Monte Mentry (father) appeals from that portion of a restraining order which prohibits him from engaging the children of the dissolved marriage
The facts are undisputed. The marriage between the father and Betty Mentry (mother) was dissolved in 1979. They had two children, Sherry and Steven, who at that time were seven and six years old, respectively. During the marriage, both parents were observant members of the Church of the Latter-Day Saints (Mormon). The wife separated from the church at about the same time she separated from her husband, and joined a different church.
At the hearing on the order to show cause, the father, the mother and Warren Weiss, the court conciliator, each presented different versions of the agreement the father allegedly violated. The court made clear its view, however, that the propriety of an order such as that requested was to be determined under the rule prescribed in In re Marriage of Murga (1980) 103 Cal.App.3d 498 [163 Cal.Rptr. 79], which provides that "... a court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed." (Id. at p. 505.)
On the question of harm, Mr. Weiss testified that in his opinion such conduct upon the part of appellant would confuse the children and thus would be harmful to them:
"A. [MR. WEISS] Well, in the general context I suggested to them that they not burden the children with conflicting notions as to the issue of religion.
"Q. Why did you suggest that they not burden the children with the conflict of religion?
"A. Well, religion was only one of a number of conflicts the children were having relative to the parents concerning their polarity as people, as human beings. And religion was one more thing they didn't need to have a conflict about.
"Q. Were you concerned that it would actually confuse the children as well?
"A. Certainly as to that confusion.
"Q. Thank you. And in your —
"THE COURT: If it would confuse them, do you think that would be harmful to the children?
"THE WITNESS: Yes, I do."
It is clear from cross-examination, however, that Mr. Weiss had neither seen nor talked with the children at any time and that his information derived entirely from conversations with the parents. As the following colloquy on cross-examination demonstrates, his views on the question of harm to the children were essentially conjectural.
"Q. And that to state that there may be harm would be a generalization only depending on whether you [Weiss] had analyzed these children and the facts in this particular case?
"Q. And so there is also a possibility, then, Mr. Weiss, there would not be harm?
"A. There is that possibility.
"Q. And that even if there were confusion, there may not be harm?
"A. May not be, that is correct.
"A. That is right."
The mother testified that on one occasion she learned from Sherry that the father had taken her to a Mormon movie, but told her not to tell her mother; and that on another occasion she found Sherry doing a crossword puzzle in a Mormon publication, and Sherry did not know what some of the words meant. She also testified that Steven said, at times when he was in distress, angry, or discouraged with his mother: "I am a Mormon. I want to be a Mormon. I want to be like my Daddy...." Finally, she testified that the children had been confused about doctrinal differences between the two religions.
In re Marriage of Murga, supra, 103 Cal.App.3d 498, is the only California decision that defines a standard for determining whether a custodial parent may enjoin the noncustodial parent from discussing religious subjects with the child or from involving the child in the noncustodial parent's religious activities.
The best recent synopsis of the case law of the jurisdictions in which the courts have addressed the question whether or how to accommodate diverse religious practices of parents, living apart, in the upbringing of minor children is set forth in Felton v. Felton (1981) 383 Mass. 232 [418 N.E.2d 606, 22 A.L.R. 4th 961]. In that case, as here, a trial court entered an order prohibiting a father with visitation rights from instructing the children in his religion. In a notable opinion by Justice Kaplan, the Supreme Judicial Court reversed, holding that the evidence was insufficient to support such a disposition. Relying upon Murga and numerous cases from other states, the court summarized the law as follows: "The parents together have freedom of religious expression and practice which enters into their liberty to manage the familial relationships. [Citations.] But the `best interests' of the child are to be promoted, and when the parents are at odds, the attainment of that purpose may involve some limitation of the liberties of one or other of the parents. [Citations.] However, harm to the child from conflicting religious instructions or practices, which would justify such a limitation, should not be simply assumed or surmised; it must be demonstrated in detail. [Citations.] [¶] If the dominating goal of the enterprise is to serve a child's best interests ... then it might be thought to follow that a policy of stability or repose should be adopted by which the child would be exposed to but one religion (presumably that of the custodial parent) at whatever cost to the `liberties' of the other parent. The law, however, tolerates and even encourages up to a point the child's exposure to the religious influences of both parents although they are divided in their faiths. This, we think, is because the law sees a value in `frequent and continuing contact' of the child with both its parents [citation] and thus contact with the parents' separate religious preferences. There may also be a value in letting the child see, even at an early age, the religious models between which it is likely to be led to choose in later life. And it is suggested, sometimes, that a diversity of religious experiences is itself a sound stimulant for a child. [Citation.] In all events, the question that comes to the courts is whether, in particular circumstances, such exposures are disturbing a child to its substantial injury, physical or emotional, and will have a like harmful tendency for the future. [Citation.] The critical literature warns against perverting a quest for the child's best interests into one for the psychic comfort of the parents — a warning against overvaluing the parents' constitutional liberties. [Citation.] A warning is equally in order against depriving a parent of all connection with the child, or connection on the religious plane, out of an exaggerated fear of injury to the child. [Citations.] It
Reviewing the evidence presented in the trial court, the Massachusetts high court noted particularly the "failure of proof about [the child's] physical and emotional condition or about any causal connections between her visits with her father and that condition, such as it may have been. General testimony by [the mother] that the child was upset or confused ... will not suffice. [Citations.] ... Thus there is clear error, for lack of foundation in the record, in the judge's findings of a `deleterious effect' on the children and an `undermining' of the custodial relationship by reason of the father's religious instruction or practice." (418 N.E.2d at p. 610.)
The foregoing finding would be sufficient to dispose of this case. There are, however, additional considerations implicit in the Murga rule that also affect our decision; considerations that focus as much upon the proper reach of judicial authority as upon the facts of any particular case.
Murga, Felton and most of the cases they rely upon reflect a salutary judicial disinclination to interfere with family privacy without the evidentiary establishment of compelling need. (See also In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 495-496 [146 Cal.Rptr. 623, 579 P.2d 514] and cases there cited.) This attitude, which has been maintained against the urgings of some commentators who favor expansion of the legal grounds for intervention and a stronger
The rationale that supports judicial respect for family privacy does not lose its force upon the dissolution of marriage where, as here, a family relationship — even a disharmonious one — continues between the former spouses in connection with the rearing of their minor children.
In short, for purposes of resolving family disputes such as that here presented, separation of the spouses or dissolution of the marriage has more formal than substantive significance. Proposed interventions in the privacy of the family that would not conceivably be entertained by the courts during marriage (such as the order here appealed from) are not suddenly tenable simply because the parents have become separated or divorced. A judicial approach to the legally nonintact family as nonetheless residually cohesive is warranted in custody and visitation disputes not simply because such disputes often invite the
Recognizing that the adversary process can be destructive to the parent-child relationship and that a court order is not an effective way to influence parental attitudes and control behavior, the Legislature has enacted a framework for the mandatory mediation of contested custody and visitation disputes. (Civ. Code, § 4607. See also, Code Civ. Proc., §§ 1760, 1768.) The system of "private ordering"
Mediation does not resolve every dispute, and there are of course numerous situations in which despite its disabilities forceful judicial intervention is necessary and appropriate. Consistent with the rule in Murga, we emphasize only that in cases such as the one before us, in which the best interest of the child must be adjudicated upon the basis of debatable value judgments, the decision to intervene must not only be conditioned upon a clear affirmative showing of harm or likely harm to the child
None of these criteria have been met in this case. In our view enforcement of the decree of the trial court — accepting the very questionable assumption that as a practical matter it is enforceable — would more likely exacerbate than diminish the conflict complained of.
While there are, as we readily acknowledge, cases in which the dangers of judicial intervention are outweighed by the danger of doing otherwise, this case is not among them.
The order appealed from is reversed.
I respectfully dissent.
I have no difficulty in accepting the general proposition that "a court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed." (In re Marriage of Murga (1980) 103 Cal.App.3d 498, 505 [163 Cal.Rptr. 79].) However, I believe the evidence presented at the trial below and my analysis of California and sister-state case law compel an opposite conclusion to that reached by my colleagues.
At some point mother developed the belief that father was sexually molesting their daughter. She appealed to her bishop for help and was rebuffed, being told that the issue was not a "moral" one. The crisis in confidence experienced by mother led to a dissolution from husband and a break with the Mormon Church.
Presented with conflicting religious beliefs, the children started to experience confusion in attempting to absorb two doctrines. The daughter was uncertain as to which stage of life she was in and experienced difficulty in determining the relationship of the Bible and the Book of Mormon. The son, when angered, would tell his mother, "I am a Mormon. I want to be a Mormon." Additionally, he expressed to a friend the difficulty he was having in reconciling his parents' beliefs. He informed the friend that his mother told him that his father was wrong and his father told him that his mother lied.
The precipitating cause of wife's motion for the instant restraining order regarding the husband's exercise of his religion when with the children was husband's breach of an "understanding" reached with the help of Warren
The majority opinion bases its decision on the single determination that the evidence is manifestly insufficient to justify the restraining order. However, it is settled that in matters relating to child custody and visitation rights the trial court is given broad discretion and its determination will not be disturbed upon appeal in the absence of a manifest showing of abuse. (Sanchez v. Sanchez (1961) 55 Cal.2d 118, 121 [10 Cal.Rptr. 261, 358 P.2d 533]; In re Marriage of Murga, supra, 103 Cal.App.3d 498, 504; Felton v. Felton (1981) 383 Mass. 232 [418 N.E.2d 606, 610, 22 A.L.R. 4th 961].) In my view the court below not only did not abuse its discretion but correctly decided how the "best interests" of the children were to be promoted.
Although not explicitly stated, the majority opinion impliedly holds that a showing of actual harm to the children must be made before infringing upon the noncustodial parent's constitutional liberties. This is not the law. Murga held that a noncustodial parent will not be enjoined from exposing the child to his or her religious activities "in the absence of a showing that the child will be thereby harmed." (103 Cal. App.3d at p. 505, italics added.) The holding employs the future tense which necessarily is somewhat speculative. This policy of permitting the courts to intervene prior to a child suffering actual injury is sound; it would be meaningless to state that the court must act in the best interests of the child then restrain the court from acting until the child is demonstrably harmed.
I have two problems with my colleagues' analysis of the evidence presented below. The first concerns their characterization of the reasons for mother's separation from both father and church as "irrelevant."
The trial court has an obligation to undertake judicious appraisal of all available evidence bearing on the child's best interest. (In re B.G. (1974) 11 Cal.3d 679,
My second objection concerns the adequacy of Warren Weiss' testimony to support the trial court's determination. The majority opinion relies heavily on Felton v. Felton, supra, 418 N.E.2d 606, as authority for its position. In Felton the only evidence on the issue of whether the child would be harmed by exposure to the father's religion was given by the mother. I agree that such testimony, being inherently biased, is not sufficient. However, of particular interest in Felton is its reference, in footnote 11, to Morris v. Morris (1979) 271 Pa.Super. 19 [412 A.2d 139], a case which limited visitation because of religious difference "on firmer proof."
Unlike the situation in our case, in Morris a psychologist actually interviewed the child. However, the testimony relied upon by the court in affirming the trial court's restriction of visitation rights had nothing to do with observable effects on the girl;
For these reasons I would affirm.
Similarly, in Lynch, the Iowa Supreme Court noted that in light of the "constant bickering" of his parents concerning compliance or noncompliance with a divorce decree regarding the child's religious training, "the real sufferer would be the child." It concluded that enforcement of the decree "would do much harm" and that, therefore, "[c]ourts should be slow to place provisions controlling religious beliefs in decrees, even granting certainty and constitutionality and the consent of the parties." (248 Iowa 81-82 [78 N.W.2d at p. 499].)
"Q. And can you tell the court why you left the Mormon Church?
"A. Yes. There was a difference, I felt, in my moral stand. My husband was involved with molesting my daughter.
"MR. PETERSON: Objection, your honor. There is no background that that is relevant at this point at all.
"THE COURT: I think it is in fact relevant. The objection will be overruled.
"THE WITNESS: And this was brought to the bishop at the time by myself and my husband, who was my husband at that time, and I was told that this was not a moral issue, that it was not right, but that since it was in the home and was not done outside the home that I had no stand to consider it a moral issue. At that point I became very distressed and began to question the whole authority that I was under. And there's quite a bit more to it, but that was the initial break, was realizing I could not accept that counsel and I chose not to and I — as I chose not to, I lost certain very important privileges and chose to start seeking elsewhere for my spirituality."
As indicated in the text, father objected to mother's testimony on relevancy grounds. However, father never presented any evidence to rebut mother's testimony.
"`Q. How might that [inconsistent beliefs] manifest itself in her daily relationship with people?
"`A. This could lead to a very irresponsible type of behavior. From the standpoint that if she gets to the point — if she conceives of regulations and morals and standards as being something that can be debated between two people as important as a mother and a father, then she is going to take lightly any regulation of any kind.
"`Q. And what, in your — in your opinion, would a period of contradictory teaching be contrary to the best interest of this child?
"`A. It would be definitely very contrary. The ideal situation would be to have the mother and father living together and teaching a consistent doctrine of one or the other. I'm not evaluating either Jehovah Witnesses' doctrine or Catholicism. But I do believe that the very fact that there is a difference, and there they are debating over it, and they are really fighting a battle over this child's mind.
"`.... .... .... .... .... ...
"`Q. To the extent that the two religions have consistent moral values, Christian moral values, wouldn't the teaching of those, simultaneously by both parents, be expected to improve the child's overall moral outlook?
"`A. Not as long as there would be inconsistencies in addition to the consistencies, because this child is not at an age where she can arrive at conclusions by herself, conclusions that are based on perceptive thinking.'
"He also testified that the door-to-door solicitations would probably, although not necessarily, result in some psychological impairment." (412 A.2d at p. 146.)