*4 ROWLEY,* Before KELLY JOHNSON, JJ. KELLY, Judge:
In this case we are asked to determine whether an order prohibiting a father from taking his children services to the “contrary Jewish faith” during periods of custody lawful or visitation violated the father’s constitu- rights, tional or constituted an abuse of discretion. findWe that, under the facts of the case, instant father’s .the rights violated, constitutional were the trial court’s discre- abused, tion was and the restriction challenged cannot be sustained. We vacate the restriction imposed.
We are also upon called to determine whether the father may be directed present the children at Synagogue for Sunday School his during periods of weekend visitation. order] We affirm part this of the trial court’s * Judge Rowley replaced Judge panel following Melinson on this oral argument expiration as the Judge result of the Melinson's commis- sion.
I. Backdrop Historical Custody and visitation cases involve essentially salvaging operations. Judges preserve, are asked to best as be, involved, the interests of children any while the same disentangling parent’s spousal time their relationship. Un- it der the best of circumstances is a task requiring Solomon- judgment. ic
The difficulties involved are compounded when emotional the religious issues such as of children upbringing are involved. Venerable advocate for religious liberty, Leo Pfeffer, explained 1935: litigation
Few areas are more for dispassion- difficult ate and disinterested judicial determination more likely to evoke strong passionate reactions the protagonists, general sides, cause the public take and to incite among religious acrimonious debate groups than the area of litigation involving religious considera- tion the upbringing of children. BULR, Pfeffer, Religion Children, in the Upbringing (1935).1 In light tread, ground sensitive we
we set forth our analysis entering detail. Before into an examination of specific issues raised in appeal this concerning the role of in mediating resolving the courts parental disputes regarding post-divorce religious up children, bringing of important we think it to discuss gener ally broader issues of religious freedom and parental authority impact which on the specific issues raised here. recently, Egon Mayer, 1. More sociologist Professor a noted who has religious intermarriage, conducted landmark research on has similar- ly observed: order, subject When sober discussion would be most fre- quently generates light. more heat than The ambivalence brotherhood, many feel about their own commitments to human individualism, primacy relationship, of the love and on the hand, strong one pass and the desire to on certain traditions of one’s other, religious group, ethnic and on the often leads to intense children, parents among friction couples between and their adult (or in) contemplating who already intermarriage, are an throughout religious community. the wider ethnic and Mayer, Christians, Marriage Love and Tradition: Between Jews and A. Religious Freedom *6 in an America was founded era of extreme persecution. and Justice bigotry Pennsylvania Black explained: Jeremiah S.
All the colonies founded during were seventeenth and that the time century, precisely persecu- when was frightful tion its most committing ravages Europe. was the contest of savage cruelty opinion with which was The carried on by parties, judicial all murders and the ..., slaughters pages wholesale are the saddest in the history of the human race. rode and Bigotry rampant red over all lands.
jjt sjs sj: $ >Je and Burning, beheading, hanging, imprison- well as ment, branding, maiming, and were in fashion. universal talents, piety, highest Men of the most fervent and lives, the most blameless suffered inflictions so cruel and that, time, ignominious, so even at this distance of they thought unspeakable cannot be of without indignation. terror, blood, It conflagration, was from these scenes of tears, and the earliest settlers of America fled. faith, Most of them had suffered more or less for their and all of them ought justice have known that sound policy were both favor free conscience. But proposition, us, this as it seems to then plain very was intellect, indeed, generally repudiated. The comprehends it readily enough, ages but all the heart of man has slowly reluctantly. learned it Black, (an “Religious Liberty” address September delivered 17, 1856), Black, in C. printed Essays Speeches Black, Jeremiah at 55-56 S. taken our steps founding fathers to renounce
religious oppression and to protect religious freedom were so, religious bold and momentous. Even freedom did not spring founding forth at our like in full armor. Minerva time,
At that majority vast colonists were associat- sects, ed with various Protestant with a small influ- but 2,500 dis- only about Jews population, ential Catholic was con- religion the colonies.2 When throughout persed later in the Convention and the Constitutional sidered rather pluralism, the focus was Christian Congress, first the First Concerning freedom. than universal Amendment, Joseph Story explained: Justice coun- of the amendment was not to object
The real tenance, advance, Mohametenism, or Juda- much less to ism, infidelity, by prostrating Christianity; but sects, prevent and to rivalry among exclude all Christian should national ecclesiastical establishment which any na- give hierarchy patronage to an exclusive government____ tional Constitution, on the Story’s Commentaries
III *7 (3rd.Ed.1858). Notwithstanding our founders’ Christian focus, of the ban on implications the broader sectarian tests and the Free Exercise religious Establishment under- religious plainly freedom were for universal Clauses religious criticism of the tests response stood. ban Jews, Muslims and Athe- as an unwarranted invitation (later Justice of the politics, to enter James Iredell ists Court) in the North Car- Supreme responded United States how was by asking rhetorically, olina ratification convention men, taking away to exclude set of without possible any “it so religious of freedom which we ourselves principle Elliot’s Debates contend for?” warmly IV (2d.Ed.1937).3 in our national planted of freedom religious
The ideal from seed to tree founding grew our fathers by conscience fell rose and as waves prejudice the storms of which despite Portrait, Finke, Religion A Statistical See Stark & American in 1776: Dawidowicz, Equal Sociological Analysis On 39-51 America, A); Herberg, (Appendix Protes- at 167 Terms: Jews in tant-Catholic-Jew, at 18 Emmerich, Heritage Religious Liberty, 137 A 3. See also Adams & of (1989) (detailing the founder’s diverse 1559-1643 U.Pa.L.Rev. Carey, regarding scope religious protected); of freedom the views 1776-1840, American Catholics and the First Amendment: Pa.Mag.Hist. Pfeffer, (1989) (same, founders); & Bio. Catholic Constitution, Jews, Digest Jewry Jewish and the American concerns). 1983) (same, (June focusing on Jewish of ethnically, culturally, immigrants diverse religiously came to our integrated increasing- shores and were into our pluralistic ly society. American As so many basic rights founders, affirmed our struggle extend promise of the Free Exercise Clause and the protection the Establishment Clause beyond Christian sects to all (including faiths, Americans ag- adherents of non-Christian nostics, atheists) been, times, has difficult and con- Nonetheless, troversial.4 Americans today enjoy religious freedom as and as deep broad as mankind has known. ever
In a recent decision on this subject, the United States Supreme explained: Court
This Nation is heir to a history religious tradition that dates diversity from settlement of the North American continent. among Sectarian differences vari- ous Christian denominations were central to the origins then, our Republic. Since adherents of too numerous to name have made the United States their home, as expressly have those whose beliefs exclude religion.
Precisely because of the is our diversity heritage, national the Founders added to the Constitution Bill Rights, first declare: very words which “Congress respecting shall make no law an establishment thereof____” religion, prohibiting the free exercise Perhaps early days Republic these words *8 protect only were understood to the diversity within Christianity, today they recognized guarantee- but ing infidel, religious liberty equality to “the atheist, or the adherent of a non-Christian faith such as Jaffree, Wallace v. 38, Islam or Judaism.” 472 U.S. 52 2479, 2487, (1985). S.Ct. 86 L.Ed.2d It is settled [105 29] that no in government law official this Nation violate Miller, Religious generally Liberty History 4. See in America: and Pros- pects, passim Herberg, Integration The the Jew Into Amer- 27, Religion Society, ica’s Three 5 Church & State Jew, Pfeffer, Herberg, supra passim; Protestant-Catholic at n. Church, State, Freedom, (1953). passim & & at 577-97
39 these fundamental rights regarding constitutional mat- Id., S.Ct., ters of conscience. at 49 [105 2485]. ACLU, County -, -, v. 492 Allegheny U.S. 109 3086, 3099, S.Ct. 106 L.Ed.2d (per Black mun, J.; in joined part by Brennan, Marshall, Stevens, this O’Connor, JJ.). Supreme Court also noted that its that, prior decisions had established “no person can be punished for entertaining professing religious or beliefs or disbeliefs, for non-attendance,” church attendance or that, least, “the Establishment at the very prohibits Clause government from ‘making ... adherence to a religion rele vant in any way person’s standing to a political ” Id., at --, 492 community.’ U.S. 109 S.Ct. at cases). (collecting L.Ed.2d at 493-95 Supreme Our Court had repeatedly expressed the same regarding sentiments religious freedom: Pennsylvania, more than any other sovereignty history, traces its origins directly to the principle that the funda- right mental of conscience is inviolate. See The Papers Penn, (Dunn Dunn, I William Vol. University of of Pennsylvania
Press), 51-52, pp. 90-93, 268, 280, 452, 511. thus, In general, our Commonwealth is neutral regarding religion. It neither encourages nor discourages religious belief. It neither favors nor disfavors religious activity. A citizen free, of this Commonwealth is of longstanding right, practice not, religion fit, a or as he sees whether practices he a religion strictly and exclusively private matter, not matter for inquiry by state. Fink, 208, 231, JIRB v. (1987), Pa. 532 A.2d Eubanks, quoting 201, 206, Commonwealth v. 511 Pa. A.2d
It has long been a fixed star in our constitutional constellation government official, that no high or petty, have any authority whatsoever to declare orthodoxy religion. matters of See Barnette, West Virginia 624, 642, U.S. 1178, 1187, 63 S.Ct. 87 L.Ed.
(1943). Moreover, as courts may not divine truth or falsity religious doctrine, matters of custom, belief, courts
40 not give weight consideration to such factors in resolving legal disputes in civil courts. See Employment — Smith, Division v. U.S. -, -, 1595, 1603, 110 S.Ct. 876, (1990); Wolf, Jones v. 595, L.Ed.2d U.S. 602-05, 3020, 3025-26, 775, 99 S.Ct. 61 L.Ed.2d 784-85 (1979); Serbian Orthodox Milivojevich, Diocese v. 426 U.S. 696, 708-15, 2372, 2380-83, 151, 96 S.Ct 49 L.Ed.2d 162-66 Church, Church (1976); Presbyterian v. Hull 440, 393 U.S. 445-52, 601, 604-07, 658, (1969); 89 S.Ct. 21 L.Ed.2d Jones, Watson v. 679, 728-29, 13 Wall 20 L.Ed. see also The Establishment Clause and Reli Note, in
gion Custody Disputes, Child 1702, 1716 82 Mich.L.Rev. n. 49 (collecting other United States Court Supreme cases). justice sword of which had been bloodied in aid of
religious oppression
Europe was
sheathed
the First
Amendment,
Amendment,
the Fourteenth
and state consti
tutional
To
equivalents.
unsheathe that sword and wield it
any
religious conflict is a
serious matter.
action
Such
may only
taken in
support
countervailing
interests of
order,
highest
and then
only
the least
intrusive
adequate
manner
safeguard
specific interests identi
Yoder,
fied. See Wisconsin v.
205, 215,
406 U.S.
92 S.Ct.
1526, 1533,
see also Employment
32 L.Ed.2d
—
Smith,
Division
at -,
U.S.
B. Parental Authority Though King allusions to Solomon’s famous custody cases, case5 custody abound modern a material differ- ence exists renders which the modern cases far more diffi- than the King one which taxed great cult Solomon’s King wisdom. Solomon faced was with the difficult task of true determining the child’s mother from claimant. false courts, hand, Modern on the other are faced with a more Kings I 3: 23-27. *10 agonizing choice between two claimants whose assertions of parentage unquestionably are both true.
Historically, conflicting courts have resolved such claims post-divorce parental authority rigid pre- with rules and searching than sumptions analysis. rather individualized the nineteenth early century Until the ancient doctrine of fathers patria potestas gave virtually right unlimited custody legitimate and control all off-spring they until age reached legal the the nineteenth majority. early began courts century, reject patria in favor of a potestas power government pariens patria to award custody with judicially accordance the determined inter- “best however, ests” of the children. In practice, rejection of the paternal preference embodied doc- patria potestas paved trine merely way preference a maternal via years presumption the tender which dominated the “best interests” analysis.6
The time in which gender preferences such could be however, rationalized or justified, has since past into unla- along mented history repressive gender stereo- types preferences. which drove the Women pursue now provide children; careers and for their men now nurture and care for their children. Parenthood has more grown complicated, and grand over-simplifications gov- which erned past child in the custody positively have become anachronistic.7 Ahl, 1344, Backward, generally,
6. See
StepA
70 Minn.L.Rev.
1347-48
Alford,
(1986);
Sword,
Brosky
Sharpening
&
Solomon’s
81 Dickinson
683,
Radcliff,
(1977);
Pennsylvania
Custody:
L.Rev.
683-85
Child
The
Excuse,
775,
Tender Years Doctrine —Reason or
L.Rev.
81 Dickinson
(1977); Derdeyn,
Custody
775-92
tive,
Perspec
Child
Contests Historical
1369,
(1976); Mnookin,
Am.J.Psych.
Custody
1369-76
Child
Adjudication:
Indeterminacy,
Judicial Functions in the Face
39 L. &
226,
(1975);
Divorce,
Marriage
Cont.Prob.
Shelford
(1841).
Everett,
generally
7. See
Shared Parenthood in Divorce: The Parental
Law,
Custody
Religion
Covenant and
J.Law
92-93 & n. 15
(1985) (discussing
preference;
collecting
the decline of the maternal
authorities).
Uviller,
Rights
But see
Father’s
Feminism: The
Revisited,
Rights
Maternal
1 Harv.J. Womens
Preference
(1978) (advocating
gender
primary parent
the retention of a
nuetral
preference).
law,
Pennslyvania
special
Under current
need for
parent
the association of one
rather than the other
no assumed on the
of a
longer
stereotype
basis
driven
rather,
the child’s interests in such
presumption;
associa
tion
proven by competent
must be
evidence. See Common
Carson,
rel
470 Pa.
The is in gender harmony with constitutional area. developing jurisprudence this Supreme expressly recognized United States Court has that, father, mother, no less than a has a constitutional- “[a] *11 care, ly protected right companionship, to the custody management raised, of the children he has sired and which and, deference undeniably powerful warrants absent a interest, countervailing protection.” v. Wiesen- Weinberger 636, 652, 1225, 1235, 514, 420 U.S. 95 S.Ct. 43 L.Ed.2d feld, (1975). The has also Supreme specifically reject- 527 Court ed the notion that in gender custody based classifications matters could universal difference justified “by any maternal and a paternal every phase between relations of Mohammed, 380, development.” child’s Caban v. 441 U.S. 389, 1760, 1766, 297, (1979) 99 S.Ct. 60 L.Ed.2d 305 (reject- ing a maternal when the children in preference justification question years-old). were and six four
The demise of and a gender stereotypes, grow- wide ing indicating of research the of body importance both parents healthy development8 child have caused courts to generally Furstenberg, 8. See Allison & How Dissolution Marital Affects Children, 540, Fishel, (1989); Developmental Psychology 25 540-49 173, Families, Adjustment Society Children’s in Divorced 19 Youth & McCant, (1987); The Cultural 173-96 Contradiction Fathers of 127, Guidubaldi, (1987); al., Fam.L.Q. Nonparents, 21 127-43 et The Adjust Family Role Environment in Selected Factors Post-Divorce of 141, Jacobs, ment, (1986); Family 34 Relations 141-51 "Fatherhood Literature, Psychiatric and Divorce: A Review the in Divorce and of Wallerstein, Fatherhood, (Jacobs 1986); Divorce, at 3-9 ed. Children of 444, Nelson, (1984); Orthopsych. Coping 54 Am.J. 444-58 with the Divorce, Family a Reaction to Death Loss Father: 3 Journal of of 41, Lamb, (1982); Family Early Issues 41-60 Paternal Influences custody/visitation of sole con- efficacy the reconsider parental authority. post-divorce allocation cept in contested awarding custody sole norm once universal shared supplanted by variety wide being cases legal physi- and/or arrangements involving joint parenting research indicates following divorce.9 Current custody cal everyone,10 that, appropriate not be while it may significantly custody options shared appropriate cases chil- consequences of divorce for negative ameliorate 185, J.Ch.Psychol.Psychiat. Development, 23 185-90 Socio-Emotional Shadows, Schlesinger, Family (1982); & Weekend Fathers: Dominic Rosenthal, (1980); Disappear- Sudden 241-47 of Divorce Journal Divorce, Separation Journal of Divorce One with Parent ance of (1989) Hill, Father, (directed (1979); passim accord Divorced 43-54 audience); professional Silver & popular rather than a toward Silver, Fathers, (1981) (same). passim Weekend Carlson, Silver, Custody Survey Reidy, A Child Decisions: 9. Fam.T.Q. Weitzman, (1989). The Divorce Judges, Revolution, 82-86 But see Custody: Joint "Child From Maternal Preference to Ch. 8 Custody?,” (discussing persistance of maternal at 215-61 preference). custody despite removal of the maternal pre- post-divorce parental con- Research the level of indicates determining appropriateness of important factor flict is an Tschann, Johnston, Ongoing parenting options. See Kline & shared Custody And Fre- Postdivorce On Children Joint Of Conflict: Effects Steinman, Access, Orthopsych quent 59 Am.J. Knoblaugh, Study Sought Parents Who Joint Zemmelman & A Divorce, Following J.Am.Acad.Ch.Psych. Custody Hauser, J.Am.Acad.Ch.Psych. Custody Dispute, 575- note, however, indicates that even We that research also conflict, early parents intervention to facilitate transition *12 custody/visitation compliance new to ensure with set to patterns roles and parents for the between the and stress reduce conflict children, enhancing potential parent- thereby for success of shared Cowen, ing options. Alpert-Gillis, The Pedro-Carrol & Children See 583, Psych. Program, J. & Clin. Divorce 57 Consult Intervention of Issacs, (1989); Adjustment, The and Child 583-89 Visitation Schedule Wallerstein, 251, (1988); & A Fam.Process 251-56 McKinnon 27 Young Custody Program Children in Joint Preventative Intervention for 168, (1988); Arrangements, Hodges, Am.J.Orthopsych. 168-78 Tier- 58 Buchsbaum, ney School & The Cumulative Pre Stress Effect of Families, Marriage 46 of and and Intact Journal Children Divorced of Chamberlin, 611, (1984); Family Custody, Joint The 615-16 see also 25, 1989); Taking Seriously: 687, (April Scheppard, Children Trial 25-28 Divorce, Promoting Custody Tx.L.Rev. 687- Cooperative 64 After Nestor, (1985); Developing Cooperation Hostile Parents at Between 788 771, Divorce, (1983). 16 Davis L.Rev. 771-75 U.C. 44
dren,11 parents.12 and their There evidence parenting options may shared also lead to increased child support compliance by fathers.13
Pennsylvania have repeatedly recognized courts physical legal value of joint custody. and/or See Brown v. 479, 480, 351 Eastburn, Pa.Super. 449, 506 A.2d 450-51 Coller, 459, generally Custody, 11. See Joint 27 Fam.Process 459-69 (1988); Visitation, Lowery, Custody Families Divorce: and Medi After 55, (Nov. 1988); Elkin, Aspects Sexuality cal Custody: of Human 55-58 Joint Forever, Affirming that Parents and Families Are 32 Social 18, Russell, (1987); Early Parenting, Work 18-24 Shared 24 Child 139, (1986); Shiller, Development and Care 139-53 Joint Versus Mater Custody Latency Age Boys, For .J.Orthopsych. nal 486, Literature," Families with 56 Am (1986); Stahl, Parenting 486-89 "A Review of Joint and Shared Custody Parenting, in Joint (Folberg and Shared at 25-36 1984); Trocme, Irving, Benjamin Parenting: Emperi ed. & Shared An Base, 561, Analysis Utilizing Large Family cal Data 23 Process 561-69 Phear, (1984); al., Study Custody Agreements: et Emperical “An of Legal Custody," Custody Joint Versus Sole ing, tions, in Joint Shared and Parent Rothberg, supra; Custody: Joint Parental and Problems Satisfac 43, Family (1983); Ilfeld, Alexander, 23 Process 43-52 Ilfeld & Custody Does Joint Work? Look A First at Outcome Data Relit of 61, Ahrons, igation, (1982); Am.J.Psychiatry Custody 131 61-66 Joint Families, 189, Arrangements in Postdivorce 3 Journal of Divorce 189- Abarbanel, (1980); Parenting Separation Shared and Di After vorce, Rosen, 320, (1979); Am.J.Orthopsych. 320-29 Some Crucial Divorce, 19, Concerning Issues Children 3 Journal of Divorce 19-25 of (1979); Wooley, Parenting Arrangements, Shared 1 Fam.Advocate 6 (1978); Weinstein, 43, Custody, & Grote Joint Journal Divorce (1977). 43-53 al., Coysh, Adjustment et Parental Postdivorce Joint and Sole 52, Families, Physical Custody Tschann, (1989); 10 Journal Fam.Issues 52-71 Wallerstein, Resources, Stressors, Johnston & and Attach- Adjustment Longitudinal ment Predictors Adult Divorce: A After 1033, (1989); Study, mann, Marriage 51 Journal of & Fam. 1033-46 Gutt- Father, Comp.Fam.Studies The Divorced Journal Ahrons, (1989); Impact Legal Custody 247-61 Bowman & Status on Postdivorce, Parenting Marriage Family Father’s Journal (1985); Lowery, 481-88 Koch & Visitation and the Non-Custodial Father, (1984); Greif, Fathers, Children, 8 Journal of Divorce 47-65 Custody, Orthopsych and Joint 49 Am.J. 311-19 Seltzer, Channg, Family 13. See Schaeffer & Ties Divorce: The After Paying Relationship Visiting Support, Between Child 51 Journal of Thoennes, Marriage Family Pearson & Supporting Support Custody Children Divorce: The on Child After Influence of Fam.L.Q. Levels, Coller, (“most custody joint at 463 relationships Fam.Process of the studies of legal variety physical equity of both a have found relative in the divided, way expenses high extremely compliance child care child-support agreements”). rates with
45
Hatala, 350
433, 440-41, 504
(1986) Murphey v.
;
Pa.Super.
Ellingsen Magsamen,
Pa.
(1986);
337
917,
921-22
A.2d
J.K.,
re
Wesley
In
21,
456,
(1984);
459
14,
486 A.2d
Super.
(1982).
509-10,
1243,
445
1245-47
504,
A.2d
Pa.Super.
299
recognized that
time,
courts have
Pennsylvania
At the same
case.
practicable
every
is not reasonable or
custody
joint
Fisher, 370
Fisher v.
87, 535
1163
See
A.2d
Pa.Super.
DeNillo, 369
DeNillo v.
363,
200
535 A.2d
(1988);
Pa.Super.
presumption
for or
Consequently,
there
no
.
Schwarcz, 378
See Schwarcz v.
custody.
against
joint
170,
16,
556,
(1988).
548
563 n.
183 n.
A.2d
16
Pa.Super.
Instead,
required
to consider all factors
trial courts
impact upon
physical,
the child’s
intellec
legitimately
which
on a case
case basis
well-being
tual,
spiritual
moral and
post-divorce parental authority
deciding
how to allocate
Davis,
re
In
110,
via
custody.
502 Pa.
legal and
physical
Rinehimer,
Rinehimer v.
336
Nonetheless, cus legal physical even when sole scrupu parent, Pennsylvania is awarded to one courts tody parent’s right a protect the non-custodial maintain lously or her meaningful parental relationship his child. W., 397-99, re Constance Pa.Super. A.2d Fatemi, Fatemi v. Pa.Super. (1985). During A.2d lawful periods parent parental authority, a non-custodial has visitation con will on that only imposed authority by restrictions sent, upon absence of the clear demonstration im restriction, visitation will have detrimental proposed W., supra, In re Constance on the child. 506 A.2d at pact Fatemi, Fatemi v. supra, 408; 489 A.2d 801. When it necessary, restriction is determined to be must be adequate protect specific least intrusive restriction W., supra, In re Constance 506 A.2d at interest identified. Fatemi, Fatemi v. (collect 408; A.2d at 801-02 cases). ing parent’s parental
This solicitousness of the non-custodial developing is in full rights accord with the constitutional *14 46
jurisprudence care, nurture, The custody, this area. and of children instruction resides first the childrens’ natural parents, constitutionally as a recognized right. fundamental Robertson, 248, 257-61, 2985, See Lehr v. 463 U.S. 103 S.Ct. 2991-93, 614, (1983) 77 623-29 cases). L.Ed.2d (collecting government statist notion supercede parental in order ensure authority bureaucratically or interests” of judicially determined “best children has been rejected as to American traditions. repugnant Parham v. J.R., 584, 603, 2493, S.Ct. 2504, 101, 442 U.S. 99 61 L.Ed.2d Nebraska, 390, 119 v. Meyer accord 262 U.S. 401- 02, 625, 627-28, 1042, 43 67 S.Ct. L.Ed. (noting 1046 of Aristotelian guardianship Spartan models state youth of rejecting collectivization those models as anti freedoms). Judges thetical to American and state officials guess deemed to second ill-equipped parents, and are from precluded intervening absence of coun “powerful tervailing Serv., interests.” Dept. Lassiter v. 452 Soc. 18, 27, 2153, 2159-60, 640, U.S. 101 S.Ct. 68 L.Ed.2d 650 (1981).
It
proof
has been held that
clear and
by
convincing
is required
evidence
proceedings
parental
terminate
rights.
745, 769-70,
v.
455 U.S.
102
Santosky
Kramer
1388, 1403,
599,
(1982).
71
S.Ct.
L.Ed.2d
617
It has also
suggested,
decided,
been
but not as
repeatedly
yet
showing
parent,
is constitutionally
unfitness of
required
Quil
parental rights.
warrant
termination of
246,
Walcott,
255,
549, 554-55,
loin
434
98
v.
U.S.
54
S.Ct.
511,
Kramer,
L.Ed.2d
520
see
Santosky
also
v.
supra,
455
760
U.S. at
n.
The constitutionally recognized parental authority
over
upbringing
augmented
of children
the Free
the First
Clauses
the Establishment
Exercise
upbringing
regard
to the
Amendment
—
Smith, supra,
v.
Division
Employment
children. See
(explain
1602, 108 L.Ed.2d at
at -,
at
S.Ct.
U.S.
rights
parents
of parental/religious
nature
ing
hybrid
v.
Wisconsin
religious upbringing);
their children’s
over
1533, 32
Yoder, supra,
214-16, 92
at
at
S.Ct.
406 U.S.
v.
cases); see
Parham
also
(collecting
L.Ed.2d at
2504-04, 61
J.R.,
supra,
603-04, 99 S.Ct. at
at
U.S.
Barnette,
Virginia
West
319 U.S.
119;
at
L.Ed.2d
1638-39; Pierce
1186-87,
D. Post-Divorce Parental Freedom Religious Morris, 271 dicta, in Morris v. in suggested, It was court however, that (1979), 19, A.2d 139 412 Pa.Super. is broader religious upbringing over children’s authority custody cases, because: been already unit has custody, family of
In matters accompanied by dissolution and that dissolved, inter- state against constructed the shield weakening of vention. flaunt the banner A cannot parent himself has abro- he sanctity when family freedom and unity. that gated This dictum added). from (Emphasis
412 A.2d at adequate Morris has been an failing provide criticized recognized Wisconsin why parental rights explanation Yoder, of a v. in the context be weakened would incorrectly and as dispute, religious upbringing post-divorce parental the disso- authority evaporates implying lution of the spousal relationships parents. See Magrum, Exclusive Reliance on Best May Interests Be Unconstitutional, 15 Creighton 25, L.Rev. ac cord Zarowny, The Religious Upbringing Children Af Divorce, ter 56 Notre Dame Lawyer (noting Morris, criticizing the approach taken Morris); Badal, Child Custody: Best Interests Children v. Constitu Parents, tional Rights Dickinson L.Rev. (1977) (noted, but not ).14 followed Morris
The suggestion
parental
authority is diminished vis a
vis the government as the result of the dissolution of the
parents’ spousal relationship, however, would seem incon
sistent with constitutional recognition of parental authority
even where a spousal relationship between the parents
never existed.
Mohammed,
Caban v.
U.S.
99 S.Ct.
1760, 60
L.Ed.2d 297
Stanley
Illinois,
405 U.S.
92 S.Ct.
The Morris dictum also carries a tone of
disap-
moral
proval and an implicit penalization of divorce which is
inconsistent with the enactment of “no-fault” divorce in this
Commonwealth. Parents who “abrogate the
unity mar-
riage” are not
punished
to be
for their decision to divorce
with denial of
or
custody
the imposition of burdensome
restrictions on
Likewise,
visitation.
assuming
even
the
constitutionally
14. It is
recognized parental
clear that
authority is not
divorce,
extinguished by
parents
right
procedural
have a
due
process
post-divorce parental rights
before
may be terminated. See
Manzo,
Armstrong
v.
380 U.S.
85 S.Ct.
In a broader families, left to parents in Morris. intact suggested their “best interests” on an ad hoc basis. children’s decide is not couple independent entity “a marital an Significantly, own, mind heart of but an association of two a its separate a intellectual and emotional make individuals with Republican a the other a Demo parent may One up.” Communist, crat, Capitalist a the other a or one one bemay a Parents healthy a Christian and the other Jew. may be matters; and, marriages disagree important about irreconcilable, serious, on impor even differences despite in, matters, step not government certainly could tant sides, uniformity orthodox such impose an choose determined bureaucratically matters to protect judicially parents. of the children of such See Par “best interests” Rather, J.R., permitted only intervention is supra. ham v. risk of harm to child upon showing substantial intervention, proposed and that intervention absence least the harm. adequate prevent is the intrusive means Yoder, supra. Wisconsin disagreements find reason to such between
We no treat As harm to the children is the parents differently. divorced intervention, we governmental justification basis should parents see the marital status cannot how required justify of harm to the child degree affect the intervention. governmental law, has parent parental each Pennsylvania
Under or visitation. during periods custody lawful authority course parent may pursue such a whatever Consequently, *17 1029, 438, 453, 1038, Baird, 405 U.S. 92 S.Ct. 15. Eisenstadt 349, (1972). L.Ed.2d of fit, indoctrination which that parent sees at that time, during periods of In Cf. lawful custody visitation. W., re supra; Fatemi, Constance Fatemi v. If the supra. parent other restrictions, and seeks objects the objecting parent must a substantial of establish risk harm in absence Yoder, of the restriction proposed. supra; Wisconsin v. Cf. W., supra; Fatemi, re Constance Fatemi v. supra. divorce does the standard Significantly, change while not for legitimate government matters, intervention such it may nonetheless lead to increased legitimate governmental intervention. divorced parents Some may conduct such religious upbringing disputes in a more acrimonious and than injurious parents manner married, who remain thereby create greater risk of harm to their children in more such cases.16 Additionally, practical as a matter, arising cumulative stress from the divorce generally, develop appropriate 16. Parents who fail conflict resolution skills post-spousal co-parenting responsibilities for problems McCombs, their exacerbate parental generally associated conflict. See Forehand & Interparental The Nature Married and Divorc- Conflict of Parents, 235, Psych. (1989); ed 17 J. Abnormal Child 235-49 Camera & Resnick, Styles and Cooperation Resolution Between Divorc- of Conflict Parents, 560, Orthopsych (1989). ed children have 59 Am.J. 560-75 In cases where negative consequences following suffered serious their divorce, parents’ high pre-and post-divorce levels of conflict have been Tchann, significant generally identified See causative factor. Johnston, Wallerstein, 12, supra Marriage & 431-44; Webster-Stratton, n. 51 Journal of & The Family at Relationship The Sup- Marital port, Behaviors, Perceptions, and Divorce to Parent and Child Conflict Problems, 417, Marriage Conduct Family 51 Journal of & The 417-30 (1989); McCombs, supra, Forehand & 17 Journal of Abnormal Child 235-49; Masten, al., Psychology Competence et Stress School Moderating Qualities, Children: The Family Individual and Effects of 745, Psychology Psychiatry (1988); 29 Journal of Long, ing Child 745-64 al., High et Interparental Continued or Reduced Follow- Conflict Divorce, Consulting Psychology Journal and Clinical Johnston, Gonzalez, (1988); Campbell, Ongoing 467-69 Postdivorce Disturbance, Psychol- and Child 15 Journal of Abnormal Child Conflict ogy (1987); Emery, 493-509 Shaw & Parental and Other Conflict Adjustment School-Age Correlates Children Whose Parents Have Separated, 15 Psychology Journal of Abnormal Child 269-81 Forehand, Long & Parental Divorce and Paren- Effects of Overview, Developmental tal An Children: and Behavior- Conflict al., Woody, al Pediatrics Adjustment 292-96 et Child Divorce, Following Parental Stress 65 Social Casework (1984); Emery, Interparental and the Children Discord and Conflict Divorce, Psychological Bulletin *18 distress cases, situation may create a where particular an tips religious upbringing dispute actually by caused intervent teetering governmental in favor of scale already intervention, however, to be the would have ion.17 Any interests adequate protect least intrusive measures Yoder, v. In re Constance supra; identified. See Wisconsin Fatemi, This may , supra. v. supra; W. Fatemi constitutionally un court must address other mean that a before in a protected intervening causes stress stress involved. dispute when cumulative dictum, its reject the Consequently, we Morris in v. Supreme ruling that the Court’s Wisconsin conclusion inapplicable. therefore find Yoder, was We or men of a threat” “physical “substantial requirement restrictions applicable proposed to the child” is tal harm rights post-divorce parental regarding parent’s of his or her children. See Wisconsin religious upbringing W., v. Yoder, In Fatemi supra; supra; re Constance Fatemi, supra. History
II. Facts and Procedural of this case were set procedural history The facts and opinion forth the trial court its follows: (father) (mother) Zummo and David S. Zummo Pamela S. August separated married on December were 19, 1988. children were April and divorced Three Rachael, Adam, marriage, namely age eight; of this born four; raised a Daniel, age three. Mother was age has her faith since childhood. practiced Jew and actively raised had attended Father was Roman Catholic but their mar- services Prior to only sporadically. Catholic differ- mother and discussed their riage, father children would be raised agreed any ences and the Jewish faith. Buchsbaum, Tierney Hodges, Stress The Cumulative
17. See Effect of Families, Journal of Children and Intact on Pre-School Divorced generally, Marriage Family see note and the supra. During marriage, Zummo family participated fully in the life of the faith community. They Jewish became members of the Community Norristown Jewish night Center celebrated Sabbath every Friday high and attended all of the holiday services as well. addition, mother and father participated a social cou- ples’ group Synagogue at their B’nai B’rith. joined All three children were formally given Hebrew names. parties separated,
Before the the children no attended *19 outside the religious services Jewish faith. Adam will Bar for his Mitzvah this fall. begin preparing Custom- would attendance require instruction at two classes ary school, participation each week after in Saturday services attendance at Sunday training School. This will age culminate in Adam’s Bar Mitzvah at thirteen. Racha- el her formal begin training will Jewish education and Sunday this fall at School.
Since father has refused to for separation, arrange attendance to Sunday exercising Adam’s School while rights visitation on alternate Father also weekends. to take the children to wishes occasional Roman Catholic as he sees fit. Father suggests services the children upbringing benefit from a bi-cultural and should would exposed religion parent. therefore be to the of each Mother opposes visitation father to the extent it dis- the formal rupts training Jewish children. She further children opposes exposing religion the to second confuse and disorient them. which would 6, 1987, Mother filed a divorce on complaint July which included a count confirmation of her of seeking custody the children. The have since to share parties agreed They agreed have also legal custody. Mother should have primary physical custody subject to fa- ther’s on partial physical custody alternating week- ends, as certain holidays periods. well as vacation To end, the parties Stipulation Agree- this submitted a ment forth the nature and setting timing of father’s the custody. By agreement, virtue partial physical only and this Court’s Order concerned hearing itself to extent should with the issues what father children at obligated to see to the attendance periods his visitation wheth- during Jewish services to permitted to take the children er should be father to extent he attends his Roman Catholic services on hearing, it de- Subsequent was visitation weekends. made classes could be Saturday termined that Adams’s up during the week so as not to interfere with father’s Findings entered its Accordingly, visitation. Court along May with its Order on Fact and Conclusions Law 6, 1988, provided part: pertinent which obligated during shall be his weekend visi- Father the children’s attendance arrange tations for Sunday however, School, father their Synagogue’s arrange the attendance obligated shall not be on Saturdays education classes special children This shall not during provision his weekend visitations. prevent going father from be construed so as functions with his children trips attending special however, he provided, his during weekend visitation mother in advance there- provides reasonable notice to *20 of. permitted be to take the children Father shall not to contrary faith,
to services the Jewish religious to however, this not be construed so as provision shall weddings, the to prevent taking father from children funerals, not con- gatherings or shall be family arranging from for the prevent strued so as to father involving tradi- presence family the children events tions at Christmas Easter. Court, Superior this to the appealed
Father has Order rights and those of his asserting his Constitutional by children violated Order. were the 251, Zummo, Montg.Co.L.R. 121 v. See Zummo added). (1988). (Emphasis
54 our appeal, scope
On
review
is broad
that we are not
bound by deductions and inferences drawn
trial
by the
court
found,
from the facts
nor are we
to
required
accept findings
which
wholly
are
without
in the
support
record. On the
hand,
other
our
scope
broad
of review does not authorize us
to nullify
factfinding
function of the trial
court
order
to substitute our
judgment
that of the trial court.
Rather,
by
are
findings supported
record,
we
bound
in the
reject
and may
conclusions
by
only
drawn
trial court
if
law,
an'
they involve
error
in light
are unreasonable
the sustainable
findings
trial court.
Karis
See
Karis,
601, 608,
1328,
518 Pa.
(1988);
A.2d
Lom-
Lombardo,
139, 147-48,
bardo v.
Pa.
527 A.2d
ex
Robinson,
Commonwealth
rel. Robinson v.
226, 236-37,
Pa.
(1984).
478 A.2d
It is well-settled in Pennsylvania that custody and visita-
tion
contending
matters between
parents
decided
on the basis of the judicially determined best interests of
basis,
the child on a case
case
considering all factors
which legitimately impact upon the child’s physical, intellec-
tual,
Davis,
moral and spiritual well-being. In re
502 Pa.
facts presented, and upon concluded that restrictions right father’s his expose children his beliefs were permissible and The trial appropriate. court noted several factors in support of the challenged restrictions: *21 the Zummo’s had orally agreed prior marriage to their that any marriage Jews; children to their as would be raised Jews; it were as marriage the the children raised during preserve stability the in the children’s best interests was beliefs; the father’s Catholi practice of their while the Juda sporadic practice mother’s only cism was active; and are irrecon had Judaism Catholicism ism been cilable; religions might “unfairly and, both exposure children, the and vitiate all perhaps and disorient confuse at religion.” either 121 Mont.Co.L.R. from flowing benefits the trial In of each of these considerations support 253-56. Morris, Morris opinion this Court’s points court (1979), as precedential authority. 412 A.2d Pa.Super. Morris misplaced consideration upon find and We reliance of each improper. shall discuss stated factors We the seriatim.18 each Morris Upon Misplaced
III. Reliance a of this Court entered into broad panel post-divorce in mediating of the role of courts consideration the of children. disputes concerning religious upbringing ratio however, its discloses that opinion, Review the decidendi was narrow, and bulk the quite the dicta, orbiter binding prece- was in fact without opinion religious upbringing, suggests that in fact 18. The dissent this is not rights hearing parental dispute. were the Prior to the those issues 29-31). (R.R. specifically by parties. Both the at mother framed (R.R. testimony issues. at father focused their those 26-91, 62-67, 71-72, 76-78, father; mother; at each R.R. R.R. at order, hearing). opinion findings, ad- The trial court’s 2-10, 13-20). (R.R. concerns that focus. dressed father’s brief, 1925(b) (R.R. 11), argument to this The father’s statement Indeed, argument had focus. the mother’s brief Court conceded that dispute. parental rights religious upbringing, was in fact a this by the trial to be were framed court’s narrow issues discussed restrictions, justifications specific the father’s broad for its rather than argument Though constitutional attack. the father’s constitutional whole, swept broadly the brief more over the order as a we feel directly of the factors identified constrained to address each ultimately justification agree challenged order we court Moreover, part challenge if the with the father’s broad order. grounds court’s exercise of its discretion were trial stated for the vacated, infirmed, constitutionally even if it then the order must be grounds. constitutionally permissible could have entered on been *22 56
dential authority.19
The order
in
Morris
challenged
merely precluded
the
father,
Witness,
who was an active
drag
Jehovah’s
from
daughter
his
ging
him
his
during
with
door-to-door prosely
efforts;
challenged
order in no
tization
restricted
way
to
rights
communicate his
to his
father’s
beliefs
her
daughter or
take
church.
412
A.2d at 147.
toAs
issue actually presented
review,
narrow
for
the decision
Morris was
in
in
complete accord with well-established
precedent
regard
to the court’s authority to intervene
a child from
protect
the harmful
a parent’s
effects of
parents’
“martyr-like” practices,
regardless
marital
Massachusetts,
status. See Prince v.
158,
321 U.S.
64 S.Ct.
(1944) (Jehovah’s
IV. Pre-Divorce Religious Training Agreements In its opinion support of the restrictions imposed, the trial court explained:
Though the Morris Court did not expressly rely upon the
parents’ original agreement
to raise the children as Ro-
Catholics,
man
it did
agreement
include such
in the factu-
al recitation and the
such an
existence of
agreement
contract has been accorded
significance
custody
other
Ackerman,
See e.g.
decisions.
supra
Ackerman v.
[204
Pa.Super.
Zummo, supra, weight and the misplaced, Ackerman Morris and upon improper. agreement given pre-divorce the existence an Morris, noted merely this Court which nothing Morris passing. There agreement enforce- legally agreements such suggests that vaguely *23 agreement way in any that the existence or able Indeed, that case. this Court’s determination effected in no challenged way in Morris above, the order noted beliefs to communicate his right the father’s restricted services, despite non-Catholic or to take her to daughter his noted. agreement pre-divorce existence the the dicta, that in Ackerman, opined, merely In this court justifica- no there could be agreement, such an absence of children parent to raise the force the custodial tion to A.2d at as Protestants. rather than involved as Jews the of such most, presence held that 51-52. At Ackerman was a different situation than agreement present an would conceded- case, it decide an issue could not presented that Thus, has no Ackerman in that case. presented not ly on this issue. precedential authority given to such possible weight be suggestions are coun- in Morris and Ackerman contained agreements in other authority by contrary to some extent terbalanced that such In cases this Court has indicated cases. several given controlling they or had been were not agreements English, v. weight. e.g. See Commonwealth undue ex rel. A.2d 92 Commonwealth Pa.Super. v. Commonwealth Kelly Kelly, Pa.Super. cases, (1918). None of these McClelland, Pa.Super. 273 however, of whether such directly question addressed given weight enforced or be be agreement properly could an agreement. to the parties of one of the objections over decision published discloses one only Our research the issue of whether addressing Pennsylvania directly pre-divorce agreement regarding the religious upbringing given legal children effect over the objections of parties one to the agreement. See Freidman v. Rptr. 236, 15 Chester Co. Aspen, (Pa.Cm.Pl.1967). Freidman, Kurtz Judge reviewed the decisions of our opinions sister states and the learned several commenta tors and agreements concluded such were not legally enforceable.
Following the same path, and carrying the for- review ward to present, we reach the same conclusion. We note authorities establish several persuasive grounds upon which to deny legal effect to such agree- ments:
1) agreements such are generally vague too to demon- minds, a meeting
strate provide or to adequate an for objective enforcement; basis 2) enforcement agreement of such an would promote a
particular religion, serve little no purpose, secular and would excessively entangle the courts in religious matters; and,
3) enforcement would be contrary public em- policy
bodied in the First Amendment Establishment and (as Free Exercise Clauses well as their state equiva- lents) parents doubt, be free to question, and beliefs, change their and that they free to instruct their children in accordance with those beliefs. See Freidman v. Aspen, supra, 15 Co.L.Repts. Chester at 237-40; Hacket, v. 431, (Ohio Hacket 150 N.E.2d 433-40 App.1958) (citing authorities); numerous v. Stanton Stan 545, ton, 213 289, (1957) Ga. 100 S.E.2d 292-93 (collecting cases); McLaughlin 278, McLaughlin, Conn.App. 420, (1957) A.2d 421-22 authorities); (collecting Lynch v. 68, Uhlenhopp, 491, (1957) Iowa 78 N.W.2d 499-50 cases); (collecting Annotation, see generally Religion as a Factor Cases, in Child Custody Visitation 22 ALR4th 971, (1983 15, 16) 1028-39 & 1988 supp.) (§§ (collecting and cases); Note, analyzing The Establishment Clause and Religion Custody Disputes, 1702, in Child 82 Mich.L.Rev. (1984) (same); Exclusive Re- Mangrum, nn. 1726 & 79-81 Reli- Be May on Interests Unconstitutional: Best liance Cases, 15 Creighton Custody A As Factor Child gion (1981) The 25, (same); Zarowny, Religious 25-82 L.Rev. Divorce, 56 Notre Dame Children Upbringing After Badal, (1980)(same); Child & nn. 54-64 Lawyer 165-66 Constitutional Interests Children v. Custody: Best (1977) 733-54 Parents, 81 L.Rev. Dickinson Rights of (same).20 arguably effect grounds denying legal
The first for two regarding religious overlap. parental agreements Vague greater entangle- result in of their children upbringing grounds Both vagueness. of their ment as result here. clearly demonstrated to their parents agreed prior orally
In this case the might children have would be raised marriage any they 43-44, (R.R. 51). parents, surprising- The not as Jews. agreement. understandings vague of this had different ly, intense agreement to envision The mother understood the exposure indoctrination with Jewish and exclusive of the father’s Ital- aspects most secular only 52, 57-61, 64-65). (R.R. 46-47, heritage. ian/ Catholic that while he explained father hand The other envisioned that agreement their informal understood that education, he did formal Jewish his children would receive chil- exposing him from preclude not it understand his aspects mass cultural dren to Catholic and other Cases, Inker, Religion Custody Boston Bar .J. also a Factor 20. See Smith, (November 1961) (same); Religious Edu Contracts 8-9 (1958) (same); Children, L.Rev. 7 Cleve-Marsh 534-40 cation of Children, Comment, Religious Rights to Prescribe Education Parent’s Note, (same); Enforceability 3 DePaul L.Rev. Marriages, L.J. Antinuptial 50 Yale Contracts Mixed Freidman, (1941) (same); Right Religious Control the Parental *25 (same). Child, have We Education 29 Harv.L.Rev. of decisions, authorities, especially contrary New York the reviewed the and find them to be tion, point. generally unpersuasive Annota on this See (§ 16a). no York supra, We note that New 21 ALR4th at 1034-39 enforcing agreements objections the of one of the over decision such Supreme by Court. Con parties has reviewed the United States been constitutionality sequently, remains in doubt. their religious heritage (R.R. 72).21 on a periodic basis. at The indefiniteness of the instant agreement oral precludes en- forcement on ordinary contract as principles it demon- strates no of on meeting minds the critical issues the exclusivity intensity and of the Jewish education envisioned the it by parties, provide does not an objective basis for of any specific enforcement terms of agreement.22 the problem The agreement indefiniteness in the is not by surmounted the trial court’s characterization of the mother’s intended course of instruction as “customary.” 121 Mont.Co.L.R. at 252. The mother testified with ac- knowledged uncertainty as to her current Synagogue’s reli- gious program, education and made no attempt to establish or intensity exclusivity the instruction now sought “customary” was for of intermarriage children be- Jews, raised ing (R.R. Jewish children generally. 56-62). at Cursory review available authorities reveals diversity, custom, broad rather than narrow the intensity of the exclusivity education children of intermarriage raised being as Jews23 and of Jewish children generally.24
21.
reject
While the trial court was
free
the father’s claim aof
understanding
agreement,
apparent
different
of the
it is
that it did
only expression
The
subject
credibility
not.
trial court’s
was
intelligent, open
that the mother and the father were "two
and honest
people
(R.R.
entirely
up
today,
who have been
candid
here
and—.”
at
Moreover,
57).
the mother confirmed the existence of conflict be-
during
marriage
scope
tween she
agreement.
father
toas
(R.R.
62-67).
at
22. It has been
suggested
might
that this obstacle to enforcement
appropriately
agreement.
an
surmounted
drawn formal written
Erstenoff,
Children,
Forcing
(1987).
See
Rites on
1 Am.Fam.
Moreover,
York,
Such is not the case here.
even New
which will
agreements, requires
they
writing.
enforce some such
first that
be in
Stevenot,
See Stevenot v.
133 A.D.2d
61 that the mother Moreover, absolutely no evidence there is intensity the the the of either had informed father of their chil- intended education Jewish exclusivity any to raise future agreed orally the father dren at the time that after the The mother conceded as Jews. children divorce, father had the born but before the children were to Catholic the children and the mother sought expose to (R.R. 50, in” mass, the did once. “give and that mother father’s 62-67). Thus, from whether the it is far clear occasional children to with expose intent to Catholicism premarital mass violate the at Catholic would attendance agreement.25 difficulties are also mani- entanglement26
The excessive is from prohibited instant case. The father fest to the “religious contrary children services taking his “religious service?” faith. What constitutes Jewish” for faith? What “contrary” Which are Jewish Orthodox, Conservative, Re- faith? matter is the “Jewish” Reconstructionist, Messianic, Humanistic, form, Secular and Pilch, education); “Jewish Reli- regard with to Jewish Jewish sects gious Education,” Education, 1960) (Taylor ed. Religious at 382-95 religious (same, cation); development edu- tracing history and of Jewish also Book, Parenting Magazine Hadassah Jewish see also The Book, (1989); Beyond Kaplan, passim Jewish Education Fishman, 11, 1988); (Spring Jewish Edu- Spectator 53 Jewish 11-14 23, (1988); cation, 28-37 Journal of Jewish Communal Service Zeldin, Phillips Activity, 64 Education Communal Journal Jewish as 123, (1987); Spiro, Formative of Jewish Communal Service 123-27 547, Tradition, Religious 547-54 64 Journal of Jewish Education Process in Frank, Schooling, Identity Jewish London & Musnikow, 4, Jewish 4-13 Cohen & Jewish Communal Service 29, (1982). Education, Early 50 Jewish Education 29-31 Childhood impor- regarded by as an pluralism is some authorities We note that e.g. Greenberg, See Plural- aspect of Jewish education. tant 19, Education, Religious Education 19-28 ism and Jewish intent with his The father that he had no interfere testified Jews, or to convert them Catholi- children’s cism. contrary education any (R.R. 76-77). slightest suggestion is There not the appeal. See n. in the here unstated intent record supra. 602, 613, Kurtzman, generally U.S. 91 S.Ct. 26. See Lemon v. entangle- (explaining the excessive L.Ed.2d Equali- concept); Jimmy Swaggart Board ment see also Ministries v. - zation, -, -, 697-98, 107 L.Ed.2d U.S. S.Ct. authorities). (1990) (collecting cases and other might Jewish sects differ widely point.27 on this An exemption provided weddings, funerals, and “family gatherings and events involving family traditions at Christ- mas and Easter.” does one How determine which events are “family gatherings or events?” How does one deter- a practice mine when becomes “tradition?” broadly How *27 are and “Easter” “Christmas” defined? Do include they Epiphany? Advent? Lent? The Ascension? Pentecost? Both the and subject ambiguities matter of the order make entanglement religious excessive matters inevitable if the order is be to enforced. is a
Finally, there broader and more fundamental entan- glement problem with enforcement of such agreements. plainly Enforcement encroaches upon the fundamental right of question, doubt, individuals to change to and to their convictions, religious to expose and their to children their changed beliefs. doubt,
The question, constitutional freedom to to and to convictions, change one’s protected by Free Exercise Clauses, and Establishment is important for very pragmatic reasons. For most people religious development is a life- long dynamic process when they even continue to adhere to religion, denomination, same gener- or sect.28 It is also ally conceded that the transmission and of inculcation reli- gious beliefs children is both active passive, and is shared by parents, both and is by affected a wide variety of Remsen, Handbook, 27. Intermarriage supra See Petsonk and The at n. 23, (describing at 277-86 & positions religious 334-79 the different sects); Pilch, education other matters taken various Jewish 24, supra (same); generally at n. Encyclopedia 382-95 see The (2nd 1987) Religions, (describing American at 667-81 Ed. various Jew sects). ish Elkind, generally Development 28. Religious See “The Under- Children,” standing Religious Development, Research on at 655- (1971) (noting stages religious development); see also Potvin & Lee, Religion: Developmental Approach, Sociological Adolescent A Analysis (1982) (same); Remsen, 131-44 accord Petsonk and Handbook, Intermarriage supra (noting stages at n. at 183-211 Kushner, God, development); When Children Ask About (1971) (same). 25-35 generally it is also ac Importantly, external factors.29 difficult, impossible, if not knowledged that it would be project to married to interreligious couple engaged an so them to know themselves into the future enable if and their children they religion, how will feel about when born, and that it would be grow; and as the children project couple attempt still more difficult for such a divorce after potential themselves into the scenario of a born, accurately anticipate children were in order agree upbringing circumstances under which given if agreements ments would be enforced such were Research Coller, Custody: Theory, effect. See Joint legal Landis, (1988); Policy, Process Family Faith, Religious Mixed and Non-Mixed Marriages of (1949).30 while reli- Consequently, Am.Soc.Rev. 404-05 Clark, Danswer, generally Worthington, See The Transmission Religious Early Practices Parents to Firstborn Adoles Beliefs from Sons, Marriage Family 50 Journal of and the cent McAllister, Secularization, Sociological Religious Change Cornwall, Religion: Analysis The Social Bases A *28 Commitment, Influencing Religious Study Factors and Belief of 50, Munro, (1987); Religious Kieren & Review of Research 50-56 Following Religious Parents’ on Adolescent Leaders: Influence 249, Study Religion Activity, of 26 Journal for the Scientific 249-55 (1987); Dudley Dudley, Religious Transmission Values from of Adolescents, Religious Parents to 28 Review of Research 3-15 (1986); Religious Hunsberger, Parent-University Agreement Student Issues, Study Non-Religious Scientific of Reli and 24 Journal of the Smith, (1985); gion Hoge, Petrillo & Transmission 314-41 Children, Teenage Religious Values From Parent and Social Nelson, Family Marriage 569-80 Journal of Formation, Religious Religious Sociological Transmission Versus Quarterly Carey, Shaping Peers in Influences of Religious Behavior, Study Religion 10 Journal for the Scientific Respected sociologists Nydia Monica McGoldrick and Garcia-Preto explained: have Ethnicity family cycle every stage. life When interacts with the cycle identity life transi- conflicts about one’s ethnic interact with tions, changes compounded. the stresses inherent in all When most; through changes, identity go cycle need our cultural we we life rituals, provides symbols, context it us with the and the meanings changes that cushion those us. All situational for familiar
gious upbringing agreements may serve an important and purpose beneficial by promoting careful consideration of potential prior difficulties to marriage, and may carry also moral weight religious sanction, parties entering into agreements generally such not will be able to anticipate fundamental changes pre circumstances between their nuptial their optimism, struggles accommodation, their ultimate post-divorce disillusionment. Consequently, a hopeful and perhaps naive prenuptial assurance of a future commitment to an agreed (usually vague) course of reli gious instruction for then yet as unborn children in the (an event divorce often unconsidered must possibility), remain legally unenforceable in civil courts as the wed ding parties vows the even more solemnly exchanged. Cf. Witmayer v. Witmayer, 372, 380, Pa.Super. 467 A.2d (1983) (if circumstances change, the terms of an separation informal agreement enforced); should not be Taylor N.Y.L.J., Taylor, (Dec. 21, 1989), at 21 digested in 16 FLR 119 (wedding express vows a mere future expectation; consequently, husband is not liable for dam ages fraud following divorce for breach of wedding his vows). divorce, illness, loss, retirement, job and death —can com- crises— conflicts,
pound identity ethnic ... It both extended families and to sions, Couples typically anticipate they ... one unfortunately can overcome all odds in ..., spouse may adopting by [******] rare for fuse into the other’s the accoutrements intermarried keep marriage. beginning their own cultural family by couples their the other's culture. to remain relationship traditions. open conver- (cid:127) McGoldrick & 347-48, 352, Your Jewish Christian A The homeland and roots. for a regret them his or her native country may only or her spouse supportive suppressed] of who marries out & *29 decision, origin marry may appreciated many years Preto, [******] and familiar context to ethnic Ethnic as the children Child, supra, (emphasis language identity. implications ... Intermarriage, later or cultural at 7-8. raises children without added); grow up A experience painful later, spouse intensifies. the decision to particularly if the need accord with little sense of [his who leaves her or her Family traditions Gruzen, Process, 347, longing marry teaching Raising later out the essential specifically preserves First Amendment The to shape, and grow, for individuals religious freedom lives, the lives of their and aspect of important this amend by our recognized freedom was Religious their children. today. It so remains to be inalienable. founding fathers may freedom parent’s that a Thus, agree while we it interests, conclude that we compelling to other yield away. bargained not be enforce- authority against legal great weight
The of the one objections over the agreements of such ment arguments suggest- of the exhausting all parties. Without position, of this support and commentaries ed in the cases correctness. We note of its fully persuaded find we we theologians have psychologists years in recent agreements of such the wisdom questioned specifically note that We also their enforcement.31 attempts at agreements.32 of such from the use away trend is the oral giving court erred that the trial We conclude In this con- significance.” “much pre-nuptial agreement grant it such The decision text, entitled to none. it was an abuse constitutionally impermissible weight was discretion. Training Religious Pre-Divorce
V. Children’s the children had been stated that The trial court faith, the chil the Jewish “assiduously” grounded chosen faith.” “their to continue permitted dren should be Meehan, Schneidner, (1989); Rosenberg, & Intermarriage, at 131 31. Gruzen, Intermarried, Raising Your Payne, Happily at 134-35 Sandmel, 8-9, Child, When a Jew and Jewish/Christian Marry, Christian at 118—19 Ellman, Comparative Study Intermarriage A in the United States: Groups, Social Studies Religious 49 Jewish Ethnic and Jews and Other agreements); (1987) (noting away of such from the use the trend Green, (Coriden, Law, at 802 Canon Canon The Code 1985) partner in a (explaining that the non-Catholic Heintschel eds. Church is no marriage seeking of the Catholic mixed the sanction any agreement to raise children longer required make an Catholics); Doyle, Church And marriage The Roman Catholic (1985) (same). But Marriages, 14 Ecumenical Trends Mixed Erstenoff, (recommending at 14-15 supra n. 1 Am.Fam. see training agreements). prenuptial specific written *30 Mont.Co.L.Rept. effect, at 256. In the trial court three, concluded four, that the old eight-year children personal religious this case had asserted identities which were entitled to consideration protection. We cannot agree. fact, expressly mother conceded that her childrens’
Jewish religious education had just begun: stage
At they’re, Rachael’s they just introducing them to the holidays. various Hebrew, At Adam’s stage, they are to learn beginning Jews, know, identify kids; with other Jewish you basical- ly identify Jews; themselves as they are starting learn the It’s the prayers. whole foundation so they that can upon build later.
(R.R. 37). added). at (Emphasis Daniel, youngest child age three, yet had not begun Con- training. even sequently, notwithstanding the deference which trial court’s entitled, findings are we find the record rather contradicts than sustains characterization these as children having been “assiduously” grounded Judaism this early lives. stage their find no trial
Similarly, we basis for the court’s character- ization of Judaism the “chosen children’s faith.” Adam (not and Rachael “mentioned” complained) their father services, had taken them to Catholic rather than Jewish Sunday during (R.R. 30). School visitation. There is no evidence of any present part distress on the of the children arising their father’s actions in exposing them to Catholi- cism. There no any was evidence that of the children personal religious asserted a Sig- identity themselves. nificantly, this, none of the children were called to testify on or any other subject, the trial court.
Commonly, parents religious leaders define child’s under the identity religion rules of they prac- tice. Often such rules impose a presumed religious identity upon a child without requiring child’s consent or under- standing, on the basis of a parent’s religion, circumcision child, naming infant baptism, Sunday child’s school attendance similar factors. Different fol groups religions, low different rules even within and many express ly reject the rules other To groups. accept one set of rules impermissible. over another The First clearly *31 Amendment forbids civil to enter courts into Halachic disputes Jew,33 when as to a child be deemed or to give or any weight religious to consideration rules or cus toms in matters. Succinctly, such secular must courts analysis law, confine their to the secular leave the rules, implications religious law, or customs to the inter religious nal tribunals of the groups various recog which nize Smith, such rules. Employment Division v. supra, — —, 110 1603, 108 889; U.S. at S.Ct. at L.Ed.2d at Jones v. Wolf, Serbian supra; Eastern Orthodox Diocese v. Milivojevich, supra; Church v. Hull Presbyterian Church, Jones, supra; Watson supra. v. Secular courts know no orthodoxy such matters. Virginia West Barnette, Note, see supra; supra, also 82 Mich.L.Rev. at 1716 n. (collecting cases). Supreme United States Court
In order to avoid to itself arrogating unconstitutional to authority declare iden- orthodoxy determining religious tity, only courts recognize a legally cognizable religious identity when such an identity itself, is asserted by child and then if the child reached only has sufficient maturity development intellectual to understand the significance of such an assertion. Though no uniform age of discretion set, children twelve or are older generally considered enough mature religious assert a identity, while children eight and under not. those ranges With as a starting point, judges exercise broad discretion on a case case in determining basis whether a child has sufficient capacity personal assert for itself a Note, identity. See Selzer, Courts, Intermarriage 33. See and the Humanistic Judaism (Autumn 1982) (criticizing 32-33 that); doing just a New York decision for Glaser, L.J., Ruling,” "Reform Jewish a Court View of York New (Dec. 2, 1977) p. (same); Schaalman, Compare Patrilineal De- scent, (1988) (a 97 Cent.Conf.Am.Rabbis Reform Jew’s Cohen, perspective) and To Conversion Children Born Gentile Fathers, (1987) (an Mothers And Jewish 22 Tradition Orthodox perspective). Jew’s (especially nn. 85-109 at 1727-32 & 82 Mich.L.Rev. supra, cases); Creigh Magrum, collecting n. at 1730 157-82; 28, supra nn. see also n. ton at 56-57 & L.Rev. understanding and (regarding development identity). old, four, children, three, eight-years
Here, ages for themselves. religious identity to assert a young were too to do so. Zucco v. fact, attempt made no they Cf. 558, 563, 501 146, 103 Ill.Dec. Garrett, Ill.App.3d child’s (1986) (without evidence N.E.2d maturity of sufficient question personal preferences, arise). not does even
Moreover,
personal
if
children had
expressed
even
it is not clear that the children would have
religious identity
resist,
right
protected
had
constitutional
any
either
to exercise their constitu-
from, attempts by
parent
*32
contrary
in them
religious
to inculcate
beliefs
rights
tional
emancipa-
to their
prior
legal
declared preferences
to their
Yoder,
declined
supra,
majority
tion.
In
v.
Wisconsin
children had constitutional
to reach the issue
whether
could
religious
education which
rights pertaining
though
majority expressed
against parents,
asserted
to favor a
predisposed
not
suggesting they
concerns
were
231-32,
92 S.Ct. at
such
406 U.S. at
rights.
claim to
J.R.,
dicta,
In
in
supra,
VI. of Children’s Stability Religious Beliefs
The opined trial court also con “stability and in a sistency child’s inculcation has recog been nized as an factor in important determining the inter best child____” Zummo, supra, ests of a Mont.Co.L.Rept. the dicta from Morris Though upon reliance understandable, it is again again nonetheless misplaced. in This Court has noted several cases that stability with regard live, to with the children whom and where the live, children is an in important consideration custody/visita- Lozinak, tion cases. See Lozinak v. e.g. Pa.Super. Fisher, Fisher v. 569 A.2d supra, cases);
Mont.Co.L.Rept. at 254. need
We not decide here the greater extent which otherwise, compatibility, may be considered awarding primary physical custody. compelled, We *33 however, to expressly in Morris suggestion disavow the governmental interests in spir- maintaining stability itual inculcation35 exist which could provide justification a to encroach upon constitutionally recognized parental au- thority and First rights Amendment Free Exercise of a stability opinion 35. We note that was set forth in the trial court as a separate alleged emotional/spiritual from consideration harm justification imposed. Though perhaps for the restriction related overlapping, justifications separately. we discuss the in their to inculcate beliefs parent attempt to comfort and reas- Notwithstanding genuine children. from in a time of religion child derive may any surance a divorce, cannot constitu- government simply turmoil like instability. to religious beliefs prefer stability tionally to damnation could not be said in a to Stability path instability interests” than an which in child’s more a “best eternal path to of movement toward hope offered the religions religion if all or a particular Similarly, salvation. delusion, then repressive stability harmful merely were in a child’s could not be said to be more a delusion such might pave way instability than which “best interests” government Because cannot from the delusion. escape to' if knowledge any religions as which any to have presume delusions, repressive or such eternal rewards offer of such universality or the complete declare the absence not delusions, a child’s “best repressive eternal rewards religion regard spiritual aspect to the interests” with authority. by any governmental cannot be determined freedom in this importance The essence and dramatization of the Bolt’s is illustrated Robert respect Thomas Henry VIII and Chancellor King clash between (1962), wherein in A For All Season’s More Man occurs: exchange following poignant (With dignity.) real Oh, confound all this! NORFOLK. tires of scholar, never as Master Cromwell not I’m the mar- out, and I don’t know whether pointing frankly Thomas, it look at not. But damn lawful or riage was I men. do what you You those Can’t those names. know us, did, fellowship? come for God, you (Moved). stand before And when we MORE. con- according your doing sent to Paradise for are according science, doing for not and I am damned mine, me, fellowship? come with you will names are there those of So us whose CRANMER. damned, Thomas? Sir I no know, I Your have window don’t Grace.
MORE. no-one. conscience. I condemn into another man’s look *34 Then question? CRANMER. the matter is of capable Certainly. MORE.
CRANMER. But you that owe obedience to is your King question. weigh not of capable against a So doubt sign. certainty —and round, men
MORE. Some think the earth is others think flat; it is a matter capable question. flat, it of if it But is the King’s will command make it And if round? it is round, I King’s No, will command flatten it? not will sign. II,
Act then, scene 5 at 105. No more than today can government or know alter the ultimate truth matters of religion. Rather, it apparent is government is inherently and incompetent to determine constitutionally whether or stability religious instability would be beliefs in the best of interests a child. Garrett, See Zucco v. 146, 558, Ill.App.3d 563-64, 103 Ill.Dec. 875, 501 N.E.2d (1986); Quiner Quiner, 880-81 v. 59 Cal.Rptr. 516-18 (1967); Employment Smith, Division v. supra; County cf. ACLU, Allegheny supra; v. v. Wolf, Jones supra; West of Virginia Barnette, Paul, supra; Impact The cf. of Spiritual Custody Awards on the Free Rights Exercise of Parents, (1989) (citing cases). U.Pa.L.Rev.
Moreover, the prohibition religion some preferring none, not may be avoided by suggesting religion or stability only being of considered because secular rather than spiritual benefits expected to arise from protecting the stability of child’s beliefs. We are aware of the of body wide research which suggests that religiosity may be linked to various physical, intellectu al, emotional, and moral benefits.36 While different benefits Camburn, e.g. Religious 36. See & Participation Thornton and Adoles- Attitudes, cent Family, Marriage Sexual Behavior and 51 Journal of the & Zika, Religiosity, 641-53 Chamberlain & Life Meaning, gion Well-being, Study Journal the Scientific of Reli- (1988); Schmidt, 411-20 Moral Values Adolescents: Public Schools, Psychology Versus Christian Christianity 7 Journal Zern, Relationship Religious Involvement To a Variety Cognitive Ability College Indicators Achievement Students, (1987); Harmon, 22 Adolescence The Relation- 72' sects, religions among and while
may vary between vary religion widely adherents of the same sect particular or at degrees religiosity generally théir *35 times,37 assuming religion may that some we find even religion than the generally, lead to more secular benefits no States Su First Amendment construed the United a for some preme precludes preference Court nonetheless none, pre of religion the secular benefits regardless over (cid:127) ACLU, supra. Allegheny County sumed to be at stake. religious of in inculca stability The exclusion of the benefits part of the religiosity general apparently tion in and paid religious must for freedom and constitu be price which rights. recognition parental tional provide desire to or Thus, conclude that while the we in of a already tumultuous context stability maintain in custody factor determi- generally significant divorce is in any have interest nations, constitutionally courts cannot beliefs. consideration religious of a child’s stability in, stability presumed spiritual interests childrens’ an abuse of discre- constitutionally impermissible was and tion. Parental Devoutness
VII. Relative of the and the trial court’s statement facts both trial the trial opinion, in court’s the discussion section in Jew participation court mother’s “active” contrasted 23, Health, (1985); ship Religiosity Values and Health 23-25 Between Purpose, Roy, Religiosity, Anxiety, Meaning 27 Review and Peterson & Witter, al., 49, (1985); Religion et Religious Research of Subjective Well-being 49-62 Adulthood, Religious 26 Review of Research Elifson, 332, studies); (1985) Hadaway, prior & (analyzing 28 332-42 Peterson, Among Drug Religious Use Urban Adoles Involvement and 109, cents, Study Religion 109-28 Journal of the Scientific McNamara, Race, Religion, Psychological George Well- St. Religion being, Study for 351-63 23 Journal the Scientific Deviance, Welch, Religiosity & 61 Social Forces Tittle & studies); (1983) analyzing (collecting than 43 other more 653-82 Brimstone, Religious Rooney, Lager and Pot: Nelson & Fire and Use, Sociological Analysis 247-56 and Substance Involvement (1982) . Christenson, al., Organized Orientations generally et Value 37. See Sociological Religious Groups, Society Research ; Mueller, Analy- Sociological Religiosity, 41 The Dimensions of (1980); see also n. 36. sis ish religious “sporadic” partic activities with the father’s ipation Zummo, Catholic activities. is not
Mont.Co.L.Rptr.
255. It
clear wheth
entirely
gave
er the trial
independent significance
court
to this
“fact,”
it
surplusage
or whether was mere
appended to the
clear,
trial court’s
It
other substantive considerations.
however,
of,
neither
determination
nor consideration
of, parents’
or
relative devoutness
activeness in
any place
activities has
in custody determinations. The
Supreme
United
that,
States
Court has held
“no person can
punished
for entertaining
professing
or
religious beliefs
disbeliefs,
or
non-attendance,”
church attendance or
that,
least,
Clause
Establishment
the very
“the
prohibits government from
‘making
...
adherence to a
religion relevant
any way
person’s standing
”
*36
political community.’
ACLU,
v.
County
Allegheny
at -,
supra,
3090,
492
109
U.S.
S.Ct.
In Zucco an supra, v. Illinois court appeals found that a in preference custody disputes in favor of an active in participant organized religion would violate the in Establishment the following Clause manner: The or principle primary effects of to giving preference parents who active of organized religion adherents (1) will punish parents who do not in believe God or going less making likely church it that they will gain (2) of their custody children to encourage non-reli- gious, anti-religious or disinterested simply parents to engage religious in practices if even their beliefs are not sincere increase the number of children raised in religious goes households. This beyond accommoda- tion and benevolent towards while neutrality religion, not advancing any protected values by the free exercise clause. influence, It places authority, support power government of the on the side organized reli-
74 clause is a non-secular result that establishment
gion, prevent. designed v. see also Gould 881; 564, N.E.2d at
38. Women Vaus, Sex Related Impact Children on See de Differences Attendance, Sociological Analysis Con- Church custody cases would attendance in sequently, consideration of church might implicate a impact women which disparate in favor of have a parental rights as his equal protection as well father’s rights. *37 assumption implicit way suggest acceptance of the We no 39. orga- participation in people religion in active whose is manifested religious, able to inculcate religion better are therefore more nized spiritual- important to the child’s precepts, or more or moral beyond plainly our ken or morality. are also ity cognizance. ence Clinical Such evaluations parent’s importance of one influ- relative Nor would the conflicting parent. other As influence justify removal of a cogently Sociologist Stanley observed: Clawar has customs, values, ideas, beliefs, compo- personality absorb Children nents, future, (as linkages in ethnic identifi- and historical a sense of parent cation) attends to parents. Just because one from both the latter is does not mean that more so than the other certain tasks less development. important child’s in the In Religions Difference of Perceived VIII. Relevance “the took notice” that “judicial The trial court cannot that of Roman Catholicism of Judaism practice and teachings adhere of one To and accept squared. be Zummo, of the other.” requires rejection necessarily The trial court Mont.Co.L.Rptr. at 255 n. 1. concluding exposure this “fact” upon relied harm as Jews to would Catholicism being children raised Id. improper. This was the children. in con- and Jews have often lived
Historically, Christians The historical fact of Chris- hostility. reciprocal flict and generally See is of Jews undeniable. persecution tian Handbook, Intermarriage The Remsen, 1Ch. Petsonk & Pain,” A at 17-30 History: Legacy “Jewish-Christian (1988).40
Nonetheless, dialogue developed during has this an active Jews, particularly and and between Christians generation has focused attention on the and Jews which Catholics similarities as the religions as well between differe nces.41 unique com- dialogue emphasizes Much of the Clawar, House, Cars, Kids, Family Advocate Two Three One 36, 37, 1982); (Fall Finally, we note that research has see also nn. 38. scored lower that while Catholics married to non-Catholics indicated receiving communion than Catholics married in mass attendance Catholics, they comparably on other measures of scored Marriage Religious Commitment See commitment. Interfaith Catholics, Family
Among Marriage 48 Journal of and the (1986). only generally one of several factors Church attendance gauging "religiosity." used however, Jews, noted, persecuted that while Christians 40. It should they religions, persecuted Christians of other sects and adherents of other also legal agnostics English as well as and atheists. historian Talk, being famous Table "for [Jews] John Selden observed in his hated, Selden, yours, my hate one another as much.” life for Christians Black, Talk, (Smith 1689); supra, at Table at 84 ed. see also (to effect). the same Relations, passim generally Twenty Years Jewish-Catholic See Tanenbaum, Oesterreicher, 1986); (Fisher, Rudin eds. New Jews, (1986); Siegman, passim Encounter: Between Christians Go, Way A Judaism 25 Christian-Jewish Relations: Still Jacob, Dialogue Today, Jewish-Christian Relations Conflict: Marshall, Religious Jews and Christians Need Education 587 Other, Each 17 Christian Jewish Relations *38 monality which Judaism and Christianity share.42 aAs of dialogue, result much of the formal and informal religious education of Jews about of Christianity and Chris- tians respectful about Judaism has become more and less Thus, critical.43 while most Christians and might Jews agree particular religion tenants of their were “irrecon- of particular cilable” tenants religion, they other might note as significant well and commonality. similarities Irreconcilability does not inevitably signify conflict and hostility. Oesterreicher, 8-9, passim (quoting See at the Nostra point); of II Actate Vatican on this The Common Bond Christians and Jews, Religious Jews: Notes Relations with the 18 Christian Jewish (1985) (document Relations 55 of Pontifical Commission for Religious Jews); Shapiro, Relations with the Judaism and Catholi- Convergence, Religious (1981). cism: Sources Education commonality Other commentators have commented on the all Singh, Co-Existence, religions. Religious See Pluralism and 13 J.Reli- gious (1985). Studies 1 Rabbi Samuel Sandmel observed of both the dialogue and the differences: we When sciously use the words Protestantism and Catholicism we uncon- among glide stress areas difference Christians and them, calendar, scripture over the common to the common sacred also, organisms. and common nuances so vital to communal So speak Christianity, when we of Judaism and we seem stress the abiding glide God, differences and over a common belief ethic, charity. common and a common devotion to education Christians;
The Romans could not discern per- between Jews and haps a Christianity, man from Mars would view Judaism even day, in our as more kindred than unrelated. Sandmel, faith are across thereby that earlier centuries failed to that, Christianity rection each same For almost other other, working in a world of as side. We Jews and enemies. In the of different blessing currents and crosscurrents of troubled times eighteen are not so much on We are not so much well be toward a mainland of [******] many centuries Judaism and Jesus, humanity. co-operation. persuasion, past currents and at 150-52 hundred learn. opposite opposed but Perhaps The helmsmen of the craft of years crosscurrents, through steering sides Christianity we have learned much we we understanding, the fence as on the are different from have now learned Judaism and faced each carefully their di- Banki, generally “Religious 43. See Education Before and After Vatican II,” Relations, Twenty Years supra; e.g. Jewish-Catholic see The Book, 254; Oesteriecher, Magazine Parenting Hadassah supra Jewish Encounter, 299-440; supra Rosenberg, Payne, New Meehan & Intermarried, Happily supra, at 12-76. however, that the extent to which Judaism is apparent, It *39 theological involves Christianity be “reconcilable” cognizance. or beyond far our ken issues philosophical and us determine in orthodoxy for impermissible be It would orthodox compare turn and beliefs religion, along let either a judicial those other to make determina- in of the one or of Christianity of Judaism reconcilability of the tion enough again here to note that religions. other It any in the religious differences doctrinal even irreconcilable not provide would a basis parents held divorced beliefs joint visitation or upon parent’s imposing restrictions of a showing of subtantial rights in custody absence from those differences in arising of harm the child threat the restrictions. Consideration of the proposed absence in irreconcilability Christianity Judaism presumed impermissible and an constitutionally this case was abuse discretion. Effects Probability
IX. of Harmful From Perceived Religions Exposure To “Inconsistent” principle The trial court’s to which justification, relate, preceding factors were deemed was each arising the harm to children from their perceived risk of that, “to to Catholicism. trial court concluded exposure after expose competing religion to a so assid children in the uously them tenets Judaism would grounding quite possibly disorient them and unfairly confuse and religion.” 121 flowing from either vitiate benefits Mont.Co.L.Reptr. at 255.44 Morris, decisions of our this Court reviewed sister expert testimony that “inconsist-
states concluded that teachings in mental disori- ent would result some probably impose restrictions entation” was sufficient to involved again country 44. We note courts in this cannot constitution- that civil religiosity ally spiritual expected benefits of in consider harm or the County making Alleghe- general custody or visitation decisions. ACLU, Fink, supra; opinion ny supra. The trial court’s JIRB v. cf. reasonably regarding suggest emotional harm can be read to concern Hence, justification here as it as well. we review the trial court’s constitutionally cognizable question of to the emotional harm. relates Morris. added). A.2d (Emphasis Despite case, expert testimony absence of similar this the trial court nonetheless found restrictions warranted upon based Zummo, the mother’s similar speculations. Mont.Co.L.Reptr. at 254-55. This was giv- understandable dictum Morris en the is beyond dispute “it that a young child reared into two inconsistent traditions quite will possibly experience some deleterious physical mental effects.” at 142. A.2d The trial court’s deter- mination here nonetheless was erroneous. issue,
The vast
courts
majority
addressing this
before
Morris,
and after
have
parent
concluded
each
must
religious exposure
instruction,
free to provide
as that
*40
fit, during
and
parent
any
period
legal
sees
all
of
or
custody
restriction,
visitation without
unless the challenged beliefs
parent
or conduct of the
present
demonstrated to
a
present
future,
threat of
or
physical
substantial
or emotion
in
al harm to the child
the proposed
absence of
restriction.
Ledoux,
See Ledoux v.
479,
(1990);
234 Neb.
452
1
N.W.2d
Khalsa,
Khalsa v.
31,
107
751
(App.1988);
N.M.
P.2d 715
Deierling,
Petition
(Iowa
421
App.1988);
N.W.2d 168
of
Marriage
Knighton,
Matter
723
(Tex.App.
274
S.W.2d
of
Hanson,
1987);
Hanson v.
(N.D.1987);
404
460
N.W.2d
v.
Kelly Kelly,
In
147,
(1986);
217
524
N.J.Super.
A.2d 1330
re
Marriage Mentry,
260,
142
Cal.App.3d
190 Cal.Rptr.
of
Sanborn,
(1983);
Sanborn v.
740,
843
123 N.H.
465 A.2d
Fisher,
Fisher v.
(1983);
227,
888
118 Mich.App.
324
In
(1982);
Marriage
re
N.W.2d 582
103
Murga,
Cal.
of
Felton,
498,
(1980);
163
Felton v.
App.3d
Cal.Rptr.
79
383
Ha
Mass.
Marriage
re
(1981);
N.E.2d 606
deen,
Osier v.
27 Wash.App.
(1980);
Applying experts potential as to future emotional by parents by upon assumption child that particular harm to a based v. Kelly Kelly, harmful. See generally exposure such Szakal, Fisher, supra; supra; Fisher supra; Brown v. v. Munoz, Robertson, supra; supra. Munoz v. Robertson v. current disturbances Likewise, attributions of child parental conflict, of a rather than or as the result distress causes, similarly or other generally have been divorce Khalsa, supra; Marriage v. In re rejected. See Khalsa Gilmore, In re Mar supra; Compton supra; Mentry, riage Murga, supra.45 requires proof this standard emphasize
We
Com-
probability.”
“some
“substantial
threat” rather than
Yoder,
230, 92
406 U.S. at
pare
supra,
Wisconsin v.
S.Ct.
Morris,
For children of divorce children exposure parents’ con- marriage especially, divorce *41 values, may beliefs indeed flicting lifestyles, and However, not is always cause doubts and stress. stress harmful, protected is always nor it to be avoided experiences against. The is not whether child key, stress, stress experienced unproductively but whether the is W., Fatemi v. Fa- supra; In re Constance See severe. temi, Parton, Psychic see Con- supra; generally Cantor bi-cultural/bi-religious explicitly that ex 45. Some courts have stated Gersovitz, Marriage posure P.2d would be beneficial. See In re 779 170; (Mont. 1989); Deierling, supra, Petition 421 N.W.2d at (Minn.App.1986); Weisberg, N.W.2d Felton v. Tubwon v. 607; Felton, Egelkamp supra, Egelkamp, 418 N.E.2d cf. A.2d 503. and Moral Development, Advances in Child Devel- flict opment and Behavior (reviewing authori- ties); Barnum, Understanding Controversies in Visita- tion, Am.Acad. Child Adol. Psychiat. Fatemi, supra, Judge
In Fatemi v. Beck cogently ob- served:
It is for important courts to impose sparingly. restrictions ought impose Courts not unnecessarily restrictions which shield children from the true nature of their parents unless it can be shown some detrimental will impact specific flow from the the parent. behavior of The pro- cess a child’s requires they maturation view parents evaluate their in the bright light of reality. Chil- dren who their parents’ learn strengths weaknesses and better shape life-long able relationships with them.
489 A.2d at Assuming that the religion father’s is or becomes a children, source conflict him between and his that, it is important nonetheless absent se- unproductively distress, vere conflict father and the children be permitted to work the conflict in through developing their post-divorce parent-child relationships. Restrictions on this process may generate themselves stress from the artificial incomplete parent-child exchange. nature of the For this too, reason imposed restrictions must be sparingly. important It is also to note the problem of In causation. order presence unproductive stress to provide for governmental basis in a intervention religious upbring- dispute, ing the unproductively severe stress must result from the religious upbringing If dispute. the child is dis- the parents tressed because have divorced or because of other factors unrelated to the religious upbringing dispute, an imposing in the orthodoxy child’s will training not remove that distress. practice, the occurrence of unproductively severe
stress
from a
arising
parental dispute regarding a child’s
religious upbringing may depend more on the manner
conducted,
which the
dispute
theological
than
aspects
*42
high levels
It is
established that
itself.
well
dispute
of
significant
are a
conflict
or after divorce
parental
of
before
divorce,
experienced
children of
by
the distress
factor in
nn. 10
or
of the conflict. See
topic
of the source
regardless
or situations
Thus,
disputes,
acrimonious
supra.
his or her
poison
as a tool to
religion
uses
parent
which one
the other
animosity
for or
toward
disrespect
children with
for intervention
compelling
a
case
might present
parent
sects,
similar
while
two
two Jews or
Christians
between
dispute between a Christian
but irreconcilable
respectful
Ledoux, supra;
not.
v.
would
See Ledoux
Jew
Rultand,
(Tex.App.
Mayer, 277; Love and supra, at accord Vali- quette, Marriage Catholics, Between Jews and Roman Ecumenicism 42-45 (finding general a absence of children, any negative impact or of conflict between parents); Frideres, Gilbert, Goldstein & The Impact of Jewish-Gentile Intermarriages Canada, in Journal of Comparative Family (Autumn Studies 1971) (same).
In a commentary addressed specifically to the issue of exposure of to children different in the religions context of divorce, Judith conclude, Petsonk and Jim Remsen “expos to ing religion a child more than one in the various house not, holds which is attached itself, does by child] [the cause emotional stress or identity confusion.” [the child] Remsen, Petsonk & Handbook, Intermarriage supra, at 298. Other commentators have recommended exposure to both in religions varying degrees, and have warned that suppression significant a portion of a child’s cultural/reli gious heritage may itself create a “time poten bomb” tial for serious emotional harm in the future. See general Scheidner, ly 132-143; at Intermarriage, supra, Heller, Talking God, To Your 141-56; Children About supra, Rosenberg, Payne, Intermarried, Meehan & Happily su pra, 132-143; Cowan, Cowan & Mixed Blessings, at 127-65, (1988); Gruzen, Your Raising Jewish Chris Child, tian supra, passim; Doyle, The Roman Catholic Church and Mixed Marriages, Ecumenical 83-84; Trends at n. supra. accord sum, far from being “beyond dispute,” established our research reveals there no objective is to support basis either parental or expert predictions future harm to a particu- lar child based an upon assumption that such exposure is caselaw, commentaries, generally harmful. The empir- ical all suggest, compel, studies if not an conclu- opposite sion—that while some suffer emotional from distress exposure to contradictory religions, most do not. Conse- quently, suggesting dictum Morris a presumption of religions conflicting child to is exposing future harm from expressly disavowed. restrictions justify upon hold that order
We in their chil parent’s rights inculcate beliefs dren, seeking demonstrate the restriction must party the party or competent practice evidence the belief actually threat of presents to be restricted substantial particu to the physical future or emotional harm present the proposed lar child or children involved absence of restriction, the restriction the least instrusive prevent specified means harm. adequate Because case insufficient presented wholly the evidence this was *44 standard, May 6, the to meet this Clause 6 of Order religious to forbidding the father take his children to servic faith,” es to the Jewish must be vacated. “contrary Religious X. to to Obligations Take Children Services court “little if distinction any The trial found be his prohibiting taking the affirmative act tween father’s to its that the children services and direction father Catholic Sunday Synagogue the children the for School. present Zummo, We, 121 the supra, Mont.Co.L.Reptr. at distinction; and hand, controlling find a material and other requiring of the order the part affirm that consequently, for present Synagogue Sunday to his at the father children School.
Both rights beliefs parents religious have to inculcate trial court constitu Accordingly, their children. the rights a tionally accommodate the mother’s directive here, carves out a time essentially the which type imposed right the has the Sunday during each which mother period and control of the children. See Rinehimer custody Rinehimer, 1168 (approving 485 A.2d at Tisckos, In re Marriage accord provision); similar (1987) (char 860, Ill.App.3d 112 Ill.Dec. N.E.2d acterizing similar order as an accommodation to visitation). upon custodial rather than a limitation parent, Rinehimer, this “the emphasized Court [trial] no placed prohibition upon against court either tak- parent faith, the children to of his or her ing discussing services beliefs, or in religious any way exposing boys other faiths,” their and that the order was “not de- respective signed viewpoint.” to frustrate religious [the father’s] A.2d 1168-69. With 6 of the Clause order May vacated, same here. will be true provisions such if generally may
While be affirmed they religious beliefs, do not otherwise restrict the inculcation of doubts, parent, emphasize or disbeliefs by either we prerequisite constitutional “benign neutrality” towards parent’s religious viewpoints. If, both example, an granted court entered order which parent a Christian visitation on Christian custody or all but holy days, denied custody similar or visitation the other parent on his or (without her an holy days, adequate Jewish basis to en- parent’s croach on the child right expose the to that religious parent’s viewpoint as described such a supra), might provision impermissible constitute an restriction on parental and a rights, violation Estab- Clause, indirect lishment albeit and one. Sanborn v. Cf. Sanborn, N.H. 465 A.2d hand, a parent’s right
On the other to inculcate his or provide beliefs in her child not a compelling would *45 reason the justify parent’s right to denial other to meaningful maintain a his or parental relationship with her If the meaningful children. court must choose between visitation and the full of a program benefits desired indoctrination, religious religious the indoctrination must in yield greater parent-child to the preserving interest the relationship. N.J.Super. 553, Wagner Wagner, Cf. (involving virtually A.2d identical religious conflict). scheduling weekend education/visitation Here, despite the argument father’s to the contrary, we adequate find that accommodation of the father’s visitation right Saturday religion was made. The classes desired Moreover, the will be up weeknights. mother made the father reason- willingness to the has indicated allow mother the portion to for compensate visitation weeknight able indoctri- up by the mother’s chosen Sunday taken cooperation The on this for children. mother’s nation her commendable. point noteworthy is father to directing the the find 5 of order We Clause to Sunday for School be Synagogue children at present the 6 which forbids from Clause distinguishable severable and contrary services children to the father to take the 5 of the order. affirm Clause the faith. We to Jewish
Conclusion Clause 6 of the foregoing, the we Vacate upon Based Jur- order Affirmed. May 1988. The is otherwise order Relinquished. is isdiction J., in
ROWLEY,
concurs
the result.
JOHNSON, J.,
dissenting opinion.
files a
JOHNSON, Judge, dissenting:
majority.
from the decision
respectfully
I
dissent
is
over
children’s
disagreement
The issue here
not
Neither are
majority suggests.
as
religious upbringing,
parents
at issue. Both
rights
Father’s First Amendment
agreed
divorce, as
had
agree
they
always
continue to
after
before,
up
are
brought
that the children
to be
Jews.
Husband’s
issue
the trial court was whether
only
before
impinged
physical custody
weekend
periods
short
go
children to
by requiring him
allow the
upon
and whether he should be
Sunday
School
Synagogue
them church for Mass. Husband
taking
from
precluded
take the children
not
decision that he must
dispute
does
I
con-
Sunday
dispute.
No facts
would
School.
childrens’
trial
considered the
properly
clude
court
ordering
sound discretion
best interests
exercised
not
the children to church.
that Husband
take
has been
custody
of a
determination
scope
Our
review
great
Appellate
detail.
review broad
annunciated
*46
the sense
not
that we are
bound
inferences or deductions
found,
of the trial court from the facts
and we need not
accept
finding
a
has
competent
which
no
sup-
evidence to
ex
it.
Robinson,
Commonwealth
rel. Robinson v.
port
(1984),
Pa.
“... was review never intended mean that an appellate court is free to nullify the factfinding function of hearing the judge ...” instead, (but, remain) is to within the proper bounds of its (base decision) review and upon its independent own the deductions inferences by the from facts found hearing judge.
This fundamental reviewing limitation of a power court’s has been articulated by Superior the Court as in well defining its own scope custody review matters: "... (W)e have recognized that the trial in a judge position is attitude, to evaluate the sincerity, credibility, and demean- ofor witness. Because are not such a position, we recognized we have that a judge’s trial determination of Only where custody great weight. should be accorded we constrained hold that was there abuse gross appellate discretion should an court interfere the decisions hearing judge ...” Thus, appellate empowered an court to determine whether the trial court’s incontrovertible findings factual support conclusions, the trial court’s factual not but interfere with those conclusions unless they are unrea- sonable light trial court’s findings. factual Robinson, 505 Pa. 236-237, (citations A.2d at 806 omitted; emphasis by Robinson court).
When a trial its court makes determination a child issue, custody court’s ultimate concern is child’s Robinson, best interests. 505 Pa. at A.2d at 804.
87 in the a of what will be best This includes consideration development. spiritual Egelkamp of the child’s interests (1987). Al- 501 524 A.2d Pa.Super. Egelkamp, not may judgments of courts render value though course belief, they properly particular merits of a the in a on a child involved effect of that examine the belief Father’s This no involves way Id. case custody dispute. is in no right go to to church religious freedom. Father’s expose right has no unfettered to impinged. Father way to Prince v. Common- religious practices. his children his Massachusetts, 321 U.S. S.Ct. wealth not protection The First Amendment does L.Ed. considering parent’s religious from a beliefs a court prohibit impact to the in a determination and examine custody on the child. practices Egelkamp, beliefs and parent’s power discretionary It court’s was well within the supra. that, being the children are agree with Mother because Jews, confuse attending unduly as Mass would brought up them. action, needing subject dispute the only this amicable scheduling the of the shared point
resolution at was any an re- custody. agreement, The reached physical parents 11, 1988, regarding most schedul- writing duced to on April hearing March the court held a ing issues. On contention, was, as stated point determine the which only court, custody Father is to “spend how [his time] N.T., 3-9-89 at 4. Father’s counsel religion.” it relates to court, appropri- agreed to this statement the issue. being dis- ately sensitive because activities were cussed, clarify, throughout proceeding, had Father demands. objection substance of his to Wife’s arises analysis The confusion this case because However, religious activity. to church is going obviously to Mother’s why objected look to the reason Father we must objected the children attend Mass. Father demand that not he upon the actual time impinged because the restriction during short duration his with the children spent go if not to Mass custody; the children could physical him, then they separated during would be from him Further, time. precisely periods because his of physical short, (weekends, custody holidays, vacations), Father was concerned that he would not have time fully share Mass, his Italian heritage Attending with his children. he feels, is good way to expose the children to his Italian heritage.
The trial court credited Mother’s testimony exposure contradictory doctrine Roman Catholicism would confuse and disorient Opinion, the children. July *48 It significant 6-7. is that Husband offered no opposing testimony agreed but rather that the children should not problem have an identity religions. with He expressly stated that he did not want to confuse them regard with N.T., religion. 3-9-88 at 24. When asked whether his children are Jews and he whether wanted them to identify with the community, N.T., Jewish Husband yes. answered 3-9-88 at 26. expressed
Husband the essence of his concern as follows: I guess agreement wife, I am in my far as as not creating an identity problem. It’s just that —what my contention is I that don’t want to be buried as far as my ability to relate children and I my how relate to my mean, really children is I am a product what is of my —I heritage my religious training. and I don’t want to be that____ barred from What’s for me necessary is that I can them, have the freedom to expose maybe not basis, regular semi-regular basis, I know, don’t but at freedom, least have that respecting her wishes as much as possible, ability and still have the to have some way instilling good my what’s about background, ...
I am worried I input about what kind of my have with children, every aspect, timewise, they how relate to me a person of my heritage because I my religion, here, have lot stake a lot. lives, morally, in their good
I I can do them think in their best interests. I that think culturally, 50-54, The court asked Husband N.T., passim. 3-9-88 term “reli- more than the the term “culture” why he used that, he not since was replied and Husband gion,” life, identity in cultural his he finds more value throughout him asked the court religious identity. than When ethnic, replied yes, and that he mean Husband did cultural ethnic and a combination both he “cultural” as saw that, emphasized repeatedly Husband religious elements. short, the custody were so periods physical his because to Sun- obligation having to take children additional them to School, being not able take coupled with day further cut into going, if he to be happened church the visits. and duration of quality although this argues in his court Husband brief secular, it is question seems of the order purpose is specifically and sectarianistic —it actually “non-secular belief, particular type to inculcate a intended 12. My review i.e., Faith.” brief at Appellant’s the Jewish no bears position record convinces me that this agree that parents to the facts. Both undisputed relation Jewish; himself chose to have children are Husband *49 The agreed-upon in the faith. children inculcated Jewish situation custody this upbringing joint scheme the does not contest the children as Jews. Husband raise order, that he “religious” the portion other the portion Sunday taking the children Jewish responsible the majority’s I in the record for support find no School. agreed have that, though parents even implication during marriage, bring up the children as Jews agreement this a divorce throws mere fact that there was the record demonstrates contrary, To the question. into point. this agree continue to parents that the the relative evaluate impermissibly The court did not Rather, weighed the court religions. merits two obli- Wife’s concerns about Husband’s Husband’s and designed custody and during periods physical his gations a compromise set forth in the order from which Husband appeals. now The court characterized the two restrictions placed upon he could not Husband, take his children to church and that he must bring his children to their syna- gogue School, for Sunday as reasonable conditions of physi- cal custody that are motivated the best interests and welfare of the children and that are no more intrusive than necessary accomplish legitimate objective. Opinion, 8, 1988 July at 8. The court allowed that if Husband took the children on trips area, outside the he need not bring also them to Sunday This, felt, School. the court an struck appropriate balance between the “important and appropri- ate rights of the father to visit and interact his children, and the children’s normal progression within their chosen religion.” Opinion, July 1988 at 8-9.
The trial court properly focused on paramount con- cern, the best interests the children. The court took the utmost care to frame the issue as the precisely hearing proceeded and to understand the religion role of in the dispute. The court’s inferences and conclusions are based firmly upon the Hence, facts of record. I would hold that the trial court discretion, exercised sound and I would affirm May order of 1988.
Superior of Pennsylvania. Court
Argued March 1990. May
Filed