Opinion
No. 12–P–39.
2013-04-5
Ronald H. LAPAT v. Joell P. LAPAT.
(Emphasis added). This provision does not restrict either party's religious freedoms; rather, it is a prophylactic measure designed to mediate differences of opinion between the mother and the father, and is necessary because of their demonstrated inability to parent cooperatively. We therefore conform paragraph 23 to the approach contained in paragraph 4. On remand, paragraph 23 shall be replaced with the following:
By the Court (WOLOHOJIAN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Paragraph 23 of the judgment of divorce nisi ending the parties' marriage requires that “[t]he children shall continue to be raised primarily in the Jewish tradition” and prohibits the mother from enrolling the children “in any form of Christian education, organizations or religious instruction.” On appeal, the mother argues this portion of the judgment violates her constitutional freedom to practice religion and to determine the religious upbringing of her children. In the realm of child custody, “the dominating goal of the enterprise is to serve a child's best interests.” Felton v. Felton, 383 Mass. 232, 234 (1981). When a child's religious upbringing is at issue, “[t]he law ... tolerates and even encourages up to a point the child's exposure to the religious influences of both parents although they are divided in their faiths.” Ibid. In considering whether to restrict a parent's ability to expose a child to religious influences, courts must determine whether “such exposures are disturbing a child to [his or her] substantial injury, physical or emotional, and will have a like harmful tendency for the future.” Id. at 235. If some restriction or accommodation seems necessary, the restriction should be that “which intrudes least on the religious inclinations of either parent and is yet compatible with the health of the child.” Ibid.
Paragraph 23 reads in full:
“The children shall continue to be raised primarily in the Jewish tradition. If Father wishes for the children to be Bat Mitzvahed, or be enrolled in Hebrew School, or obtain any form of religious training or education, then the parties will have to mutually agree. If they are unable to agree this issue shall be submitted to the [Parenting Coordinator]. In no event shall Mother be responsible for any costs for the children's Bat Mitzvah, Hebrew School, or other religious training. The children shall also be able to observe the Christian holidays. Mother may bring the children to church during her parenting time but may not enroll them in any form of Christian education, organizations or religious instruction.”
The father has not appealed.
Here, the father sought to restrict the mother from exposing their children to her (nonJewish) religious practices and beliefs. It was therefore the father's burden to “demonstrate ‘in detail’ that exposure to the [mother's] religion caused the children ‘substantial injury, physical or emotional, and [would] have a like harmful tendency for the future.’ “ Kendall v. Kendall, 426 Mass. 238, 243 (1997), quoting from Felton, supra at 234, 235. To be clear, “[a] parent's right to practice religion may be restricted only where limited exposure to that parent's beliefs is necessary to further a child's best interests.” Ibid. Because our “law sees a value in ... contact with the parents' separate religious preferences,” Felton, supra at 234, any restriction must be grounded in “an affirmative showing of harm caused by exposure to the conflicting religious teachings.” Kendall, supra . The harm must be “substantial” and shown by “clear evidence.” Id. at 243–244. As we have recently explained, “neither parent's constitutional right to practice a particular religion and to expose a child to the parent's religious beliefs may be restricted absent a demonstrated and compelling State interest in the restriction. Such an interest may exist if exposure to a particular religious belief or practice causes the child substantial injury.” O'Connell v. Greenwood, 59 Mass.App.Ct. 147, 153 (2003) (citations omitted).
At trial, there was no evidence that exposing the children to Christianity or “Christian education, organizations or religious instruction” would cause them substantial injury. Indeed, the father concedes that “there was relatively little evidence offered” on the issue of the children's religious upbringing. Because there was no showing that the children had been (or would be) harmed by exposure to Christianity or Christian education, organizations, or religious instruction, we cannot uphold paragraph 23's restriction on the mother's religious liberties.
Notably, neither party objects to paragraph 4 of the judgment of divorce nisi, which provides in relevant part:
“ The parties must also agree, in writing, on all other major decisions regarding the children's education, religion, therapy and non-emergency, non-routine, medical and dental issues including orthodontia. If they are unable to agree on any of these issue[s] then they shall submit their dispute to the Parenting Coordinator for resolution.”
(Emphasis added). This provision does not restrict either party's religious freedoms; rather, it is a prophylactic measure designed to mediate differences of opinion between the mother and the father, and is necessary because of their demonstrated inability to parent cooperatively. We therefore conform paragraph 23 to the approach contained in paragraph 4. On remand, paragraph 23 shall be replaced with the following:
“23. If Father wishes for the children to be Bat Mitzvahed, or be enrolled in Hebrew School, or obtain any form of religious training or education, then the parties will have to agree mutually and in writing. If they are unable to agree, this issue shall be submitted to the Parenting Coordinator. If Mother wishes for the children to be enrolled in Christian education, or to obtain any form of religious training or education, then the parties will have to agree mutually and in writing. If they are unable to agree, this issue shall be submitted to the Parenting Coordinator.”
The case is remanded to the Probate and Family Court for the modification of the judgment of divorce nisi in accordance with this memorandum and order. As so modified, the judgment of divorce nisi is affirmed.
So ordered.