McNEIL v. McNEIL was a 2003 Pennsylvania court decision. Scattered, incomplete details. Donald McNeil, 18, and Deirdre Renee Culbreth, 18, both of Lancaster, Pennsylvania, were married in August 1999. According to Donald McNeil, Deirdre R. Culbreth had been reared as a Jehovah's Witness, but he had been reared as a "Christian".
Lisa Poole's objected to such, and also complained that David was taking Brian to Jehovah's Witness meetings during Lisa's physical placement times. At trial, Lisa testified that she felt Brian's involvement with the Witnesses was destructive and isolating, and that she would like to expose him to alternative religious viewpoints. She was particularly concerned that the Jehovah's Witnesses discouraged associating with "worldly people," i.e., non-Witnesses; discouraged extracurricular activities and education beyond high school; discouraged celebration of birthdays and holidays that Brian had previously enjoyed celebrating; and the JWs preached the imminent destruction of the world -- such that Brian began living in daily fear. Lisa's opinions were supported in part by the testimony of a "cults expert". The trial court permitted the expert to give his opinions as to why the Jehovah's Witnesses were a "potentially unsafe and destructive religious organization." In the course of giving its decision from the bench, however, the trial judge characterized the expert's testimony as "insulting", and stated that he "refused to write off Jehovah's Witnesses as a cult or even a dangerous organization."
The guardian ad litem testified that Brian had expressed the wish to participate in the Jehovah's Witness religion, but the guardian also questioned how voluntary that decision really was, given David Poole's pride in his emphasis on adherence to the WatchTower lifestyle, and given Brian's desire to please his father. The guardian ad litem recommended giving religious decision-making authority to Lisa Poole on the grounds that Brian should not face the pressure of changing religions and altering activities, and that Lisa would give him a broader religious perspective. The trial court ultimately agreed with the guardian ad litem that giving Lisa religious decision-making authority would be in Brian's best interest, citing concern that David appeared to measure Brian's development as a person solely on Brian's adherence to WatchTower teachings, and that Brian was so motivated to please his father that his supposed decision to follow WatchTower teachings was, in reality, not truly voluntary.
On appeal, the appellate court affirmed the lower court's ruling, stating in part:
"... Lange explicitly held that no showing of harm was required before a trial court could fashion restrictions to protect a sole custodial parent's right to chose the child's religion from proselytizing efforts from the non-custodial parent.
"When parents sharing joint legal custody are unable to agree as to a course of religious upbringing for their child, [Wisconsin state law] authorizes the trial court to grant sole authority to direct the child's religious training to one parent and to correspondingly restrict the other parent's religious decision-making, without a showing that the other parent's religious choices would be potentially harmful to the child.
"... There is ample evidence to support the trial court's determination that there was an 'irreconcilable conflict' between the parties on the issue of religion, such that joint decision-making was unworkable. It was therefore entirely appropriate for the trial court in this case to assign religious decision-making to one parent or the other. The trial court took great care to note that the Jehovah's Witness religion was a 'well regarded religious institution' whose practitioners' 'sincere and heartfelt' beliefs were entitled to respect. The trial court did not base its decision on a comparison between the merits of Brian's and Lisa's religious beliefs. Rather, the trial court considered such factors as 'Brian's relationship to his father and his relationship to the religion and Brian's age and his ability to make decisions for himself.' The trial court reasonably explained that it believed it would be in Brian's best interest to give religious decision-making authority to Lisa, due to the pressure Brian felt to please his father by participating in the Witness religion. Contrary to David's allegations, we are not persuaded that the trial court's decision was improperly based on a negative view of the Witness faith. ... ... ...
"David next contends that, even if an assignment of religious authority is permissible under the statutes without a finding of potential harm, the trial court's order violates his rights under the [Constitution]. Again, Lange contradicts David's claim. As the Lange court explained:
'... the free exercise of religion includes the right to profess one's faith, but it does not include the right to engage in religious conduct such as proselytizing, that runs afoul of an otherwise valid law ...
'Limiting [the non-custodial parent's] religious conduct is not the object of the visitation restriction. It is the incidental effect of securing [the custodial parent's] right under a valid law, the custody statute, to chose the children's religion.'
"... In other words, what is at issue here is not David's right to exercise his own religious beliefs, but his authority to direct the religious upbringing of his son. In accordance with Lange, we conclude that David's constitutional free exercise rights are not violated by an order which necessarily divides and assigns religious decision-making authority to one of two parents who cannot agree on a course of religious upbringing for their child. ... ...
"David also maintains that the custody modification order violates his rights to free speech and association, because it is not narrowly tailored to protect Lisa's right to direct Brian's religious upbringing. Specifically, he claims that Lisa 'offers no formal religious training or affiliation for Brian. So there is nothing for [David]'s religious exposure to contradict.' First of all, David's claim ignores Lisa's testimony that Brian refused to attend Unitarian services with Lisa after going to Witness meetings with his father. Thus, there was evidence in the record that David was impeding Lisa's ability to direct Brian's religious upbringing by encouraging Brian to follow only the Witness faith. Moreover, the fact that Lisa may have chosen a less formal or non-formal course of religious upbringing for Brian does not mean that her choice is somehow less protected.
"David makes similar claims that Brian's rights to religious freedom, free speech and freedom of association are violated by the custody modification order. He has not, however, provided any authority which persuades us that a minor has the right to exercise any of these constitutional rights in contravention of his or her parent's wishes. We are more convinced by the trial court's analogy to educational and medical decisions which a parent has the right to make on a child's behalf. In any event, the trial court clarified at a post-decision hearing that its order would not bar Brian from doing things like socializing with Witness friends, praying, reading Witness literature on his own or asking his Dad or grandparents about Witnesses, so long as not directed to do so by his father. We do not consider the order here any more restrictive to Brian's ability to form his own religious beliefs than that of any other child subject to his or her parents' direction."
John Hamilton and Phyllis Hamilton were given joint legal custody of the children, with primary physical custody in Phyllis. John was given visitation during Thanksgiving, winter holiday, spring break, and summer vacation. In addition, John was given "visitation rights if he is in Juneau, provided it is reasonable and does not interfere with pre-planned activities or school attendance, and may have the boys travel to visit him in Petersburg for up to five weekends during the school year, at his expense." The agreement also gave each parent the right to make decisions regarding day-to-day care and control of the children when the children are residing with that parent, but major decisions regarding education, medical care, and socialization were to be made jointly. John and Phyllis agreed to a "good faith requirement" to use their best efforts to comply with statements of principle relating to their parenting rights and responsibilities, including working together on providing a sound moral, socioeconomic, and educational environment for the children; promoting the relationship between the children and the other parent; and supporting the other parent's lifestyle in front of the children.
The two boys first attended Glacier Valley and later Harborview Elementary Schools in Juneau. After visiting the staff and teachers at Glacier Valley, John claimed that Phyllis called to scream at him about turning the teachers against her. Soon after, Phyllis transferred the boys to Harborview. John Hamilton claimed that the reason Phyllis gave for transferring the children was because he had turned the teachers against Phyllis and, as a result, Glacier Valley was a bad environment for the children. When John Hamilton tried to visit Harborview, he reported a very hostile attitude from the receptionist and office workers. He further reported that Phyllis had not listed him in the boys' paperwork on record at the schools. John had to pry information about Frank's and Ian's progress from three different school administrators.
Later, the custody investigator spoke with the boys' teachers at both schools, as well as both principals. The investigator's report states that Phyllis told the staff at Glacier Valley not to inform John about any concerns they may have regarding the boys, and that they were to deal with her only. Phyllis's response at trial was that the custody investigator and staff at Glacier Valley and Harborview were lying. The custody investigator also found that staff and teachers at Glacier Valley had difficulty working with Phyllis. They found her to be in denial about problems the boys were facing, and that she avoided dealing with concerns by blaming others.
While there was nothing mentioned in the custody agreement requiring the custodial parent (Phyllis) to share school information, John and Phyllis were to consult with one another on substantial questions relating to educational programs. They were also to exert "their best efforts to work cooperatively in future plans consistent with the best interests of the children ... ." The trial court later ruled that Phyllis had breached this part of their custody agreement.
In October 1999, John Hamilton filed a motion and memorandum to enforce visitation and for sanctions against Phyllis Hamilton. John claimed that Phyllis had twice violated the child custody agreement by not allowing him to visit the boys when he was in Juneau on business. In his affidavit, John stated that Phyllis had hung up on him when he had called to arrange visitation for times he would be in Juneau on business. Phyllis did call him back soon afterward but no plans for visitation were agreed to. He then wrote a formal letter and had it served on her at work by a process server. When no plans were reached, John went to the Juneau Police Department, and filed a custodial interference report, and had an officer accompany him to her house.
Phyllis requested a continuance from the court to respond to John's motion. Phyllis thereafter move out-of-state with the children to Tacoma, Washington. The trial court later ruled that her move from Juneau was for the purpose of thwarting John's access to the children. Judge Thompson's order stated that Phyllis's move was "the final straw", and he ruled that Phyllis had absconded from Juneau to Tacoma, Washington with the children without any notice whatever to John. The judge noted: "Defendant's testimony that this move was simply a visit which she later determined to become permanent, and/or that it was done on the spur of the moment is frankly incredible." As further proof, Judge Thompson mentioned that within hours of leaving her job, Phyllis had loaded two automobiles on the barge for Washington. Judge Thompson found that Phyllis had thought of the move in advance and did not inform John of her plans. John affirmed that he was not told of the impending move to Washington. He also stated that Ian had told him that their belongings were on the barge south when John first spoke with Ian after his arrival in Washington. In one of her affidavits, Phyllis stated that when she, Francis, and Ian left the Juneau apartment for the final time, just prior to leaving for Washington, the apartment was empty of their belongings. She also stated that when she spoke to John after arriving in Washington, she wasn't sure where in Tacoma she was going to live. Phyllis told the trial court that the day she quit her job she put two cars, loaded with her belongings, on a barge headed for Tacoma. Additionally, the custody investigator reported that Harborview's principal indicated that the boys were aware of the move a couple of weeks prior to their departure. Principal Dye stated that Ian let it slip in school but said he wasn't supposed to tell anyone.
On appeal, Phyllis argued, in part, that the move to Tacoma was due to the need for "family support" (Phyllis evidently was originally from Tacoma), plus the boys "cultural needs" would best be met in Tacoma, where her bi-racial children would be exposed to the African-American culture through their schooling and her African-American family.
The trial court issued the order granting John's motion to modify custody in July 2000. Judge Thompson stated that the factor regarding "the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent" was the most important factor in reaching his decision. Phyllis and John continue to share legal custody, but primary physical custody was switched from Phyllis to John. Phyllis was given liberal visitation during summer vacation, on alternating winter holiday and spring break vacations, etc. Phyllis appealed. The Supreme Court affirmed, stating in part:
"Phyllis has raised the boys as Jehovah's Witnesses since 1995. John has expressed a great deal of hostility towards this religion and the effect it is having on the boys. He has expressed a desire to allow the boys to make up their own minds as to religion when they are old enough to fully understand it. Despite his past hostility towards Phyllis's choice of religious beliefs, John stated during his testimony that he would not stand in the children's way if they choose to practice Phyllis's religion. He expressed a tolerance for the children's reading, study, and discussion of the religion with people who are knowledgeable and interested in it.
"Phyllis claims that the trial court did not account for John's intolerance toward the boys' religious beliefs as Jehovah's Witnesses. She claims that placing the children, especially Francis who has begun to internalize a religious belief system, into a home where such beliefs are not respected is a factor the trial court should have given more consideration.
"Although a court may not rely on the religious affiliations of the parties in making a best interests determination, the religious needs of a child are a factor the court can consider. The court must make a finding that the child has actual religious needs and that one parent can better satisfy those needs. In deciding actual religious needs, we determine whether a child is "mature enough to make a choice between a form of religion or the lack of it." In Bonjour v. Bonjour, while noting that the maturity of a minor will vary from case to case, we commented favorably on one court's holding that "children aged three, five, and seven are not of sufficient maturity to form an intelligent opinion on so complex a subject as religion or their needs with respect to it." In that case we went on to consider the kinds of determinations a trial court may need to make when a fifteen-year old child has developed either strong religious or anti-religious beliefs. As Francis and Ian are nine and seven, respectively, they are not yet mature enough to make a choice between a form of religion or the lack of it.
"In spite of John's admitted instances of previous intolerance, Judge Thompson found his tolerance expressed at trial to be believable. As such, the court found that the religious aspects of the first two factors in determining the best interests of the children favored neither John nor Phyllis. Because the children lacked the maturity needed to present an actual religious belief, the trial court was not required to give further consideration to the boys' religious needs beyond its belief in John's tolerance. Furthermore, the trial court expressly stated in the order that should John's tolerance wane and should he begin to 'affirmatively attempt to ridicule or undermine [Phyllis's] religious beliefs to the children, this factor could become more important.' ... ... ...
"We perceive no error pertaining to the children's cultural needs. As noted, the trial court did not explicitly consider the cultural needs of the boys because there was no evidence presented to the trial court upon which such a determination could be made. And Phyllis will have custody of the boys during the three month summer vacation as well as other various school vacations, ... . The trial court knew that John was aware of the possible problem. Finally, the boys were being placed into a multiracial home [Footnote: John's girlfriend, Jennifer Valentine, is Vietnamese and has a son, James, whose ethnicity and race do not appear in the record. As the children will be living in a home with John, Jennifer, and James, they will be exposed to a variety of cultures and races. Rather than not seeing anyone who looks like them, as Phyllis fears, they will see a home where no one looks the same as anyone else.] All of these circumstances lead us to conclude that the trial court did not abuse its discretion in not explicitly addressing the children's cultural needs.
WILLIS v. WILLIS was a 2002 Ohio appellate court decision. Although the published decision did not specifically state that Chris Willis was a Jehovah's Witness, or studying to become a member, there are hints throughout which seem to indicate that such is a good possibility. It is becoming more and more frequent that some judges are refusing to identify Jehovah's Witnesses as Jehovah's Witnesses in published decisions. Whatever was Rhonda Willis's connection to the Jehovah's Witnesses, if any, is uncertain.
Chris Willis and Rhonda Stegner Willis were divorced for the second time in March 1998. They had three minor children. Under the parties' shared parenting agreement, Rhonda was named residential parent for school purposes and Chris was granted "Schedule B" visitation, with an additional Sunday per month from 4:00 to 8:00 p.m. Except on a few occasions, Chris had not exercised his extra Sunday visitation.
Between August 2000 and January 2001, both parties filed several motions. In particular, Rhonda filed motions to find Chris in contempt for failing to pay his portion of the children's uncovered medical bills and for failing to comply with his "Schedule B" visitation. Rhonda also filed a motion to modify and/or restrict Chris' visitation and a request that he undergo psychological counseling. In turn, Chris filed motions to find Rhonda in contempt for failing to comply with his "Schedule B" visitation and for failing to keep him informed of the children's medical needs and extracurricular activities. Chris also filed a motion to increase his visitation. The parties and all three children were subsequently evaluated at the Children's Diagnostic Center, Inc. A hearing on the parties' motions and a report from the CDC revealed the following facts:
Rhonda Willis lived in Richmond, Indiana, and was engaged to Michael Simmons, since January 2001. Chris Willis lived in Middletown, Ohio, and was not involved in a relationship. In fact, Chris still considered himself biblically married to Rhonda and continued to wear his wedding band. Chris has told his children as well as Michael Simmons that he is still biblically married to Rhonda even though he is no longer married to her legally. Chris has referred to Simmons as the "imposter" and once asked the children to refer to Simmons as such. On two occasions, Chris told Simmons that he wanted to set up an appointment with Simmons, Simmons' minister, and himself so they could discuss Simmons' relationship with Rhonda. Chris testified that Simmons' presence imposes on Chris' relationship with Rhonda, preventing any possible reconciliation.
When the children are with their father, they regularly attend church on Sundays and engage in extensive bible study. Part of the bible study concerns passages in the bible about adultery. Although he denies calling Rhonda an adulteress, Chris had on many occasions told the children that if Rhonda and Simmons were having sex, they would be committing adultery. Chris has also told Ciara, his then ten-year-old daughter, that he does not want her to be an adulteress. Chris believes it is his right to discuss such issues with the children. Chris does not believe that such discussion affects the children. Chris denied calling Rhonda a "slut" or a "whore." He admitted, however, telling the children that their mother is not appropriately dressed and asking them "what they thought about what kind of wife she [had] been to [him]" since the divorce. Chris testified that the children were very close to their mother and that Rhonda was a good mother.
Rhonda testified that Chris could accept their 1998 divorce; that he was very bitter; and that he was taking the hostility out on the children. Rhonda also testified that Chris was a good man who loved his children. Rhonda testified that the children loved their father, but that they were fearful of him and that they did not like some of the things he did and said. Rhonda testified that the children often act up, start to cry, or work themselves into physical illness, especially Ciara, at the thought of going to visit their father. Rhonda stated that she often has to stop the car when driving to Chris' house to hug the children and to reassure them that everything will be all right. Rhonda testified that upon returning from Chris' house, the children are very upset, very clingy, and in need of attention. While she believes Chris' visitation with the children should be supervised, Rhonda does not want to take Chris' parental rights away.
Chris testified that when the children are dropped off at his house, they were happy to see him and hugged him. Chris stated that the children loved him and that they did not seem to be afraid of him. Rather, Chris believes the children are brainwashed by Rhonda who is consistently trying to drive a wedge between the children and him. Chris does not believe he has a problem with Ciara and describes their relationship as normal. Chris described his relationships with Cody and Chloe as good and very good respectively. Chris admits he is not a perfect parent, that he has shortcomings, and that he could be more patient with and more encouraging to the children. Chris testified he would refuse to participate in any court-ordered or voluntary counseling, including family counseling, because he does not need it.
Two fellow churchgoers testified on behalf of Chris. They both testified that they never saw the children afraid of their father. One churchgoer stated that he had never observed Chris hit his children, or be mean or harsh to them. The other churchgoer observed signs of affection between the children and their father such as kissing and holding hands. Beverly Willis, Chris' mother, testified that Chris is a stern but very good father who is doing an exceptional job with the children. Willis testified that Ciara has commented, at times, about being in the middle of her parents' dispute. Beverly Willis stated that neither Ciara nor Chris need counseling. Remarkably, despite the parties' animosity, visitation has continued in substantial compliance with the shared parenting agreement.
During the hearing, upon questioning by the children's guardian ad litem, Chris also testified about the following incident which took place at his house: upon receiving his copy of the CDC report, Chris became upset about some of the children's allegations about him. Chris admitted that when the children walked in the front door for their weekend visitation with him, he started videotaping them, especially Ciara, asking them to recant some of the statements that were in the CDC report. Chris testified that he was feeling falsely accused, and that videotaping the children was the only way to defend himself. Chris stated that videotaping the children and asking them to recant had no more of a negative impact on the children than someone else talking to them about it. Chris agreed, however, that the video camera could have a negative effect. Chris also testified that it was not inappropriate for him to discuss the false allegations in the CDC report with the children. Doing so did not put the children on the spot any "more than the psychologist puts them on the spot."
During the hearing, the children's guardian ad litem testified and was cross-examined by counsel for both parties. Upon order of the magistrate, her testimony was subsequently sealed. The day after the hearing, the magistrate interviewed the children in camera. By decision filed April 13, 2001, the magistrate granted Rhonda's contempt motion regarding the children's unpaid medical expenses, granted Chris' contempt motion against Rhonda for failure to keep him informed of the children's extracurricular activities, denied both parties' contempt motion for failing to comply with the Schedule B visitation, and denied Chris' motion to increase his visitation. The magistrate also restricted Chris' visitation such that all visitation "must be supervised by his parents, with their presence in Mr. Willis' home or within their home, at all times. ... Mr. Willis is required to contact Dr. Walters [of the CDC] for a recommendation for family counseling for himself and for his children. He is to follow through with any recommendations of Dr. Walters. ... If Mr. Willis refuses to follow the recommendation of Dr. Walters and to participate in counseling, ... I recommend that his visitation rights be suspended until further order of the court."
Chris Willis filed objections to the magistrate's decision. By entry filed August 9, 2001, the trial court overruled Chris' objections and affirmed the magistrate's decision. On appeal, Chris raised four assignments of error. In part, the decision states:
"THE TRIAL COURT ERRED IN AFFIRMING THE MAGISTRATE'S DECISION AS THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. ... ...
"... the parties and all three children were evaluated at CDC. All five persons were interviewed separately and each parent was observed with the children. The CDC report states in relevant part that:
'Mr. Willis believes that Rhonda Stegner is harassing him. He believes that his strengths as a parent have to do with his stability, his ability to set a good example for his children, his love for his children and his attempts to provide activities for them. His weaknesses are that he's sometimes not as patient as he should. He believes he should be more encouraging and has '"said things about their mother I shouldn't."'
'While [Mr. Willis'] approach to the test suggest some defensiveness and difficulties looking within himself, this didn't invalidate the test results. Yet, such an approach indicates a tendency to attribute blame and responsibility onto others with little appreciation for the role that he might play in problematic areas in his life. Mr. Willis identifies his primary difficulties as a parent as impatience, and lack [of] encouragement. His strong belief system might not allow him to be as flexible with three different children who might need to have the expectations for them adapted according to their needs, interests, social skills, and cognitive ability. While Mr. Willis verbalizes some recognition of this, he attributes most of the difficulties in his relationships with his children to others (i.e., Ms. Stegner and her mother). His children consistently described him as critical, angry, and punishing. While attempting to communicate important family values, he also has to be able to nurture independence, and reward successes as well as make his children aware of their mistakes, and enhance feelings of self-esteem.
'Chris Willis was observed with all three of his children. For the most part, the interaction could be best described as all three children engaged in separate, parallel play with Mr. Willis engaging in conversation with each about issues in their lives. The most animated of the three and the one who sought out the greatest contact with father was Chloe. She appeared most comfortable with her father. Ciara appeared the least comfortable although it's not clear to what extent this was affected by her physical health [she was ill that day] as opposed to emotional distance from her father.
'Ms. Stegner presents as highly invested in the welfare of her children and expresses concerns about their anxiety and apparent fear of their father. Certainly, the interviews with the children as well as observed interactions at [CDC] seem to support her report. As such, she appears to be in touch with her children's feelings. For the most part, the children appeared comfortable with their mother and appeared to enjoy her attention."'
"With regard to Ciara, the CDC report noted that "Ciara also describes being placed in the middle of her parents' conflict by her father and adds that she 'don't feel good about it.' While she admits that she loves 'my mom and dad,' she doesn't like much of her father's behavior. Unfortunately, Ciara feels that it's 'all my fault my dad is mean,' and she has begun to internalize father's criticism as a sign of her defectiveness.'
"The CDC report concluded in relevant part that 'the most consistent comment by all three children is their perception of their mother as warm and nurturing and father as critical and punishing.' Mr. Willis has no insight into his social stimulus value and his relationship with his children. He has little awareness of the impact that his anger has on their feelings for him, and his criticism has (at least in the case of Ciara) begun to affect her self-esteem, resulting in internalized feelings of defectiveness (i.e., that she's been the cause of father's anger and meanness). Ciara is a bright, capable, and well-behaved youngster who does well in school. She should feel good about herself and her accomplishments, not doubting herself.
"Mr. Willis attributes his difficulties in his relationships with his children to his ex-wife and ex-mother-in-law rather than accepting responsibility for his behavior and recognizing the need to change his parenting style. Parents must tell children what behavior needs to be changed without communicating that they're inherently bad or defective. Mr. Willis would benefit from treatment that would assist him in looking within himself, separating his own anger at his ex-wife from his behavior and toward treatment of his children. He needs to achieve a better balance between setting limits and communicating his value system while not demeaning his children and damaging self-esteem. His own anger and difficulty accepting the divorce needs to be parental business, and the children don't need to be drawn into a situation in which they must choose between one parent or the other. It would appear to be in the best interest of the children to have Mr. Willis participate in parent training in order to ensure the emotional safety and welfare of [the children].
"Upon hearing the parties' testimony and the guardian ad litem's testimony, reviewing the CDC report, and interviewing the children in camera, the magistrate found that 'Mr. Willis' own testimony confirms [part of the CDC report]; Mr. Willis expressed little or no concern about his discussion of sex in relation to bible studies and his repeatedly calling the mother of his children an adulteress. He has little or no appreciation or understanding as how this impacts his children based on their respective 'needs, interests, social skills and cognitive ability.' [With regard to the videotaping incident], once again, Mr. Willis had little or no comprehension or understanding that he had done anything that might be harmful to his children. Rather, he felt it was his right 'to set the record straight' and require the children to recant these statements. Mr. Willis refuses to participate in any counseling or evaluation, nor does he wish to participate in any family counseling. The Guardian Ad Litem strongly recommended some family counseling for Mr. Willis, with an introduction of the children into the counseling process.
"The magistrate also found that 'it was clear from the testimony and through my in camera interviews that the person who is primarily being affected by the actions of Mr. Willis and the conflict of their parents is Ciara. I ordinarily do not refer to anything said during an in camera interview. I believe, in this case, it is necessary to refer to [the fact that] all three children believe that Mr. Willis is unfairly critical of Ciara.'
"After thoroughly reviewing the CDC report and the testimony presented at the hearing, and after carefully reviewing the transcript of the children's in camera interviews and the testimony of the guardian ad litem submitted under seal, we find that the trial court did not abuse its discretion by denying Chris' motion to increase visitation and by ordering that his visitation be supervised and that he attend counseling. We further find that the trial court's foregoing decision is not against the manifest weight of the evidence.
"Chris also argues that the trial court erred by failing to appoint a third party to supervise his visitation. As previously noted, the trial court ordered that Chris' visitation be supervised by his parents at all times, either in his home or in their home. However, Chris' parents notified his attorney that they were unwilling to be used in such a fashion and that as a result, they refused to supervise Chris' visitation. The trial court never appointed another supervisor.
"We agree with Chris that because of his parents' refusal to supervise his visitation and the trial court's failure to appoint another supervisor, Chris' visitation rights have essentially been terminated, albeit temporarily. We therefore remand the matter with instructions to the trial court to appoint another supervisor. In light of all of the foregoing, Chris' second assignment of error is overruled in part and sustained in part.
"THIS COURT SHOULD OVERTURN THE MAGISTRATE'S AND LOWER COURT'S DECISION AS THE RESTRICTION ON CHRIS WILLIS' PARENTING TIME WAS BASED ON HIS RELIGIOUS BELIEFS AND IS A CLEAR VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO FREEDOM OF RELIGION UNDER THE FIRST AMENDMENT OF THE CONSTITUTION."
"Under this assignment of error, Chris argues that the trial court based its decision to restrict his visitation solely on his strongly held religious beliefs in violation of his constitutional right of freedom of religion under the First Amendment to the United States Constitution. Chris claims that the videotaping incident cannot be taken into account because he was simply trying to assert his due process rights. Chris also claims that his comments to the children about Rhonda's relationship with Simmons 'are simply a reflection of his religious views, which include the Biblical teachings on adultery,' and as such cannot be taken into account.
"The First Amendment has never been interpreted as an absolute proscription on the governmental regulation of religious practices. ... While 'in addition to their free exercise rights, parents have a fundamental right to educate their children, including the right to communicate their moral and religious values, a parent's actions are not insulated from the domestic relations court's inquiry just because they are based upon religious beliefs, especially actions that will harm the child's mental or physical health.' Pater ... (1992) [See case below.] Thus, a parent may not shield his actions from the court's scrutiny by claiming religious motivations for those actions.
"There is no question that the paramount and overriding interest of [Ohio state law] is the best interests of the child and that it is the court's function to see that the child's best interests are protected. As a result, 'a domestic relations court may consider the religious practices of the parents in order to protect the best interests of a child.' ... 'This obligation of the court to consider the best interests of the children serves to protect them from emotionally unstable and fanatically misguided parents, while simultaneously safeguarding the parents' fundamental constitutional freedom to raise their children as they deem proper.' ...
"This court has previously determined that a claim of violation of religious rights should be considered pursuant to a three-part test adopted by the Ohio Supreme Court ... 'The test is first, whether a defendant's religious beliefs are sincerely held; second, whether the regulation at issue infringes upon a defendant's constitutional right to freely engage in the religious practices; and third, whether the state has demonstrated a compelling interest for enforcement of the regulation and that the regulation is written in the least restrictive means.' ...
"Chris describes himself as a devout Christian who firmly believes in a literal reading of the Bible. [This wording is often used of JWs in court decisions.] We can concede that Chris' religious beliefs are sincere, but upon thoroughly reviewing the magistrate's decision, we find that Chris' argument that the restriction on his visitation rights violated his constitutional rights does not meet the second part of the test.
"Chris fails to satisfy the second part of the three-part test because he has not demonstrated that the restricted visitation infringes upon his constitutional right to freely engage in the Christian faith or that it interferes with his freedom to direct the upbringing and religious education of the children. We acknowledge that the magistrate's decision refers to Chris' extensive bible study with the children which involves discussions about adultery and persons who are adulterers. The magistrate's decision also contains a statement, supported by the record, that Chris 'expressed little or no concern about his discussion of sex in relation to bible studies and his repeatedly calling [Rhonda] an adulteress.'
"Upon reviewing the magistrate's decision as affirmed by the trial court, we find that it addressed the visitation issue in the context of the children's best interests, and not based upon Chris' religious beliefs. Unlike in Pater where the noncustodial parent was prohibited from teaching or exposing the child to the Jehovah's Witnesses' beliefs during the parent's visitation, Chris is still free to instruct the children on his religious beliefs and to teach them as he sees fit. Certainly, the mere fact that visitation must be supervised and that he must attend counseling absolutely does not prevent him from 'providing a moral upbringing for his children by sharing his religious beliefs.' Nor is Chris prohibited or otherwise hindered from practicing his religious beliefs.
"Having found that Chris failed to satisfy the second part of the tripartite test, we need not determine whether he satisfied the third part. We therefore reject Chris' argument that the trial court violated his constitutional rights under the First Amendment by restricting his visitation. Chris' third assignment of error is overruled.
TRAVIS v. TRAVIS was a 2002 Alabama appellate court decision. After having lived together since 1979, Francis and Virginia Travis married in June 1984. Six children were born to the couple. Five children were minors at the time of divorce. Virginia Travis asked Francis Travis to move out of the marital home in February 2002, based on her suspicions that he had committed adultery. Initially, all of the children remained with their mother, but two weeks after the husband moved out, the 15-year-old daughter moved in with her father, who had moved in with his parents. By the time of the appeal, the 18-year-old son had moved out, leaving three minor children residing with Virginia Travis.
The trial court held hearings in September 2001 and in January 2002. The majority of the testimony related to the alleged adultery and division of marital assets. Virginia Travis testified that she was a Jehovah's Witness, and that she had raised the children as Jehovah's Witnesses. Virginia Travis asked for custody of the three minor children residing with her, as well as child support. Francis Travis asked for joint custody of the three children living with his wife, and primary physical custody of the daughter currently living with him.
The trial court awarded Virginia Travis a divorce on the ground of "incompatibility", rather than adultery (which under WatchTower rules would give her permission to re-marry). Joint custody of the four minor children was granted. The trial court granted the husband physical custody of the teenage daughter who was living with him, granted the wife physical custody of the three minor children who were living with her, and established a visitation schedule for both parents. The fifth minor child attained the age of 19 while this divorce was pending. The trial court ordered the husband to pay $ 492.69 in monthly child support and attached a CS-42 form to the judgment. Further, the trial court ordered the husband and the wife to share equally the medical expenses for the minor children. Virginia Travis's later appeal all involved the issue of "assets".
"Father first argues that mother failed to demonstrate a real, substantial and unanticipated change in circumstances as required ... for modification. Specifically, he argues that the parties have consistently disagreed about major issues concerning the girls since the time of divorce, and that he and mother have never been able to communicate effectively. Thus, he argues under our holding in Gates v. Gates mother failed to meet the jurisdictional threshold for modification. ... (finding no abuse of discretion by trial court in concluding that continued antagonism between parties on issues concerning the children was not a change in circumstances).
"... the standard of review regarding a trial court's finding of changed circumstances is a deferential one. The trial court's determination is a matter of discretion. ... Thus, we will not disturb the court's determination unless its exercise of discretion was on grounds or for reasons clearly untenable, or the exercise of discretion was to a clearly unreasonable extent. ... .
"Our review of the record reveals that this case is easily distinguishable from Gates. First, both mother and father testified that they disagree on just about every major issue concerning the children, including religion, education, extra-curricular activities, whether the children should be participating in counseling and with whom, childcare, and how mother and father should be communicating about the children. ... Second, mother's testimony chronicled a significant change in the parties' dealings with one another, notwithstanding father's conclusory testimony to the contrary. Mother testified to extensive cooperation on issues regarding Hannah and Hillary immediately following the divorce, including shared access to one another's homes, the exchange and transport of the children's belongings between the two homes, frequent and open communication between mother and father without limitation, joint parent-teacher meetings, and flexibility about time and contact with each parent. Her testimony then outlined a significant change for the worse in these areas starting in the latter half of 1996, including father prohibiting the girls from contacting mother while they were in his care, prohibiting mother from entering his home, and refusing to communicate with mother except in writing. Father also requested separate parent-teacher meetings - on one occasion specifically asking the school not to invite mother to a meeting he had arranged with the school principal, Hannah's teacher and Hannah's guidance counselor - and insisted that the children have separate and duplicate possessions for each household. Finally, the trial court based its finding of changed circumstances in part on the effect of the parties' disagreements on the children, particularly Hannah. Even if the parties had anticipated disagreeing continually as father contends, the effect of this on the children was not necessarily anticipated. Given this state of the record, the family court did not abuse its discretion by concluding that mother had sufficiently demonstrated a real, substantial and unanticipated change in circumstances justifying modification.
"Father next argues that the portion of the court's order providing that he not bring Hannah and Hillary to any Jehovah's Witness religious gatherings or attempt to raise the girls as Jehovah's Witnesses is unconstitutional. He further argues that any consideration by the trial court in this case of his religious beliefs was in violation of the both the Vermont and United States constitutions. Because father never argued that mother's request for such a provision in the court's final order was unconstitutional, nor objected to the introduction of evidence on his religious beliefs and practices on constitutional grounds, our review on appeal is limited. ... We will reverse the family court's order in such circumstances only if there exists a 'fundamental miscarriage of justice that we cannot overlook.' We cannot say that there has been one in this case for several reasons.
"First, consideration of father's religion by the trial court was not unconstitutional per se. As we noted in Varnum, courts may take into account a parent's religious practices when making a custodial determination if there is evidence that the practices have a direct and negative impact on a child's physical or mental health. ... Mother presented extensive evidence that the conflicting practices and rules in each household that stemmed from her and father's disparate religious beliefs were causing Hannah and Hillary to experience extreme confusion and anxiety. For instance, Hannah's teachers testified to Hannah's struggle over participation in birthday and holiday activities at school, a practice that father's religion, that of the Jehovah's Witnesses, prohibits, but a practice that mother encouraged. Hannah's third grade teacher testified to an incident in which father came to the school one day to discuss Hannah's participation in such activities, indicating that he did not want Hannah participating and that the teacher should inform him if she was. The teacher went on to describe how Hannah confronted her the next day extremely upset, and told her that she had made the situation for Hannah worse, asking "why did you tell him?" (about Hannah occasionally participating). One of Hillary's teachers testified that Hillary also appeared to struggle with the decision of whether to participate in birthday and holiday activities as well, but it was mostly confined to the beginning of the school year.
"Mother also testified to symptoms of anxiety in both girls - Hannah experiencing nightmares, stomach aches, and a constricted throat; Hillary being very clingy and sucking her thumb. Hannah's pediatrician had ruled out organic causes for her physical symptoms after seeing her on two occasions, and indicated in her testimony that she thought the symptoms had been caused by anxiety. She stated that she recommended counseling to mother for Hannah. The counselor who had been seeing Hannah at mother's request - prior to her termination by father - testified that she considered Hannah to be suffering from anxiety and attributed it to Hannah's conflicted situation, including the conflict of mother and father's religious beliefs and practices.
"Based on this and other evidence, the court made specific findings regarding the negative effects on the children of mother's and father's differing sets of beliefs, including the children's feelings of disloyalty, guilt, confusion, and anxiety. Thus, not only was evidence of harm presented, but the trial court made specific findings that the conflicting beliefs and practices in each household were having a palpable negative impact on the children, and would continue to do so. ..."Second, there was extensive evidence of father attempting to alienate Hannah and Hillary from mother that independently supports the court's disposition in this case. Without chronicling it at length, there was evidence from mother that father refused to communicate with her in person on repeated occasions in front of the children, including incidents of father refusing to answer the door for her [kinda ironic for a Jehovah's Witness not to be answering their door], refusing to roll down the car window while she attempted to talk to father at an exchange of the children, communicating to her through stepmother while he stood by silently during exchanges, and hanging up the phone on her. Father also prohibited the children from communicating with mother while they were in his care. Several other witnesses also testified to father's attitude toward mother - one of Hannah's teachers stated that in a meeting she had with father and stepmother at the beginning of the school year, father painted mother in a negative light, and Hannah's counselor indicated that father expressed to her his desire that mother not be part of his family life at all, that he did not consider her part of his family system.
"Father himself had indicated in a letter that he did not want any contact between mother and the children when they were with him because he found it "disruptive." When asked why he would not honor mother's request that the girls not call stepmother "mommy," father responded that he did not consider her request "justified" and thought it was merely the result of "jealousy." Such actions and efforts on the part of father not only prevented the parties from effectively co-parenting - necessitating the modification of that arrangement at issue in this appeal - but also weighed against making father the sole custodian for the children. ... The religious issues aside, the evidence at trial painted a stark picture of attempts at parental alienation.
"Third, regarding the provision that father not involve the children in his religious observances or raise the children as Witnesses, the court was merely making explicit mother's decision as the custodial parent charged with legal responsibility for the children. ... Mother specifically requested that such a provision be included in the order in the event she was granted legal rights and responsibilities for the girls. Therefore, the court was not in the position of picking a religion for the children, but was only giving effect to mother's decision on that issue. Nor does the provision prevent father from exercising his religion on his own - in fact the court structured the visitation to avoid conflicts between father's religious meetings and his time with the girls. Considered in light of the evidence of harm discussed above, the provision is not inconsistent with constitutional principles. ... Therefore, there has been no fundamental miscarriage of justice requiring us to reverse the order of the family court."... Father points to no evidence in this case that either party to this custody proceeding had anything other than the children's best interest in mind in the course of the litigation. ... Consequently, we cannot say that the court's failure to appoint a guardian ad litem for Hannah and Hillary was an abuse of discretion or rendered the proceedings so flawed as to require reversal of the family court's disposition."
We now conclude that the summary judgment record, viewed most favorably to plaintiff, gives rise to triable issues of fact on the element of outrageousness. That is so based on the transcript of the original trial, even without the audiotape recordings on which plaintiff relies. From the testimony in the original trial, a jury could find that the [JW Elder and Elderette] were aware of Wagner's disability, including his cognitive limitations and suggestibility. In particular, the record permits a finding that Wagner, due to cognitive limitations caused by his severe brain injury years before, is easily led, easily influenced, and easily made to say or think whatever someone wants him to say or think. A jury could infer that Wagner's vulnerability would be obvious to anyone interacting with him, especially the [JW Elder and Elderette], who had significant and ongoing contacts with Wagner. In addition, the record establishes that the [JW Elder and Elderette] had reviewed the court order that appointed plaintiff to be Wagner's conservator and guardian based on Wagner's lack of competency. Indeed, the [JW Elder and Elderette] provided copies of that court order to the caseworker who interviewed Wagner after, as earlier described, the [JW Elder and Elderette] took Wagner to Disability Services to complain that plaintiff was neglecting him.
A jury could also infer on this record that the [JW Elder and Elderette] were instrumental in causing Wagner to seek an investigation into the adequacy of plaintiff's care of Wagner and to remove plaintiff as his guardian. In talking to the disability caseworker, the [JW Elder and Elderette] portrayed plaintiff as insensitive, not meeting Wagner's needs, and as a "bad guy" who, to the extent he had recently done better in caring for Wagner, was doing so "just for looks." The [JW Elder and Elderette] maintained that plaintiff was trying to make Wagner seem less functional than he was. A jury could find, however, that Wagner was severely limited in his cognitive abilities and those limitations were apparent to anyone-- including the [JW Elder and Elderette] --who dealt with him. There is evidence that the [JW Elder and Elderette] encouraged Wagner to lie to plaintiff, which created more conflict for Wagner, who was ordinarily a very honest individual. Also, the record provides evidence that Wagner's cognitive impairment is such that he has a limited ability to initiate change and to sustain any motivation to do so. From that, a jury could infer that it was the [JW Elder and Elderette], not Wagner, who were really pressing the complaints about plaintiff's care and that the [JW Elder and Elderette] provided the motivation for Wagner to pursue the guardianship proceeding.
The outcome of the disability caseworker's investigation and the guardianship proceeding provides a basis for a jury to conclude that the [JW Elder and Elderette], in pressing Wagner to pursue those allegations, were deliberately defaming plaintiff, either in an effort to turn Wagner against plaintiff--his only living family member--or with indifference to that consequence. The caseworker found no significant deficiencies in the food, clothing, living environment, or other aspects of the home that plaintiff provided for Wagner. Testimony by others portrayed plaintiff as a caring and conscientious brother and caretaker. Indeed, according to the caseworker, the [JW Elder and Elderette] were aware that Wagner was fond of plaintiff and that Wagner's charges that he was being neglected created tension in their relationship. A jury could conclude that the [JW Elder and Elderette] persistence, in light of the unfounded allegations of neglect and the destruction to Wagner personally and to his relationship with his guardian and only living family member, was outrageous conduct.
The jury could also find outrageous conduct based on the evidence pertaining to the outcome of the proceeding brought to remove plaintiff as guardian. The probate judge expressly found that plaintiff and Wagner had a good relationship until 18 months before the proceeding; that plaintiff "is and has been genuinely concerned about [Wagner's] best interest, both now and over the 20 years since" Wagner's accident; that the conflict and tension between plaintiff and Wagner was due to the influence of certain members of the Congregation, not the tenets of Wagner's faith; that the guardianship proceeding would not have occurred without the encouragement of those members of the Congregation; and that the guardianship proceedings had been very damaging to plaintiff and Wagner's relationship, but not irreparably so. The probate judge did not, either in her letter opinion, her order, or her trial testimony, identify the [JW Elder and Elderette] as the Congregation members who had influenced Wagner. But in the context of the evidence as a whole, a jury could readily infer that the probate judge was referring to them. As we later describe, the probate court awarded some relief on the guardianship petition. But the probate court declined to remove plaintiff as guardian and specifically gave plaintiff the ability to require Wagner to worship at another Jehovah's Witnesses church and to restrict Wagner's interaction with any individual in the church that plaintiff, in good faith, believed was damaging their relationship.
Defendants do not dispute the existence of that evidence in the summary judgment record. They contend only that, from it, a jury could not conclude that the [JW Elder and Elderette] were deliberately defaming plaintiff, rather than trying in good faith to assist Wagner to address his complaints and concerns about the quality of plaintiff's care. We disagree. Although the inferences from the record as a whole may be competing, the evidence viewed most favorably to plaintiff permits a factual conclusion that the [JW Elder and Elderette] defamation of plaintiff was deliberate; that the [JW Elder and Elderette] pressed Wagner to move forward on the guardianship proceeding despite the fact that the caseworker's investigation refuted any significant concerns; that the [JW Elder and Elderette] did so knowing of Wagner's extreme suggestibility; and that they were indifferent to the internal conflict that those actions created for Wagner and to the effect on plaintiff and Wagner's relationship, or possibly even intended to subvert that relationship. Such inferences, if a jury were to choose to draw them, would support a finding that the [JW Elder and Elderette] conduct was outrageous.
The audiotapes provide further support for such a finding on a jury's part. Viewing the evidence provided by the audiotapes in the light most favorable to plaintiff, a jury reasonably could find, among other conclusions, that:
• [JW Elderette] pressed Wagner to pursue a guardianship proceeding through his attorney when Wagner seemed to lack motivation to do so, often telling Wagner what to say to his attorney;
• [JW Elderette] was so proactive as to try (albeit unsuccessfully) to meet personally with Wagner's attorney, without Wagner present and without his advance knowledge or approval, to press the attorney to move forward on the guardianship proceeding;
• When Wagner decided he was wrong in thinking that plaintiff had neglected his needs, [JW Elderette] insisted that he was not and persuaded him otherwise;
• When Wagner tried to convince [JW Elderette] that plaintiff was careful with Wagner's financial resources and had receipts for what plaintiff spent on Wagner's behalf, [JW Elderette] insisted otherwise, without any apparent basis for knowing otherwise, and maintained that plaintiff mismanaged and pilfered Wagner's money;
• [JW Elderette], contrary to all evidence and experience, tried to convince Wagner that he had a normal IQ and that plaintiff wanted Wagner to be "mentally retarded" and obtained that diagnosis through a biased doctor;
• [JW Elderette] told Wagner repeatedly, in the context of conversations in which she tried to persuade him to maintain resolve to pursue the change of guardianship, that plaintiff was "Satan" and under the influence of Satan.