*1 IN RE THE MARRIAGE OF
MICHAEL W. WANG, Respondent, Petitioner LAURIE APRIL WANG, Respondent Appellant. No. 95-068. April 20,
Submitted on Briefs
1995.
Decided June
1995.
St.Rep.
CHIEF JUSTICE TURNAGE delivered the of the Court. (Laurie) Thirteenth Wang appeals the decision of the April Laurie Court, County, appointing District Michael W. Judicial Yellowstone (Michael) of their Wang primary residential custodian son Jesse. We affirm. issues following dispositive:
We find the failing err in to address Michael’s religious 1. Did the District Court beliefs and the effect those beliefs would have on Jesse when it what was in Jesse’s best interest? determined the District Court err in that Laurie had 2. Did denied Michael’s access to visitation? previously 1989, child, Jesse, Michael and Laurie were married in and had one couple separated in 1990. In 1993 the and Michael filed who was born agreed joint custody Michael and Laurie that would for divorce. While interest, they disagreed be in Jesse’s best as to who should be custody dur- requested residential custodian. Both of Jesse primary year, having during the school with the other Jesse the summers ing holidays. alternating conducted home evaluations of Michael and Laurie Social workers primary concluded that both were suitable to be caretakers of hearing The District Court held a in which Michael and Laurie Jesse. arguments support respective posi- evidence and their presented Michael tions. Laurie was a member of Community argued practices Church. She Cornerstone church, including performance of exorcisms and the belief this husband, harmful should be subservient to her would be that a wife Jesse. fact, hearing, findings the District Court issued its Following Michael granted law and order. The court conclusions year. granted physical Laurie during the school custody of Jesse holidays. Laurie alternating during Jesse the summer the District Court. the decision of appeals
Issue 1 Did the District Court err in failing to address Michael’s beliefs and effect those beliefs would have on Jesse when it determined what was in Jesse’s best interest? argues
Laurie that the District Court should have specific made to Michael’s involvement with the Corner stone Church and how this involvement affected the best disagree. interest of Jesse. We v. 62, Lorenz Lorenz 242 Mont. stated, we
a district court need not make specific findings on each factor in interest children under 40-4-212, MCA, but need express the ‘essential and determining’ upon which rests its conclusion.
Lorenz,
It is true that the District Court did not make specific findings addressing allegations concerning Michael’s religious be- liefs. the court likewise did not make specific findings concerning poorly reflected on Laurie’s *3 abilities. parenting
The court set forth the factors to be considered under 40-4-212, § Then, MCA. rather than making specific findings each concerning every allegation by raised Laurie, Michael and the court summa- rized its observations of the evidence as follows: adequate
There is no physical, evidence of emotional, sexual, drug or alcohol abuse against party. either parties Both provided have care appear for Jesse and fit proper custodians under the statutory joint custody provisions. by
Jesse has been cared for both at different times. The Father has a primary been caretaker of Jesse from the time of birth during portions well as proceedings these and no adequate challenge ability to his do so has been made the Mother or hearing. other witness at the District Court heard Laurie’s concerning Michael’s practices. Applying factors, the court found adequate challenges there were no to Michael’s to care for Jesse. The court set forth the essential and determining specific finding it its conclusion. It is not bound to make a based every allegation by a regarding party. Frazier
In Frazier v. why specific findings accepted court failed to make as to district party. valuation rather than that of the other party’s property one This Court stated: specific findings the lack of which constitutes
It is not reversible support judgment. evidence to error, but the lack substantial express reasoning the District Court’s and the We look both to ample in the record to determine whether evidence exists. evidence Frazier, P.2d at 219-20. record, merely Laurie’s allegations
A review of the entire beliefs, reveals the District concerning by substantial credible evidence. supported were Court’s testimony that reflected parties presented negatively on While both abilities, independent home evaluations found parenting the other’s parents. and Michael to be suitable both Laurie Seiler, worker, performed social a home court-appointed Sarah McCallum, pastor Ken questioned evaluation of Michael. Seiler Community Church. Seiler also made several of the Cornerstone Michael’s interaction with Jesse. Following home visits and observed evaluation, determined that there were no “bizarre activities she Community Church but rather it was on” at the Cornerstone going that Michael merely a fundamentalist church. Seiler concluded custodian for Jesse. a suitable residential record, thorough review of the we conclude that the court After 40-4-212, MCA, and application err in its there is § did not findings. its support credible evidence to substantial Issue 2 pre- err in that Laurie had the District Court Did Michael’s access to visitation? viously denied 40-4-212, MCA, the factors set out in a district In addition to likely frequent more to allow court should consider custody matters. In re the deciding visitation when continuing 67, 826 Mont. P.2d 937. The District Converse Marriage of *4 fact, stated, in its ability cooperate paren- in his greater shows a Father also [t]he ability Jesse it relates to his to allow role, as particularly tal his Mother. The Mother’s continuing contact with frequent had the regarding Father visitation has upon demands previous denying effect of visitation to speak Father does not to her cooperate primary custodian. supports The evidence trial the court’s finding. During Laurie, cross-examination following exchange place regarding place took restrictions on Michael’s visitation: Q. you Another restriction that imposed away is that he be from if spend work time with Jesse he was to have visitation? thought going him, A. I did. I if he was time spend with that that Jesse, would be best for but I didn’t want to be unreasonable. Q. you working You were while had Jesse?
A. Yes.
Q. imposed But work; condition visitation that he not isn’t that right? guess probably Maybe
A. I I did. that wasn’t the best idea in the did, world. That is what I but the thought reason I he had only month with I him. don’t know that I would have been so him to it anything mean hold like that.
The record evidences other restrictions imposed by Laurie on rights, including Michael’s visitation that he have nothing to do with the Cornerstone Church.
We conclude that there was substantial credible evidence to sup- port the District Court’s finding that Laurie placed restrictions on rights during Michael’s visitation separation. We affirm the decision of the District Court. GRAY,
JUSTICES TRIEWEILER and NELSON concur. LEAPHART, dissenting. JUSTICE
I I dissent. would reverse and remand for specific findings on allegations adversely beliefs affect relationship Jesse. Court cites Lorenz v. Lorenz for the proposition that a district specific findings court need not make on each factor 40-4-212, MCA, interest of children under but need address essential and disagree
rests its conclusion. I do not with that proposition. do believe that district court must address the dispute. bar, are at the heart of the In the case at Laurie’s main if exposes teachings contention is that Michael Jesse to the Community Church, exposure adversely Cornerstone will im- Michael, pact on Jesse’s with his mother. on the other *5 296
hand, the designated contends that Laurie should residential she, to parent past, because in the restricted Michael’s access visita- to specifically District Court chose make tion. The Michael’s contention but not address contentions about religious upbringing. Court, transcript although from the that the District appears
It testimony question religious on the listening proof of religion beyond the teachings, position pale took the of the scrutiny. disagree. Considerable and/or psychological physi- court’s religion. can be inflicted in the name of When sufficient cal harm questions as to whether produced particular to raise evidence adversely affecting relationship are child’s religious practices the court to address is incumbent district those parent, allegations. as to the finding and make issues may determine provides parent Montana law that the custodial hearing finds, the court after religious training child’s “unless the in by parent, that the absence of a the noncustodial upon motion authority, the child’s limitation of the custodian’s specific development signifi- or his emotional endangered health would be 40-4-218(1), recog- This Court has cantly MCA. impaired.” Section religious the of their upbringing of direct right nized the 506, 509, 779 Marriage Gersovitz children. re of 205, v. 92 883, 885; Yoder U.S. S.Ct. citing Wisconsin “courts will the Court noted 32 L.Ed.2d general the child’s which interfere with religious practices examine authority.] A of education must be [Citing question welfare. ofthe minor child.” to the ofthe best interests strictly limited context Gersovitz, Marriage Gersovitz, the 885. In Marriage of of Jew the mother was non-Jewish. practicing was a while child’sfather and, custody to the mother in court awarded residential The district joint custody, provided of that neither philosophy the interests right to the exclusive determine child’s should have appealed contending and affiliation. The father religious education tradition and that raised in the Jewish child should be development of prevents mother with the non-Jewish custody found that the rejected argument This Court that tradition. in the child’s best relating to was order district court’s custody to the father an award of Court concluded that The interests. dominate other education should not of purposes for the Marriage of the child. the best interests comprise elements which Gersovitz, P.2d at 885.
The Supreme recently of North Dakota addressed a similar (N.D. Leppert 1994), v. Leppert situation 519 N.W.2d in which belonged the mother to a small religious father, sect run (the children) husband, Winrod. Her father was once a follower following of Winrod but had ceased his teachings. The district court custody awarded had two the minor children to the father and custody of the other three children to the mother. The father appealed award the three children to the mother. The North Supreme Dakota Court noted that was at trial the father’s contention that supporting the mother poisoning children’s with the father family. and his Supreme *6 Court concluded that the district court failing erred in to consider the impact the harmful of mother’s determining beliefs when the best the interests of children. that Holding religious conduct may child, physically harm the or emotionally, subject is judicial to scru- tiny, the North Dakota court said: Quinta we the
Although agree with district court that [the mother] must not be discounted from consideration aas custodial parent simply because of her religious beliefs, this does not mean her religiously actions, motivated which are emotionally and physi- cally children, harmful to the ignored should be when the children’s best interests. Such a holding would immunize from consideration all religiously acts, motivated no matter what their impact the E. Schneider, Religion on children. Carl and Child (1992). Custody, 25 U.Mich. J.L. Ref. at
Leppert, 519 N.W.2d 290. The North Dakota court went on point to out consideration possible impact harmful a parent’s religion of when determin- custody is ing punish not meant to the parent. any
The reason for consideration of beliefs when best of determining the interests the child tois take into account system impact may harmful the belief have on the child. The interests factors enumerated in 14-09-06.2 are secular in nature, the court’s functions do not include the Although road to salvation. secular courts have no place deciding another, Schneider, at supra, 884, they one is better than duty objectively determining the do have whether a belief likely secular are to cause system’s effects or emotional harm to children. at 519 N.W.2d 291.
Leppert,
had
Leppert,
ignored
district court
these factors because
they
religiously
were
motivated.
North Dakota Supreme Court
considering
the correct standard for
“Applying
reversed:
adverse
Quinta’s
likely
children,
that
are
have on the
it
impact
beliefs
to
is in
five
physical custody
the best interests
all
children that their
be
Leppert,
with Joel.”
In the same the Colorado held: “While concerns, first a courts must remain sensitive to amendment court in to custody proceeding a must not blind itself evidence of practices seeking may impair or party beliefs or (Colo. Marriage 1985), re Short endanger the child’s welfare.” In clearly beyond scope judicial Religious upbringing (and should) Rather, it is the courts will scrutiny. a matter which religious practices interfere with the examine to determine whether significantly impair development. his/her emotional child’swelfare record, knowledge have read in this I have no Other than what teachings of the Cornerstone Church. of the beliefs and to Furthermore, my is not function debate the merits of different any particular faith. religions preference or show indicating teaches the record church any authority, allowed men must allowed women are not witness, ten-year member of the all decisions. One to make herself of the “evil church, undergo had to an exorcism rid unsub- speak her for spirits” spirits up which caused herself missive —the completely authority rather than submit and to exercise *7 Further, is church believed that husband. subjected and therefore Wang possessed by demons Laurie whether, The District Court did determine exorcising to an ritual. any testimony. or to this significance there was truth judgment, its however, Findings enter of Fact and Conclusions did, The court provide: Law which indirectly Jesse to directly or cause [parent] shall either
Neither either parent. his affection to respect for or alienate loose light favorable before the cast other in the most parents shall each parents/child theof great importance recognize child and shall Additionally, parents shall: both relationship. development respect oflove the free and natural Encourage
c. estrange may Jesse from nothing do parents and for both parent, injure the other or opinion of the child to the other parent; ....
If validity there is that Michael taking Jesse to a church which teaches Jesse that his possessed mother is she, demons and that in contrast to the species, male of the is a lesser, subservient human being, then there is very question serious as to whether teachings those are in direct contravention ofthe court’s directive that both will foster love and respect for the other parent nothing will do estrange which will Jesse from the other injure or the child’s opinion of the other parent. guise Whether under the not, any indoctrination of a minor child which undermines a respect child’s for his/her mother woman, because she is a subverts the child’sinteraction and interre lationship parent, with contrary to 40-4-212(1)(c),MCA, the best interests of the child.
In response to Michael’s allegations about uncooperative- ness, the District Court did find that Michael greater shows a cooperate in his parental “particularly role as it relates to his ability to allow Jesse frequent and continuing contact with his Having Mother.” addressed the frequency issue of of Jesse’s contacts mother, with his it is incongruous to then avoid the more substantive Jesse, issue of whether despite frequent contact with mother, his being,taught to disrespect and fear his mother as a subservient and demon-possessed person. Given that the trial court required the parties to foster the child’s respect love and for the other parent, the court should have made specific findings as to whether the religious upbringing at the Cornerstone Community Church would be consis- tent with that directive.
I would reverse and remand for specific findings of fact on the question of what impact, any, if the religious training has on Jesse’s his mother.