requiring, in support of restrictions of a parent’s right to instruct his child in his religious faith, a demonstration that the “belief or practice ... to be restricted actually presents a substantial threat of present or future physical or emotional harm to the [child], and that the restriction is the least intrusive means adequate to prevent the specified harm”
How later courts described this case
- requiring, in support of restrictions of a parent’s right to instruct his child in his religious faith, a demonstration that the “belief or practice ... to be restricted actually presents a substantial threat of present or future physical or emotional harm to the [child], and that the restriction is the least intrusive means adequate to prevent the specified harm”
- declining to enforce prenuptial agreement that children would be raised Jewish because, among other reasons, it would excessively entangle court in religious matters
- rejecting speculation by parents and experts as to potential future emotional harm to child based on assumption that exposure is generally harmful
- confirming the long-standing legal principle that the court will not interfere with the religious preferences of either parent
Written by the judges who cited it.
The opinion
JOHNSON, Judge,
dissenting:
I respectfully dissent from the decision of the majority. The issue here is not a disagreement over the children’s religious upbringing, as the majority suggests. Neither are Father’s First Amendment rights at issue. Both parents continue to agree after divorce, as they had always agreed before, that the children are to be brought up as Jews. The only issue before the trial court was whether Husband’s short weekend periods of physical custody may be impinged upon by requiring him to allow the children to go to Synagogue for Sunday School and whether he should be precluded from taking them to church for Mass. Husband does not dispute the decision that he must take the children to Sunday School. No facts are in dispute. I would conclude that the trial court properly considered the childrens’ best interests and exercised sound discretion in ordering that Husband not take the children to church.
Our scope of review of a custody determination has been annunciated in great detail. Appellate review is broad in *86 the sense that we are not bound by inferences or deductions of the trial court from the facts found, and we need not accept a finding which has no competent evidence to support it. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226 , 478 A.2d 800 (1984), citing Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290 , 368 A.2d 635 (1977). However:
“... (T)his broader power of review was never intended to mean that an appellate court is free to nullify the factfinding function of the hearing judge ...”
(but, instead, is to remain) within the proper bounds of its review and (base a decision) upon its own independent deductions and inferences from the facts as found by the hearing judge.
This fundamental limitation of a reviewing court’s power has been articulated by the Superior Court as well in defining its own scope of review in custody matters: "... (W)e have recognized that the trial judge is in a position to evaluate the attitude, sincerity, credibility, and demean- or of the witness. Because we are not in such a position, we have recognized that a trial judge’s determination of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge ...”
Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings.
Robinson, 505 Pa. at 236-237 , 478 A.2d at 806 (citations omitted; emphasis by Robinson court).
When a trial court makes its determination in a child custody issue, the court’s ultimate concern is the child’s best interests. Robinson, 505 Pa. at 233 , 478 A.2d at 804 . *87 This includes a consideration of what will be in the best interests of the child’s spiritual development. Egelkamp v. Egelkamp, 362 Pa.Super. 269 , 524 A.2d 501 (1987). Although of course courts may not render value judgments on the merits of a particular religious belief, they may properly examine the effect of that belief on a child involved in a custody dispute. Id. This case no way involves Father’s religious freedom. Father’s right to go to church is in no way impinged. Father has no unfettered right to expose his children to his religious practices. Prince v. Commonwealth of Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944). The First Amendment protection does not prohibit a court from considering a parent’s religious beliefs in a custody determination and to examine the impact of the parent’s beliefs and practices on the child. Egelkamp, supra. It was well within the court’s discretionary power to agree with Mother that, because the children are being brought up as Jews, attending Mass would unduly confuse them.
In this amicable action, the only subject needing dispute resolution at any point was the scheduling of the shared physical custody. The parents reached an agreement, reduced to writing on April 11, 1988, regarding most scheduling issues. On March 9, 1988 the court held a hearing to determine the only point of contention, which was, as stated by the court, how Father is to “spend [his custody time] as it relates to religion.” N.T., 3-9-89 at 4. Father’s counsel agreed to this statement of the issue. The court, appropriately sensitive because religious activities were being discussed, had Father clarify, throughout the proceeding, the substance of his objection to Wife’s demands.
The confusion in analysis of this case arises because going to church is obviously a religious activity. However, we must look to the reason why Father objected to Mother’s demand that the children not attend Mass. Father objected because the restriction impinged upon the actual time he spent with the children during the short duration of his physical custody; if the children could not go to Mass with *88 him, then they would be separated from him during that time. Further, precisely because his periods of physical custody are short, (weekends, holidays, vacations), Father was concerned that he would not have time to fully share his Italian heritage with his children. Attending Mass, he feels, is a good way to expose the children to his Italian heritage.
The trial court credited Mother’s testimony that exposure to the contradictory doctrine of Roman Catholicism would confuse and disorient the children. Opinion, July 8, 1988 at 6-7. It is significant that Husband offered no opposing testimony but rather agreed that the children should not have an identity problem with religions. He expressly stated that he did not want to confuse them with regard to religion. N.T., 3-9-88 at 24. When asked whether his children are Jews and whether he wanted them to identify with the Jewish community, Husband answered yes. N.T., 3-9-88 at 26.
Husband expressed the essence of his concern as follows: I guess I am in agreement with my wife, as far as not creating an identity problem. It’s just that — what my contention is that I don’t want to be buried as far as my ability to relate to my children and how I relate to my children is really — I mean, what I am is a product of my heritage and my religious training. I don’t want to be barred from that____ What’s necessary for me is that I can have the freedom to expose them, maybe not on a regular basis, semi-regular basis, I don’t know, but at least have that freedom, respecting her wishes as much as possible, and still have the ability to have some way of instilling what’s good about my background, ...
I am worried about what kind of input I have with my children, and every aspect, timewise, how they relate to me as a person because of my heritage and my religion, I have a lot at stake here, a lot.
*89 I think I can do them good in their lives, morally, and culturally, and I think that is in their best interests.
N.T., 3-9-88 at 50-54, passim. The court asked Husband why he used the term “culture” more than the term “religion,” and Husband replied that, since he was not religious throughout his life, he finds more value in cultural identity than religious identity. When the court asked him that by cultural did he mean ethnic, Husband replied yes, and that he saw “cultural” as a combination of both ethnic and religious elements. Husband repeatedly emphasized that, because his periods of physical custody were so short, the additional obligation of having to take the children to Sunday School, coupled with not being able to take them to church if he happened to be going, further cut into the quality and duration of the visits.
Husband argues in his brief to this court that although the purpose of the order in question seems secular, it is actually “non-secular and sectarianistic — it is specifically intended to inculcate a particular type of religious belief, i.e., the Jewish Faith.” Appellant’s brief at 12. My review of the record convinces me that this position bears no relation to the undisputed facts. Both parents agree that the children are Jewish; Husband himself chose to have the children inculcated in the Jewish faith. The agreed-upon scheme of upbringing in this joint custody situation is to raise the children as Jews. Husband does not contest the other portion of the “religious” portion of the order, that he be responsible for taking the children to Jewish Sunday School. I find no support in the record for the majority’s implication that, even though the parents may have agreed to bring the children up as Jews during the marriage, the mere fact that there was a divorce throws this agreement into question. To the contrary, the record demonstrates that the parents continue to agree on this point.
The court did not impermissibly evaluate the relative merits of the two religions. Rather, the court weighed Husband’s and Wife’s concerns about Husband’s obligations during his periods of physical custody and designed *90 a compromise set forth in the order from which Husband now appeals. The court characterized the two restrictions placed upon Husband, that he could not take his children to church and that he must bring his children to their synagogue for Sunday School, as reasonable conditions of physical custody that are motivated by the best interests and welfare of the children and that are no more intrusive than necessary to accomplish a legitimate objective. Opinion, July 8, 1988 at 8. The court allowed that if Husband took the children on trips outside the area, he need not also bring them to Sunday School. This, the court felt, struck an appropriate balance between the “important and appropriate rights of the father to visit and interact with his children, and the children’s normal progression within their chosen religion.” Opinion, July 8, 1988 at 8-9.
The trial court properly focused on the paramount concern, the best interests of the children. The court took the utmost care to frame the issue precisely as the hearing proceeded and to understand the role of religion in the dispute. The court’s inferences and conclusions are based firmly upon the facts of record. Hence, I would hold that the trial court exercised sound discretion, and I would affirm the order of May 6, 1988.