Opinion
Docket No. 81441.
Decided July 16, 1985. Leave to appeal denied, 422 Mich. 970.
Jacquelyn Sue Van Koevering, in propria persona. Annis, Annis Visser (by Timothy B. Visser), for defendant.
Defendant appeals as of right from an order amending the judgment of divorce. He claims that the order, which concerns plaintiff's visitation rights, violates the right of both himself and the parties' two children to freely exercise their religion. US Const, Am I; Const 1963, art 1, § 4. We conclude that the state's compelling interest in visitation justifies the trial court's order. We affirm.
The parties were divorced in 1980. In 1982, the trial court granted custody of the two children to defendant and granted plaintiff visitation at her home for two days every two weeks. When defendant refused to allow the children to visit plaintiff, she petitioned the court for an order to show cause and for amendment of the judgment "to further promote suitable visitation".
Defendant admitted violating the visitation terms of the judgment. He claimed he did so out of fear for the well-being of the children. According to defendant, conditions in plaintiff's home and her lifestyle frustrated his efforts to instill moral and religious values in the children. Defendant believed that he and plaintiff were still married in the eyes of God and, therefore, plaintiff was living in adultery. By allowing the children to visit plaintiff, he would condone her alleged sinfulness. He would not allow the children to visit plaintiff unless they pointed out her lack of morality and admonished her for her evil ways. Defendant asked the court to restrict visitation to his home.
The children (who are currently 16 and 17 years old) described plaintiff's home as a place where those present drank, cursed and smoked marijuana. The parties' daughter recalled that, on one occasion, a drunken man crawled into bed with her. "Nothing happened," but needless to say it was not a pleasant experience. Plaintiff drank to excess. In plaintiff's home, the children were urged to rebel against their father's beliefs.
The trial court modified the judgment to restrict plaintiff's visitation rights to five hours every other Saturday afternoon. The court forbade the use of artificial stimuli, including alcohol, or cursing while the children were in plaintiff's home. The court also ordered defendant to refrain from interfering with plaintiff's visitation rights and to stop instructing the children "with respect to what they should say to their mother or others" during the visits.
We review the visitation order de novo, but will affirm unless the trial court "committed a palpable abuse of discretion or a clear legal error on a major issue". Farrell v Farrell, 133 Mich. App. 502, 513; 351 N.W.2d 219 (1984). See, MCL 722.28; MSA 25.312(8). Defendant argues that the issuance of the order constitutes legal error because it violates his and the children's rights under the free exercise clause of the First Amendment. We conclude that the burden imposed on their beliefs has sufficient justification to withstand the "compelling state interest" test. Sherbert v Verner, 374 U.S. 398, 406; 83 S Ct 1790; 10 L Ed 2d 965 (1963).
"[T]he controlling factor in determining visitation rights is the best interests of the child." Farrell, supra, 513; Lorenz v Lorenz, 70 Mich. App. 356, 358-359; 247 N.W.2d 569 (1976). See also, MCL 722.27; MSA 25.312(7). As we observed in Fisher v Fisher, 118 Mich. App. 227, 232; 324 N.W.2d 582 (1982), "[i]t is difficult to conceive of a more compelling or vital state interest than the welfare of minor children as it is affected by the dissolution of their parents' civil marriage union." The compelling nature of the state's interest in visitation is reflected in the "extremely broad powers" of the trial court. Farrell, supra, p 513. Defendant has the right to direct the religious upbringing of the children. Wisconsin v Yoder, 406 U.S. 205; 92 S Ct 1526; 32 L Ed 2d 15 (1972). We believe that the children, also, enjoy rights protected by the First Amendment. Nevertheless, the trial court was not required to tailor every detail of the visitation order to the dictates of defendant's and the children's moral consciences. Neither defendant's religious preferences nor those of the children mandated restriction of visitation to defendant's home, rather than plaintiff's. Casbergue v Casbergue, 124 Mich. App. 491, 495; 335 N.W.2d 16 (1983).
"The party alleging a First Amendment violation has the burden of proving that the regulation in question imposes a burden or restriction on the exercise of his or her religious beliefs." Hough v North Star Baptist Church, 109 Mich. App. 780, 783; 312 N.W.2d 158 (1981). While the children may feel uncomfortable praying in plaintiff's home, there is no evidence that she prevents them from engaging in religious activity. Moreover, the modifications of the visitation terms in the divorce judgment will, if observed by plaintiff, prevent recurrence of the difficulties which the children previously experienced. We believe the trial court balanced the competing considerations in a reasonable fashion, while maintaining "its constitutionally mandated neutrality" concerning defendant's beliefs. Fisher, supra, p 234. While the court ordered defendant not to use his children as direct conduits for his own communications to his ex-wife, the children remain able to speak freely to plaintiff. Defendant, for all but five hours every two weeks, experiences no restriction on his right to raise the children as he sees fit. The trial court has continuing jurisdiction to respond to any future failure by plaintiff to abide by the order. Kelley v Hanks, 140 Mich. App. 816; 366 N.W.2d 50 (1985).
Defendant may believe plaintiff to be a "sinner" under his concept of religious law, but he was once married to her and she is the mother of the two children. The marriage is dissolved in the eyes of the law of the State of Michigan, which is the only law other than the U.S. Constitution which is applied by this Court in divorce cases. Plaintiff, too, has parental rights worthy of judicial consideration. We conclude that the trial court acted reasonably in this case.
Affirmed.