American Law Institute Citation Concerning Jehovah's Witnesses and Child Custody
In the following cases involving custody disputes between
parents, the theory and practice of the Jehovah's Witnesses were held not so
inimical to the welfare of the child that a parent who was a member of that sect
should be disqualified as custodian. Questions regarding the doctrines of
Jehovah's witnesses concerning celebration of Christmas and birthdays or
relating to participation in the electoral process or military service were
held, in Clift v. Clift (1977, Ala App) 346 So 2d 429, cert den (Ala) 346
So 2d 439 and (disapproved on other grounds Ex parte Devine (Ala) 398 So
2d 686, on remand (Ala App) 398 So 2d 697), to be outside the ambit of religious
views that could reasonably be construed as endangering the mental or physical
health of a child in considering the issue of custody in a divorce proceeding.
The mother, a Jehovah's Witness, had appealed from an order awarding custody of
their son to the father. She had testified that she did not celebrate Christmas
and that she would not have a birthday party for the child or give him a
birthday present. She had also indicated that she hoped that she would be able
to teach the child not to kill and to prove himself a conscientious objector to
enforce this conviction to avoid military service. With regard to the question
of whether she would consent to a blood transfusion to the child if recommended
by competent medical authority, the mother had stated that she would not know
what she would do until faced with the situation. Although the court had
concluded that the inquiry into the mother's religious beliefs did not have any
bearing on possible physical or mental harm to the child, it affirmed the award
of custody to the father, stating that the trial judge's decree was supported by
other evidence.
Holding that it could not view a mother's continued membership in the Jehovah's
Witnesses as a basis for directing a trial judge to award custody of two
children aged 5 and 7 to the father, the court, in Johnson v. Johnson
(1977, Alaska) 564 P2d 71, cert den 434 US 1048, 54 L Ed 2d 800, 98 S Ct 896,
concluded that to do so would violate the mother's right to freedom of religion
under the First Amendment. The father had argued that his status as an excluded
member of the Jehovah's Witnesses meant that if he were denied custody of the
children, he would have virtually no input into their lives because other
members of the religion believed him to be under, or in danger of coming under,
Satanic control and would not associate with him. He also contended that the
mother would restrict the children's educational and cultural environment and
emotional development. The court, however, rejected the father's contentions,
noting that basic societal values required the preservation of maximum
individual choice, protection of minority sentiments, and appreciation for
divergent life-styles. It also observed that liberal and specific visitation
rights granted by the trial judge would give the father the access that he
desired. However, the custody decree was reversed and remanded on other grounds.
It was held, in Smith v. Smith (1961) 90 Ariz 190, 367 P2d 230, that a
mother who was a member of the Jehovah's Witnesses was entitled to retain
custody of her 7-year-old son where an order changing custody to the father had
been predicated on the mother's religious beliefs. The trial judge had expressed
concern regarding the mother's refusal to allow the child to salute the flag,
pledge allegiance to the flag, or to observe or participate in Christmas plays
at his school. Rejecting a contention that any deviation from the normal school
routine brought ridicule and criticism to the child that would be the basis of
implanting neuroses in the child, the court stated that criticism is the
crucible in which character is tested. In reversing the order changing custody,
the court also stated that it was a fundamental law of the land that a parent
may not be deprived of the custody of a child because of a court's disagreement
with such parent as to religious beliefs.
The fact that the divorced wife who had originally been given custody of her
small children had become a member of the Jehovah's Witnesses sect and was
raising the children by the tenets of that sect, which forbade saluting the
American flag or fighting to protect this country, was held in Cory v. Cory
(1945) 70 Cal App 2d 563, 161 P2d 385, not to justify a change of custody from
her to the father. The court rejected the contention that the change was
justified on the basis of the welfare of the children because if they remained
of the mother's faith they would not be eligible for membership in various
patriotic and character building organizations, pointing out that the teachings
in question did not involve any immorality and did not preclude respect for the
flag, and that there was no evidence that the children's mental, physical, or
moral welfare would be promoted by transferring their custody to the father, or
that there had been any significant change of circumstances since the original
award to the mother. Accordingly, the court reversed an order modifying the
divorce decree in a motion by the father. In Re Marriage of Urband (1977,
1st Dist) 68 Cal App 3d 796, 137 Cal Rptr 433, the court held that the trial
judge had properly awarded custody of a 9- year-old daughter and a 3-year-old
son to their mother in the absence of compelling evidence that the mother's
religious beliefs and observances, as a member of the Jehovah's Witnesses sect,
would be harmful to the children. The husband had contended that the mother's
beliefs rendered her unfit to have custody. He claimed that the mother would not
consent to a blood transfusion for the children, even if medically necessary,
that she would not permit the children to participate in competitive sports, and
that she would not permit them to participate conventionally in certain
holidays. Stating that there was uncontradicted evidence that the mother was
devoted to the children, the court affirmed the judgment granting custody to the
mother. See Re Marriage of Short (1985, Colo) 698 P2d 1310, S 7.
The trial judge erred in permitting evidence concerning the Jehovah's Witnesses'
religion to be introduced on the question of a father's fitness for custody of
his children, held the court, in Meredith v. Meredith (1967) 91 Idaho
898, 434 P2d 116. The trial judge had awarded custody to the mother, relying in
part on the fact that the father taught his boys not to salute the flag and that
it was better to go to jail than to serve the country or participate in
elections and support the country's institutions, all apparently tenets of his
religion. However, the court noted that there were independent grounds to
support the custody award to the mother and concluded that the error in
admitting evidence regarding the father's religion was not reversible. The award
was affirmed.
Recognizing that aside from teachings subversive of morality and decency, or
others equally obnoxious, the courts in a dispute relating to custody should
give no consideration to religious views in depriving an otherwise qualified
parent of custody, the court in Jackson v. Jackson (1957) 181 Kan 1, 309
P2d 705, held that where it appeared that, in changing the custody from the
divorced mother to the father, the court had considered and given some weight to
the circumstance that the mother was a member of the sect of Jehovah's Witnesses
and that the children were being given instructions which might lead them to
refuse to salute the flag, perform military service, or celebrate Christmas in
the customary manner, the custody order must be reversed in order to permit a
determination upon the basis of the welfare of the child without reference to
these factors. Accordingly, the judgment changing custody was set aside and the
cause remanded.
Holding that a trial judge, in granting custody of an 8-year-old child to the
father, had given undue weight to the fact that the mother, as a Jehovah's
Witness, would not consent to a blood transfusion for her son should it become
necessary, the court, in Osier v. Osier (1980, Me) 410 A2d 1027, vacated
the judgment and remanded the case to the trial court for further proceedings on
the custody issue. After remarrying and establishing a new household, the father
had moved for an amendment of the divorce decree requesting custody of the
child, alleging in support of the motion that the mother would not consent to a
blood transfusion. Noting that a sensitive constitutional issue of religious
freedom was involved, the court said that the trial judge should have made a
preliminary determination of which parent would be the better custodian
independently of any consideration of the mother's religious practices. The
court noted further that the evidence before the trial judge was not legally
sufficient to support the order for change in custody where there was no showing
concerning the child's proneness to accidents or to illnesses requiring blood
transfusions or the presentation of any facts such as the statistical frequency
of blood transfusions for normal children of that age.
Holding that if three children were to remain in the custody of a divorced
mother who had become a Jehovah's Witness, it could be accomplished by amending
the custody decree to provide that use of blood transfusions or of plasma for
any of the children would not require the mother's consent and by specifying
conditions on which any licensed physician or surgeon might administer blood or
plasma when, in his judgment, such treatment would be necessary to protect the
life or health of any of the children, the court, in Levitsky v. Levitsky
(1963) 231 Md 388, 190 A2d 621, remanded the case to the trial court to amend
the decree that had awarded custody to the father. The father, a Catholic
physician, had sought custody of the children after the mother had refused to
consent to the use of blood transfusions in treatment of her son on the basis of
her religious convictions, despite having been advised that the boy could die if
blood transfusions were not administered. The court stated that to deny one's
child medical care necessary to save his life because of one's own religious
views, falls within the kind of conduct that is not protected by constitutional
guarantees of religious freedom. It concluded that the case was not one in which
a change of custody should be made on the ground that the proposed modifications
of the custody order would eliminate the threat to the life or health of the
children resulting from the mother's religious convictions.
A judgment in a dissolution of marriage proceeding in which the trial judge
awarded custody of two minor children to the father, on the ground it would not
be in the children's best interest to be raised under the indoctrinations of the
mother's Jehovah's Witnesses' religion, was reversed with directions that
custody be placed with the mother, in Waites v. Waites (1978, Mo) 567
SW2d 326, where the court stated that it was apparent the trial judge focused
primarily on the mother's religious beliefs per se, rather than on what the best
interests of the children required as to custody. The court held that no
judicial officer may determine child custody based on approval or disapproval of
the beliefs, doctrine or tenets of the religion of either parent or their
interpretation thereof, although inquiry into matters of child development as
impinged on by religious conviction is permissible. The court expressed its
agreement with the proposition that a parent's identity as a Jehovah's Witness
will not ipso facto disqualify the parent as a custodian of the children. With
respect to the trial court's conclusion of law that the children's health was
threatened by the mother's refusal, on religious grounds, to sanction blood
transfusions, the court pointed out that there was no indication that either
child was in need of medical attention or blood transfusion. The mother
testified that she believed there were unobjectionable alternatives to blood
transfusions. Finally, the court pointed out that the juvenile court had
jurisdiction to order a blood transfusion over the objection of a parent.
In divorce proceeding in which court awarded custody of three and one-half year
old child to mother, court erred in ordering that mother, who was Jehovah's
Witness, could not take child with her on door-to-door ministry until child
reached age seven and that neither party could require child to sit in regular
church service until that same age, where courts may not restrict parent's
fundamental right to control religious upbringing of child absent showing that
particular religious practices pose immediate and substantial threat to child's
temporal well-being, where mother had not objected to father taking child with
him to Catholic services or to father having power to authorize blood
transfusion for child in emergency situations, where there was no evidence that
child was manifestly fearful of either parent or was suffering from any tangible
mental stress from attending Jehovah's Witness services or participating in
door-to-door ministry, where there was likewise no evidence or even allegation
of physical harm to child by these activities, where mother actually testified
that attendance and participation in religious activities of both parents would
be healthy for child and provide basis for child to determine which religion she
would prefer when she reached sufficient age of understanding, and where by all
indications of psychologists' evaluations, child was happy and well adjusted.
Palmer v. Palmer (1996) 249 Neb 814, 545 NW2d 751.
While courts have duty to determine whether parent's religious beliefs threaten
health and well-being of child, constitution flatly forbids any court from
evaluating merits of religious doctrine or defining contents of that doctrine;
in divorce proceeding, court did not err in awarding custody of children to
mother who was practicing Jehovah's Witness where in order for mother's religion
to constitute ground for awarding custody to father, it had to be determined
that Jehovah's Witness religion as practiced by mother constituted immediate and
substantial threat to children's temporal well-being, where as evidence of
immediate and substantial threat to children, father argued that, even in case
of medical emergency, mother would refuse to consent to children receiving blood
transfusion, and that children felt confused and separated from other children
by mother's insistence that they not participate in celebration of any birthday
or holiday or in pledging allegiance to flag, where problem with father's
argument was that record was devoid of any expert testimony indicating that
mother's religious practices were imminently harmful to children, where, even
though activities like celebrating birthdays and holidays, saying pledge of
allegiance, and participating in extracurricular activities are considered by
most people to play important role in socialization of children, courts have to
separate value judgments implicit in so-called norm from any actual harm, where
record contained no convincing evidence that limitations placed by mother on
children's activities constituted threat of immediate and substantial harm, and
where, likewise, no evidence was presented showing that children were prone to
accidents or were plagued with any sort of affliction that might necessitate
blood transfusion in near future. Garrett v. Garrett (1995) 3 Neb App
384, 527 NW2d 213 (citing annotation).
Holding that the fact that a mother was a Jehovah's Witness was no bar, in and
of itself, to having custody of her children, the court, in Romano v. Romano
(1967) 54 Misc 2d 969, 283 NYS2d 813, awarded custody to the mother subject to
conditions, inter alia, that the father could take them to Catholic church, that
he could take them to Catholic school each morning, and that the mother would
not take the children to any headquarters or meeting hall of Jehovah's Witnesses
nor would she instruct them in any of their teachings. The court said that the
basic issue was whether the children were so adversely affected by their
continued education in the Catholic school while continuing to live with the
mother that there should be a change of custody. The mother had agreed that, if
the father wished it, the children would be allowed to attend a Catholic school
and to attend Catholic church, although she felt that she had the right to
express her feelings about religion. The court noted that there was no evidence
of unfitness on the part of the mother and that the living situation provided by
the mother was preferable to that which would be provided by the father. The
court recognized that it would not be easy for the children to reconcile the
teachings of the Catholic church with the attitude of their mother. See De
Luca v. De Luca (1994, App Div, 2d Dept) 609 NYS2d 80, S 10[b]. See Gago
v. Acevedo (1995, App Div, 2d Dept) 625 NYS2d 250, S 7.
While domestic relations court may consider religious practices of parents in
order to protect best interests of child, constitution flatly prohibits court
from ever evaluating merits of religious doctrine or defining contents of that
doctrine; parent may not be denied custody of child on basis of parent's
religious practices unless there is probative evidence that those practices will
adversely affect mental or physical health of child, and evidence that child
will not be permitted to participate in certain social or patriotic activities
is not sufficient to prove possible harm; court may not restrict non-custodial
parent's right to expose his or her child to religious beliefs, unless conflict
between parents' religious beliefs is affecting child's general welfare; in
divorce proceeding in which court awarded custody of three-year-old son to Roman
Catholic father and granted Jehovah's Witness mother visitation, subject to
restriction that she not expose son to her religion, remand was required where
court appeared to have made its custody and visitation orders based on mother's
religious affiliation; both parents were competent, mother had been primary
caretaker, visitation order was overbroad, evidence offered by father to prove
that mother's religious practices would harm son consisted of two experts, one
expert testifying that mental illness was more common among Jehovah's Witnesses
was blatant attempt to stereotype entire religion, and even though it is
appropriate to question parent about her general philosophy of child rearing,
scope of inquiry into religious beliefs and practices not just of mother but of
entire religion in case at hand was improper. Pater v. Pater (1992) 63
Ohio St 3d 393, 588 NE2d 794. See Commonwealth ex rel. Kaufmann v. Kaufmann
(1953, Pa) 69 Montg Co LR 292, infra S 9[b], wherein the court, although
awarding custody to the child's father because the mother's religious activities
precluded her giving the infant proper care, recognized that the mere fact that
the wife was a Jehovah's Witness did not affect her right to custody, adding
that if the mother wished to inculcate in the mind of the child doctrines and
rules of conduct at variance with those of the vast majority of children with
whom she would associate in life, presumably she had that right.
A trial judge who awarded custody of a 22-month-old child to the father in a
divorce proceeding on the basis of the religious beliefs of the mother, a member
of the Jehovah's Witnesses, was held, in Mollish v. Mollish (1972, Tenn
App) 494 SW2d 145, to have erred. Stating that the religious beliefs of parents
cannot be controlling in custody cases, the court observed that both parents
were persons of good reputation and character and were fit to have custody of
the child. After the mother had become a believer in the teachings of the
Jehovah's Witnesses, the father had expressed concern that their child's health
might be endangered because persons professing that belief do not permit blood
transfusions. However, the mother had testified that she would permit a
transfusion if the father felt it necessary. The court stated further that it
did not have competency in spiritual matters and could not make a determination
between religions in the absence of a conflict with the fundamental law of the
land. A judgment awarding custody of the child to the father was reversed.
In a habeas corpus proceeding by a mother against the father of a 12-year-old
girl, the fact that the father, otherwise qualified to have her custody, was a
member of Jehovah's Witnesses and was raising the girl in that sect, the
principles of which forbade her to salute the national flag, was held in
Reynolds v. Rayborn (1938, Tex Civ App) 116 SW2d 836, not to render him
unfit to have her custody, the court noting the constitutional inhibition
against any law respecting the establishment of religion or prohibiting its free
exercise, and saying that however reprehensible the religious doctrines in
question might seem, the constitutional right to hold them must be held sacred.
The judgment awarding custody to a home was reversed as to the father.
Although saying that under the American principle of separation of Church and
State, the secular power is so shackled by fundamental law that it is beyond the
power of a court, in awarding the custody of the child, to prefer, as tending to
promote the interest of the child or surround it with a more normal atmosphere,
the religious views or teachings of either parent, the court in Salvaggio v.
Barnett (1952, Tex Civ App) 248 SW2d 244, cert den 344 US 879, 97 L Ed 681,
73 S Ct 176, held, while affirming a judgment changing custody from the divorced
father to the divorced mother on other grounds, that it was improper for the
trial judge to consider the fact that the father was a member of Jehovah's
Witnesses and was teaching the child that it was sinful to salute the flag,
fight in defense of the United States, or celebrate Christmas, even though the
profession of such principles by the child might produce problems and conflicts
adversely affecting her welfare. See Alaniz v. Alaniz (1993, Tex App El
Paso) 867 SW2d 54, S 7.
Holding that one's religious beliefs, teachings, and practices are not grounds
for depriving a parent of custody of his or her children, so long as such
teachings and practices are neither immoral nor illegal, the court, in
Frantzen v. Frantzen (1961, Tex Civ App 4th Dist) 349 SW2d 765, affirmed the
trial judge's refusal to grant a father's petition for divorce and request for
custody of his two children, which was based on the mother's conversion to the
Jehovah's Witnesses. The father had expressed concern about the potential hazard
to the health of the boys, due to religious objections on the part of the mother
to blood transfusions, as well as the possible effects that the mother's
religious beliefs might have on the boys' being able to be members of boy scouts
and other organizations and their patriotic beliefs and service in the military.
A mother's profession of the doctrines of Jehovah's Witnesses as to saluting the
flag and fighting for the country was held in Stone v. Stone (1943) 16
Wash 2d 315, 133 P2d 526, not to amount to any disqualification for the custody
of her children, the youngest of whom were aged 5 and 2 years, the court noting
that her religious activities apparently did not interfere with the care given
the children and that the teachings in question could not be said to be
dangerous to morals or inimical to public safety, health, or good order. The
judgment awarding custody to the father was reversed.