discuss his religion upon legitimate inquiries sufficiently protects Mr. Baker's freedom of religion under both the United States and Tennessee Constitutions.
"As also already noted, Mr. Tillett, an elder in the Jehovah's Witness religion, testified that the children did not have to be converted to the Jehovah's Witness religion for Mr. Baker to attain salvation. Therefore, Mr. Baker can fully practice his religion in a manner to attain salvation to the extent that he does so outside the presence of the children, unless the children make legitimate inquiries about the religion. The Trial Court's order only slightly impinges Mr. Baker's freedom to practice his religion under the United States and the Tennessee Constitutions. This limitation is more than substantially supported by the state's utmost interest in protecting children.
"While the Trial Court ordered Mr. Baker not to expose the minor children to the Jehovah's Witness religion, unless the children make legitimate inquiries, the Court did not specify the religion, if any, to which the children may be exposed. The Court only ordered that "[Ms.] Baker has the primary right to determine the religious faith the children are exposed to, influenced by, and educated with." By refusing to prefer a specific religion
over another, the Trial Court successfully evaded an entanglement between church and state...."The Trial Court does not mandate that the children be raised in the Baptist faith. Neither does the Court's order prevent the children from converting to the Jehovah's Witness faith if they so choose. The Court crafted its order only to remove the conflict in question and its resulting injury to the children. In fact, the Court wisely and specifically allows Mr. Baker the opportunity to share his religion with his children if they so inquire.
"We hold that the Trial Court properly crafted its visitation order. Ms. Baker can determine the minor children's religious training without violating their constitutional rights. However, children sometimes choose to follow a different religion than their parents. They must have the freedom to follow their religion of choice if different from either of their parents' religion. The Trial Court's order properly allows the children freedom to make religious decisions based upon their personal conscience while protecting the children from their parents' religious conflicts.
"Allowing the children the right to ask about their father's religion properly protects the children's First Amendment constitutional rights. The Trial Court's order properly protects the children from the religious dispute between the parents while allowing the children to make religious determinations for themselves.
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"Father, entrusted with primary residence, immediately and unilaterally modified the joint custodial agreement, by effectively changing it to his own sole custody. The judgment, incorporating their agreement, assured each of the parents that they would share educational and medical access and information. ... Father consistently denied mother a role in educational and medical issues from the date of dissolution. He did not disclose the childrens' educational appointments or activities. He did not share the names of their medical or dental practitioners, nor was mother informed of the dates or purposes of their medical or dental appointments. Since the date of the judgment, conflict over the upbringing of the children has increased. Mother has made some contribution to that conflict, but it has been father who has been the major factor in creating the increasing parental discord."
"The behaviors required by father's commitment to raise the children as Jehovah's Witnesses have been offered as a basis for denying father custody of the children. Such a denial would violate father's right to religious freedom under the First Amendment. It is a fundamental law of our land that a parent may not be deprived of a child's custody based upon religious beliefs. Our constitution forbids this court to evaluate the merits of father's religious practices. ... Further, the Jehovah's Witness religion, as practiced by father, is not a threat to the well being of the Mastropiero children. The children will be limited in some activities that may be seen as valuable in the social development of children. They will not celebrate birthdays or some widely observed holidays. They will not recite the pledge of allegiance nor salute the flag. They will not participate in many group extracurricular activities. They are less likely to attend four years of college. They will not be allowed blood transfusions. They will be expected to spend many hours calling door to door to present their Jehovah's Witness beliefs. But this court has been offered no expert testimony that these religiously based variations from communal norms threaten the childrens' best interests. Nor was any credible evidence presented to indicate that the children were accident prone or afflicted with health problems that were likely to necessitate blood transfusions ... ."
"Father has consistently and repeatedly refused to disclose the minor childrens' doctor and school appointments to their joint custodial mother. He refused to give mother the childrens' medical insurance cards until pressured by this court, making it impossible for their joint custodial mother to initiate medical care without father's specific approval. He placed lengthy and repeated telephone calls when the children vacationed with their mother. He challenged mother's authority with the children by arbitrarily scheduling religious activities for the children while they vacationed with her, thus interfering with mother's own scheduling choices. He altered the terms of the childrens' school medical releases, eliminating mother's joint custodial role."
Father is controlling. He has limited mother's participation as a joint custodial parent by limiting her decision making powers. When his judgment was questioned, he refused to discuss mother's contrary opinions. Plaintiff mother is less controlling. And more credible. Father was an evasive and argumentative witness who repeatedly chose replies that were adversarially advantageous or that masked his intentions with ambiguity. His testimony was not credible, particularly his representations that the children were free to make their own choices while under his roof.
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"Insofar as it affects the two children in appellant's custody, the court's legal custody provision is improper as a matter of law. Under Minn [law] 'custodian' may determine the religious training of the children unless their 'physical or emotional health is likely to be endangered' or 'emotional development [is] impaired.'
"The trial court did not make any finding of endangerment in this case, nor does the record permit such a finding. Under these circumstances, the
court could not limit appellant's freedom to direct the religious training of the two children in her custody. Accordingly, paragraph 24 of the trial court's judgment will be amended to confine to the three older children respondent's declared authority to direct the religious upbringing of the children."
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"... where the master found that defendant could prohibit plaintiff from taking the child to religious meetings, and stated that plaintiff was not free to share his religious beliefs with his child or indoctrinate the child in his religion if doing so interfered with defendant's right to determine the child's religious upbringing, this ruling was in error and was vacated, as there was no evidence the child, as opposed to defendant, was adversely affected or harmed by exposure to plaintiff's religious beliefs. Although the child was a 'little bit put aside' by the fact that his father didn't give him a birthday cake, this hardly justified the religious restrictions imposed. There was likewise no indication that the child's hygienic and behavioral problems stemmed from exposure to plaintiff's religion during periods of visitation...."A legal custodian is entitled to make the major decisions regarding the health, education and religious upbringing of a child. Although some States vest legal custodians with the exclusive right to choose the religion of the child, many States refuse to restrict the visitation rights of non-custodial parents absent a showing of harm to the child from exposure to a different religious environment. New Hampshire falls into this latter category...."Courts cannot enjoin non-custodial parents from exposing their children to their faith during visitation periods absent an affirmative showing of harm to the children from such exposure. Confusion or disorientation is insufficient, as is speculative harm, to justify infringement on the non-custodial parent's constitutional rights. Religious restrictions must be based upon an affirmative and specific finding, supported by substantial evidence, that the child's welfare is in fact jeopardized...."While [Bishop] testified that [Chandler] made derogatory comments to the child about her and members of her family, she did not testify that these derogatory statements extended to her religious practices. For his part, [Chandler] testified that he talks openly with his son about his religious beliefs and his feelings on the holidays celebrated by the [child's mother]. He insists that he honors [Bishop's] right to raise the child in her religion by instructing his son that he must observe holidays with his mother. (Give me a break!) The fact that [Chandler] told the child that Santa and the Easter bunny, secular manifestations of religious holidays, are nonexistent, and that God disapproves of Christmas trees, fails to demonstrate an affirmative design to demean the defendant's rituals in the eyes of their child. (Judges must be morons.) In short, it is insufficient to assume harm to the child from what some might consider to be [Chandler's] inappropriately blunt expressions of his religious beliefs.
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LATSHAW v. DAVIS was a 1997 Florida appellate court decision. Douglas A. Latshaw and Xxxx Davis had a daughter out of wedlock in 1994. Latshaw sought primary custody on the ground that Davis was a Jehovah's Witness. At trial, that court refused to permit two expert witnesses to testify on behalf of Latshaw. One of the witnesses, a former Jehovah's Witness and author of books about the WatchTower Society, had never spoken to or observed either the child or Davis. The court concluded that he was not qualified to testify as an expert. The other expert was a professional who had counseled the couple. However, Davis had not waived the confidentiality privilege attaching to her meetings with him. Thus, the court did not permit him to testify either.
Primary custody was granted to Davis. On appeal, Latshaw contended error in that the trial court did not allow his experts to testify. The District Court of Appeal held that: (1) failure of counsel to proffer evidence regarding nature of proposed testimony precluded appeal, and (2) in any event it was doubtful that testimony hostile to custodial parent's religion would have changed resulted, as custodial parent promised she would nor force her religion on child."
This appellate court affirmed, stating:
"The problem is that appellant's counsel made no proffer as to what the testimony of either of these witnesses would have been. It is therefore impossible for us to determine whether the court's rulings were erroneous, or if erroneous, whether they resulted in prejudicial error requiring a new trial. ...
"Although we have no alternative but to affirm, we do note that the mother testified that she was allowing the father as much visitation as he desired, as well as the celebration of his religious holidays with the child. She was not going to 'cram [her] religion down [her] baby's throat', and would permit the child to be exposed to both religions. She further testified that she would not shun her child if the child did not become a Jehovah's Witness, but rather would permit the child to make her own decision. Given her testimony, it is highly unlikely that the testimony of these two witnesses, who could only have testified about the general practices of the religion, would have affected the outcome here."
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"... it is clear that the beliefs and practices of the mother are burdened in the sense that an important benefit, full custody and parental training of her child, is limited by restrictions on her ability to include Chelsie in her religious practices, i.e., the custodial mother is prevented from including Chelsie in her door-to-door ministry, and she is prevented from taking Chelsie to regular adult religious services until the child reaches age 7. Thus, the Free Exercise Clause is clearly invoked in this case. ..."... a court may not restrict a parent's fundamental right to control the religious upbringing of a child absent a showing that particular religious practices pose an immediate and substantial threat to a child's temporal well-being. ..."There is no evidence in the record that the child ... was suffering from any tangible mental stress from attending the Jehovah's Witnesses services or participating in the door-to-door ministry. There is no evidence or even allegation of a threat of physical harm to the child caused by such activities. In fact, the mother testified that attendance and participation in the religious activities of both parents would be healthy for Chelsie and provide a basis for the child to determine which religion she would prefer when she reaches a sufficient age of understanding."
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We hold that the trial court erred by restricting Ward's conduct based on his sexual orientation. The evidence showed only that the children experienced difficulty adjusting after their parents' separation. But where the only harm is adjustment, the remedy is counseling, not restrictions on the parents' lifestyle in terms of sexual orientation. Accordingly, we reverse the restrictions.
"... the record indicates that the father provided the child with the structure that the child needed and a generally stable home environment during his visitation periods. Further, the father fostered the mother-son relationship. The mother, however, failed to promote stability in the home and the child's intellectual development to the same degree as the father, although she had primary custody. Moreover, the mother persistently interfered with the father's visitation rights by making unfounded allegations of child abuse against the father, by coaching the child to make false allegations of abuse, and by causing disruption to the child's visitation and vacation plans with his father. Interference with the relationship between a child and a noncustodial parent by the custodial parent is an act so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent. ...
"The mother contends that by awarding primary custody to the father, the trial court improperly interfered with her right to raise the child as a Jehovah's Witness. The courts may consider religion as one of the factors in determining the best interests of a child, but religion alone may not be the determinative factor. ... Although the mother was studying to become a Jehovah's Witness, neither she nor the child was baptized in that religion. Further, although the child was aware of the proscription of the Jehovah's Witnesses against celebrating Christmas and birthdays, he had not yet studied their religion. Thus, he had not developed any actual religious ties to the religion of the Jehovah's Witnesses. ... Moreover, there is no evidence in the record that, because the father permitted the child to choose whether he would participate in certain holiday or birthday celebrations, the child's well-being was threatened. Under these circumstances, the trial court did not improvidently exercise its discretion by declining to intrude on either parties' right to educate the child in their respective religions. ..."
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"William May's [Jehovah's Witness] religious views and Karen May's personal philosophy clash on every conceivable issue related to patenting the children. The stress attached to this conflict has adversely effected the ability of each party to co-operate on William May's visitation. ... Karen May believes that William May's religion requires William May to constantly proselytize [child] to William May's religion which would result in total alienation of [child] from his Mother."
"A party requesting a modification of custody must show both a substantial change in circumstances and that the modification of custody would be in the child's best interests. ... Although the decision of the trial court is regarded as persuasive, particularly regarding matters of credibility, we are not bound by the trial court's decision. ... Moreover, in this case, the trial court made no findings that one party was more credible than another; the court offered no explanation for its decision that father had failed to meet his burden of proof.
"A number of factors may constitute a change of circumstances sufficient to warrant a modification of custody. Among them are the instability of the custodial parent and the custodial parent's neglect of the child. ... Isolated instances of misconduct will not suffice. There must be proof that the custodial parent's actions were 'of a nature or number that reflect a course of conduct or pattern of inadequate care which has had or threatens to have a discernable adverse effect upon the child.' ...
"Based on our careful review of the record, we conclude that father has met his burden of proof. There has been a substantial change of circumstances since the entry of the original dissolution judgment, and it is now in the best interests of [child] to be in the custody of his father. Mother repeatedly consumed alcohol to the point of extreme intoxication at home, in front of the child and in public. Her drinking caused her to act in ways and to fail to act under circumstances that threatened the physical welfare of the child. She left [child] at home for extended periods of time while she went drinking. She failed to provide basic care for him, including clean clothes, regular meals and baths. She allowed [child] to live in squalid and unsanitary conditions for extended periods of time.
"Father, meanwhile, has remarried. His and his new wife's relationship with [child] is, in the child's own words, "excellent." Father has been steadily employed, cares for both children and provides for their basic needs. Although father's religion generally requires its adherents to refrain from contacting nonbelievers, father has testified that he will not allow that to interfere with visitation with mother, and father's conduct during the year following the dissolution bears that out. We do not agree with the trial court's apparent conclusion that father's religious views outweigh all other considerations in determining the best interests of the child. Under these facts, and considering father's express intention to allow mother reasonable and seasonable visitation with [child], we conclude that the best interests of [child] require a modification of custody from mother to father."
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GARRETT v. GARRETT was a 1995 Nebraska appellate decision. Larry Garrett and Jeanne Garrett were married on January 29, 1982. At the time of the divorce trial, Larry was 46 and Jeanne was 33. The couple had four children; ages 10, 8, 6, and 20 months. Larry Garrett filed the petition for divorce on March 23, 1993. He requested custody of the couple's minor children due to Jeanne Garrett's chronic depression, and the fact that she was rearing the children in her Jehovah's Witnesses religion.
On April 1, the court took legal custody of the children and placed them in the physical custody of Larry Garrett. On July 7, the court on its own motion requested an additional hearing regarding the temporary custody and temporary visitation issues. Based on a report from Dr. John Meidlinger, a certified clinical psychologist appointed by the court to conduct an independent evaluation and prepare recommendations for custody in the Garretts' case, the court ordered that the children should remain in the custody of the court, but that it would be in the best interests of the children to place them in temporary foster care, with visitation granted to each parent. On October 4, Jeanne Garrett filed a motion requesting that the children be removed from foster care and temporarily placed in Jeanne Garrett's physical custody. The district court received into evidence a new report from Dr. Meidlinger which indicated that foster care was no longer in the best interests of the children. On October 26, the district court issued an order wherein the court maintained custody over the children, with temporary physical custody of the children awarded to Jeanne Garrett; with weekend visitation rights granted to Larry Garrett.
The divorce trial was held on December 9 and 10, 1993. The main issue in question at the trial was custody of the children. Two psychologists, Dr. Fix and Dr. Meidlinger, had examined Larry, Jeanne, and the four minor children and were called as expert witnesses to testify as to each parent's qualifications for obtaining custody.
Dr. Meidlinger described Jeanne as having "significant problems," including the fact that she suffered from what appears to be chronic depression. He noted that she came from a dysfunctional family and tended to be angry, tense, bitter, rigid, and resentful. Dr. Meidlinger also stated that Jeanne tended to be rather distant and emotionless in her presentation. However, Dr. Meidlinger testified that Jeanne had made vast improvement since he first visited with her. He reported that Jeanne had consulted her physician and was currently taking antidepressant medication, as well as continuing her outpatient counseling. Additionally, Dr. Meidlinger was impressed that Jeanne returned to him voluntarily to seek further help and that they had discussed continuing counseling in the future. Dr. Meidlinger testified that Jeanne's energy level was increasing, that she was experiencing fewer symptoms of depression, and that she was more prepared to take on the responsibility of caring for her children.
Dr. Meidlinger testified that his first impression of Larry was that Larry was friendly, outgoing, and charming. However, the tests that Larry took indicated that he was trying to present himself in the best possible light, rather than being open and honest. Dr. Meidlinger reported that further counseling sessions revealed that Larry was attempting to polarize the children by talking about the divorce when he visited with them and repeatedly saying bad things about Jeanne. Dr. Meidlinger testified that because of this polarization, the children were not capable of making a mature, responsible choice regarding which parent they would rather live with. However, Dr. Meidlinger did note that the children generally stated that they preferred to live with their mother. Dr. Meidlinger indicated that Larry's actions in this regard showed that he was more concerned with himself and his winning the case than he was for the actual welfare of the children. Dr. Meidlinger determined that it would be in the best interests of the children to have custody granted to Jeanne.
After Dr. Meidlinger issued his report, Larry sought a second opinion from Dr. Fix. Dr. Fix tested and interviewed Larry, Jeanne, and the four minor children. He determined that Jeanne suffered from chronic depression, and that Jeanne might be subject to flareups of depression symptoms. Two of the children told Fix that they preferred to live with Larry. Dr. Fix determined that though neither Larry nor Jeanne was unfit, Larry would be in a better position to be a parent.
In addition to Dr. Fix, Larry called a number of witnesses to testify about the effect of Jeanne Garrett's WatchTower religion on the children, since Jeanne Garrett was also rearing the children as Jehovah's Witnesses. As such, the children were discouraged from participating in birthday celebrations and the Pledge of Allegiance at school. Larry Garrett's expert witness on the Jehovah's Witnesses gave many reasons as to his opinion that the Jehovah's Witnesses are a cult.
A teacher from the children's elementary school, Lois Dimmitt, testified that the children had trouble understanding why they are not allowed to participate in holiday, birthday, and patriotic activities; and that such made the children feel awkward. Larry testified that in addition to the restrictions on school activities, the children were discouraged from celebrating any holiday, with the exception of a Jehovah's Witness holiday, called the Memorial.
Jeanne Garrett testified that as a Jehovah's Witness, she would refuse to allow any of her children to receive a blood transfusion, even if the child's life was in peril and the transfusion was desperately needed. Jeanne testified that she would request that the physicians use alternative methods of treatment.
Both parties also presented testimony indicating that the other party inflicted excessive corporal punishment on the children in isolated instances. The record also reflected that the oldest child had refused to accompany her siblings on visitation trips to Larry's residence after temporary custody was awarded to Jeanne because that daughter felt that Larry did not care for the children as well as Jeanne did.
The district court determined that custody of the children should be awarded to Jeanne. The district court noted that Larry had attempted to show that Jeanne's religion adversely impacted the children, but held that no evidence was submitted to the court which would demonstrate that the mother's religious convictions or possible activity limitations would be detrimental to the proper development of the children's personality or well being, stating in part:
"The totality of the evidence reveals that each party has a psychological problem which could adversely affect and impact on the children. Mr. Garrett, through his behaviors in the instant matter, has confirmed Dr. Meidlinger's opinion that Mr. Garrett has attempted to be manipulative throughout these proceedings, has at times avoided frankness and candor, and has overly involved the children in the custody controversy. The evidence also reveals that Mr. Garrett has followed through on recommendations concerning counseling, but the evidence does not reveal that Mr. Garrett's approach to the custody issue and custody problems have been positively effected.
"Mrs. Garrett has and does suffer from chronic depression. The evidence reveals that the depression in the past and currently is controllable by medications and counseling. The records indicate that Mrs. Garrett has acknowledged her problem, has obtained suitable and proper medical assistance, and will continue in the future to participate in the necessary help programs to regulate her condition."
The Court of Appeals held that the trial record was devoid of any expert testimony indicating that mother's religious practices were imminently harmful to children or that mother's religious practices posed immediate and substantial threat to minor children's temporal well-being. Affirmed, stating in part:
"... The ultimate test in determining the appropriateness of an award of custody of minor children is reasonableness, as determined by the facts of each case, and the trial court's determination will be affirmed in the absence of an abuse of discretion. ...
...
"In determining a child's best interests under [Nebraska law], the court may consider factors such as general considerations of the moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between the child and the parents; the age, sex, and health of the child and the parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension, regardless of chronological age, and when such child's preference for custody is based in sound reason; and the general health, welfare, and social behavior of the child. ...
...
The free exercise clause of the first amendment to the U.S. Constitution forecloses governmental regulation of religious beliefs. ... Courts must preserve an attitude of impartiality between religions and may not disqualify a parent solely because of his or her religious beliefs. ...
..."... Courts have a duty to consider whether religious beliefs threaten the health and well-being of a child. ... Thus, when a court finds that particular religious practices pose an immediate and substantial threat to a child's temporal well- being, a court may fashion an order aimed at protecting the child from that threat. ... In so doing, a court must narrowly tailor its order so as to result in the least possible intrusion upon the constitutionally protected interests of the parent. ...
"Thus, in order for Jeanne's religion to constitute a ground for awarding custody to Larry, we must be able to determine from the record that the Jehovah's Witness religion as practiced by Jeanne constitutes an immediate and substantial threat to the minor children's temporal well-being. Courts from other jurisdictions that have dealt with this same issue have come down on both sides. ..."As evidence of an immediate and substantial threat to the minor children, Larry makes reference to the fact that even in the case of a medical emergency, Jeanne would refuse to consent to any of the children's receiving a blood transfusion. There is also testimony in the record from a teacher and the principal at the minor children's elementary school indicating that Jeanne's insistence that the children not participate in the celebration of any birthday or holiday, as well as the fact that they are not allowed to pledge allegiance to the flag, causes the children to feel confused and separated from the other children.
"The problem with Larry's argument is that the record is devoid of any expert testimony indicating that Jeanne's religious practices are imminently harmful to the children. The U.S. Constitution flatly prohibits any court from evaluating the merits of religious doctrine or defining the contents of that doctrine. ... While activities like celebrating birthdays and holidays, saying the Pledge of Allegiance, and participating in extracurricular activities are considered by most people to play an important role in the socialization of children, 'we need to separate the value judgments implicit in the so-called norm from any actual harm caused by these practices.' ... The record in the instant case contains no convincing evidence indicating that the limitations Jeanne places on the minor children's activities constitute a threat of immediate and substantial harm to the children. Therefore, we cannot say that Jeanne's actions in this regard negatively impact on her ability to be the custodial parent. ..."... Likewise, regarding Jeanne's refusal to consent to a blood transfusion for her children even in the event of an emergency, no evidence was presented showing that any of the minor children were prone to accidents or were plagued with any sort of affliction that might necessitate a blood transfusion in the near future. We cannot decide this case based on some hypothetical future accident or illness which might necessitate such treatment. ... Facts such as the statistical frequency of blood transfusions for normal children and the degree of risk involved in taking or refusing blood or chemical substitutes must be proved by proper evidence, like any other facts.
"Larry did not present sufficient evidence to convince us that Jeanne's religious practices pose an immediate and substantial threat to the minor children's temporal well-being, so we are constitutionally prohibited from probing into the substance of Jeanne's religious beliefs and interpreting them for ourselves.
**************
RECOMMENDED READING:
Jehovah's Witnesses and the Problem of Mental Illness
The Theocratic War Doctrine: Why Jehovah's Witnesses Lie In Court
Blood Transfusions: A History and Evaluation of the Religious, Biblical, and Medical Objections (Jehovah's Witnesses perspective)
FREE JEHOVAH'S WITNESSES CHILD CUSTODY DVD -- BATTLING OVER THE CHILDREN
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