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.

2005-8 CUSTODY DECISIONS

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CANDACE S. v. SUPERIOR COURT was a 2008 California appellate decision. A Jehovah's Witness, named Candace S., who was a member of the Coyote Creek Congregation of Jehovah's Witnesses, alleged that she was date-raped and impregnated in 2003 by a fellow Jehovah's Witness, named Ryan T., who was a member of the Oak Grove Congregation of Jehovah's Witnesses. The child was born in 2004, and in 2005, Ryan T. initiated legal proceedings to establish a parental relationship with the child, which Candace S. did not want to occur. The court evaluator recommended "joint legal custody", with a visitation schedule, to the Santa Clara Superior Court, despite the fact that California law prohibits a person convicted of rape from being awarded custody or visitation with the child that results from that rape.

Apparently, Ryan T. now denied that the child had been conceived as a result of a rape, and because Candace S. had decided to "handle" the alleged rape within the confines of the Jehovah's Witnesses organization back in 2003, rather than reporting such to the civil authorities, she had little proof that her child had been conceived as the result of a rape. Why? Because, the JW Elders who "handled" the case back in 2003, now refused to testify as to what was then stated and agreed by the involved parties. [LESSON ALERT!!!]

In 2003, about three months after the alleged rape (probably when Candace S. was certain that she was pregnant), Candace S. reported the alleged rape to her Elders at the Coyote Creek Congregation of Jehovah's Witnesses. Those JW Elders typically counseled Candace S. to deal with the situation using WatchTower Society procedures, rather than reporting the alleged rape to the civil authorities, likely so as to avoid "bringing reproach on Jehovah's name" (as if "WatchTower" equals "Jehovah").

Following WatchTower Society dictated procedures, ultimately there were three meetings held, which were attended by Candace S., Ryan T., family members of Candace S. and Ryan T., Elders from the Coyote Creek Congregation of Jehovah's Witnesses, and Elders from the Oak Grove Congregation of Jehovah's Witnesses. Allegedly, Ryan T. admitted to the rape during the first meeting, which was attended only by the Elders and Candace S. and Ryan T.  Allegedly, Ryan T's admission and other related info was discussed in front of both parties' family members during the two subsequent meetings. In the end, the parties allegedly agreed to Ryan T's paternity, and a visitation schedule.

After Ryan T. initiated custody proceedings, the Santa Clara Superior Court appointed an evaluator to make a custody/visitation recommendation. During the evaluator's investigation, the JW Elders refused to even speak with him. The JW Elders claimed "clergy-penitent" privilege. That left the evaluator with a "He said - She said" situation that left the evaluator with little option but to ignore Candace S's claim of rape and recommend that Ryan T. receive joint custody and visitation. Candace S. then sought an order from the Santa Clara Superior Court, which would require the JW Elders to cooperate and testify, but the Santa Clara Superior Court sided with the Jehovah's Witness Elders.

On appeal, Candace S. argued that that the "clergy-penitent" privilege only applies to communications made where no third party is present, because the presence of a third party eliminates the necessary expectation of confidentiality. Candace S. argued that she was such a third party at the first meeting, and that various family members were such third parties at the second and third meetings. The Court of Appeals agreed with Candace S., and overruled the Santa Clara Superior Court, in deciding that just because WatchTower Society procedures considered the three meetings to be "confidential" did not mean that California's courts, nor California law, were governed by WatchTower Society procedures or interpretations.

Outcome of any further appeals, or the underlying case itself, is unknown.

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COLETTA v. COLETTA was a 2008 Connecticut trial court decision. Lisa Coletta, 47, and Luciano Coletta, 47, met in Connecticut during high school, but they were married in Italy, in August 1981, where Luciano Coletta was then living with his parents. The couple then lived in Italy until 1987, after which they returned to the United States.

Luciano Coletta maintained a very close relationship with his family in Connecticut. He was an employee and partner in the family restaurant, and he partnered with other relatives in various real esate investments. Lisa Coletta also occasionally worked at the family's restaurant. Lisa Coletta eventually came to dislike this close relationship that her husband maintained with his Italian family.

By approximately 1989, the couple had had three sons -- two of which resided with Luciano Coletta, as of May 2008, although all are over the age of majority. The parties were both Catholic when they married, but some time after the birth of the three boys, Lisa Coletta converted to the Jehovah's Witnesses. Lisa's conversion caused many difficulties in the marriage. She stopped celebrating holidays and birthdays, and removed her husband from having any say over any medical treatment she might require. Luciano Coletta did not agree with his wife's decision to convert, but he eventually accepted her decision, but disagreed that their children participate in WatchTower meetings and activities.

Over the years, the couple argued over the husband's family and the wife's religion. Occasionally, the arguments esculated to physical violence from both parties -- although Luciano alleged that he never ever struck Lisa until she struck him first. Luciano also alleged that Lisa gradually developed a drinking problem. He further claimed that he attempted to work on the couple's problems. Luciano even occasionally met with the Elders from his wife's Congregation of Jehovah's Witnesses to enlist their help to counsel Lisa Colleta about her issues and her alcohol consumption. Luciano Coletta also spoke to a priest as well as a psychiatrist.

In early 2005, Lisa Coletta started cheating on her husband, and even traveled to the Virgin Islands with her new boyfriend to attend a neice's wedding. In December 2005, Lisa Coletta filed for divorce. Granted in May 2008.

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CLICK HERE to read a January 2008 newspaper article reporting a "divorce and custody battle in the making". This unidentified Racine, Wisconsin couple consists of a Jehovah's Witness Husband/Father and a Catholic Wife/Mother. The wife called the Police to their apartment to report that her JW husband and she had had a day-long argument and fight on Sunday, January 13, because she had refused to attend services at the local Kingdom Hall that morning. The wife reported that the JW husband had made various threats as the day progressed, including that he strangled her until she blacked out, held a knife to her throat, threatened to cut her hand off, and to kill her. The mother was able to escape with her young daughter after the JW husband left, but not before first grabbing some booze and saying that he was going to commit suicide.
 

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"For many years, Ms. Streety has been a Jehovah's Witness and, as such, eschews blood transfusions. In accordance with the tenets of her faith, she cannot consent to a blood transfusion for herself nor would she consent to a blood transfusion for Natalie. However, she acknowledged that if medical professionals disagreed:

"'I know that they can overrule me and go to court and if they decided that she needed it they would give it to her anyway. So it would be out of my hands. There's nothing I can do about it.'"

...

"Since at least 1968 it has been clear that, notwithstanding the First Amendment, the state has the power to override parental refusal of blood transfusion for minors where transfusion is necessary to preserve a child's life. (Jehovah's Witnesses in the State of Washington v Kings County Hosp., ... ). New York courts have not hesitated to intervene and order transfusions in life or health-threatening situations. (See e.g. Matter of Kevin Sampson, ... [1972]; Matter of Brooklyn Hosp. v Torres, ... 1965]; cf. Matter of Jamaica Hosp., ... 1985]). Thus, were Ms. Streety given guardianship, her own personal religious reservation could - and undoubtedly would - be overcome if ever a transfusion were necessary to save Natalie's life. Ms. Streety has indicated her willingness to acquiesce in such a decision if it were '[taken] out of [her] hands.'

"While neither side submitted evidence on the frequency with which the necessity for blood transfusions arises, the possibility that Natalie's life could be threatened by refusal of a transfusion is surely remote. There is no controlling case law that would prevent granting 17-A guardianship - or custody of a minor child - to a parent solely because of her unwillingness to consent to a blood transfusion on some hypothetical future occasion. Rather, in the analogous area of custody the court may consider religion as one of the factors in determining the best interests but religion alone may not be the determinative factor (see Gago v Acevedo, ... 1995].) Only when physical conditions are so bad that they seriously affect the health of the children should the court intervene (see De Luca v De Luca ... 1994] [denying father's application for custody because mother's adherence to 'Jehovah's Witness religion would not allow his children to receive proper medical attention ... ']). Natalie has lived with her mother for 33 years of her life, and the issue of a blood transfusion has never arisen. It would be both unreasonable and unfair to deny Ms. Streety de jure guardianship when she has, for so long, lovingly exercised de facto guardianship without harm to her daughter. Ms. Streety's religious beliefs do not constitute a disqualification, nor should they weigh against her in any way. ( see Burkham v Burkham ... 2000]) [importance of continuity of care and residence; non-relevance of Jehovah's Witness's religious beliefs.]).

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

"Footnote 9: In a non-binding decision, Battaglia v Battaglia 9 Misc 2d 1067 [Sup Ct, Albany County 1958]), the court denied custody to a mother because, in the hypothetical cause of necessity for a transfusion, 'the child should not be deprived of life because the mother's religious persuasion opposes such transfusion.' (id. at 1068). That decision, rendered almost half a century ago, is surely outmoded, and based on assumptions and views which are no longer applicable.

"Plaintiff’s first amended complaint suffers from many of the deficiencies discussed in the May 9, 2007 order. Plaintiff has again named the State of California and state court judges and commissioners as defendants, and has re-alleged a claim under 18 U.S.C. § 1623. In addition, it is unclear why a number of defendants are named in the complaint, as the amended complaint contains specific factual allegations against only a few of the many defendants listed in the caption.

 

"However, the fundamental problem with plaintiff’s amended complaint is that it fails to allege facts showing that the claims are not barred by the Rooker-Feldman doctrine or the statute of limitations. The first amended complaint challenges numerous events from 2002-2004 related to plaintiff’s child custody proceedings. As the Court has repeatedly informed plaintiff, the Rooker-Feldman doctrine bars federal courts from reviewing allegedly erroneous state court decisions. ... Further, federal courts generally do not adjudicate domestic relations cases, including those involving the custody of children. ... Finally, the only facts mentioned in the amended complaint occurring after September 18, 2004 relate either to plaintiff’s federal lawsuits, or to an order allegedly issued by an immune state judicial defendant in 2006.

 

"Accordingly, for all of the reasons set forth in the Court’s prior orders and this order, the Court finds that plaintiff has failed to state any cognizable claims over which this Court has jurisdiction. The Court finds that further leave to amend would be futile, and thus the Court grants defendants’ motions to dismiss without leave to amend. ... As the Court informed plaintiff at the hearing, plaintiff is cautioned that filing any further lawsuits against these defendants regarding the child custody matters may subject plaintiff to sanctions."

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.

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)

Blood, Medicine, and the Jehovah's Witnesses: The Hidden History of the Watchtower's Position on the Blood Issue

FREE JEHOVAH'S WITNESSES CHILD CUSTODY DVD -- BATTLING OVER THE CHILDREN

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JW DIVORCES - 2005-2008

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