Opinion
Hearing Ordered on Court's own Motion July 12, 1967.
Wise, Kilpatrick & Clayton by George E. Wise, Long Beach, for appellant.
No appearance for Respondent.
ROTH, Presiding Justice.
In this divorce action, appellant, wife and mother, is apparently content with that portion of the judgment which awards the decree to respondent, husband and father. She appeals from and disputes the part which awards the custody of their son John Edward, two and one-half years old at commencement of the action, and now approximately five, to the father.
The court found each parent to be of sound character. The devotion of each to John Edward is not in issue. The father testified: 'Q You feel that you have a strong love and affection for your child? A Yes. Q Do you feel that Mrs. Quiner does? A Yes, I do.'
Linnea and Edward Quiner were married in Los Angeles on May 20, 1961 and separated November 21, 1963. John Edward, their only child, was born December 12, 1962.
Edward sued for divorce on November 29, 1963, alleging extreme mental cruelty and requesting custody of John Edward. Linnea cross complained for separate maintenance and custody. An interlocutory judgment of divorce in favor of Edward was entered on April 19, 1965.
The judgment, among other things, granted visitation rights to Linnea, but enjoined her '* * * from teaching or informing said child of any matter or thing or religious belief concerning the Plymouth Brethren, or the 'Exclusive Brethren', or the concept of 'separation' as believed or practiced by the 'Exclusive Brethren' or from permitting said child to remain in the presence of any person or groups of persons at any time during the discussion or teaching of any of said subjects and * * * restraining [Linnea] from taking said child to any meetings, assemblies or religious services of the 'Exclusive Brethren."
The concept of 'separation' referred to in the above excerpt zealously espoused and acted upon by appellant, is made clear from her testimony, parts of which are as follows:
'Q As part of your religious belief, Mrs. Quiner, you cannot have fellowship with those who are not members of your particular religious group; is that correct? A There is no fellowship with those we are not in fellowship with. * * * Q If your husband was not a member of the religious group, does this mean that you could not eat meals with your husband? A Inasmuch as my husband has chosen to go his own way and has chosen to be out of the fellowship, I must maintain separation.
'* * *.
'Q * * * Would you have to dissociate [sic] yourself from the family member who was not a member of the religious group? A Yes, I would.
'* * *.
'Q Would this separation take the form of not being able to have sexual intercourse with your husband? A That would be involved in the separation.
'* * *.
'Q Would you be allowed to have a Hi-Fi or Stereo set and listen to music as part of your religious belief? A I would not want '* * *.
'Q BY MR. MODJESKI: Do you consider these these items that we have just mentioned, such as the radio, television, movies and theatre, as being worldly items? A Yes, I do. Q Do you also consider them to be evil and to be avoided? A Yes. Q These religious beliefs led to arguments between yourself and your husband; didn't they? A Yes, they did.'
Queried as to respondent's request to her to see a marriage counselor to save the marriage, appellant replied:
'A No. I told him that I didn't need the services of a counselor. They couldn't help me because the issue was regarding religion. Q You couldn't compromise on the separation as long as Mr. Quiner was not a member of your religious group; is that correct? A Yes.
'* * *.
'Q You consider is a duty to instruct your son in your own religious beliefs; do you not? A Yes, I do. Q Do you take your son to religious meetings with you? A I take him to the group of brotherhood that I meet with and that I have met with all my life, yes. Q Mrs. Quiner, how often during a normal week do you attend religious meetings? A I would say an average of six times, six occasions. Q Six occasions during the week? A Yes. Q How much time do you spend at these six occasions? Are they all and hour or two hours; could you give us some indication of the time spent? A Each occasion is approximately an hour and fifteen minutes long.
'* * *.
'Q * * *. If your son joined the religious group according to the beliefs of your religion, he could not associate with his father; is that correct? In other words, he would have to practice the principle of separation from his father; is that correct? A Yes, he would. Q And if his father's parents, the boy's grandparents, were also not members, he would have to practice the principle of separation from his grandparents; is that correct? A That is right. Q Would he look upon his father as being evil and to be avoided because he was not a member of the group? A That would be up to him. He would--Q But would he be taught this as part of the religion? A He would be shown to see that his father was not going on rightly according to the truth of Scripture.
'Mrs. Quiner, getting to the raising of children aspect of this, which is most important in this case, are children within the religious group brought up to think that others outside the religious group are unclean? A I think that is set out in Scripture.
'* * *.'
The depth of appellant's desire to indoctrinate John Edward with the concept of separation is such that she admitted she would keep him away from his father if she could. She testified:
'* * * [W]ould you be content to allow your husband to have John with him and away from your home or away from your parents' home during that time? A If that seems to be the only way it could possibly be worked out. Q Would you be willing that your husband should have John with him for a period of say, a week during the summertime? A I wouldn't be willing. Q Nevertheless, you would follow the Court's order if it were made along that line; would you not? A I would have to.
'* * *.
'Q Will it be necessary for you, according to your religious belief, to teach your son to hate his father as he grows older? A No, it would not at all. Q Would it be necessary for you to teach him to dishonour his father in any way? A No, it would not be necessary. Q What attitude would you be bound to teach to your boy, as well as you could, concerning his father? A I would teach him to love his father as a son and as his father and to respect him in every way and to obey him. I would not teach him to hate his father at all.
'* * *.
'Q Mrs. Quiner, you just testified that you would not teach your son to hate his '* * *.
'Q. Now, naturally you are still in love with your husband, aren't you? A. Yes. Q Hhowever, you do feel that you have to separate from him? A That is right. Q And the boy would be brought up in this atmosphere, would he not, of separation from his father? A Yes. Q Not because of any hate or dishonor to his father but simply because of the necessity to separate? A That is right. Q From those who are not members? A That is right.'
The principle of separation espoused by appellant would be further aggravated by the fact that appellant stated she expected to live with her parents. The evidence shows that her parents are even more firmly entrenched in the doctrine of separation than is appellant.
Respondent testified, when asked why he deemed it his 'duty' to seek custody of John Edward:
'A Well, I feel that when he becomes older, he will be so indoctrinated in the beliefs which my wife has that he will not be able to associate with me at all nor with my parents, his grandparents, and that he will have nothing to do with us.'
Mr. Quiner further testified:
'Q You and your wife have not had any difficulties at these times when you come to visit John; is that about right? You have not had any arguments between you or anything like that? A Yes, we have. Q Oh, have you? A Yes. Q Has this happened recently? A Yes. Q What has been the subject of the argument? A Religion.'
Respondent and appellant at the time the divorce action was filed, were respectively 24 and 23 years of age. At the time of their marriage, the parties and their respective parents were in fellowship in a Christian religious group called the 'Brethren.' Appellant had been with the Brethren all her life and 'came into fellowship' 13 years prior to the trial. Respondent had also attended religious meetings throughout his life with the same religious group, and his parents had been members of the group since 1925.
Appellant testified: 'I am not a member of any sect. I am a Christian and we are called 'Brethren" and the record makes clear that from the standpoint of the members, every believer in the Lord Jesus Christ is a member of the body of Christ which his the Church. Formally the Brethren meet in four different places in Los Angeles. On Sunday morning, or the Lord's Day, between 9:00 and 10:00 a.m., the Brethren break bread or take the Lord's Supper, at which time those who are free to do so, may praise divine persons in song or individually. At 12:00 noon, the Brethren meet collectively and informally in one room in the city to read scriptures, and in the conduct of the meeting, any male member may take part. The meetings last one to one and one-quarter hours. At 3:00 p.m., there is a preaching of the gospel. Preaching for the most part is done by a member who volunteers or who has been selected for that purpose.
II Encyclopedia of Religion and Ethics, (James Hastings: Editor) pp. 843, 847, states (after lengthy historical discussion):
These expressions were used to characterize such misconduct as attending a movie with a friend or joining a school's athletic team.
There is a prayer meeting each Monday between 8:00 and 9:00 p.m.; and on one Tuesday of each month a meeting is held at which two or three persons may give short addresses as on Sundays. 'City' meetings are held on Thursday night of each week. The meetings open with a hymn or a song followed by a prayer and then scriptures are read. In Friday night, meetings are held in one of the area rooms only in Glendale, at which there is again a reading of the scriptures. Saturday meetings are omitted, except that there is a regular meeting once every three months on Saturdays, at which the same thing happens as in the local meetings, except that occasionally someone from a distance with ability might address the group. Women are in the fellowship and attend the meetings with their children, but they do not preach. Children participate in the meetings, depending upon their degree of intelligence and maturity. Frequently there is socializing at the meetings and coffee, tea or other refreshments are provided. At 'care' meetings, matters involving finances and ministering to the needs of needy persons are considered as well as the spiritual direction of individual members.
There were approximately 220 in the fellowship in Los Angeles, exclusive of children, at the time of the marriage of the parties.
At the end of 1961, because of grave differences over the principle of separation, a schism church was organized known as the 'Argus Drive Chapel.' Respondent and his parents and approximately 100 other Brethren joined the new group and appellant and her family and approximately 120 of the Brethren remained in the original group. Commencing with November 1962 through November 1963, the disharmony between the parties as a result of their opposing views on the concept of separation brought about the divorce action.
Respondent testified that in 1959 and 1960 (before the marriage) emphasis upon the principle of separation was beginning to develop; that at the time of the marriage he had reservations about the doctrine and that he 'wasn't in accordance with it all and at that time she wasn't either.' In August of 1962 he joined Argus Drive Chapel. Approximately a year or a year and a half after the marriage, he became aware that his wife was beginning a stricter observance of the concept of separation than at the time of the marriage and that she refused to let him play the radio 'without a big fuss' and did not The crucial factual finding (number 7) and conclusion of law (number 3) under attack, discussed at length infra, are as follows:
'7. The temporal environment available to the child in the custody of either parent is substantially equal. With either parent his physical needs will be well provided for and, both, as far as good character is concerned, are fit persons to be awarded custody. However, the child's mental welfare, and opportunities for his intellectual, social, character and personality growth will best be served by granting custody to the plaintiff.'
Among its conclusions the court said:
'3. The best interest of the child, especially the child's mental welfare, will be best served by granting custody to the plaintiff. In the socially and intellectually impoverished environment available to the child in the defendant's custody, he could not achieve or approach his potential mental development.'
The other pertinent findings in their factual as distinguished from their conclusionary context are abundantly supported by the evidence:
'8. * * * [Linnea] is a member of a small though wide-spread protestant sect known as the 'Exclusive Brethren.'
'9. Said sect known as the 'Exclusive Brethren' live 'separate'. That is, members shun all social relationships and social activities except as absolutely necessary, with all persons with whom they are not in 'fellowship' by which they mean nonmembers of their own religious group. All such persons are believed to be 'spiritually unclean.'
'10. Members of the religious group conduct themselves in strict accordance with a rigid code of personal conduct under the concept of 'separation.' Some of these rules in living 'separate' and their effect upon the activities of the members and their children reared 'in fellowship' are as follows:
'A. They may not eat, and thus 'break bread' in any public or private place unless alone or exclusively with other members. Eating in public places is avoided of possible. * * * Their children of school age are counseled not to eat in the school cafeteria, but rather to eat their own box lunch alone and secluded from their schoolmates, who are, as they are taught, 'spiritually unclean.'
'B. They may not affiliate with any outside organization. This includes membership in political, social service, religious, economic, educational, trade union, cultural, and all other groups. Pre-kindergarten nursery schools are banned. While permitted to attend public schools as required by law, children are discouraged, if not forbidden as sinful, from participating in all forms of extracurricular activity. This includes all forms of participation in athletic, dramatic, musical, social, literary, scientific, political and other extra scholastic activities.
'C. Although unorganized forms of play at school with other children are sanctioned, children of the 'Exclusive Brethren' may not visit or play with other children in their homes, or in their own homes or elsewhere. This precludes membership in Boy or Girl Scouts, camp Fire Girls, Little League, Y.M.C.A. and other similar youth groups.
'D. Brethren living in 'separation' may not exercise their voting franchise.
'E. Participation in civic, political or governmental activities is avoided.
'F. All forms of public or private entertainment are discouraged, if not forbidden. This edict excludes all types of social games such as card playing, dominoes, checkers and chess. In the defendant's home neither radio, television nor recorded music is permitted. Children may not have toys. If anyone outside the group should give a child a toy, a radio, television set or 'G. Living in 'separation' in the defendant's home with his mother and maternal grandparents, the child would not be allowed to attend any theatre, musical or other cultural program nor to attend athletic events.
'H. Christmas is not celebrated--there is no exchange of gifts, no Christmas tree nor other Christmas decorations nor Santa Claus, feasting or holiday celebrations.
'I. Children may not have dogs or cats or other pets.
'J. The reading of all forms of literature and periodicals is discouraged or banned, except the Bible. This includes current news media.
'L. All forms of medical insurance are opposed by the 'Exclusive Brethren.'
'11. Defendant considers it her solemn religious mandate to rear and inculcate into said child the foregoing disciplines of 'separation' from the age of earliest comprehension. Although the plaintiff would normally exercise his visitation rights by taking the child into his own custody for short periods if defendant were granted his custody, the child's normal respect and love for his father will encounter a violent conflict with his mother's and his maternal grandparents' admonitions that his father is an 'unclean' person and that it is sinful to 'break bread' with him.
'12. This influence would be exerted upon the child constantly not merely occasionally at Sunday meeting[s] if defendant were given custody. Defendant attends religious meetings six nights per week and three times on Sunday. Defendant would take the child to these meetings, although perhaps not all of them at his present age. But as the child grows older he would attend more and more meetings so that his indoctrination may be indelibly stamped upon his mine and he be converted as a full member into the 'Exclusive Brethren' at an age possibly as young as six years.
'13. Religious devotions are more important to the defendant than her husband or her son since defendant attends religious meetings six nights per week and three times on Sunday. Such a schedule leaves practically no time for defendant to spend in the normal activities of mother and child in training, recration and otherwise attending to her child's needs.
'14. Although the plaintiff adheres to similar protestant fundamentalist beliefs, he does not live 'separate.' Plaintiff votes, takes his meals with anyone he chooses, has no religious aversions to becoming an active member in any kind of organization, has radio and television in the home, attends the theatre and would encourage his son to participate in all types of youth activities.'
The law of this state makes it abundantly clear that the best interests of the child is the polestar of decision in custody cases. We know of no state in which it is different. All the cases herein cited which deal specifically with the question raised at bench recognize this principle.
Section 138 of our Civil Code requires custody to be awarded to the mother when a child is of tender years and other things are equal. The trial judge was satisfied that each parent would provide a temporal environment equally adequate for the child and that each was of good character. However, predicated upon the religious discipline which appellant admitted she felt impelled to enforce in rearing the child, he expressly, by Finding 7, determined that the 'mental welfare,' and by Conclusion of Law 3, 'the best interest * * * especially the * * * mental welfare' of John Edward, would be best served by giving custody to the father. (Emphasis added.) Finding 7 and Conclusion of Law 3 are fortified by the implications in Findings 11, 12 and 13 to the effect that indoctrination of John Edward in the principle of separation would alienate the son In explicating the application of section 138 of the Civil Code, Witkin points out: 'Unless the wife is shown to be unfit this is almost a routine conclusion. 'Where the court finds that 'other things' are equal, young children are invariably given into the custody of their mother. We say 'invariably' because we have not found in our reported cases a single instance in which the custody of young children has been awarded to their father upon evidence that the mother was a fit and proper person to have their custody and was able to give them advantages equal to those that they would enjoy in the home of the father.' (Bemis v. Bemis (1948) 89 C.A.2d 80, 90, 200 P.2d 84; * * *.' (Witkin, 3 Summary of California Law, p. 2441.)
The guidelines for the exercise of such a discretion are flexible, sometimes ambiguous, and difficult to follow. (Stack v. Stack, 189 Cal.App.2d 357, 365, 11 Cal.Rptr. 177.) However, such discretion will not be disturbed except in a case of clear abuse. (Civil Code, § 138; Goto v. Goto, 52 Cal.2d 118, 123, 338 P.2d 450; Holsinger v. Holsinger, 44 Cal.2d 132, 135, 279 P.2d 961; Davis v. Davis, 41 Cal.2d 563, 565, 261 P.2d 729; Munson v. Munson, 27 Cal.2d 659, 666, 166 P.2d 268; Prouty v. Prouty, 16 Cal.2d 190, 191, 105 P.2d 295; Bialac v. Bialac, 240 Cal.App.2d 942, 946, 50 Cal.Rptr. 12; Coddington v. Coddington, 210 Cal.App.2d 96, 100, 26 Cal.Rptr. 431; Combs v. Combs, 162 Cal.App.2d 33, 34, 327 P.2d 164.)
It is clear from the record that the trial judge predicated his findings and conclusions in respect of what was the best mental welfare of the child entirely upon appellant's zealous belief and espousal of the principle of separation, inculcated by the religion to which she is devoted.
It is equally clear that the acts of cruelty complained of and proved, tearing radio ear phones from respondent's head, refusal to co-habit, etc. were engendered because of appellant's religious beliefs. It appears to be settled, however, that as between husband and wife, neither spouse can seek immunity for acts of undoubted cruelty under the cloak of religion in a divorce action. (Mertens v. Mertens, 38 Wash.2d 55, 227 P.2d 724, 726 (1951); Ferrell v. Ferrell, 28 Erie County Law Journal 122 (Pa.1945).) It is, too, a settled constitutional principle that the constitutional protection afforded acts, as distinguished from beliefs, is a lesser one. (See infra.)
Apparently a condition reached in the early teens or earlier rather than age 21.
Appellant urges that this court must find as a matter of law that she has been penalized for her religious beliefs and that the penalty takes the form of depriving her of custody. The evidence and cases support her contention. (Miller v. Hedrick, 158 Cal.App.2d 281, 322 P.2d 231 (1958); Cory v. Cory, 70 Cal.App.2d 563, 161 P.2d 385 (1945); Welker v. Welker, 24 Wis.2d 570, 129 N.W.2d 134 (1964); Smith v. Smith, 90 Ariz. 190, 367 P.2d 230 (1961); Frantzen v. Frantzen, 349 S.W.2d 765 (Tex.Civ.App.1961); Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959); Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957); Salvaggio v. Barnett, 248 S.W.2d 244 (Tex.Civ.App.1952); Stone v. Stone, 16 Wash.2d 315, 133 P.2d 526 (1934); Commonwealth ex rel. Derr v. Derr, 148 Pa.Super. 511, 25 A.2d 769 (1942); cert. den., 317 U.S. 631, 63 S.Ct. 57, 87 L.Ed. 509; Goldman v. Hicks, 241 Ala. 80, 1 So.2d 18 (1941); Reynolds v. Rayborn, 116 S.W.2d 836 (Tex.1938); People ex rel. Sisson v. Sisson, 271 N.Y. 285, 2 N.E.2d 660 (1936); Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146 (1920); Lindsay v. Lindsay, 257 I11. 328, 100 N.E. 892, 45 L.R.A.,N.S., 908 (1913); In re Doyle, 16 Mo.App. 159 (1884); see also 66 A.L.R.2d 1410, 1419.)
The Constitutions of the United States and of the State of California guard with strict jealousy any legal penalty, however slight, imposed upon a person Respondent urges that the constitutional right of freedom of conscience and the declarations of the courts in cases like Cory and the others cited, '* * * should not be given unwarranted implications * * * despite the lack of explicit authority * * *.' (Citing Witkin, 3 Summary of California Law, p. 2440.)
United States Constitution, First Amendment; Article I, Section 4, California Constitution.
Because of the unusually low mental age deemed by the members of appellant's faith as appropriate for grasping and accepting its tenets, a delay that might be reasonable in other circumstances was wholly inappropriate here. Appellant testified as follows: 'A. You come into fellowship by desiring to break bread and remember the Lord and his death, which my son could do it he expressed the desire to when he is five or six years of age. * * * Q. I see. Thank you. If your son joined the religious group according to the beliefs of your religion, he could not associate with his father; is that correct? In other words, he would have to practice the principle of separation from his father; is that correct? A. Yes, he would. * * * Q. Would he look upon his father as being evil and to be avoided because he was not a member of the group? A. That would be up to him. He would--Q. But would he be taught this as part of the religion? A. He would be shown to see that his father was not going on rightly according to the truth of Scripture.' (Emphasis added.)
In Cory, supra, a boy and girl aged five and two and one-half respectively, were involved. The pertinent findings were: '* * * That the plaintiff has been teaching the said minor children to refuse to give allegiance to the flag of the United States, and to the United States and to refuse to defend the flag and * * * United States against its enemies when at war * * *. On the other hand the father objects to such teachings being imbued in their immature minds, and desires that said children be reared as loyal Americans to respect and salute the flag of their country and to defend it when called upon to do so by the Government thereof; * * *
"That while the mother of said children is a moral person, the teachings which she is trying to impress upon the said minors will not be for their best interest or for their welfare. That the teachings of the father will be for their best interests and for the welfare of said children."
The findings in Cory go further than they do in the case at bench. "That the teachings of said plaintiff so far as the minor son is concerned has already so imbued him with disrespect for the flag and unpatriotic thoughts that when the flag is displayed he becomes ill at ease and greatly agitated. * * *" (Emphasis added.) (Cory, supra, 70 Cal.App.2d at pp. 564-565, 161 P.2d at p. 387) Thus it is noted that in Cory, the effect of a teaching of a belief as distinguished from mere belief was in evidence. (See People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813; discussed infra.) There is no evidence and no finding at bench that John Edward regards his father as 'unclean', spiritually or otherwise, or that there is or has been any lack of filial love or devotion of son to the father. At bench too, there is no evidence, nor could there have been, since John Edward was at the time of the trial two and one-half years old, that the principle of separation manifested by such requirements as eating lunch apart from his schoolmates, or remaining aloof from them and their activities, had actually taken place and had impaired the physical, emotional and mental health and well-being of the child.
Although not stressed in Cory, it is clear from other cases that the discipline of Jehovah's Witnesses involves much more than failing to salute the flag or defend the country in time of war; and although the 'uncleanness' of non-believers is not specifically stressed in Jehovah's Witnesses cases, a doctrine of separation in school and out is definitely emphasized.
In Bond, supra, three infant children were involved. The case is substantially on all fours with the one at bench. Evidence was introduced to show that a minor son had refused under under instructions to salute the flag, swear allegiance and was forced to real Jehovah literature instead of playing in the yard and that the mother who had custody, used her house for religious meetings three times per week. The father testified:
'Q. That was how long ago? A. That particular part there was last summer and she threatened to whip him or if he didn't go to the meetings she would put him to bed. Then they don't believe in voting. They don't believe in saluting the flag and they don't believe in fighting and they don't believe in hell and they don't believe in the blood and they don't believe in Thanksgiving and they don't believe in Christmas, New Year's or any type of celebration.'
The court in Bond, 109 S.E.2d at page 19 summarized the issue thus: 'From the entire record, however, it is obvious that the defendant is quite impatient with many of such tenets, beliefs and religious The court in Bond said at page 25: 'The husband now weeks to restrict or limit that custody. It is not shown that the children are being neglected in the usual sense; that they are abused or mistreated; or that they are subjected to any evil or immoral influence. While it appears that the home is used somewhat infrequently for small religious gatherings of Jehovah's Witnesses, it does not appear that such gatherings are characterized by loud noises, misconduct or any other sort of lack of decorum; nor does it appear that the dwelling property is being defaced or abused. In essence, the husband displays a keen impatience with the tenets, teachings, beliefs and practices of Jehovah's Witnesses; he does not want his children reared in that religious faith; and, obviously, it is for this purpose that the defendant seeks to restrict the nature of the use the plaintiff and the infant children shall make of the home.'
The court concluded by quoting from Cory, supra:
"We have been cited to no case, and believe none will be found, wherein it has been held that the courts may deprive parents of the custody of their offspring because of a disagreement with such parents as to their religious views, at least, as long as their teachings do not conflict with the laws of the land. While respondent argues in his brief that there is no religious issue in this case, and asserts that the question is whether a father should have the right to have his children taught the 'principles of good citizenship,' it is patent that both respondent and the trial court are of the opinion that the religious teachings of appellant are incompatible with what they consider the 'principles of good citizenship."'
The complete integrity of freedom of conscience guaranteed by the Constitution is elequently expressed by Mr. Justice Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624, at pp. 639, 641-642, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628:
'* * * [F]reedoms of speech and of press, of assembly, and of worship may not be infringed on * * * slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. * * * We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.' (Emphasis added.)
Barnette, supra, involved an effort to exclude a child of a Jehovah's Witness from public school because the child, as part of its religion, was taught not to salute the flag. Justice Jackson refers to this conduct as 'slender grounds' to encroach upon the right of a parent's freedom of conscience.
Assuming that John Edward will be raised differently from the accepted mores and that from the standpoint of his father and the state it may matter some or much, we cannot say that John Edward will not, even though or because he is exposed to the principle of separation, grow up into a constructive, happy, law-abiding citizen, and contribute to the 'rich cultural diversities' In Cory, supra, the court, having quoted at length from Barnette, said at 70 Cal.App.2d pp. 569, 570, 161 P.2d at p. 389:
'The conclusion seems inescapable that appellant has been deprived of the custody of said children solely because she is a Jehovah's Witness, and, in the opinion of the trial court, the beliefs of the followers of that faith are inimical to the welfare of their children because they do not salute the flag and are unwilling to fight for their country. If it is right to take these children from their mother's custody for the reasons stated, then by the same course of reasoning we must conclude that it would be right and proper to deprive all Jehovah's Witnesses of custody of their offspring lest they become disloyal citizens. Also it would seem to follow that the teachings of this group should be prevented by the state as inimical to the public welfare.' So in the case at bench, if the doctrine of separation is not for the best interests of John Edward, or if said doctrine may result in the belief that his father is 'unclean', 'it would be right and proper to deprive all [Brethren mothers] of custody of their off-spring lest they become disloyal citizens.'
The trial judge, sensitive to the constitutional question involved in the instant case, in a written opinion (to distinguish from Cory) said:
'Unlike Cory, the custody award in the instant case does not turn upon religion, but rather upon the balance of environmental factors available to the child in the respective homes of its parents which will best stimulate and promote its intellectual growth and social adjustment.
'In Cory there is no showing that the children in their mother's custody would be restricted to an intellectually arid social enclave or their minds poisoned against their father as 'unclean', or forbidden to eat or fraternize with their schoolmates.'
In many of the cases cited the same reasons are urged by one spouse against the other. In all of them, when custody was based upon such professed reasons, the appellate court looked to the record and found, as we do in the case at bench, that the reasons assigned are inextricably a part and parcel of religious belief and that a judgment so bottomed cannot withstand constitutional attack.
It appears to be the law that the parent having the custody of a child has the right to bring up the child in the religion of such parent. (Burge v. City & County of San Francisco, 41 Cal.2d 608, 617, 262 P.2d 6; Lerner v. Superior Court, supra, 38 Cal.2d 676, 681, 242 P.2d 321; Miller v. Hedrick, supra, 158 Cal.App.2d 281, 284-285, 322 P.2d 231; Witkin, 3 Summary of California Law, pp. 2440-41.)
The mother, as custodian, would thus have the opportunity to inculcate the principle of separation in the mind of the child. The evidence does establish that the child would be taught his father is 'unclean'. Such teaching obviously is not for the best interests of the child. Assuming, arguendo, that the best interests of John Edward can be best promoted if he were reared free of a teaching of the principle of separation, and in a sincere atmosphere that neither of his parents 'is unclean', we discuss that facet as if it were possible to sever it from the freedom of conscience issue here involved.
We are sensitive to the revelation disclosed by appellant's direct evidence, and confirmed by the father's outspoken apprehension, that custody in the mother may breed in John Edward a lack of religious and filial rapport with his father and the father's parents, and may possibly breed definite antipathy to his father and his paternal grandparents. We agree that it is probable that such attitude may interfere with complete empathy between the child and the father and the father's family. We agree that this probability is not for the
It can be persuasively argued nevertheless that strict enforcement of the principle of separation by the mother may inspire in John Edward a desire to turn his back upon the type of life it required him to lead, and a stronger attachment and inclination to lean upon and adopt the father's way of life.
The principle of separation, assuming it 'takes,' although causing a spiritual cleavage and possibly one in habits of life between father and son, does not necessarily detract from the love, respect and devotion which can be engendered and impelled in a son by a God-fearing, loving and devoted father, and an honest though zealous mother, irrespective of any religious doctrine which one hopes to inculcate in the mind of a child.
The mother testified: 'I would teach him to love his father as a son * * * to respect him in every way and obey him.' It has already been noted that there is no evidence in the record that appellant has not performed in the past as she testifies she would in the future.
Further, we have no right to assume that the father, even though custody is in the mother, will have no effect whatsoever in the upbringing of John Edward. Liberal rights of visitation plus weekends and part of summer vacations with the father would supply ample opportunity. The evidence shows the father to be a worker and a Godfearing man, devoted to the child.
We assume that if the parties had remained married, and the father refused to observe the principle of separation, or if each had continued in the identical faith and accepted as part of that faith the principle of separation as zealously espoused by appellant alone, there could be no doubt that intervention by the state in John Edward's upbringing would not receive hospitable consideration in any court. In such circumstances, Religious differences, sometimes fundamental, exist between parents who have not separated. Frequently, father or mother, as the case may be, must combat in their own household the differing religious concepts of spouse and children. (See People ex rel. Sisson v. Sisson, supra.) The right of parents, or of one of two parents living together, to inculcate different precepts of their respective faiths would not be subject to question except between themselves, even though the teaching thereof were not limited to the home or church. Thus, if the religious group to which appellant belongs, maintained parochial schools to educate children of the group, there would be no doubt about appellant's right to send John Edward to a parochial school. At such a school John Edward would not be living in separation from his peers. As a nation we accept parochial schools of any faith if they are maintained on a standard acceptable to law, even though such schools by their very nature emphasize a doctrine of separation. We accept such a school despite the state's heavy interest in the physical, mental and emotional education of children. Healthy, educated citizens, interested in the objectives of the state as set forth in its Constitution law and historic papers, are of prime concern to the state. This interest of the state does not mean, however, that differences in the upbringing of children, especially religious differences, are not tolerated. Such differences are, on the contrary, encouraged and guaranteed by the Constitution.
All religions, in addition to divine doctrine and distinctive theological tenets, embrace specific rules and principles intended to govern everyday living and thinking. All together, these constitute a way of life. These several ways of life, in varying degrees, reach into the daily thinking and actions of all believers. Since no two religions are identical, there is always present, express or implicit, a doctrine of separation when the way of life taught by one is contrasted with that taught by another.
These differences are accentuated when children are sent to parochial schools. In fact, one of the reasons they are sent is to acquire knowledge of and to be brought up in the principles inculcated by the particular faith which their parents profess.
Irrespective of different religious concepts in the same family, each spouse teaches love and respect for the other, if for no reason other than the teaching of such love and respect is for the best interest of the child.
Every separation, including those in which the spouses are religiously of one mind, causes a strain upon a child which affects his best interests. Intelligent parents who are divorced do the best they can to compensate for inevitable trauma suffered by their children as a result of any divorce.
It is of interest to note that respondent sought custody of John Edward upon the allegation: 'Defendant is an unfit person to have the custody of the minor child in that defendant's religious beliefs threaten the health and well being of the child.' (Emphasis added.)
We have found no case, with the exception of Barbush, supra, and none has been cited to us, which even squints at holding that a court can take a child of tender years away from the mother because of a potential effect the religious views of the mother may have on the mental welfare of her child. There are cases which involve religion, but in all of them, when there has been a transfer of custody, there has been an abuse of the physical well-being of the Prince v. Massachusetts
Battaglia v. Battaglia, People ex rel. Wallace v. Labrenz, Commonwealth ex rel. Derr v. Derr, People ex rel. Trafford v. Trafford, Sup., Commonwealth ex rel. Kaufmann v. Kaufmann, Gluckstern v. Gluckstern,Even assuming 'physical well-being' includes mental and emotional well-being, knowledgeable as we think we are with the teachings of psychology and psychiatry, we are of the opinion that courts have no power to tell parents who teach nothing secularly immoral, unlawful or against public policy, how to shape the minds of their children, particularly on the subject of accepted religious belief. Evidence must be produced which will sustain a finding that there is actual impairment of physical, emotional and mental well-being contrary to the best interests of the child. We cannot proscribe the doctrine of separation, as taught by the Brethren, because, although it is admittedly a spiritual doctrine, temporal effects may cause deviation from the accepted norm.
The conclusion that appellant's teachings will prevent John Edward from joining 'our leading character building organizations'--whatever they may be--cannot be accepted as valid. Adherence to the teachings of any one religious group as distinguished from another may have the effect of excluding adherents of a particular group from membership in organizations built upon the creeds, habits or social perspective of other groups. The possibility or probability of such exclusion, however, should have no baring upon the rights of parents to bring their children up in their own faith, nor justify courts in arrogating to themselves the right to determine that the religious teachings of such parents will not be for the best interests of their children. (See Cory v. Cory, supra, 70 Cal.App.2d p. 569, 161 P.2d 385.)
Although evidence at bench indicates that if John Edward is raised with emphasis on the principle of separation the probabilities are that he will not grow up in accordance with what is generally considered the norm, it does not follow that the best interests of the child would be served by awarding custody to the father.
Precisely because a court cannot know one way or another, with any degree of certainty, the proper or sure road to personal security and happiness or to religious salvation, which latter to untold millions is their primary and ultimate best interest, evaluation of religious teaching and training and its projected as distinguished from immediate effect (psychologists and psychiatrists to the contrary notwithstanding) upon the physical, mental and emotional well-being of a child, must be forcibly kept from judicial determinations. Numerous profound thinkers have fixed convictions that all religion is bad, particularly There is no dispute that appellant is a sincere believer in a bona fide faith. Deprivation of the custody of a child is not a 'slender' (Barnette, supra) punishment: it is a heavy penalty to pay for the exercise of a religious belief, neither illegal nor immoral.
It is obvious from the record, that in the case at bench the mother was deprived of custody because of her espousal of the principle of separation and for no other reason.
The law is settled, that all things being equal, the custody of a child of tender years should go to the mother.
The constitutional principle upon which we decide this case does, however, have its limitations. There is a constitutional corrollary equally well settled. There is a clear distinction between beliefs merely professed and acts indulged in pursuant to said beliefs. In People v. Woody, 61 Cal.2d 716, at p. 718, 40 Cal.Rptr. 69, 71, 394 P.2d 813, 815, the court says:
'Although the prohibition against infringement of religious belief is absolute, the immunity afforded religious practices by the First Amendment is not so rigid. (Sherbert v. Verner (1963) 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965; In re Jenison (1963) 375 U.S. 14, 84 S.Ct. 63, 11 L.Ed.2d 39; West Virginia State Board of Education v. Barnette (1942) 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; Braunfeld v. Brown (1960) 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563; Cantwell v. [State of] Connecticut, supra, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; Reynolds v. United States (1878) 98 U.S. 145, 25 L.Ed. 244.) But the state may abridge religious practices only upon a demonstration that some compelling state interest outweighs the defendants' interests in religious freedom. (Sherbert v. Verner, supra, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965; In re Jenison, supra, 375 U.S. 14, 84 S.Ct. 63, 11 L.Ed.2d 39; Braunfeld v. Brown, supra, 366 U.S. 599, 613-614, 81 S.Ct. 1144, 6 L.Ed.2d 563; Cantwell v. [State of] Connecticut, supra, 310 U.S. 296, 311, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; West Virginia State Board of Education v. Barnette, supra, 319 U.S. 624, 643-644, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674.)' See also Warren v. United States, 10 Cir., 177 F.2d 596, 599-600; cert. den., 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584.
The courts in all custody cases make it a firm rule to insist that each spouse inculcate a child love and respect for the other and refrain in every way from speaking ill of the other. It is equally clear that the parent to whom custody is awarded, has a continuous obligation to promote the best interests of a child. Courts, when it is brought to their attention, are quick to correct any abuse of such responsibilities. It is settled that a custody order is never permanent. (Civil Code, § 138; Lerner v. Superior Court, supra, 38 Cal.2d 676, 682, 242 P.2d 321.)
There is no showing at bench, as required by Woody, supra, that any acts of appellant, (other than her admission that the child is and will be taught the doctrine of separation), has in any way diminished If it be shown at any time in the future that appellant, contrary to established legal principles and proper injunctive order is teaching John Edward not to love and respect his father, such direct indoctrination would undoubtedly require the application of sanctions. Further, if, as a consequence of the teaching of the principle of separation to the child, it be shown that John Edward's physical, emotional and mental well-being has been affected and jeopardized, or that appellant is acting contrary to court order, illegally, neglectfully or immorally, even though appellant's conduct may impelled by her religious beliefs, irrespective of how sincere they are, the courts of our state are open forums to which father has ready access for relief.
The judgment is reversed.
FLEMING, Associate Justice (concurring).
I agree wholeheartedly with everything in the court's opinion. I would, however, add one further point on the limitations and weaknesses of adversary proceedings when used to inquire into religious beliefs. In this case, for example, the following questions were put to Mrs. Quiner:
'Do you believe in Christmas itself, the significance of Christmas; not the observance but the significance of Christmas, the birth day of Christ?'
'Mrs. Quiner, if you had to make a selection between your religion and your child, what would be your choice?'
'Are you a member of any religious group? Yes or no.'
The inevitable result of such an inquisition on doctrine and belief through the use of hypothetical questions was to produce an exaggerated and extreme portrait of dogma which I do not think accurately reflects the true situation of the parties or their practical conduct.
In future cases I think courts would be better served by focusing their attention on the things that belong to Caesar, such as compulsory education, child support, vaccination, medical attention, and the like, and by reserving questions of belief for answer by Higher Authority.
HERNDON, Associate Justice (dissenting).
I dissent.
Respectfully, but most emphatically, I must express my strong conviction that the majority opinion in this case leads to a judgment that is most unjust and one which, with practical certainty, will produce tragically harmful effects inimical to the welfare of the five-year-old boy whose custody is here in question. In my opinion the record provides exceedingly strong support for the trial court's well considered judgment that the best interests of this child will be served by awarding his custody to his father.
I must confess my complete inability to reconcile the concession made in the majority opinion that as a consequence of awarding the custody of the child to appellant he will be subjected to a teaching which 'obviously is not for the best interests of I regard the interpretation given subsection (2) of Civil Code section 138 in the majority opinion as an unwarranted and unprecedented deviation from the clear language of this law and from the holdings in the legion of decisions in which it has been applied. The section provides that 'neither parent is entitled to [custody] as right' and that the 'consideration' which is to guide the court when the custody of children of tender years is in issue becomes relevant only when 'other things [are] equal.' When, as is concededly true in the instant case, 'other things [are not] equal', then the 'consideration' tendered by this subsection is inapplicable. As stated in Phillips v. Phillips, 48 Cal.App.2d 404, 407, 119 P.2d 736, 738, 'If the court finds that other things are not equal, as it evidently did here, and there is any substantial evidence to support such a finding, our inquiry is at an end.'
Additionally, I am unable to find any persuasive reason for ignoring subsection (1) of section 138 which heretofore has been thought to be of paramount importance in custody cases. In effect the majority opinion advises trial courts that they may no longer decide custody matters on the basis of 'what appears to be for the best interests of the child.' (Civ.Code, § 138, subd. (1).) They may no longer base their difficult decisions upon 'reasonable probabilities' but must award custody contrary to what 'appears' to be correct because '[e]vidence must be produced which will sustain a finding that there is actual impairment of physical, emotional and mental well-being contrary to the best interests of the child.'
In Commonwealth ex rel. Derr v. Derr, 148 Pa.Super. 511, 25 A.2d 769, the Supreme Court of Pennsylvania affirmed an order awarding the custody of two minor sons of the contesting parties to the father. These children at the time of the hearing were of the ages of 3 years and 4 1/2 years, respectively. The opinion adopted the following language of the trial court in that case:
'Counsel for the [mother] vigorously argues that, pursuant to its duty to determine what is for the best interest of the children and award their custody accordingly, the Court should apply the usual rule that children of tender age are entitled to remain in the custody of their mother, in the absence of a showing that she is an unfit person to care for them. From a standpoint of ability to furnish maternal care and the existence of normal maternal love, it must be conceded that the mother is not in any sense an unfit person to care for these children. But we cannot escape the conclusion that she regards the observance of her obligations to her denomination and the furthering of its interests as superior to her obligation to care for her children. From her own testimony it is quite apparent that she devotes as much of her time as is possible to the proselytizing work of her religion and leaves the care of her children for many portions of each day to her mother. We also think that the legal fitness of the respondent to care for her children may be seriously questioned when we consider that the children must of necessity be raised in an atmosphere which condones the deliberate break-up of a family because of one spouse's idea of a superior way of life.'
One of the basic premises of the majority opinion is stated therein as follows: 'Appellant urges that this court must find as a matter of law that she has been penalized for her religious beliefs and that the penalty takes the form of depriving her of custody. The evidence and cases support her contention.'
I would submit that the foregoing premise is completely false. The judgment of the trial court is neither designed, intended nor operative as a penalty upon appellant either for her religious beliefs or for her conduct in deserting the husband and father, which desertion she justified on religious grounds.
In deciding the controlling question as to what order would best serve the best interests In this case appellant, apparently under the influence of her father, felt herself impelled to regard her husband as 'unclean' and to refuse to eat or abide with him. Hence she violated the biblical commandment and rejected her husband. In so doing she created the situation which necessitated the choice that the trial court was required to make. The undisputed evidence proves that respondent, although unable to accept the more extreme religious beliefs of his wife, would not have rejected or separated from her by reason of their differences of belief. Respondent testified that he would not teach child to believe that his mother and others of different beliefs were unworthy and to be shunned.
Appellant does not question the correctness of the trial court's judgment that it was her conduct which caused the separation and entitled respondent to a divorce. In these circumstances, if we are to speak in terms of penalties, what is there to say in justification of the penalty which the judgment of the majority would impose upon the father and the paternal grandparents because of their religious beliefs? What wrong have they done to deserve the pain which appellant threatens to inflict upon them by depriving them of the child's company, love and affection?
We are here presented with a mother who would bind and warp the mind of her child by excluding him, to the best of her ability, from the society of all people of God's creation other than the very small number who share her exceptionally extreme views. Among the 'unclean' millions would be the boy's own father. Appellant's suggestion that her son could 'love and obey' his father although unable to eat with him and although taught constantly to be on guard lest he be contaminated by his father's spiritual uncleanliness, is semantically a contradiction in terms, and emotionally, an esoteric sublety far beyond the grasp of a mind more mature than this unfortunate child's.
Appellant testified that though she loved her husband she was required to 'separate' from him and to refuse to perform her ordinary conjugal duties. She further testified that 'if it becomes necessary because of [the child's], disobedience, if he should become disobedient and wayward' 1 she would observe the practice of separation from her own son although she 'would in no way reject him as long as he is under age.' 2
Of course, it is acknowledged that the practice of 'separation' is an 'act' as opposed to a religious 'belief'. (Cf. People v. Woody, 61 Cal.2d 716, 717-718, 40 Cal.Rptr. 69, 394 P.2d 813.) It would appear to be beyond reasonable dispute that the emotions engendered in the victim of the act of 'separation' would be virtually indistinguishable from those resulting from the act of 'rejection.
The home life the appellant proposes to provide for her child would be dismally narrow and dark even if it were the result of the exercise of her own free will and were to be maintained in the confines of a residence occupied solely by her and her child. However, such is not the instant case. Appellant proposes to rear the child in the home of her father, Mr. McElrath. As the court observed in its memorandum opinion, 'Mr. McElrath himself for many years seems to have been one of the most Such observations unquestionably are supported by the evidence which reveals that this case involves not so much struggle between mother and father as between the maternal grandfather and the father. The evidence in this case indicates that to award custody of the minor child to appellant would be pragmatically equivalent to awarding his custody to his maternal grandfather. The extent of Mr. McElrath's dominance in his home was demonstrated by his own testimony. When asked what he would do if respondent were to give his son a record player and some nursery rhymes, the following is reported:
'A. I would have to say that I would suggest that it be returned to the donor. Q. Now, if your suggestion were not followed, would there be any second step in regard to this unclean object in your home? A. I would leave it up to his mother. Q. Entirely? A. No. I would state my reasons for not wishing it to be there, and then I would leave it up to her. * * * Q. Would you take any further steps, Mr. McElrath? A. I might. Q. And what might those be? A. Remove it from the house. Q. You yourself? A. Yes.'
Responding further on this subject, Mr. McElrath testified that if the son were six years old and brought a radio into the house, Mr. McElrath would dispose of it. That if the boy persisted in listening to a radio 'he makes himself unclean by using it' and if he failed to respond to the 'exhortation' of Mr. McElrath, and the other members of the group whose aid he would seek, it would be necessary to 'withdraw' from him.
When asked if he would allow a young man not a member of his group to come into his house to call upon his 20-year-old unmarried daughter, Mr. McElrath made the short and emphatic reply, 'No.' When asked to assume that this daughter left the group and became a member of some other religious sect, he testified that he would no longer be able to eat with her nor could he attend her funeral if the services were conducted in accordance with her new faith.
When inquiry was made concerning his present attitudes toward appellant and respondent, the following testimony is reported:
'Q. Mr. McElrath, if [appellant] should leave the fellowship, what would your attitude be toward her? What would your practice be toward her? A. It would have to be the same as my attitude toward [respondent]. Q. Would she be able to live in your home? A. Yes. Q. Would Mr. Quiner be able to live in your home now? A. No. Q. Your attitude toward your daughter, then, would not be precisely what it would be toward Mr. Quiner? A. Only to the degree that she might need my care. Q. Would you cease to love her or have regard for her as a daughter? A. I certainly would not. Q. Would you be able to communicate with her either orally or in any other way? A. I could communicate with her, yes, but I couldn't carry on social relations with her.'
I believe it would be an unwarranted euphemism to describe respondent's status in Mr. McElrath's home as 'persona non grata'. Both he and appellant candidly admit that respondent would not be welcome in their home and that they would prevent all visitation if they were legally permitted to do so. I share the trial court's view that regardless of their protestations that they would abide by the court's orders, they necessarily would create an attitude and an environment completely destructive of the purposes of visitation and would reduce its practice to mere formalistic ritual.
However, we need not search for adjectives with which most accurately to characterize the two domiciles available to The fact that the minor child has now been in respondent's custody for two years is a matter of considerable importance. Even if it could have been contended with any degree of reason that the trial court's decision made when the child was only two years old was premature in that at that age his social contacts with the world necessarily would have been most limited in any event, the child has now attained the age at which the court's fears of prospective danger are clearly present and realistic. Therefore, even if I agreed that the order when made was erroneous, which I most emphatically do not, 3 I would now regard a change of custody at this time as a grievous injustice to the child. (Cf. Dahl v. Dahl, 237 Cal.App.2d 407, 416, 46 Cal.Rptr. 881.)
Presumably the child has grown in the richer climate afforded him by the extended period of custody exercised by his father. Mind-binding, like foot-binding, would appear necessarily to be more painful when applied to one no longer an infant.
Finally, I find myself unable to derive any comfort from the majority's assurance that 'the courts of our state are open forums to which the father has ready access for relief' when, as a consequence of granting custody to appellant 'it be shown that John Edward's physical, emotional, and mental well-being has been affected.' A lifetime of remedial care often fails to correct traumas sustained in childhood. To the extent that God gives the mere mortals who must pass judgment in these tragic cases the power to anticipate future developments, they should be permitted to exercise such judgment to the end that crippling injuries may be prevented rather than being limited to attempting to correct them after the fact.
The trial judge in the instant case made his decision only after the most painstaking research and thoughtful consideration. This is evidenced by his memorandum opinion which follows as an appendix to this dissenting opinion and which I now adopt and by reference incorporate herein.
I would affirm the judgment. APPENDIX
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
EDWARD D. QUINER, Plaintiff,
vs.
LINNEA M. QUINER, Defendant.
No. 641084
MEMORANDUM OF DECISION
Each party alleging mental cruelty against the other, plaintiff Edward Quiner by his complaint seeks a decree of divorce, and Linnea Quiner by cross-complaint seeks a decree of separate maintenance.
Now in their middle twenties, this young couple married May 20, 1961 and separated eighteen months later. There is one child, John Edward, now aged twenty-seven months. In modest circumstances, Edward is employed in the collection department of Pacific Telephone, and Linnea works three days a week as a bank teller. Community property is minimal. Both Edward and Linnea with obvious sincerity still profess love for each other and love and devotion to their son, and both seek his exclusive custody.
The custody award is the most serious and difficult problem confronting the court, stemming as it does from the deep but irreconcilable religious convictions of the parties.
Both Linnea and Edward were raised in and are devoted members of a small though widespread Protestant sect known as the Plymouth Brethern. A summary of the religious beliefs and practices of this sect follows:
Disenchanted with the highly organized Established Church of England and its sterotyped and ritualized forms of worship, groups of Brethern in the early nineteenth century began to meet informally for quiet fellowship and prayer. The largest and most important meeting was at Plymouth, England, hence the name, although neither this nor any other name has ever been officially accepted. There is no formal organization, ordained ministry, nor ownership of church structures or property except for a few of the larger assemblies.
Acknowledging no creed, they believe in the literal meaning of the Bible which they accept as their only guide. As Trinitarians, they believe Christ was begotten of the Holy Spirit and born of the Virgin Mary and is true God and man; that all men are sinners and that salvation cones only through faith in Christ's blood, not from works; that Christ's return is imminent; that when He returns He will rule the world with His saints in glory and will judge the world; that those who receive Him in faith will be reborn to everlasting life, and that simmers will be cast into hell and suffer everlasting punishment. Their ethose is strictly Puritan.
Candidates for membership must show they are regenerated believers and give satisfactory evidence of new birth. Once accepted they are received as 'members of Christ' and are said to be 'in fellowship.' Baptism and the Lord's Supper are observed as ordinances. Holy Communion is celebrated usually on Sunday morning as a sacrament by the 'breaking of bread' and the drinking of wine. At other meetings Sunday afternoon and evening there are gospel preaching, prayers, open confessions Although these beliefs are substantially common to all Brethern the movement has been hindered almost from its beginning by internal dissention over questions of discipline which have frequently divided and separated them over the years into various splinter groups whose only substantial differences are the degree of discipline practiced.
The Plymouth Brethern first split into two factions in 1848 which became known as the Exclusive Brethern and the Open Brethern.
The Exclusive Brethern live 'separate.' That is, they shun all social relationships and social activities, except as absolutely necessary, with all persons with whom they are not in 'fellowship', by which they mean nonmembers of their own groups.
The extremes to which the Exclusive Brethern resort in their personal conduct in living in 'separation' from the outside world vary from group to group. There are seven or eight groups of the Brethern now extant numbering a total of perhaps 30,000 members in the United States.
Several of the groups can be classified as Exclusive in that they live 'separate' in varying degrees of strictness in living in social isolation.
Open Brethern do not live 'separate' but mingle more or less indiscriminately with nonmembers, and do not isolate themselves from nonreligious community life.
The group of which the Quiners and McElraths (Linnea's parents) were members was Open until about a year after Edward and Linnea married even though as early as 1928 certain factions of the group urged adoption of 'separation.' The decision to separate was finally voted by a majority of one hundred twenty and the minority of one hundred, including the Quiner family, dissociated and formed a new group. Mr. McElrath himself for many years seems to have been one of the most ardent leaders in the movement towards 'separation.' His intense and uncompromising religious zeal has, in the court's opinion, overpowered any resistance Linnea may have been inclined to offer toward embracing 'separation' and thus keeping her family intact.
Friction developed and mounted into bitter religious quarrels until Edward, no longer able to tolerate the constant strife, sought refuge in the calmer climate of his own family's home. Linnea remained in the small family apartment but eventually returned with her son to the religiously compatible atmosphere of her parents' home. Linnea was awarded custody of John Edward pendente lite. Edward was granted certain visitation rights and ordered to pay $75 per month for John Edward's support.
Linnea and her family now live a social life entirely submerged in the religious activities of their own group of Exclusive Brethern. All other persons are 'spirtually unclean', and while unbelievers may eventually attain salvation, only Exclusive Brethern who live righteously are sure to attain a preferred place in Heaven. Hence, all unnecessary contact with nonbelievers in to be avoided as contaminating. Thus, the 'breaking of bread' is forbidden except among those 'in fellowship.'
In practice, the 'breaking of bread' is extended by this group to proscribe the partaking of any meal or food with anyone outside the sect, including members of one's own family.
When, after about a year of marriage Linnea 'separated' she thereafter refused to sit at table and partake of meals with Edward, although she continued to prepare his food.
So that they may isolate and barricade themselves as completely as possible from Some of these rules in living 'separate' and their effect upon the activities of the members and their children reared 'in fellowship' hereafter follow:
They may not eat, and thus 'break bread' in any public or private place unless alone or exclusively with other members. Eating in public places is to be avoided if possible. Therefore, they exclude themselves from any public or organizational function where food is served. Their children of school age are counseled not to eat in the school cafeteria, but rather to eat their own box lunch alone and secluded from their schoolmates, who are, as they are taught, 'spiritually unclean.'
They may not affiliate with any outside organization. This means membership in political, social service, religious, economic, educational, trade union, cultural, and all other groups. Thus, pre-kindergarten nursery schools are banned. While permitted to attend public schools as required by law, children are discouraged, if not forbidden as sinful, from participating in all forms of extracurricular activity. This includes all forms of participation in athletic, dramatic, musical, social, literary, scientific, political and other extra scholastic activities.
While these pursuits are not necessarily evil per se, they are wordly and nonspiritual and should be avoided as a distraction from the path to holiness. Although unorganized forms of play at school with other children are sanctioned, children of the Exclusive Brethern may not visit or play with other children in their homes, or in their own homes or elsewhere. This, of course, precludes membership in Boy or Girl Scouts, Camp Fire Girls, Little League, Y. M. C. A. and other similar youth groups.
Brethern living in 'separation' may not exercise their voting franchise. Voting, of course, manifests a belief or affiliation with a political doctrine or organization which is incompatible with spiritual development.
Participation in civic, political or governmental activities is avoided. These Brethern, therefore, refrain from seeking or holding public or political office or from participating in political activity or sponsoring or opposing political candidates.
All forms of public or private entertainment are discouraged, if not forbidden. This edict excludes all types of innocent social games such as card playing, dominoes, checkers and chess. In the McElrath home, as in the homes of others of his group, neither radio, television nor recorded music is permitted. Children may not have toys. If anyone outside the group should give a child a toy, a radio, television set or record player it would not be permitted in the house but would be returned to the giver. Thus, should Edward present his own son with such a gift, it could not be brought into the McElrath home, where his son now lives.
Living in 'separation' in the McElrath home with his mother and maternal grandparents, John Edward would not be allowed to attend any theatre, musical or other cultural program nor to attend athletic events.
Christmas is not celebrated--there is no exchange of gifts, no Christmas tree nor other Christmas decorations nor Santa Claus, feasting or holiday celebrations.
Children may not have dogs or cats or other pets.
The reading of all forms of literature and periodicals is discouraged or banned, except of course, the Bible. This includes current news media. The McElraths subscribe to no magazines, although Linnea occasionally reads Time Magazine.
Thus, John Edward, like other children living in 'separation' is shielded from the worldly and contaminating influence of the great heritage of literature, art and music of our culture. While he will, of course, be exposed to English literature, history, science, art and music in school, he will have been taught that these subjects are unscriptural and a worldly waste of time, and he will be discouraged to pursue them.
This sort of religious indoctrination is likely to preclude higher education and a college career. Living 'separate' he cannot participate in campus life, live in a college dormitory or fraternity house, or partake of meals with his classmates.
Although the Exclusive Brethern do not openly profess violent conscientious objection to military service, their very religious training is anathema to military life. As members of the military service it would be impossible for them to abide by their beliefs.
All forms of medical insurance are opposed by the Exclusive Brethern. Having finished school and obtained employment John Edward could not protect himself from the financial disaster of a serious illness or accident.
As an employee he could not join any trade union. This would foreclose him from many job opportunities where union membership is required.
As legal custodian of her child Linnea considers it a solemn religious mandate to rear and inculcate into him the disciplines of 'separation' from the age of earliest comprehension. Hence, though Edward would normally exercise his visitation rights by taking the child into his own custody for short periods, it may be anticipated that the small child's normal respect and love for his father will encounter violent conflict with his mother's and his maternal grandparents' admonitions that his father is an 'unclean' person and that it is sinful to 'break bread', or eat with him.
This influence is exerted upon the child constantly, not merely occasionally at Sunday meeting. Linnea attends religious meetings six nights per week and three times on Sunday. She takes John Edward to these meetings, though perhaps not all of them at his present age of twenty-seven months. But as he grows older he will attend more and more meetings so that his indoctrination may be indelibly stamped upon his young mind and he be converted as a full member into the Exclusive Brethern at an age possibly as young as six years.
Should this occur the wholesome relationship between Edward and his son that is now growing will surely begin to deteriorate and finally be destroyed as John Edward is taught to believe that his father is an evil sinner to be shunned.
Should Edward, however, be awarded custody of his son, the converse does not follow. Although the Quiners adhere to similar Protestant fundamentalist beliefs they do not live 'separate.'
Edward votes, takes his meals with anyone he chooses, has no religious aversion to becoming an active member in any kind of organization, has radio and television in the home, attends the theatre and would encourage his son to participate in all types of youth activities. The lives of the Quiner family are no different than those of any other average American family of strong religious convictions, but who otherwise assimilate in normal community life.
The foregoing statement of facts is basically supported by the uncontradicted testimony of the parties and other witnesses, mostly members of the two respective families. The history, religious beliefs and practices of the Plymouth Brethern in general are to be found in standard reference works of which the court takes judicial notice. (See Handbook of Denominations in the United States, 2nd Revised Ed. (1961) p. 57 by Frank S. Mead, Abingdon Press; Christendom, p. 311, by Einar Malland (1959), Phylosophical Library, New York; Encyclopedia of Religious Ethics, Vol. II, by James Hastings.)
The parent having custody is entitled to determine the child's religion. (Miller v. Hedrick, 158 Cal.App.2d 281, 322 P.2d 231; Lerner v. Superior Court, 38 Cal.2d 676, 242 Burge v. Chamber of Commerce of San Francisco,
As Professor Witkin says in his Summary of California Law, p. 2440 et seq.:
'The parent to whom custody of a young child is awarded almost inevitably controls his religious education, and the choice thus made is an important factor in any subsequent application for modification of custody by a parent or other applicant of a different faith.'
(See also, 'Religion--a Factor in Awarding Custody of Infants', 31 So.Cal.L.R. 313; 'Child Custody; Considerations in Granting the Award between Adversely Claiming Parents', 36 So.Cal.L.R. 255-256.) Religion may be considered by the court as a factor in custody awards, but not the sole factor.
The public policy of the state to consider religion as a factor in adoption proceedings is expressed in Sec. 551 Welfare & Institutions Code.
Thus, in the normal course of events it may be assumed that custody of John Edward, once awarded to Linnea is not likely to be modified by granting custody to Edward in the foreseeable future, or at least until John Edward is well into adolescence.
In awarding custody the court is guided basically by the provisions of section 138 Civil Code. As that section is applicable here the court must follow two rules:
First, by what appears to be for the best interest of the child in respect to its temporal, mental and moral welfare, and Second, other things being equal a child of tender years should be given to the mother, though neither parent is entitled to custody as of right.
At the age of twenty-seven months John Edward is a child of tender years. 'Other things being equal' custody must, as required by law, be awarded to Linnea. The temporal environment available to this child in the custody of either parent is substantially equal. With either parent his physical needs swill be well provided for, and both, as far as good character is concerned, are fit persons to be awarded custody.
If custody, then, is to be awarded to the father within the framework of sound judicial discretion, such an award can stand only on the factor of the child's mental welfare.
'Mental welfare' as defined in the legal literature on the subject, includes the opportunities for intellectual, character and personality growth, and the development of those social graces and amenities without which one cannot live comfortably or successfully in a complex, integrated society. (36 So.Cal.L.R. 255, 256, supra.)
In considering the mental welfare of the child environment is paramount. Association with other children, 'opportunity for the child as he grows and develops', 'opportunity for development mentally, morally and physically' are to be considered. (Scott v. Barnes (1953) 118 Cal.App.2d 271, 257 P.2d 700.) Also, 'congenial surroundings, intelligent attention and direction in matters affecting health, growth and development * * *--these are the principal advantages that must be looked for', (Bemis v. Bemis (1948) 89 Cal.App.2d 80, 200 P.2d 84), and the 'social, mental and physical needs of the child.' (Bull v. Bull (1962) 206 Cal.App.2d 642, 24 Cal.Rptr. 149. Reynolds v. Reynolds, 149 Cal.App.2d 409, 308 P.2d 921. Stagliano v. Stagliano, 125 Cal.App.2d 343, 270 P.2d 91; 36 So.Cal.L.R. 255.)
In the socially and intellectually impoverished environmental soil available to John Edward in Linnea's custody no average child could be expected to achieve or approach his potential mental development and personality unfoldment.
Moreover, enforced public observance of religious taboos, seemingly irrational and deviating from the norm, by a bewildered young child while attending school, such as avoiding and refusing to eat with his classmates or taking part in extra scholastic and other youth activities, is likely to subject him to scorn and ridicule by thoughtlessly cruel classmates. If carried too far and These are matters of common knowledge, at least among an informed laity. (1827 C.C.P.) Moreover, the court takes judicial notice of these facts, well documented and indisputable in the science of medicine and psychology, and in so doing refers to the following standard reference works on the subject from which are quoted a few abridged excerpts:
Modern Clinical Psychology, by Arthur P. Noyes, M.D. (Saunders, 1953):
P. 20: 'Whether the development of the personality proceeds in a wholesome manner and in a normative, harmonious sequence * * * through infancy, childhood, maturity and old age with subjective happiness and social adjustment, * * * depends upon complex genetic, environmental, social, and emotional factors * * *'
P. 79: 'A lack of capacity to adapt to other people, frequently the result of emotional and interpersonal influences in early life, predisposes to mental disorders.'
American Handbook of Psychiatry, Vol. I, by Joseph B. Cramer, M.D. (Basic Books, 1959). On the subject of common neuroses of childhood in the sixth to ninth year, Dr. Cramer states:
P. 808: 'The ego, supported in its development by a widening of social relationships and an increasing knowledge of both the human and inanimate object worlds, becomes stronger * * * at * * * the age at which socialization, according to rules beyond those of the family itself, have to be respected and obeyed. Adaptive failure and the outbreak of a neurosis are more common in connection with starting school or failing to adjust to school than at any other time in the life of the child.'
Positive Aspects of Child Psychology, by Frederick H. Allen, M.D. (Norton, 1963):
Pp. 243-246: '* * * A child cannot in any healthy way operate independently of his family, nor can the family function as if it existed only by itself in the community. * * * The parents are the significant representatives of the culture which is to be perpetuated by those new members who need to be moulded in patterns of behavior that are consistent with cultural continuity. * * * few people can achieve a satisfactory life unsupported by the standards of their society * * * 'no individual can arrive even at the threshold of his potentialities without a culture in which he participates' * * *'
P. 254: 'Diversity is the very essence of life * * * but when diversity leads to fragmentation and isolation, * * * there is danger of sterilizing the positive element contained in living and serving. * * * Conflict can be the ore of progress if the heat generated is merely great enough to refine it but not so great as to destroy it.'
Child Development, by Elizabeth B. Hurlock (McGraw-Hill, 1950):
P. 333: 'In every social group, there are isolated members of 'outsiders' who, for one reason or another, do not seem to belong and who are not popular with the rest of the group. The social isolate is an unhappy individual, who is likely to develop unfavorable personality traits which will add to his unpopularity. * * * A child who is too different from the other members of the group in appearance, intelligence, personality, family background, interests, or any one of a number of different traits, is likely to be regarded by the group as 'queer' or 'different'. As such, the child will not be an acceptable member of the group.'
Child Psychology and Development, by Louis P. Thorpe, (Ronald Press, 1946):
P. 97: '* * * when environmental conditions are especially unfavorable over a period of years, I.Q. changes from average intelligence to apparent feebleminded status may be expected. * * * the progressive decline in I.Q. scores so evident in barren environment studies * * * may logically be ascribed to the intellectually stifling influences of such surroundings * * * a sympathetic and stimulating environment In seeking permanent custody of her child Linnea bases her argument on constitutional guarantees of religious freedom. These rights, as recognized in the United States, extend to the custodial parent freedom to raise his child in his own religious faith, no matter how unpopular, distasteful or obnoxious to the vast majority the religious practices and beliefs of the custodian may be. In awarding custody, the court may not, as Linnea correctly asserts, base its decision solely upon what it considers to be the preferable religion professed by the competing parents.
The bizarre beliefs and practices of Jehovah's Witnesses have often reached the attention of our highest courts not only in custody cases but on other issues such as saluting the flag, pledging allegiance, blood transfusions, refusing military service and distributing religious literature.
Linnea heavily relies on Cory v. Cory, 70 Cal.App.2d 563, 161 P.2d 385, the only custody case found in California which turned squarely on the issue of religious beliefs. Here, the father was awarded custody by the trial court of two children aged five and two and one-half years. The mother, as a zealous disciple of Jehovah's Witnesses, had declared her intention to raise the children in the following beliefs of this cult: that it was wrong to salute or pledge allegiance to the flag or to fight for one's country or to belong to 'character building organizations.'
In reversing the trial court's custody award as abuse of discretion the court states, (p. 569, 161 P.2d p. 389):
'The conclusion seems inescapable that appellant has been deprived of the custody of said children solely because she is a Jehovah's Witness, and, in the opinion of trial court, the beliefs of the followers of that faith are inimical to the welfare of their children because they do not salute the flag and are unwilling to fight for their country.'
Unlike Cory, the custody award in the instant case does not turn upon religion, but rather upon the balance of environmental factors available to the child in the respective home of its parents which will best stimulate and promote its intellectual growth and social adjustment.
In Cory there is no showing that the children in their mother's custody would be restricted to an intellectually arid social enclave or their minds poisoned against their father as 'unclean', or forbidden to eat or fraternize with their schoolmates.
Other cases from other jurisdictions follow Cory, some going much further in condoning the teaching of anti-social and unpatriotic beliefs to children under the cloak of religious liberty. (Jackson v. Jackson (1957) 181 Kan. 1, 309 P.2d 705; Smith v. Smith (1961) 90 Ariz. 190, 367 P.2d 230; Frantzen v. Frantzen (Tex.Civ.App.1961) 349 S.W.2d 765.)
None of these authorities, however, seeks to probe in depth the extent of the constitutional privilege of a custodial parent to teach and enforce upon his child religious beliefs and practices, balanced against the child's own rights to be protected from the abuse of these privileges, and the right of the state to intercede in the role of parens patriae to enforce the child's rights.
'The declaration' (in the Cory case) says Professor Witkin (supra) 'should not be given unwarranted implications. * * *' And the commentator in the law review article, supra, (36 So.Cal.L.R. at p. 265) says that 'the holding in Cory should be restricted to its particular facts.', i. e., constitutional guarantees of religion and religious teachings.
The center of gravity between unrestrained religious practices and the public welfare is perhaps best expressed in Hopkins v. State of Maryland (1950) 193 Md. 489, 69 A.2d 456:
'But the First Amendment embraces two concepts, freedom to believe and freedom to 'On the other hand, it safeguards the free exercise of the chosen form of religion.
'Freedom to believe is absolute, but freedom to act is not. Conduct is subject to regulation for the protection of society. While the power to regulate must be so exercised in every case as not to infringe on the protected freedom, the State, by general and nondiscriminatory legislation, may safeguard the peace, good order and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment.'
These issues have not escaped the attention of the United States Supreme Court. In Prince v. Commonwealth of Massachusets (1943) 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, that state had enacted a law prohibiting girls under twelve years of age from selling magazines or other printed matter on the public streets. Petitioner was the custodial aunt of a nine-year-old girl and the mother of two other girls, all Jehovah's Witnesses who, pursuant to their beliefs and practices sold the 'Watchtower' and 'Consolation', religious literature of the sect, on street corners and sidewalks.
In upholding the constitutionality of the statute, the Supreme Court says:
'But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. * * * The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and that this includes, to some extent, matters of conscience and religious conviction.'
People ex rel. Wallace v. Labrenz (1952) 411 Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132 (cert. denied 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642) is a dramatic example of the right of the state to intercede under the juvenile court law on behalf of an eight-day old baby girl. This child, born with an RH blood factor (erythroblastosis fetalis) required immediate and total blood transfusion to save her from death or permanent mental impairment. The parents violently objected to the transfusion on religious grounds claiming it was better for the child's future life to die rather than be transfused against God's law.
In affirming the juvenile court order for transfusion, which had indeed saved the child, the Illinois Supreme Court says:
'But 'neither rights of religion or rights of parenthood are beyond limitation.' Prince v. [Commonwealth of] Massachusetts, 321 U.S. 158, 167, 64 S.Ct. 438, 88 L.Ed. 645, see: Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Jacobson v. [Commonwealth of] Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643.
'Indeed, the early decision in the Reynolds case, upholding a Mormon's conviction for bigamy against the defense of interference with religious freedom as guaranteed in the first amendment, leaves no doubt about validity of the action here taken. The following language of that opinion is of particular interest, 98 U.S. at page 166: 'Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it And, the court emphasizes, quoting from Prince v. Commonwealth of Massachusetts, supra, as follows:
'Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.'
While the foregoing cases do not involve custody awards between competing parents, the succeeding cases, following the identical constitutional rationale do involve custody.
In Battaglia v. Battaglia (1958), 9 Misc.2d 1067, 172 N.Y.S.2d 361 the court awarded custody of a child of tender years to the father. The mother, as a Jehovah's Witness, was strongly opposed to blood transfusions, even to save life, on the principle that the death of the child constitutes 'saving the child.'
The New York court states in part:
'Petitioner, of course, enjoys her constitutional right to freedom of religion and may practice the religious faith of her choice without interference. She has not, however, the right to impose upon an innocent child the hazards to it flowing from her own religious convictions. The welfare of the child is paramount. If medical science requires a blood transfusion to preserve the child's life, the child should not be deprived of life because the mother's religious persuasion opposes such transfusion.
'The child has a right to survival and a chance to live and the court has a duty to extend its protecting arm to the child.'
Commonwealth ex rel. Derr v. Derr (1942) 148 Pa.Super. 511, 25 A.2d 769 is another case where a mother of children four and one-half and three years of age lost custody to the father because of her religious practices as a Jehovah's Witness. She spent much of her time going from house to house urging people to listen to recorded Bible lectures and distributing literature, and insisted on conducting Bible study groups in the home.
The Pennsylvania Supreme Court with approval quotes the trial court as follows:
'From a standpoint of ability to furnish maternal care and the existence of normal maternal love, it must be conceded that the mother is not in any sense an unfit person to care for these children. But we cannot escape the conclusion that she regards the observance of her obligations to her denomination and the furthering of its interests as superior to her obligation to care for her children. From her own testimony it is quite apparent that she devotes as much of her time as is possible to the proselytizing work of her religion and leaves the care of her children for many portions of each day to her mother. We also think that the legal fitness of the respondent to care for her children may be seriously questioned when we consider that the children must of necessity be raised in an atmosphere which condones the deliberate break-up of a family because of one spouse's idea of a superior way of life.'
The right claimed by some Christian Scientists to deny their children adequate medical care was considered in Gluckstern v. Gluckstern (1956) 17 Misc.2d 83, 158 N.Y.S.2d 504. Here the mother, a devout Christian Scientist, was allowed to retain custody of her seven-year-old son only upon the faithful observance of the court order to submit him to medical examination monthly and otherwise to provide him with adequate medical care and treatment.
Linnea vigorously argues the holding in Smith v. Smith, supra, (Ariz.1961) factually similar to Cory. The trial court felt that the child's refusal following the mother's instructions, to salute or pledge allegiance to the flag and to remain home on the day The Arizona Supreme Court rejected the trial court's concern. While deviation from the normal often brings ridicule and criticism, this court felt, it was 'not necessarily the basis for implanting neuroses'; that '[c]riticism is the crucible in which character is tested', and that '[c]onformity stifles the intellect fathering decadency.' And finally, that 'the tenuous threads of a possible neurosis * * * will not withstand the thrust of constitutional guarantees.'
One could hardly argue with these statements as they apply within the limited framework of the facts. The situation here would hardly be different than that of Jewish children in a predominantly Christian student body who do not attend and participate in the school nativity tableau, nor celebrate Christmas, and absent themselves from school on Hebrew holy days. No one would argue that such children should be forced into Christianity for the sake of uniformity, although some children might feel some emotional reaction from being different and left out.
But here, unlike John Edward when in two or three years he will attain school age, they are not taught to shun and to refuse to eat or play with their schoolmates because they are spiritually unclean, or that it is wrong to have toys or to play games, compete in athletic events, join the school orchestra or glee club, participate in school dramatic events or to visit a school friend in his home and watch a television program.
While a certain amount of ridicule may tend to character building, as the Arizona court says, it is equally true that scorn, ridicule and ostracism carried to excess could result in neurotic disturbances as damaging as any physical harm.
As with childhood diseases and infections, resistance and immunity will be developed in most victims, but some will succumb, or survive cripples. Measles, scarlet fever and chicken pox can hardly be counted among mankind's blessings.
And as Dr. Allen says in his work on child psychiatry, supra, 'Conflict can be the ore of progress if the heat generated is merely great enough to refine it but not great enough destroy it.'
This court has concluded that the intellectually blighted social microcosm of the Exclusive Brethern in which John Edward would be forceably confined during his early years in Linnea's custody is more than likely to retard his mental growth and personality development, would be inimical to his welfare, and would severely handicap him in later years in his struggle to achieve his goals of social and economic attainment.
Linnea further argues, citing Cory, supra, 70 Cal.App.2d 563 at p. 569, 161 P.2d 385, that if it is right to deprive one parent of custody because of unpopular religious beliefs, by the same token the court should remove the child from the custody of both parents if they both profess and teach their child the same beliefs. Cory, of course, is limited to its facts which fall far short of the mass of evidence in the instant case.
There is no question that the court as parens patriae could, under certain circumstances, remove a neglected child from both parents under the provisions of the juvenile court law as was done in Illinois in the Labrenz case, supra, where the parents, evidently Jehovah's Witnesses, refused their baby girl a blood transfusion to save her life.
The right and duty of the state to protect children is there. It is only a question of determining the point at which the state should intercede.
In respect to Edward's grounds for divorce, it stands uncontradicted in the evidence that when the parties married and for a year thereafter their religious convictions and practices as Open Brethern, were identical. When the sect split Linnea and her family remained with the parent group which then became Exclusive, adopting the way of 'separation.' But Edward and his family continued the same beliefs and practices as before, but in a new group. Linnea's pressures upon Edward to go 'separate' resulted in frequent violent quarrels. Linnea refused to eat meals with Edward, attend movies and would no longer permit radio or television in the home. In one fit of anger she tore earphones from Edward's head and smashed the radio. It was Linnea, not Edward, who changed religious beliefs and ways of life to such an extent that it became impossible for Edward to live compatibly with her. That Linnea's acts and conduct after going 'separate' constituted mental cruelty upon Edward there can be no doubt. And here again the fact that such acts and conduct were motivated by sincere religious convictions does not immunize her under the shield of the first amendment. Mertens v. Mertens (1951) 38 Wash.2d 55, 227 P.2d 724.
These two young people apparently enjoyed a brief but happy marriage until Linnea decided to follow her father's lead over her husband's violent objections to live 'separate', which she knew would result in the breakup of her family.
It is most significant that in answer to a question as to who came first, her religion or her child, she replied 'Christ is the most important to me.' She further testified that when her son grew older if he refused to join her religious group and live 'separate', then she would have to 'separate' from him, though she would continue to love him.
That her religious devotions are more important to Linnea than either her husband or her son is further apparent from the time consumed in these pursuits, which according to her own testimony is six nights per week and practically all day every Sunday. Such a schedule leaves practically no time for her to spend in the normal activities of mother and child in training, recreation and otherwise attending to her child's needs.
The situation is similar to Commonwealth ex rel. Derr v. Derr, supra, where the mother spent most of her time in proselytizing her religion. The remarks of the trial court there were apropros here:
'* * * the legal fitness of the (mother) to care for her children may be seriously questioned when we consider that the children must of necessity be raised in an atmosphere which condones the deliberate breakup of a family because of one spouse's idea of a superior way of life.'
Plaintiff will be awarded an interlocutory decree of divorce and the exclusive care and custody of the minor child of the parties. Defendant is denied a decree of separate maintenance. Further orders are contained in a minute order, a copy of which will be delivered to counsel herewith.
Dated this 25 day of March, 1965.
Kenneth D. Holland
Judge of the Superior Court
'Such is a very brief outline of the history of the Brethren. Forty years ago their early dissolution was prophesied; but they are still, though divided, a living force. Their religion is a simple one. The Bible to them is an infallable and living book; Christ is an all-sufficient and living Saviour; God is a loving Father revealed in the Son of His bosom; salvation is a reality, and can by known now; Heaven with its glories, and the everlasting Kingdom of our Lord and Saviour Jesus Christ, are proclaimed, and believed in; the Lord's Coming is the great object of hope; the world is under the judgment of the Cross, and men must be saved from impending doom; Hell and eternal punishment are realities; the world's politics, philosophy, and mere social reform advocated for the betterment of the would are but the whitewashing of a house built on sand, or the attempted renovation of a system morally corrupt; their mission is not to save the world but to save people out of it, and while passing through it the Christian is to live soberly, righteously, and godly; his business is to get right and keep right in his soul with God; it is his duty to obey the powers that be, save only when the civil government interferes with his conscience in obedience to God's command. The Brethren all take the place of the Christian priesthood, and gather to the Lord's name. They look for His Holy Spirit to guide some brother to break the bread, pray, or minister, in subjection to the Lord in the midst. Women are not allowed to speak in the assembly. Their teachers minister by lecture or Bibe-reading; their pastors care for and tend the flock, while their evangelists preach the gospel. In the present condition of the Church they do not believe in appointing elders, seeing that their meeting is but a fragment of the body of true Christians resident in their own locality, and some who might be elders are in the churches around. If, however, in their meetings there be men possessing the requisite qualifications, these are thankfully owned and honoured, though not officially appointed. Statistics of Brethren cannot be ascertained, but they form a good proportion of the Christian community in Britain and America and on the Continent.'
Barbush was a habeas corpus proceeding initiated by the wife who lived in South Carolina with the younger child of the couple, approximately two years old, against the husband, for the custody of the older child, approximately three years old who lived with the father in Pennsylvania. The parties had separated by consent and at the time of the separation on agreed to the respective custody of the two boys. (Cf. Note, 43 Cal.L.Rev. 133, 135.) Both children were baptized in the Roman Catholic faith which was the faith of the father and his parents. The mother and her parents were Baptists. The child in the custody of the mother was in South Carolina and not before the court.
The court refused to alter the agreement of the parties and said at p. 523: 'It is true that the religious training of a child is not the test in determining the right of custody; Commonwealth ex rel. Elizabeth Kelley v. Michael J. Kelley, 83 Pa.Super.Ct. 17 (1924), but it may be one of the factors in determining what would be to the best interests of the child. If this child were entrusted to the mother, any visitation with the father would almost certainly result in serious emotional disturbance because of the sectarian differences of these parents.'
Of course, it is obvious, that visitation by the mother with the child in custody of the father, may also result in severe emotional disturbance.
American Handbook of Psychiatry, Vol. I, by Joseph B. Cramer, M.D. (Basic Books, 1959), p. 808.
Positive Aspects of Child Psychology, by Frederick H. Allen, M.D. (Morton, 1963), pp. 243-246.
Child Development, by Elizabeth B. Hurlock (McGraw-Hill, 1950), p. 333.
Child Psychology and Development, by Louis P. Thorpe (Ronald Press, 1946), p. 97.