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Chercheurs de dieux dans l’espace public - Frontier Religions in Public Space

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Pauline Côté

Troisième partie / Part III. Prospecteurs et gestionnaires de dieux - Sacred space contested boundaries

Religious freedom and the best interests of the child: the case of Jehovah’s witnesses in child custody litigation1

Carolyn R. Wah

Texte intégral

INTRODUCTION

  • 1 The author wishes to express appreciation for the research and production assistance of Donna Bisb (...)
  • 2 Leo Pfeffer, Religion in The Upbringing of Children, 35 Boston U.L.R. 333, 339 (1955).

Few areas of litigation are more difficult for dispassionate and disinterested judicial determination and more likely to evoke strong and passionate reactions by the protagonists, to cause the general public to take sides, and to incite acrimonious debate among religious groups than the area of litigation involving religious considerations in the upbringing of children. Judicial decisions refusing to allow a couple of one faith to adopt a child born to a mother of a different faith, or depriving a divorced parent of awarded custody for failure to bring up his child in a particular faith, or refusing to compel a parent to bring up his child in accordance with the antenuptial agreement which fixed its religion not unnaturally arouse strong and articulated feelings2.

  • 3 Steven C. Reuben, Raising Jewish Children in a Contemporary World 111. (1992). “[I]n most major ce (...)
  • 4 Religion in America (1992-1993) published by The Princeton Research Center, notes an upward swing (...)
  • 5 The New Encyclopædia Britannica Vol. 29,193 (1992).
  • 6 The author has selected the expression “new religious movements” rather than the more pejorative t (...)

1Since legal historian, Leo Pfeffer penned those words much has changed. A soaring divorce rate coupled with an increase in inter-religious and inter-cultural marriages3, as well as an increased readiness to change one’s religion4 have contributed to a growing body of law defining the rights of parents and children involved in custody disputes where religious training is a central issue. Another factor that complicates the issue is the increased diversity of religious persuasions now active. In the United States alone, some estimates indicate that as many as 1,200 different religions are practiced5. In addition to the accepted mainstream faiths, there is a surge in new religious movements6 many of which are non-Christian.

2If one accepts the adage that the advancement of a civilization can best be measured in terms of its treatment of women and children, one can conclude that by extension, the best way to evaluate religious freedom is by a consideration of the freedoms extended to minority religions. Thus, a discussion of religious freedom and the best interests of children focuses the attention on children whose parents are adherents of minority religions or new religious movements. Despite the lip service paid to tolerance and mutual respect, the plain truth is that many new and minority religions with their own holidays or religious practices may be considered as different or non-traditional, and are therefore, presumed to be harmful to children. Some custody evaluators and trial judges feel that they can no longer take a neutral or impartial position on questions of religious training when religious training is at the heart of the dispute. Other trial judges seek to avoid the appearance of partiality by applying the antiquated common law rule that the custodial parent has exclusive decision-making authority on issues concerning the children’s religious experience. These strategies protect neither the children’s best interests nor the constitutional rights of children or parents.

  • 7 James T. Richardson, Freedom of Religion and the ‘Cult’ Controversy, 4 Christian Research Ass. Bul (...)
  • 8 Cantwell v. State of Connecticut. 310 U.S. 296 (1940).
  • 9 Gibson v. United States, 329 U.S. 338 (1946); Estep v. United States, 327 U.S. 114. (1946); Dickin (...)
  • 10 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943).
  • 11 See e.g., Saumur v. The City of Quebec, (1953) SCR 299; This case defined free exercise of religio (...)

3Freedom of religious expression has not always been as well defined as it is today7. On a case-by-case basis, litigation involving individuals with strong religious motivation defined the rights now considered to be guaranteed by freedom of religion. For example, in the United States, it is well settled that the First Amendment of the Constitution protects an individual’s freedom of religious expression. This came about because one of Jehovah’s Witnesses was arrested while attempting to offer The Watchtower and Awake! magazines to his neighbors8. The rights of conscientious objectors and the definition of a “minister” were defined when several of Jehovah’s Witnesses carried their cases to the United States Supreme Court9. And young children in school are not compelled to act contrary to their conscience and salute the country’s flag because a West Virginia school board expelled children of Jehovah’s Witnesses for respectfully standing while their classmates voluntarily participated in this patriotic ceremony10. While all the individual litigants were Jehovah’s Witnesses, the rights defined in their case benefited all citizens. Similar cases in other countries have had the same impact on the definition of religious freedom11.

  • 12 Annotation, Religion as Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971 (1983 & Sup (...)

4Why are cases involving Jehovah’s Witnesses so controversial? What is there about their teachings and beliefs that brings them into conflict with governmental authorities? Is there something harmful or dangerous about the teachings and beliefs of Jehovah’s Witnesses? In particular, why do so many cases involving disputed religious training involve one parent who is one of Jehovah’s Witnesses?12 This article will address these questions and focus on the following topics: Part I will include a brief overview of the law touching the best interests standard and the First Amendment guaranteeing the free exercise of religion with consideration of the broad general principles available to a decision-maker in a disputed religious training case. Part II will discuss some history and background of Jehovah’s Witnesses, including their primary religious beliefs and practices as explained by their literature, as well as explore the trends and complaints found in a “typical” case. Part III will discuss the religious practices of Jehovah’s Witnesses as these religiously motivated practices are attacked in court and analyze how courts have resolved these issues. Finally, Part IV will present a constitutionally sensitive model of resolution of conflicts concerning religious training.

Part I

1.1 The best interests test

  • 13 Convention on the Rights of the Child, Article III, Section 1, UN Document A/RES/44/25, (12 Decemb (...)
  • 14 N.Y. DOM. REL. § LAW 240 (1986)
  • 15 MICH. COMP. LAWS ANN. § 722.23 (West Supp. 1990)

5The best interests standard is the universal standard for determining placement and custody of minor children. Article III of the UN Convention on the Rights of the Child, which has been ratified by all member nations except Somalia and the United States of America, provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”13 Despite its universal acceptance as a legal standard, the legislative definition of best interests varies from jurisdiction to jurisdiction. For example, some states, such as New York, provide very limited legislative guidelines, so the practitioner must construct a definition of the best interests standard from case law14. In other jurisdictions, such as Michigan, courts are bound by specific legislatively defined factors and are required to make specific findings on each factor, rendering a decision under the best interests standard15 Whether legislatively or judicially defined, the best interests standard, as an expression of the government’s parens patriae authority, offers the trial judge broad investigatory powers and discretionary authority to act for the protection on behalf of the minor child. While this standard is not without its critics, it appears reasonable to conclude that the best interests standard will continue to be the evidentiary standard and the paramount interest in all custody, placement, and visitation cases concerning minor children.

  • 16 WISC. MAR. AND FAM. LAW § 767.24 (West Supp. 1997) (5) provides: The court shall consider the foll (...)
  • 17 See, i.e., Pater v. Pater, 588 N.E.2d 794 (Ohio 1992); Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. 1 (...)

6How does this broad best interests standard guide the trier of fact in determining which course of religious training best serves the child’s interests? In practice, the best interests standard gives no direction. Several state legislatures indicate that the child’s adjustment to his or her religious community is a relevant factor16. Appellate case law is universally settled, however, that the religious affiliation per se may not be the determining factor in awarding custody17.

  • 18 Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the U (...)
  • 19 Are. Rev. Stat. Ann. § 25-338(A) (1991); Colo. Rev. Stat. § 14-10-130 (1987); Ga. Code Ann. § 19-9 (...)
  • 20 Shepherd, Solomon’s Sword: Adjudication of Child Custody Questions, 8 U. Rich L. Rev. 151, 178 (19 (...)
  • 21 Joseph Goldstein et al, Beyond the Best Interest of the Child 37-38 (1979).
  • 22 Obey v. Degling, 337 N.E.2d 601, 602 (1975); Fountain v. Fountain, 442 N.Y.S.2d. 604, aff’d, 432 N (...)

7Under the broad best interests standard, some trial judges continue to select from a variety of general rules, some of which have been passed down from the common law. For example, the general rule that the custodial parent should have final decision-making authority in matters concerning medical health and education is a vestige from a common law rule that the custodial parent, at that time always the father, had final decision-making authority over the minor child18. Several jurisdictions have codified this common law legacy19. Social science, too, has had an impact in developing the general rules or presumptions that are generally applied under the best interests test20. For example, the custodial parent is likely to be the “psychological” parent21 and there is a presumption that siblings should not be separated22.

  • 23 Ind. Fam. Law Ann. § 31-17-2-8 (West’s 1998): In determining the best interests of the child,... [ (...)
  • 24 5 Am. Jur. 2d § 662 (1995):
    The findings made in the lower court generally may not be set aside on (...)

8There is also a general rule that when a minor has sufficient age and maturity to express a preference for custodial placement, then the expression of the minor should be weighed as an important factor in determining the child’s placement23. These “general rules” have various roots and can flourish comfortably under the broad best interests standard. However, problematic and unfair decisions are likely to be rendered when the judge, relying on a limited subset of the available facts, applies a general rule instead of performing the meticulous fact finding necessary to render a judgment that truly serves the child’s best interests. Practically speaking, the disappointed parent in such a situation is left without effective appellate review because the standard for review forbids the appellate court from substituting its judgment for the finder of fact without showing a clear abuse of discretion24. Thus, the standard forces the trial judges to work out their own perception or definition of “best” in evaluating the fitness of the proposed custodial parent.

1.2 Constitutional rights

  • 25 Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972); Gardini v. Moyer, 575 N.E.2d 423 (Ohio 19 (...)

9Despite the formal language that appears in many child custody appellate opinions indicating that the best interests is a paramount interest in determining placement of a child, clearly it is not the only interest or right that must be considered by a trial judge. Judicial restraint and impartiality are required when a judge is asked to validate one parent’s standard for normalcy on issues such as education, including home schooling and pursuit of formal higher education25. Thus, while many appellate opinions explain that the best interests of the child are paramount, that broad language can not be taken literally. As in civil proceedings, constitutional rights and other legitimate state interests must be carefully interwoven, considered, and balanced.

  • 26 Watson v. Jones. 80 U.S. (13 Wall.) 679, 728 (1872).
  • 27 Cantwell v. State of Connecticut. 310 U.S. 296 (1940).
  • 28 42 U.S.C.A. § 2000bb, ruled unconstitutional 1997.
  • 29 Sherbert v. Verner, 374 U.S. 398,83 S.Ct. 1790 (1963).
  • 30 City of Boerne v. Flores, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
  • 31 Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990).
  • 32 Id. at 1602.

10Civil courts are constitutionally obligated to remain neutral on matters of religious doctrine or faith26. Therefore, trial courts are actually constitutionally incompetent to evaluate the merits of different religious beliefs and to make comparisons. However, case law makes it clear that there is a distinction between the absolute constitutional protection for religious beliefs and protection for religiously-motivated behavior or religious practices27. So, it is well accepted that religious practices may be proscribed by law when a compelling state interest, such as protecting a minor from present or imminent substantial harm, requires government action. In spite of the fact that the Religious Freedom Restoration Act28 designed to legislatively codify the standard presented by Sherbert v. Vemer29 (has been declared unconstitutional,30 it is arguable that the high legal standard established in Sherbert v. Vemer has withstood the attack launched in Employment Div., Dept. of Human Res. v. Smith.31. The same high standards outlined in Sherbert v. Vemer apply in a best interests hearing because these types of cases meet the criteria of the “hybrid” exception outlined by the Supreme Court of the United States in Smith. Justice Scalia, writing for the majority in Smith, explained that there were certain “hybrid” cases that presented the court with a mixed claim under the free exercise clause as well as a claim under another First Amendment right such as speech, association, or parental autonomy32. Thus the compelling interests test outlined in Sherbert applies to a best interests hearing where testimony about religious practices may affect the First Amendment rights of parents and children.

  • 33 Birch v. Birch, 11 Ohio St. 3d 85,463 N.E.2d 1254 (1984).
  • 34 Robertson v. Robertson, 575 P.2d 1092 (Wash. Ct. App. 1978).
  • 35 Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972).
  • 36 Robertson v. Robertson, supra note 34.
  • 37 Young v. Young, (1989), 24 R.F.L. (3d) 193. (1990), 50 B.C.L.R. (2d) 1, 75, 38. D.L.R. (4 th) H v. (...)

11In summary, the State cannot interfere with the parents’ right to provide religious training to their children in their home during a period of custodianship, absent of clear and affirmative showing of present or imminent substantial harm. This type of harm is not a casual inconvenience or temporary stress often experienced by children of divorce. Rather, this “harm” is similar to the harm required under an abuse or neglect statute. Evaluation of the harm requires a two-fold analysis. First, the time frame must be analyzed to determine whether the harm is present or imminent. Although the State is not required to have evidence of present harm before it acts on behalf of a minor child, the harm must be imminent to justify State intervention33. Future or speculative harm is insufficient to justify State intervention34. Second, the type of harm must be quantifiable as “substantial”35. Testimony from a less-than-objective parent concerning the child’s confusion about being exposed to two different religious systems, or boredom during Sunday services, is not the type of harm that justifies governmental intrusion into a parent’s religious practices36. These general rules and applications of constitutional principles to the best interests hearing are fairly well settled in all fifty states as well as Canada and other common law countries37.

12A focus on Jehovah’s Witnesses and their religious beliefs and practices serves as a useful illustration for the type of religious practices most likely to create controversy. A detailed review of the Witnesses’ religious literature, particularly The Watchtower and Awake! magazines published by the Watch Tower Bible and Tract Society of Pennsylvania (herein after referred to as “Watch Tower”), highlights the impact of religious as well as cultural and socio-economic factors in the determination of best interests cases.

Part II

2.1 The case of Jehovah’s Witnesses

2.1.1 Short History of the Religious Organization of Jehovah’s Witnesses

  • 38 WATCH TOWER BIBLE AND TRACT SOCIETY OF PENNSYLVANIA, JEHOVAH’S WITNESSES PROCLAIMERES OF GOD’S KIN (...)
  • 39 Isaiah 43:12 (New World Translation): “So YOU are my witnesses,” is the utterance of Jehovah, “and (...)
  • 40 Jehovah is the English transliteration of the Hebrew Tetragrammaton that appears more than 7,000 t (...)

13In 1931, the International Bible Students’ Association or “Bible Students,” as they were generally known, adopted the name Jehovah’s Witnesses38. Based on the words of the prophet Isaiah,39 the group took this name in recognition that, according to both Hebrew and Greek Scriptures, Jehovah40 is the personal name of the Sovereign Lord and Creator of the universe. They also recognized that as Christians dedicated to his service they would “witness” or give testimony to their Creator’s grand works and marvelous purpose for the earth.

  • 41 Proclaimers, at 229, 576.
  • 42 Proclaimers, at 683, 724.
  • 43 Watch Tower Bible and Tract Society of Pennsylvania, 1998 Yearbook of Jehovah’s Witnesses 31 (1997 (...)

14As a legal organization, the Watch Tower Bible and Tract Society of Pennsylvania was incorporated in 188441. In 1879, the corporation’s first president, Charles Taze Russell, began publishing a Bible-based journal, Zion’s Watchtower and Herald of Christ’s Presence. Its companion magazine, The Golden Age, began publication in 191942. Now referred to as The Watchtower and the Awake!, these magazines are available in 126 and 80 languages respectively and are printed bi-monthly for a readership that far exceeds the worldwide total of membership and active associates found in over 233 lands and island groups43. In addition to these two magazines, Watch Tower also publishes books and brochures to acquaint its readership with the values and principles outlined in the Bible. For example, recent books like The Secret to Family Happiness; Questions Young People Ask—Answers that Work, and Your Youth—Getting the Best Out of It were published to help people see what the Bible has to say on difficult day-to-day issues confronting families in the late 20th century.

15Congregations of Jehovah’s Witnesses include people from all races, cultures, language groups, and socio-economic categories. Regular religious services, open to the public, are held at neighborhood religious meeting places known as Kingdom Halls. Each summer, groups of congregations meet together for three-day district conventions held in public arenas or stadiums to hear Bible lectures, observe baptisms, Bible dramas, fellowship, and enjoy singing.

  • 44 Christine King, The Nazi State and the New Religions 147-179 (1982).
  • 45 William Kaplan, State and Salvation—jehovah’s Witnesses and their Fight for Civil Rights 52-91 (19 (...)
  • 46 Watch Tower Bible and Tract Society of Pennsylvania, 1985 Yearbook Jehovah’s Witnesses 181-187 (19 (...)
  • 47 Watch Tower Bible and Tract Society of Pennsylvania, 1983 Yearbook of Jehovah’s Witnesses 67-91 (1 (...)
  • 48 Singapore—The Right of Association Challenged, Human Rights Without Frontiers, Volume 7, 1996 at 9 (...)
  • 49 Are Jehovah’s Witnesses a Cult?, The Watchtower, Feb. 15,1994 at 5:
    A government official of the ci (...)

16The modern day history of Jehovah’s Witnesses contains incidents of persecution, imprisonment, and legal proscription under Hitler’s Third Reich,44 Canada,45 Malawi,46 Australia,47 and Singapore48. However, Jehovah’s Witnesses generally enjoy a fine reputation with governmental officials, whom they regard as the “uperior authorities” referred to by the apostle Paul at Romans 13:1-7 and who thus merit both obedience and “subjection.” Many judges, governmental officials, and professionals have complimented Jehovah’s Witnesses on their fine contribution to their communities49.

2.1.2 Jehovah’s Witnesses and Child Custody Cases

  • 50 Matthew 28:19, 20. (New World Translation).

17In addition to holding a reputation as politically neutral and lawabiding citizens, Jehovah’s Witnesses have always taken seriously Jesus’ closing words to his followers: Go therefore and make disciples of people of all the nations, baptizing them in the name of the Father and of the Son and of the holy spirit, teaching them to observe all the things I have commanded you. And, look! I am with you all the days until the conclusion of the system of things50.

18Unfortunately, enthusiasm for public preaching and their strict politically neutral position has sometimes brought Witnesses into conflict with their neighbors and governmental authorities on several important issues. During war years, governments are sensitive to any citizen who refuses military service. In peacetime, politicians sometimes adopt solicitation ordinances in an effort to control the Witnesses’ access to their neighbors. Over the years, the Witnesses’ resistance to forced blood transfusions has also been a legal issue in which individual Witnesses are required to assert their rights of religious freedom and to defend their faith. Thus one legal scholar observed:

  • 51 William Shepard McAninch, “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses (...)

Jehovah’s Witnesses’ cases provided the factual vehicle for incorporation, via the fourteenth amendments due process clause, of the first amendment’s guarantee of free exercise of religion against state infringement, for development of the “preferred position” theory of the first amendment jurisprudence, and for development of the foundation for the least restriction alternative analysis of limitations on first amendment activities. Additionally, the Witnesses were involved in some eleven selective services cases receiving plenary disposition. More recent Witness cases have revived the doctrine of unconstitutional conditions and reaffirmed the right to refrain from state-compelled speech51

  • 52 Proclaimers at 678-680.

19Beginning with the Watch Tower Society’s second president, Joseph F. Rutherford, a practicing attorney, the Society has been active and successful in civil litigation to defend the rights of individual members. During the 1940’s, Hayden Covington, then general counsel, argued a record number of 43 cases at the United States Supreme Court52. When Witness parents began to experience religious attacks in child custody cases, the Society’s Legal Department came to their assistance. Beginning in the mid-1980’s, the Society ran an annual general announcement indicating that Witnesses who are involved in child custody or visitation right cases where their religion was being used against them should contact the Society’s Legal Department. Those who requested such assistance then received a packet of information, including cases that have been successfully argued in state appellate courts. The information was designed to assist the Witness parent’s attorney in fashioning an argument that included First Amendment rights as well as a clear analysis of the best interests of the child. Over the years, the packet of information grew to include articles by Witness and non-Witness attorneys as well as legal scholars who have commented on these types of cases.

  • 53 In the Interest of Marcos Reyes, Index No. 6936-C, in the District Court of Taylor County, TX, 326(...)

20For some time that information was sufficient. However, in the late 1980’s, two disgruntled former Witnesses began to use child custody cases as a forum to attack the Watch Tower Society, the Witnesses’ interpretation of Scriptures as explained in the literature, as well as the congregation organizational arrangements. These former Witnesses offered themselves as “religious experts.” By attacking the Watch Tower interpretation of religious doctrine, these former members attempted to show, as one so-called “expert” stated in a pre-trial deposition, that being raised by Witness parents is only a slight improvement over an institutionalized upbringing53.

  • 54 Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E.2d 794 (1972).

21In one Ohio child custody case, an educational psychologist and former Witness, Gerald Bergman, Ph.D., without first-hand knowledge of the child or the Witness mother’s household, claimed that Jehovah’s Witnesses have a higher rate of mental illness than the general population, and asserted that the three-year-old boy should be placed in the custody of his father, a salesman who frequently traveled54. The mother appealed and the matter was eventually heard by the Supreme Court of Ohio, which, after considering the record, concluded that the Witness mother had been denied custody of her three-year-old son only because she was one of Jehovah’s Witnesses. Commenting on the admissibility of Bergman’s testimony, the Ohio Supreme Court explained:

  • 55 Id. at 800.

Dr. Bergman testified, on the basis of a dissertation he had written, that mental illness was more common among Jehovah’s Witnesses than among the general population. This testimony was a blatant attempt to stereotype an entire religion. Regardless of the rate of mental illness among an entire group, that evidence does not prove that the religion in question will negatively affect a particular individual. Furthermore, this one piece of statistical evidence is meaningless. To follow this evidence to its “logical” conclusion, a court would need to compare this rate to the same rate for all faiths and for people who are not associated with any particular religion. If the latter group has the lowest incidence of mental illness, then under this reasoning we would have to forbid all parents from exposing their children to their religious beliefs55.

22Witnesses are not the only minority religion who are subject to these types of attacks from former members or cult watchers. A North Carolina adoption case involving members of The Way International became a forum for Ms. Cynthia Kisser, the Executive Director of the Cult Awareness Network in Chicago. Her testimony drew criticism from the North Carolina Court of Appeals, which explained:

Although Ms. Kisser expressed concern over some of the practices of The Way, she testified that she had never met the Petersens or Paul. Therefore, none of her testimony could have related to the present or possible future effect of the Petersens’ religious practices on Paul... Questions about Jesus Christ, evil spirits, speaking in tongues, tithing, and the Handbook of Denominations have no relevance to determining custody in the child’s best interests. We note that other Christian sects practice in speaking in tongues and believe in evil spirits. Unless evidence of such practices could be put in a context of this particular family, it was irrelevant.

  • 56 Petersen v. Rodgers, 433 S.E.2d 770 (NC Ct. App. 1993), reversed on appeal on other grounds 445 S. (...)

To allow Ms. Kisser to speculate that the general practices and beliefs of members might be detrimental to children, is to condemn the entire membership of The Way as unsuitable parents. This result would certainly produce a chilling effect upon litigants in future cases where one spouse was a member of The Way or of some other lesser known religion56.

  • 57 Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579, 113 S.Ct. 2786; See, e.g. Fed. R. Evid. § 403 (...)

23Testimony from disgruntled former members, so-called “sect-experts” or “cult watchers,” is not likely to provide a trial court with reliable probative testimony because these individuals generally cannot provide first-hand, relevant information about the particular children of the household. Their aim in most cases is simple—to disqualify the parent solely because of religious affiliation. While simple, these theories can rarely, if ever, withstand the scrutiny that local evidentiary rules require of admissibility of expert witnesses57.

24Although Jehovah’s Witnesses have been an active and visible religious organization for over one hundred years, their beliefs and religious practices are frequently used as a leverage or tool in gaining strategic advantage in custody cases. Some trial courts give the nonWitness parents a full opportunity to air their grievances apparently hoping that the post-divorce adjustment will proceed more rapidly if both parties have their “day in court.” Other courts often feel compelled to consider these practices when a mental health professional suggests that, while the religious practice is neither illegal nor immoral, there may be some harmful impact with the particular child. What is it about the teachings and practices that lead some to the conclusion that a child could be harmed?

Part III

3.1 Religious Practices of Jehovah’s Witnesses: A View from Case Law, Watch Tower Literature and Non-Witnesses Pleadings

  • 58 Matthew 19:18,19 (Jerusalem Bible): He said: “Which?” “These”: Jesus replied, “You must not kill. (...)
  • 59Soundness of Mind” as the End Draws Close, The Watchtower, Aug. 15, 1997 at 21:
    “Parents are also (...)

25Although not fundamentalists, Jehovah’s Witnesses base their religious practices on their interpretation of the Holy Bible. Thus, when the Bible provides a clearly stated law or “rule,” Witnesses generally accept the rule as a divine command. For example, they hold to traditional high moral values, which condemn stealing, lying, adultery, and murder58 However, many private decisions and situations confronting parents today do not have a direct Biblical mandate. For example, the Bible is silent on the amount of secular training that a child should receive. So the Bible and the Watch Tower leave this decision in the hands of the individual parent59. Obviously, many factors would influence any parent’s decision such as the expense of such education, the child’s wishes and skills, and so forth. This important distinction between principle and rule is often misunderstood. Unfortunately, this misunderstanding has resulted in unnecessary conflict in religiously-divided households and with judicial and administrative bodies. The following information will examine some typical beliefs of Jehovah’s Witnesses in which conflict has arisen.

3.1.1 Use of Blood Transfusions in Medical Care

26All Jehovah’s Witnesses want the best possible medical care for themselves and their children. They are grateful for the excellent medical care they receive from doctors and make every effort to cooperate with the medical profession for the good care of their children. As the Watch Tower publication Family Care explains:

  • 60 Watchtower Bible and Tract Society of New York, Family Care and Medical Management FOR Jehovah’s W (...)

Jehovah’s Witnesses avail themselves of the various medical skills to assist them with their health problems. They do not adhere to so-called faith healing and are certainly not opposed to the practice of medicine. They love life and want to do what ever is reasonable and Scriptural to prolong it60.

  • 61 Fear of Aids is Only One Reason Some Doctors Are Calling For Bloodless Surgery, Time Magazine, Fal (...)
  • 62 Acts 15:29 (King James): That ye abstain from meats offered to idols, and from blood, and from thi (...)

27In seeking good medical care, all parents, regardless of religious affiliation, should be aware of the risks associated with the use of blood transfusions and many doctors and lay persons have explained why they should be avoided whenever possible61. Jehovah’s Witnesses have considered these medical and scientific reasons as well as the Bible’s clear admonition to “abstain from blood.”62

28In child custody or visitation rights cases, the trial judge is concerned with acting in the best interests of the child. Are the parents willing and able to provide proper and appropriate medical care to the child? That question is an important and relevant consideration. Some non-Witness parents have alleged that because one parent is one of Jehovah’s Witnesses, the child will not get adequate medical care particularly in an emergency situation in which a blood transfusion is recommended.

  • 63 Garrett v. Garrett, 3 Neb. App. 384, 527 N.W.2d 213 (1995).

29In the context of a best interests hearing, allegations about inadequate medical care are generally future and too speculative to be considered relevant evidence. Accepting the allegation that the Witness is unfit because he will not consent to a blood transfusion for the child requires the trial court to make various unfounded assumptions. The court must assume that the child will be seriously injured or diagnosed with a serious disease that would suggest to the licensed medical professional that a blood transfusion would be effective treatment. The court must also assume that a blood transfusion would or could be effective and safe. It must also assume that the non-Witness parent will be unavailable to provide such consent in a timely manner. In view of these assumptions, many appellate courts have dismissed the religious practice of refusing blood transfusions as a non-issue. A few years ago, the Nebraska Court of Appeals63 explained why the mother’s religious beliefs concerning the use of blood transfusions would not be considered in a best interests hearing:

Regarding [the Mother’s] refusal to consent to a blood transfusion for her children even in the event of an emergency, no evidence was presented showing that any of the minor children were prone to accidents or were plagued with any sort of affliction that might necessitate a blood transfusion in the near future. We cannot decide this case based on some hypothetical future accident or illness which might necessitate such treatment. See Urband v. Urband, 68 Cal.App.3d. 796, 137 Cal.Rptr. 433 (1977); Waites v.

  • 64 Id. at 395; See e.g., Pater v. Pater, 63 Ohio St. 3rd 393, 588 N.E.2d 794 (1992); Johnson v. Johns (...)

Waites, 567 S.W.2d 326 (Mo. 1978). Facts such as the statistical frequency of blood transfusions for normal children and the degree of risk involved in taking or refusing blood or chemical substitutes must be proved by proper evidence, like any other facts. Osier v. Osier, 410 A.2d 1027 (Me. 1980) In the absence of any such proof of that threshold factual requirement, there could be no legitimate occasion for the court’s impingement upon [a parent’s] constitutionally protected liberty interests. Id. at 1031 7.64.

  • 65 Mann, et. al, Changes in Transfusion Practices in Bum Patients, 37 J. TRAUMA 220, 221 (1994): “The (...)

30The position taken by the Nebraska Court of Appeals reflects not only sound judicial restraint but the well-known fact that recent research and study no longer supports the assumption that blood transfusions are always safe and effective65. In fact, the vast majority of medical literature on the subject written since the mid-1980’s indicates that non-blood alternative substitutes are very effective and do not carry the numerous risks of disease transmission associated with transfused blood. As the 1988 Report of the Presidential Commission on Human Immunodeficiency Virus Epidemic plainly advised:

  • 66 Report on the Presidential Commission on Human Immunodeficiency Virus Epidemic, June, 1988, p. 79.

Informed consent for transfusion of blood or its components should include an explanation of the risks involved with the transfusion of blood and its component, including the possibility of HIV infection, and information about appropriate alternatives to homologous blood transfusion therapy...In health care facilities, all reasonable strategies to avoid homologous blood transfusion (blood from others) should be implemented66.

31Since that report in 1988, Watch Tower has been increasingly aware of the needs of the Witnesses and their families who could be faced with a suggestion for use of a blood transfusion. In that same year, Hospital Information Services, a headquarters department, was established with the purpose of reminding the medical community of the risk of blood transfusions as well as of the numerous non-blood medical alternatives and providing information to doctors, hospital administrators, and Witnesses who wanted to know more about safer transfusion options. To date, over 120 cities in the United States maintain local Hospital Liaison Committees, which work in close coordination with the Hospital Information Services Department at headquarters. These committees, comprised of local Witness elders, meet regularly with hospital administrators and with physicians and risk managers who want to understand the ethical as well as medical options available to them in the treatment of adult and minor patients. As a result of this successful organizational effort, Witnesses have been able to avoid confrontations with physicians and hospital administrators who, in turn, have been able to explore new non-blood medical techniques, which have been a benefit both to Witness and non-Witness patients.

3.1.2 Jehovah’s Witnesses are Not A Dangerous Cult

32Jehovah’s Witnesses deny being either a sect or a cult, as the Watch Tower publication Reasoning from the Scriptures explains:

  • 67 Watch Tower Bible and Tract Society of Pennsylvania, Reasoning from the Scriptures, (Watchtower Bi (...)

A cult is a religion that is said to be unorthodox or that emphasizes devotion according to prescribed ritual. Many cults follow a living human leader, and often their adherents live in a group apart from the rest of society. The standard for what is orthodox, however, should be God’s Word, and Jehovah’s Witnesses strictly adhere to the Bible. Their worship is a way of life, not a ritual devotion. They neither follow a human nor isolate themselves from the rest of society. They live and work in the midst of other people67.

  • 68 Redman, et. al. v. Watch Tower Bible and Tract Society of Pennsylvania, et al., No. 91-WD-071, 199 (...)

33Some who tried to allege that Jehovah’s Witnesses were a cult and under the control of the Watch Tower Society have, in certain child custody cases, alleged that any Jehovah’s Witness will lie under oath in order to protect the Society from appearing in a bad light. For example, former Witness Gerald Bergman, mentioned previously, testified in a will contest case that as part of their belief system, Jehovah’s Witnesses are excused from lying to governmental officials. Dr. Bergman claims that the Witnesses believe that governments are part of Satan’s earthly organization and are, therefore, enemies of God who are not entitled to know the truth68. Bergman’s argument is based on a twisted interpretation of quotations from Watch Tower literature together with a clear intent to destroy the testifying Witness’ credibility in a court of law. On appeal, the Ohio County Court of Appeals for Wood County ruled that admission of Bergman’s testimony was a clear violation of the Ohio Rules of Evidence 610, which is patterned after the Federal Rules of Evidence. The Wood County Court of Appeals explained:

34Evid. R. 610 is specific:

“Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.” The effect of Dr. Bergman’s testimony would allow one to conclude that: (1) Attorney Walter Kobil was a believer (2) the church theology encourages perjury to protect the church (3) Attorney Kobil was willing to lie to protect the church and (4) therefore Attorney Kobil is not credible. Evid. R. 610 prohibits this type of attack on the credibility of a witness. The admission of the evidence was, therefore, error.

  • 69 Id. at 6.

However, we find the admission of Dr. Bergman’s testimony regarding the doctrines and beliefs of appellant church and its members to be reversible error because it was offered for its only conceivable use: to unfairly impeach the credibility of church members69.

  • 70 Questions From Readers, The Watchtower, June 1, 1960 at 352.

35Do Jehovah’s Witnesses believe it is appropriate to lie to a trial judge under oath? The firm answer is no. Watch Tower literature has stated so quite clearly for many years. For example, The Watchtower of June 1, 1960, considered the following question: “From time to time letters are received asking whether a certain circumstance would justify making an exception to the Christian’s obligation to tell the truth?” In part, the answer was: “Should circumstances require a Christian to take the witness stand and swear to tell the truth, then, if he speaks at all, he must utter the truth.”70 Despite this clear Scripturally based explanation, Bergman asserts that Witnesses feel justified in lying to government officials.

  • 71 Subjection to “Superior Authorities”—Why? The Watchtower, Nov. 15,1962 at 685: When Christians sub (...)

36Concerning Jehovah’s Witnesses’ view of the governmental authorities, Paul’s words at Romans 13:1 and Titus 3:1 require Christians to acknowledge the sovereignty of governmental authorities as the “superior authorities.” Jehovah’s Witnesses interpret the term “superior authorities” to refer to the governmental structure71. Thus, their journal Awake! clearly and succinctly explains the Witnesses’ view of individuals in governmental authority:

  • 72 In The World, but No Part of It, The Watchtower, Nov. 1, 1997 at 16.

It would be incorrect to conclude that all humans in governmental authority are Satan’s tools. Many have proved themselves people of principle, such as the proconsul Sergius Paulus who is described in the Bible as “an intelligent man.” (Acts 13:7) Some rulers have courageously defended the rights of minorities, being guided by their God-given conscience even if they did not know Jehovah and his purposes. (Romans 2:14, 15)72

37The Scriptural view of governments together with the Bible’s clear command not to lie has been taken by most Witnesses in the manner in which it was intended. This is clearly seen from the reputation for honesty that most Witnesses enjoy throughout the world. For example,

  • 73 In What Ways Can We Become Imitators of God?, The Watchtower, Mar. 1, 1974 at 152.

38• The German newspaper Sindelfinger Zeitung carried an article with the heading “The Most Honest People... Are Jehovah’s Witnesses.” It spoke about the matter of paying taxes, and concluded with the statement: “The Jehovah’s Witnesses are recognizably the most honest people in the Federal Republic, says the Federal Ministry of Finance.”73

39• In Germany the newspaper Münchner Merkur said of Jehovah’s Witnesses: “They are the most honest and the most punctual tax payers in the Federal Republic.”

  • 74 Paying Back Caesar’s Things to Caesar, The Watchtower, May 1, 1996 at 17.

40• In Italy the newspaper La Stampa observed: “They [Jehovah’s Witnesses] are the most loyal citizens anyone could wish for: they do not dodge taxes or seek to evade inconvenient laws for their own profit.”74

  • 75 Honor Men of All Sorts, The Watchtower, Feb. 1, 1991 at 21.

41The Post of Palm Beach, Florida, U.S.A., noted regarding Jehovah’s Witnesses: “They pay their taxes. They are some of the most honest citizens in the Republic.”75

42• Dr. Bryan R. Wilson of Oxford University discussed this matter in a letter to the London Times, printed August 6, 1976. Among other things, he observed:

“It is surely implicit in the concept of religious freedom that men should be free to abstain from involvements that they believe to conflict with their religion, as long as, in doing so, they do not interfere with the rights of others. Jehovah’s Witnesses believe that to take part in elections, to sing national hymns, and to salute national flags would be to compromise their religious principles. Ought they not, then, be free to abstain? The Witnesses today are passive and respectful of authority, and their neutrality in politics ought not to be an excuse for intolerance and discrimination in any democratic society.

  • 76 Freedom of Worship—When Should It Be Granted?, Awake!, Feb. 8,1977 at 9.

“There is, indeed, a curious irony in the short-sightedness of some African governments with respect to sects of this kind. Independent observers have indicated that Jehovah’s Witnesses are hard-working and often more conscientious and enterprising than the average among their fellow citizens. They are enjoined by their leaders to pay their taxes promptly, to refrain from violence, and to avoid giving offence. They are orderly, honest and sober. These values were of great importance in the economic and social development of Western society, and it would not be an exaggeration to say that Jehovah’s Witnesses are among the most upright and diligent of the citizenry of African countries. Were the values that they endorse and by which they live so consistently more widely diffused in Africa, some of the worst social problems from which African countries suffer would be considerably mitigated.”76

  • 77 Julia M. Corbett, Religion IN America 152-153 (3d Ed. 1996).

43• In a publication entitled Religion in America, Professor Corbett states concerning Jehovah’s Witnesses: “Witnesses have earned the reputation of being honest, courteous, and industrious.”77

  • 78 Sam Rubin, But How Will You Raise the Children? 228-229 (1987); See also Jason S. Marks, The Solom (...)

44On occasion, non-Witness parents involved in custody cases will use terms such as “cult,” “sect,” or “Waco-like group” in an effort to undermine the credibility of the Witness parent. Such tactics are often means of distraction from the genuine issues because religion is rarely the basis of a separation or divorce. In fact, Professor Sam Rubin explains that religious issues raised in best interests hearings are “usually only symbolic representations of the underlying problems and differences that drive a relationship apart, and become a useful scapegoat for the frustration, anger, disappointment, and sense of failure that inevitably accompany the dissolution of a relationship.”78 Use of such terms is so inflammatory that Professor James T. Richardson suggests:

  • 79 James T. Richardson, Definition of Cults: From Sociological-Technical to Popular-Negative, 34 Revi (...)

The term ‘cult’ should also be disallowed in legal proceedings when involvement with an exotic religious group is an issue. Those defending actions against new religions, popularly referred to as cults, should consider making pretrial motions to suppress the use of that term in the courtroom. The term carries too much baggage to allow this casual use in proceedings designed to have rational judgments made about important issues79.

3.1.3 Jehovah’s Witnesses and Corporal Punishment

  • 80 (New World Translation) “The one holding back his rod is hating his son, but the one loving him is (...)

45No one expects all Catholics or all Jews to have the same opinions about corporal punishment and certainly not all of Jehovah’s Witnesses share the same views on this topic. However, the Watch Tower literature has always directed parents to consider Bible principles in the training of disciplining of their children. With the current surge in child abuse, governmental authorities, teachers, and parents are rightly concerned about the possibility of endangerment to a child as a result of parental religious practices. Jehovah’s Witnesses accept the Bible as a practical and reliable tool for family life and therefore have considered the counsel at Proverbs 13:24, which refers to “the rod” of discipline.80

46However, as well known as this Scripture is, it certainly is not the only verse that address the question of discipline and child rearing. The Watchtower emphasized a need to consider a broad range of Scriptures as a means to get the Bible’s meaning of "the rod" of discipline clearly and properly in mind. For example, the article "Sacred Service with Your Power of Reason," which appeared in The Watchtower, explained:

First, we must be ardent students of the Bible. God’s inspired Word is “beneficial for teaching, for reproving, for setting things straight, for disciplining in righteousness.” (2 Timothy 3:16) We should not always expect an answer to a problem to be spelled out in a single Bible verse. Rather, we may have to reason on several scriptures that shed light on a particular situation or problem. We will need to make a diligent search for God’s thinking on the matter. (Proverbs 2:3-5) We also need understanding, for “a man of understanding is the one who acquires skillful direction.” (Proverbs 1:5) An understanding person can separate the individual factors of a matter and then perceive their relationship to one another. As with a puzzle, he puts the pieces together so that he can see the whole picture.

  • 81 Sacred Service With Your Power of Reason, The Watchtower, June 15, 1995, at 19-29.

47For example, take the matter of parenting. Proverbs 13:24 says that the father who loves his son “does look for him with discipline.” Taken by itself, this scripture could be misapplied to justify harsh, unrelenting punishment. Yet, Colossians 3:21 provides balancing admonition: “You fathers, do not be exasperating your children so that they do not become downhearted.” Parents who use their power of reason and harmonize these principles will not resort to discipline that could be termed “abusive.” They will treat their children with warmth, understanding, and dignity. (Ephesians 6:4) Thus, in parenting or in any other matter involving Bible principles, we can develop our power of reason by weighing all related factors. In this way, we can perceive the “grammar” of Bible principles, what God’s intent was and how to accomplish that.81

  • 82 Learn Obedience by Accepting Discipline, The Watchtower, Oct. 1, 1992, at 29.

48Earlier, The Watchtower,82 had offered its readers a concise discussion of the topic and highlighted eight main points in connection with discipline-noting that physical discipline is not included:

“Parents, Teach Obedience by Disciplining in Righteousness”

  1. Discipline on the basis of Scriptural laws and principles.
  2. Discipline not simply by demanding obedience but by explaining why obedience is the course of wisdom.—Matthew 11:19b.
  3. Discipline neither in anger nor with screaming.—Ephesians 4:31, 32.
  4. Discipline within the warmth of a loving and caring relationship.—Colossians 3:21; 1 Thessalonians 2:7, 8; Hebrews 12:5-8.
  5. Discipline children from infancy.—2 Timothy 3:14, 15.
  6. Discipline repeatedly and with consistency.—Deuteronomy 6:6-9; 1 Thessalonians 2: 11, 12.
  7. Discipline yourself first and thus teach by example.—John 13:15; compare Matthew 23:2, 3.
  8. Discipline with full reliance on Jehovah, petitioning his help in prayer.—Judges 13:8-10.
  • 83 A Book From God, The Watchtower, Apr. 1, 1998 at 18.

49Thus, one can see that both in the Bible and in the Watch Tower literature the word “discipline” refers to teaching or instruction that is carried out in a loving and mild manner. Proper discipline is administered with genuine love, warmth, and feeling and conveys that the parent truly has the child’s best interests at heart. Unfortunately though, many commonly connect discipline with child abuse. As The Watchtower explained when commenting on Proverbs 22:15: “No child should ever be subjected to cruel punishment. Physical violence has no place in the family that lives by the Bible. Neither does emotional violence—harsh words, constant criticism, and biting sarcasm, all of which can crush a child’s spirit.”83

3.1.4 Social Adjustment

50It is entirely relevant and proper that a trial judge should consider the proposed custodial parent’s plan for education, recreational opportunities, and social development. However, when the determination of the child’s best interest are influenced by strongly held religious convictions, the trier of facts runs the risk of imposing an “all-American” or “normal” standard of social activities that is both unconstitutional and improper. Two extreme cases highlight the danger of exaggerating the importance of social adjustment in the home of the potential custodial parent.

  • 84 Stolarick v. Novak, 584 A.2d 1034 (Pa. Super. Ct. 1991).

51In 1991, the Superior Court of Pennsylvania reversed a lower court’s decision changing custody from the father’s home to the mother’s home. When Carl Stolarick and Amy S. Novak divorced, they agreed to the custodial arrangement placing the two children in their father’s home84. After the divorce the Stolarick children lived with their father in the family home and were enrolled in the Trinity Christian Academy, a private religious school. On appeal, the Superior Court explained:

  • 85 Id. at 1036.

The trial court found no fault with the father’s rearing of his children except for his fundamentalist Christian beliefs and his enrolling the children in a Christian school. With respect to this aspect of the case, the [lower] court opined: On the surface this seems like an ideal adaptation under the circumstances but it is the degree to which the father has pursued “life in the Lord” that has deprived the children of social and educational opportunities and has presented them with a single minded approach to life that is very restricted in view and allows for no spontaneity, artistic expression or individual development of rationale or logic or even just pursuit of ordinary curiosity. These children are being raised in a sterile world with very rigid precepts, with no allowance for difference of opinion, and no greater breadth than the doctrinaire limits of the religious beliefs.85

52Examining the record, however, the appellate court found that:

  • 86 Id.

With respect to Carl’s religious fervor, the testimony indicates that he has not pursued religion at the expense of neglecting his children. Through Carl’s testimony, as well as others attesting to his relationship with his children, we see that he has played an active role in the children’s educational, recreational, and spiritual lives.”86

  • 87 Id. at 1037.

53Further, the evidence disclosed that the education they were receiving through the Trinity Christian Academy which was accredited by the American Association of Christian Schools, was full and adequate, including physical education, art, and music classes. In fact, the court concluded: “There is no evidence that would support the trial court’s belief that the children would be deprived of social and educational opportunities and have been restricted in artistic expression or individual development of logic because of their attending a religious school.”87

  • 88 527 So.2d 820 (Fla. Dist. Ct. App. 1987),(per curiam), cert denied, 485 U.S. 942, reh’g denied, 48 (...)

54A very dramatic and disturbing illustration of the dangers created when the issue of social adjustment comes to the fore because of religious practices is the case of Mendez v. Mendez.88 While the appellate opinion does not reveal much about the nature of the testimony at trial, a close look at the record reveals what Judge Baskin on dissent describes as “a demonstration of the experts’ personal bias against the mother’s religion.” Judge Baskin explains:

  • 89 Id. at 824.

“their disdain for the mother’s religion induced them to speculate as to the possibility of harm to the child in the future even though no evidence of harm existed. The trial court was obviously persuaded by their less-than-objective considerations for removing the child from the custody of her natural mother, and its judgment should not stand.”89

55At the two-day trial, all of the experts and the guardian ad litem agreed that the four-year-old girl, Rebecca, was closely bonded to her mother. The guardian ad litem testified that if Rebecca ceased living with her mother, it would devastate her. The testimony from the three mental health experts suggested that the teachings of Jehovah’s Witnesses were “not mainstream” and therefore inimical to the child’s best interests. A psychologist speculated about the problems the four-year-old girl would face in the future if she were exposed to her mother’s beliefs while attending public school:

  • 90 See Record at 9, Mendez (No. 84-34049 FC).

[A]s a Jehovah’s Witness she would have difficulty in dealing with the different values as they apply socially, in terms of school and religious holidays, which are not perceived as religious, exclusively by the children, such as Christmas and in terms of saluting the flag and things of that nature.90

56A second psychologist was called to testify at the same trial and added his opinions based on the evaluation that:

  • 91 See Record at 56, Mendez (No. 84-34049 FC).

Living in this society, she needs to adapt herself to the mainstream culture. She’s growing up and it is not a country of Jehovah’s Witnesses. If the majority of the country was Jehovah’s Witnesses, we would not have any problem, except for physically, but, as far as-I am not making the statement because she is a Jehovah’s Witness per se but the philosophy of practicing the religion does not allow Rebecca to benefit and be safeguarded and living in this culture.91

57Testimony of this nature is beyond the scope of psychological expertise. In allowing such testimony to affect the determination of a child’s best interests, a court fails to acknowledge that, as one author put it

  • 92 J. Goldstein, et.al., beyond the best interests of the child 51-52(1979).

No one—and psychoanalysis creates no exception—can forecast just what experience, what events, what changes the child, or for that matter his adult custodian, will actually encounter. [Footnotes omitted] Nor can anyone predict in detail how the unfolding development of a child and his family will be reflected in the long run in the child’s personality and character formation. Thus the law will not act in the child’s interests but merely add to the uncertainties if it tries to do the impossible—guess the future and impose on the custodian special conditions for the child’s care.92

58Parents who are concerned about having their children exposed to minority religions frequently attempt to use the testimony of mental health experts to show that the child is suffering psychological harm as a result of exposure to the minority religion. When the mental health expert accepts that premise and concludes that any evidence of anxiety is related to exposure to the minority religion, the mental health expert opens himself for attack on cross-examination. The practitioner has the duty to carefully analyze the report and separate the mental health process methodology from the conclusions and recommendations. The methodology must withstand the professional evaluation standards. For example, there are numerous psychological tests and inventories available to measure a child’s psychological attachment to either parent. When the mental health expert fails to use these tests and relies entirely on the clinical evaluation method, the reliability/validity measurement of his or her conclusions is relatively low. Similarly, if the child evidences symptoms of psychological stress, without the use of objective testing it is almost impossible to make the connection between the anxiety in the child and the religious practice.

59An objective analysis of the family dynamics usually reveals that communication between the parents has completely broken down, that one parent is rallying and campaigning for support even with his in-laws in order to turn the other parent’s family against him or her, and the children have been reduced to pawns in an unfortunate game for control between the parents. Any of these factors together with litigation, recent divorce, or introduction of a new marriage partner between the parents can cause stress and anxiety in a child. Thus, many children of divorce suffer from anxiety and stress. However, the nexus between manifestation of these psychological conditions and exposure to the parents’ religious training is rarely present.

  • 93 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 535, 45 S.Ct. (...)

60Thus, whether the Supreme Court anticipated such abuses or not, it is understandable why it has explained that it is not the duty of the American trial court to homogenize or standardize American youth.93 One social commentator explains it in this way:

The state has no power to intervene against parental control simply to ensure that the child’s development will be “normal.” Likewise, in custody cases where unauthorized religious beliefs are involved, the court cannot constitutionally prefer one parent simply because that parents religious beliefs are more conducive to a child’s “normal” development.

  • 94 R. Collin Mangrum, Exclusive Reliance on Best Interests May Be Unconstitutional: Religion as a Fac (...)

61[W]here religious beliefs merely affect the normalcy of the home environment, particularly as regards civic duties and social opportunities, it would be unconstitutional to consider such beliefs as part of the best interests equation in deciding custody issues.94

  • 95 Clift v. Clift, 346 So.2d 429 (Ala. Civ. App. 1977).

62Thus, the Alabama Civic Appellate Court concluded that “questions regarding the celebration of Christmas and birthdays or relating to participation in the electoral process or military service are not within the ambit of religious views which may reasonably be construed as endangering the mental or physical health of the child.”95

  • 96 Pater v. Pater, supra_note 15 at 797.

63Similarly the Supreme Court of Ohio has explained that “custody may not be denied to a parent solely because she will not encourage her child to salute the flag, celebrate holidays, or participate in extracurricular activities.”96 The Ohio Supreme Court explained:

  • 97 Id. at 799-800.

Appellee is concerned that the child will be socially ostracized and not adequately exposed to ideas other than those endorsed by Jehovah’s Witnesses. We can sympathize with his parental concern for his child, but are concerned that the state not exceed its proper role in resolving what is essentially a dispute between the parents’ religious beliefs. Although the listed activities are those that most people may consider important to the socialization of children, we need to separate the value judgments implicit in the so-called norm from the actual harm caused by these practices. Even if we accept the premise that Jennifer will actually forbid Bobby to celebrate holidays, be involved in extracurricular activities, or salute the flag, these practices do not appear to directly endanger the child’s physical or mental health. A showing that a child’s mental health will be adversely affected requires more than proof that a child will not share in all of the beliefs or social activities of the majority of his or her peers. A child’s social adjustment is very difficult to measure, and the relative importance of various social activities is an extremely subjective matter. For these reasons, a court must base its decision that a particular religious practice will harm the mental health of a child on more than the fact that the child will not participate in certain social activities.97

64The Supreme Court of Ohio assumed that Jennifer would not allow her son to participate in these holidays. It explained in footnote 4:

  • 98 Id. at 799

This very well may be an assumption that we are not entitled to make. Jennifer testified that she was willing to allow Bobby to choose his own religion when he reached a suitable age. She also testified that she would not encourage him to celebrate holidays or salute the flag, and wished to explain to him why she did not do these things. She further testified that Bobby would be allowed to form friendships with other children so long as they were not a bad influence on him and that he could participate in suitable extracurricular activities. The evidence that she would do otherwise is based on the testimony of other Jehovah’s Witnesses and religious publications.98

65In 1995, Watch Tower published the brochure, Jehovah’s Witnesses and Education. Its introduction explains:

This brochure does not seek to impose the Witnesses’ religious views on you or on your students. Our desire is simply to inform you about the principles and beliefs that some of your students are being taught by their parents so that you will find it easier both to understand Witness children and to work with them. Of course, what children are taught and what they do may not always harmonize, as each child is learning to develop his own conscience.

66In the same brochure, under the sub-heading “Religiously Divided Households,” the Watch Tower explains:

  • 99 Watchtower Bible and Tract Society of Pennsylvania, Jehovah’s Witnesses and Education, 24, 25 (199 (...)

In some families, only one parent is a Witness of Jehovah. In such a situation, the Witness parent is encouraged to recognize the right of the non-Witness parent also to instruct the children according to his or her religious convictions. Children exposed to different religious views experience few, if any, ill effects. In practice, all children have to decide what religion they will follow. Naturally, not all youths choose to follow the religious principles of their parents, whether Jehovah’s Witnesses or not.99

67This attitude is similarly reflected in earlier publications. For example, the Awake! Of October 22, 1988, specifically addressed to divorced parents, explained:

  • 100 Acting in Your Child’s Best Interests, Awake!, October 22, 1988, at 12.

Never forget that the child has a right to receive input from both parents. Therefore, it would be shortsighted for one parent to demand prohibitions on a child’s attendance at or participation in the religious, cultural, or social activities of the other parent to take an absolute position on a child’s school and extracurricular activities, association, recreation, or post-secondary education without due consideration for the other parent’s input and the child’s individual choices.100

  • 101 Pater v. Pater, supra note 15, footnote 4 at 799.
  • 102 Id. at 25.

68Thus, when Jennifer Pater testified that she would allow her son Bobby to make his own decision about his activities in school and religious affiliation,101 her testimony was completely consistent with Watch Tower literature as the Jehovah’s Witnesses and Education brochure explains: “No two children are exactly alike. Therefore, you may reasonably expect some variations in the decisions that young Witnesses or other students make when it comes to certain activities and assignments at school. We trust that you also subscribe to the principle of freedom of conscience.”102 Closely connected to social adjustment is the concern for potential harm in the well-known religious practice of Jehovah’s Witnesses to carry their gospel message from door-to-door. Jehovah’s Witnesses take Jesus Christ’s command to preach the gospel seriously. However, the parents on their own initiative decide when and how their family will share in this work.

3.1.5 Alienation Of The Disfellowshipped Parent

  • 103 Col. Dom. Mat. Code. § 14-10-124 (1997) (1.5) In determining the best interests of the child, the (...)
  • 104 Burnham v. Burnham, 208 Neb. 498,304 N.W.2d 58, (Neb. 1981).

69Several states’legislatures require that while both parents have the responsibility to encourage a meaningful relationship between the children and the other parent, this obligation particularly falls on the custodial parent.103) Thus, when one parent’s religious practices teach that the other parent should be shunned or avoided because he left the organization or has been disfellowshipped, expelled, or excommunicated, then the impact of the proposed custodian’s religious practices may become proper consideration for the court. An extreme example is found in a Nebraska case, Burnham v. Burnham.104 The mother belonged to the Trinidine Church of the Fatma Crusaders that considered itself to be the true Catholic Church. Evidence indicated that the Trinidine Catholic Church believed that Jews and Communists had entered into a “master plot” to gain control of the world. The mother testified that if her daughter refused to accept the tenets of the Trinidine Catholic Church that she would break off all communication with her regardless of her age. The mother also viewed her daughter as being illegitimate because the parents were married at the St. Bernard’s Catholic Church and not at the Trinidine Catholic Church. At trial, the court awarded custody of the couple’s only child, a five-year-old daughter, to the mother. On appeal, the Supreme Court of Nebraska reversed that decision with instructions and remanded the case. The Supreme Court of Nebraska explained:

We believe that the following beliefs may have an adverse impact on Jamie: (1) the belief that she is illegitimate; (2) the willingness of Caroline to cut Jamie out of her life if she disobeys the rules of the Trinidine Church; and (3) the racist’s views held by Caroline and, apparently, by her church. Although by holding these views, Caroline has not disqualified herself from being a fit and proper person to have custody of her child. We must take all factors into consideration in determining what is in Jamie’s best interests. We also note that Caroline’s desire to educate Jaime in the Trinidine Church in Coeur d’Alene, Idaho, would interfere with the father’s rights of visitation. There is ample evidence that the father was very close to his daughter. He has the ability and desire to take care of here in the family home. He has stated that he will look after her moral and religious training and enroll her in a Sunday school or something equivalent.

  • 105 Id.

We feel that Caroline’s religious beliefs, if continued in regular practice, which she indicates will be the case, will have a deleterious effect not only on the relationship between a father and his daughter but upon the well-being of the child herself.105

70Based on their understanding of the Scriptures, Jehovah’s Witnesses practice disfellowshipping. The grounds for disfellowshipping are neither trivial nor capricious and are outlined in the Scriptures as described in 1 Corinthians chapter 6, verses 9 and 10:

  • 106 New World Translation.

What! Do YOU not know that unrighteous persons will not inherit God’s kingdom? Do not be misled. Neither fornicators, nor idolaters, nor adulterers, nor men kept for unnatural purposes, nor men who lie with men, nor thieves, nor greedy persons, nor drunkards, nor revilers, nor extortioners will inherit God’s kingdom.106

  • 107 Young People Ask: Should I Confess My Sin?, Awake!, January 22, 1997, at 12.
  • 108 Are You Resisting the Spirit of the World?, The Watchtower, April 4, 1994 at 16: [E]ach year about (...)
  • 109 You Must Be Holy Because I Am Holy, The Watchtower, August 1, 1996 at 13: Even many who are disfel (...)
  • 110 Let Marriage Be Honorable Among All, The Watchtower, February 15, 1993 at 13 Although only a small (...)

71One-time offenses are rarely grounds for disfellowshipping. As Awake! recently explained: “[i]t is true that committing a serious sin makes one liable to disfellowshipping, but not automatically. Disfellowshipping is for those who refuse to repent—who stubbornly refuse to change.”107 According to the Watch Tower Society, each year less than one percent of the members are disfellowshipped.108 Within the same time period, up to forty percent of the number of those disfellowshipped are reinstated, returning to active service and normal involvement in the congregation.109 Immorality and use of tobacco products are the most common grounds for disfellowshipping.110

  • 111 Discipline That Yields Peaceable Fruit, The Watchtower, April 15, 1988 at 28: Yet, since his [or h (...)

72What is the status of the disfellowshipped person? The act of disfellowshipping severs the disfellowshipped person’s spiritual ties to the congregation. Thus, the disfellowshipped person’s privileges in the congregation as an active Witness are interrupted. That change in congregational status, however, does not affect ordinary family interactions.111 When a disfellowshipped Witness and an active Witness are involved in a child custody dispute, the disfellowshipped Witness may attempt to use his severed relationship to the congregation as evidence that the active Witness will not encourage a meaningful relationship between the disfellowshipped witness and the minor child.

  • 112 If A Relative is Disfellowshipped..., The Watchtower, September 15, 1981, at 28. Acting in Your Ch (...)

73Watch Tower literature has consistently made it clear that the filial responsibility of the children to their parents remains intact. In the event that the disfellowshipped parent was aged or otherwise incapacitated, it would be the obligation of the child to provide all necessary care and provisions to accommodate their disfellowshipped parent.112 In the case of divorcing parents, one parent’s disfellowshipped status is not a bar to the children’s continued close and warm relationship with the disfellowshipped parent. As the Awake! of December 8,1997, explained:

  • 113 Child Custody-A Balanced View, Awake!, December 8, 1997, at 11,12.

What, though, if one of the parents is disfellowshipped? Should the Christian parent make the child available for visitation? The disfellowshipping process of the congregation only alters the spiritual relationship between the individual and the Christian congregation. In fact, it severs the spiritual bonds. But the parentchild relationships remains intact. The custodial parent must respect the disfellowhipped parent’s visitation rights.113

3.1.6 Alienation of The Non-Witness Parent

74What if the divorce occurs in a religiously mixed household? Will the fact that one parent is a non-Witness be a hindrance to the child’s continued relationship after divorce? The answer should be no as the Awake!, October 22,1988, encourages readers:

  • 114 Acting in Your Child’s Best Interests, Awake!, October 22, 1988, at 11.
    Ephesians 4:4-6 (Jerusalem (...)

Recognize your child’s emotional ties to both parents. Each parent must respect and honor the other parent’s position in the child’s life for the healthy development of the child’s personality. Try to see positive areas where both of you can contribute to the child’s welfare. Do not conclude that everything an ex-mate does is automatically wrong. It is “the duty of each to enhance the image of the other parent in the eyes and mind of the child, or at least to avoid criticism which might impair it,” explained one Texas court. This requires parents to minimize their personal conflict to make room for the child’s needs.114

75That same edition of the Awake! emphasized a need for Witness and non-Witness parents to respect the right of the child to enjoy cultural and religious influences from both:

  • 115 Acting in Your Child’s Best Interests, Awake!, October 22, 1988, at 12.

Never forget that the child has a right to receive input from both parents. Therefore, it would be shortsighted for one parent to demand prohibitions on a child’s attendance at or participation in the religious, cultural, or social activities of the other parent when the child is with that one. Likewise, it would be inappropriate for a parent to take an absolute position on a child’s school and extracurricular activities, association, recreation or postsecondary education without due consideration for the other parent’s input and the child’s individual choices.115

76From time to time, the non-Witness parent will argue that because Jehovah’s Witnesses believe that they hold the only true religion, the non-Witness parent’s point of view on immorality, spiritual qualities, or other religious views will not be taken seriously. A review of the literature indicates that this line of reasoning is not likely to produce evidence to aid the finder of fact to determine who is the better-fit custodial parent.

  • 116 Ephesians 4:4-6 (Jerusalem Bible) states: “There is one Body, one Spirit, just as you were all cal (...)

77The Bible book of Ephesians indicates that there is “one faith.”116 It is reasonable to conclude that any Bible-reading denomination relying on that verse would believe that his or her religion is a true religion. The concept of salvation of the righteous and the destruction of the wicked is a theme common to all Christian denominations, and it is in fact certainly not limited to Christianity. While the Watch Tower literature has never held back in condemning religious practices that are contrary to the Bible’s teachings, it makes it abundantly clear that Jesus’ words to love our neighbors as ourselves applies to all and not simply to those related to them in faith. As The Watchtower of August 1, 1993, page 19, explains: “Our becoming Christians should not mean that we become unfriendly or unneighborly. Jesus counseled us to manifest genuine interest in others.” In harmony with this, the Awake! Explained:

  • 117 No Part of the World”-What Does It Mean?, Awake!, September 8, 1997, at 13.

“It would be wrong to assume that a person is indecent or immoral simply because he is not acquainted with Bible truths. Circumstances and people vary. Hence, each Christian must decide to what degree he will regulate his contact with unbelievers. However, it would be unnecessary and unscriptural for a Christian to isolate himself physically as Anchorites did or to feel superior as the Pharisees did. In the Bible the term “unbeliever” is at time used to designate non-Christians. However, there is no evidence that the word “unbeliever” was used as an official designation or label. Certainly, it was not used to belittle or denigrate non-Christians, as this would be contrary to Bible principles. Jehovah’s Witnesses today avoid being harsh or arrogant toward unbelievers. They consider it rude to label non-Witness relatives or neighbors with derogatory terms. They follow Bible counsel, which states: “A slave of the Lord... needs to be gentle toward all.”117

78Some have expressed concern that the child exposed to two different belief systems will be confused and thereby harmed. There is no empirical evidence to justify this assumption. There are a variety of studies available that show that exposure to both parents’ religious beliefs can be helpful and stimulating. There is an interesting body of writing addressed to parents who simultaneously expose their children to Christian and Jewish systems. Author Lee F. Gruzen gives the following advice:

Accept the fact that differences are part of the Jewish/Christian experience.... Be patient.... Enjoy what’s common and shared.... Enjoy the diversity....

Here are [four] recommendations that have a special application to today’s interfaith parents raising Jewish/Christian children.

  • 118 Lee F. Gruzen, Raising Your Jewish/christian Child: Wise Choices for Interfatth Parents 36-41, 143 (...)

1. Be clear and honest from the start.... 2. Offer children a fair, informed exposure to both faiths, no matter what religious choices the family has made.... 3. Be prepared for the realities of organized religion.... 4. Last of all, free them for their own choices.118

79On the issue of diversity, Judy Petsonk and Jim Remsen, authors of The Intermarriage Handbook: A Guide for Jews and Christians (1988), encourage their readers to affirm their children’s religious/cultural duality and note the importance of full exposure to both religious and cultural differences in the family. These authors agree that the worst message we can send children of a mixed faith background is that the religious faith of one parent is bad or unimportant. Another author stated:

  • 119 Steven c. Reuben, Raising Jewish Children in a Contemporary World 115 (1992).

Children are confused when parents live lives of denial, confusion, secrecy, and avoidance of religious issues. When parents are open, honest, clear about their own beliefs, values, and patterns of celebration, children grow up with the kind of security and sense of self-worth in the religious realm that is so crucial to the development of their overall self-esteem and knowledge of their place in the world.119

80Similar statements have been expressed by the judiciary in different states. For example, the Supreme Court of Massachusetts noted:

  • 120 Felton v. Felton, 418 N.E.2d 606, 607-08 (Mass. 1981) (citation and footnote omitted).

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 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 experience is itself a sound stimulant for a child. See Smith v. Smith, 90 Ariz. 190, 194, 367 P.2d 230 (1961) (en banc).120

81A Pennsylvania appellate court made a similar expression when it observed:

  • 121 Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa. Super. Ct. 1985) (citation omitted).

It is important for courts to impose restrictions sparingly. Courts ought not to impose restrictions, which unnecessarily shield children from the true nature of their parents unless it can be shown that some detrimental impact will flow from the specific behavior of the parent. The process of children’s maturation requires that they view and evaluate their parents in the bright light of reality. Children who learn their parents’ weaknesses and strengths may be able better to shape lifelong relationships with them.121

CONCLUSION

  • 122 Decision and Order dated April 11, 1994, for Smallhorne v. Smallhorne, No. V-0881-83-A (Family Cou (...)

82All too often, as the cases mentioned in this article indicate, while attempting to serve the child’s best interests, a trial judge endangers the parents’ religious freedom. Not only that, but little regard is given to the rights of the child to receive religious training from both parents, or to exercise his or her own developing spirituality and religious conscience. What is required to protect these interests? As these cases bear out, unnecessary infringement is very often the result of insufficient fact finding and/or reliance on generalization and stereotype. Thus, while some custody evaluators, lawyers, and judges are willing to assume that participation in a non-traditional religious belief system is harmful to the child and may interfere with the child’s socialization to the dominant culture, there is no empirical data to support these conclusions. As one New York trial judge pointed out: “In a pluralistic society, such as the American Experience, it must be anticipated and accepted that there will be divergent views of what is cause for celebration and how such celebration shall be carried on...Cultural accommodation has been our strength.”122

83In addition to these problems with fact-finding, there are often exterior reasons why members of minority religions are likely to feel the displeasure of the dominant culture in a child custody case. Testimony from clinical psychologists as custody evaluators has come to be an acceptable feature in a child custody case. However, when psychologists go beyond their realm of expertise and begin to speculate about potential harm and impact on the child, then adverse psychological testimony is improperly considered as justification for restrictions on visitation or access of the non-custodial parent who is an adherent to a minority faith. When evaluators delve into the reasons for particular belief systems or seek justifications for religious values, they may not only alienate the minority adherent from the evaluation process, but also reduce the likelihood of an open and meaningful exchange so necessary to a competent evaluation.

  • 123 Peterson v. Rogers, supra note 56; Pater v. Pater, supra note 54.
  • 124 Bryan R. Wilson, The Social Dimensions of Sectarianism 19 (1990).

84A second feature that is often present in these cases is the presence of adverse religious testimony from either former Witnesses or members of the clergy.123 The likelihood that such testimony will produce relevant, probative, and objective testimony is so remote that it ought to be excluded in all but the rarest cases. As Bryan Wilson pointed out, the evidence proffered by ex-members should be used with circumspection. Commenting on their reasons for this involvement, Wilson states that often an individual will “rehearse an ‘atrocity story’ to explain how, by manipulation, trickery, coercion, or deceit, he was induced to join or to remain within an organization he now forswears and condemns.”124 The motivation offered in such testimony is rarely to serve the best interests of the child, but to serve the religious interests of a contesting parent.

  • 125 Rodney Stark and Laurence R. Iannaconne, Why the Jehovah’s Witnesses Grow so Rapidly: A Theoretica (...)

85Just as there are relatively few sociological studies about Jehovah’s Witnesses,125 there are relatively few studies about the impact of dual-religious exposure in a child. With so little information available, it is clear that there is a need for more independent and objective research on these critical issues to assist the finders of fact with the necessary resources to confidently determine the best interests of all involved in custody disputes. As we have seen, making such a determination is rarely easy. Leaving personal biases out, being careful to respect the constitutional rights of all involved, and weighing only probative and relevant evidence regarding parental fitness will ensure that, to the full extent possible, the children’s best interests will be genuinely served.

Notes

1 The author wishes to express appreciation for the research and production assistance of Donna Bisbee and Miriam Grozescu

2 Leo Pfeffer, Religion in The Upbringing of Children, 35 Boston U.L.R. 333, 339 (1955).

3 Steven C. Reuben, Raising Jewish Children in a Contemporary World 111. (1992). “[I]n most major centers of Jewish life today, Jews marry non-Jews at a rate of 50 percent or more.”; Eileen Ogintz, A Marriage of Two Faiths, Ladies Home J. 22, 26 (Dec. 1988) reported that the National Conference of Catholic Bishops estimated that 40% of American Catholics marry outside their faith.

4 Religion in America (1992-1993) published by The Princeton Research Center, notes an upward swing in church attendance and confidence in organized religion. In particular, “baby boomers,” those now between the ages of 26 and 45 (43% of the United States population), want their children to receive a religious education. Likewise the study indicates that about one in four adults (23.5%) has changed or contemplates changing from the religion in which they were raised.

5 The New Encyclopædia Britannica Vol. 29,193 (1992).

6 The author has selected the expression “new religious movements” rather than the more pejorative terms such as “sects” or cults” often associated with minority faiths.

7 James T. Richardson, Freedom of Religion and the ‘Cult’ Controversy, 4 Christian Research Ass. Bul., NO. 3, September 1994, at 1:
Freedom of religion is a concept of fairly recent vintage. The idea is generally believed to have evolved as part of the Enlightenment thought, in part because of animosity toward the Catholic Church because of its involvement in religious persecution and efforts to suppress the development of secular knowledge. Freedom of religion has widespread currency today, at least receiving considerable “lip service” from many religious and political leaders.

8 Cantwell v. State of Connecticut. 310 U.S. 296 (1940).

9 Gibson v. United States, 329 U.S. 338 (1946); Estep v. United States, 327 U.S. 114. (1946); Dickinson v. United States, 346 U.S. 389 (1953); Gonzales v. United States, 348 U.S. 407 (1955); Simmons v. United States, 348 U.S. 397 (1955); Sicurella v. United States, 348 U.S. 385 (1955).

10 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943).

11 See e.g., Saumur v. The City of Quebec, (1953) SCR 299; This case defined free exercise of religious rights in Canada before the incorporation of the Charter of Rights.; Lehrman v. Lehrman, C.A. (T.A.) 2266/93 (1993): This case defined the religious rights of minors under UN Convention on Right of Child in Israel.

12 Annotation, Religion as Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971 (1983 & Supp. 1993):
This annotation discusses general principles to be considered by an attorney handling a child custody or visitation case when religion is made an issue. Section 9 contains a discussion of cases in which one parent is one of Jehovah’s Witnesses, considered a minority religion. Section 8 includes a discussion of cases in which one parent was disqualified as custodian because of his or her religious beliefs and practices. These cases involve members of religions such as the Tridentine faith, Christian Scientists, Jehovah’s Witnesses; which are religions which are often also characterized as cults, sects, or non-mainstream.

13 Convention on the Rights of the Child, Article III, Section 1, UN Document A/RES/44/25, (12 December 1989).

14 N.Y. DOM. REL. § LAW 240 (1986)

15 MICH. COMP. LAWS ANN. § 722.23 (West Supp. 1990)

16 WISC. MAR. AND FAM. LAW § 767.24 (West Supp. 1997) (5) provides: The court shall consider the following factors in making its determination: (d) The child’s adjustment to the home, school, religion and community; See e.g., ALASKA, MAR. AND DOM. REL. LAW § 25.24.150 © (West Supp. 1997); MINN. PUB. WEL. § 260.181 Subd. 3 (b).

17 See, i.e., Pater v. Pater, 588 N.E.2d 794 (Ohio 1992); Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. 1990); Osier v. Osier, 410 A.2d 1027 (Maine 1980); Munoz v. Munoz, 489 P.2d 1133 (Wash. 1971).

18 Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the United States 6 (1994).

19 Are. Rev. Stat. Ann. § 25-338(A) (1991); Colo. Rev. Stat. § 14-10-130 (1987); Ga. Code Ann. § 19-9-6(4) (1991); Ill. Comp. Stat. Ann. 43 § 5/608(a) (1993); Mo. Ann Stat. § 452.405 (1); Pa. Cons. Stat. Ann. § 5302 (1991); Tex. Fam. Code Ann. § 12.01, § 14.02 (West Supp. 1993); Wash. Rev. Code § 26.09.184(4a), § 26.20.170 (West Supp. 1993); Wis. State. Ann. § 767.001(2) (a) (2m) (West 1993).

20 Shepherd, Solomon’s Sword: Adjudication of Child Custody Questions, 8 U. Rich L. Rev. 151, 178 (1974): Courts must draw on the knowledge and research of other disciplines such as psychiatry, psychology,... sociology, social work,... so that those fields may demonstrate the extent to which various characteristics of the child and the custodial claimants are significant in achieving the objective of a healthy parent-child relationship.

21 Joseph Goldstein et al, Beyond the Best Interest of the Child 37-38 (1979).

22 Obey v. Degling, 337 N.E.2d 601, 602 (1975); Fountain v. Fountain, 442 N.Y.S.2d. 604, aff’d, 432 N.E.2d 596 (1982).

23 Ind. Fam. Law Ann. § 31-17-2-8 (West’s 1998): In determining the best interests of the child,... [t]he court shall consider all relevant factors including the following: (3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age. See e.g. Minn. Ann. Pub. Wel. § 257.025 (a)(2).; N.M. Stat. Ann. § 40-4-9 (B.).

24 5 Am. Jur. 2d § 662 (1995):
The findings made in the lower court generally may not be set aside on appeal unless they are clearly erroneous, or are unsupported by substantial evidence, or are indisputably wrong, or so inherently impossible or improbable as not entitled to belief, or unless the evidence plainly and decidedly preponderates against them.

25 Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972); Gardini v. Moyer, 575 N.E.2d 423 (Ohio 1991).

26 Watson v. Jones. 80 U.S. (13 Wall.) 679, 728 (1872).

27 Cantwell v. State of Connecticut. 310 U.S. 296 (1940).

28 42 U.S.C.A. § 2000bb, ruled unconstitutional 1997.

29 Sherbert v. Verner, 374 U.S. 398,83 S.Ct. 1790 (1963).

30 City of Boerne v. Flores, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

31 Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990).

32 Id. at 1602.

33 Birch v. Birch, 11 Ohio St. 3d 85,463 N.E.2d 1254 (1984).

34 Robertson v. Robertson, 575 P.2d 1092 (Wash. Ct. App. 1978).

35 Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972).

36 Robertson v. Robertson, supra note 34.

37 Young v. Young, (1989), 24 R.F.L. (3d) 193. (1990), 50 B.C.L.R. (2d) 1, 75, 38. D.L.R. (4 th) H v. F 10 FRNZ 486 (1993); S.L v. S.C. [St-Laurent](1997) 3 S.C.R. 1003.

38 WATCH TOWER BIBLE AND TRACT SOCIETY OF PENNSYLVANIA, JEHOVAH’S WITNESSES PROCLAIMERES OF GOD’S KINGDOM 152-155 (1993) [hereinafter Proclaimers].

39 Isaiah 43:12 (New World Translation): “So YOU are my witnesses,” is the utterance of Jehovah, “and I am God”.

40 Jehovah is the English transliteration of the Hebrew Tetragrammaton that appears more than 7,000 times in the Hebrew and Greek Scriptures.

41 Proclaimers, at 229, 576.

42 Proclaimers, at 683, 724.

43 Watch Tower Bible and Tract Society of Pennsylvania, 1998 Yearbook of Jehovah’s Witnesses 31 (1997). Reports average active members at 5,353,078 and peak attendance at annual Celebration of the Lord’s Death at 14, 322,226.

44 Christine King, The Nazi State and the New Religions 147-179 (1982).

45 William Kaplan, State and Salvation—jehovah’s Witnesses and their Fight for Civil Rights 52-91 (1989).

46 Watch Tower Bible and Tract Society of Pennsylvania, 1985 Yearbook Jehovah’s Witnesses 181-187 (1984).

47 Watch Tower Bible and Tract Society of Pennsylvania, 1983 Yearbook of Jehovah’s Witnesses 67-91 (1982).

48 Singapore—The Right of Association Challenged, Human Rights Without Frontiers, Volume 7, 1996 at 9-11.

49 Are Jehovah’s Witnesses a Cult?, The Watchtower, Feb. 15,1994 at 5:
A government official of the city of St. Petersburg, Russia, explained: “Jehovah’s Witnesses were presented to us as some kind of underground sect sitting in the darkness and slaughtering children and killing themselves.” However, the people of Russia have recently become better acquainted with the true nature of the Witnesses. After working with Jehovah’s Witnesses in connection with an international convention, the same official observed: “Now I see normal, smiling people, even better than many people I know. They are peaceful and calm, and they love one another very much.” He added: “I really do not understand why people tell such lies about them.”
Id. at 6:
“I do not belong to Jehovah’s Witnesses,” wrote a newsman in the Czech Republic. Yet he added: “It is obvious that they [Jehovah’s Witnesses] have tremendous moral strength.... They recognize governmental authorities but believe that only God’s Kingdom is capable of solving all human problems. But watch it—they are not fanatics. They are people who are absorbed in humanity.”
See e.g., From our Readers—Judges and Doctors Respond Awake!, May 8, 1986 at 26-29.

50 Matthew 28:19, 20. (New World Translation).

51 William Shepard McAninch, “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses and the Supreme Court,” 55 University of Cincinnati Law Review No. 4, page 998 (1987).

52 Proclaimers at 678-680.

53 In the Interest of Marcos Reyes, Index No. 6936-C, in the District Court of Taylor County, TX, 326th Judicial District, held on February 13-17, 1989. Oral deposition of Gerald Bergman on December 8, 1988 at 90.

54 Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E.2d 794 (1972).

55 Id. at 800.

56 Petersen v. Rodgers, 433 S.E.2d 770 (NC Ct. App. 1993), reversed on appeal on other grounds 445 S.E.2d 901 (N.C. 1994).

57 Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579, 113 S.Ct. 2786; See, e.g. Fed. R. Evid. § 403.1 which provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

58 Matthew 19:18,19 (Jerusalem Bible): He said: “Which?” “These”: Jesus replied, “You must not kill. You must not commit adultery. You must not steal. You must not bring false witness. Honor your father and mother, and: you must love you neighbor as yourself.”; James 3:14 (Jerusalem Bible): “But if at heart you have the bitterness of jealousy, or a self-seeking ambition, never make any claims for yourself or cover up the truth with lies.”

59Soundness of Mind” as the End Draws Close, The Watchtower, Aug. 15, 1997 at 21:
“Parents are also concerned about the ability of their children to support themselves financially. So give your children guidance, help them to choose appropriate school subjects, and discuss with them whether it is wise to pursue any supplementary education or not. Such decisions are a family responsibility, and others should not criticize the course taken.”

60 Watchtower Bible and Tract Society of New York, Family Care and Medical Management FOR Jehovah’s Witnesses, (1992) at 3 under § Beliefs.

61 Fear of Aids is Only One Reason Some Doctors Are Calling For Bloodless Surgery, Time Magazine, Fall, 1997 at 76: “Even when donor blood is deemed safe, if blood of the wrong group is transfused by mistake, recipients may suffer kidney failure, shock and clotting difficulties. Differences between donor and recipient platelets, white cells and plasma proteins can also cause reactions. Even donating one’s own blood for use during surgery can be hazardous if blood is mishandled. Other factors make bloodless surgery increasingly attractive. Transfusions can suppress the immune system, for example, leaving a patient open to infection, slower healing and a longer recovery time.”

62 Acts 15:29 (King James): That ye abstain from meats offered to idols, and from blood, and from things strangled, and from fornication: from which if ye keep yourselves, ye shall do well. Fare ye well.

63 Garrett v. Garrett, 3 Neb. App. 384, 527 N.W.2d 213 (1995).

64 Id. at 395; See e.g., Pater v. Pater, 63 Ohio St. 3rd 393, 588 N.E.2d 794 (1992); Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert, denied 434 U.S. 1048 (1978); compare Levitsky v. Levitsky, 231 Md. 388, 190 A.2d 621 (1963).

65 Mann, et. al, Changes in Transfusion Practices in Bum Patients, 37 J. TRAUMA 220, 221 (1994): “The threat of transmission of hepatitis and AIDS has become a sobering reality, and serious attention to risks and benefits has become part of the decision-making process when ordering blood products. Similarly, recent evidence associates immunosuppression and postoperative infection with the quantity of banked blood that patients receive.... Recent evidence strongly suggests that blood transfusion correlates positively and independently with the risk of infection in several groups of patients.... The immunosuppresive effects of blood transfusion are now becoming known.... A significant association has been found between perioperative blood transfusion and early recurrence of colorectal cancer.... Finally, the risk of infectious disease transmission through blood transfusions remains a critical issue. The risk of transmission of HIV-1 and HTLV-I/II by transfusion of seronegative blood is now estimated to be 1 in 60,000 units of blood.... The risk of contracting viral hepatitis is estimated at l%-3% of transfusion recipients.”

66 Report on the Presidential Commission on Human Immunodeficiency Virus Epidemic, June, 1988, p. 79.

67 Watch Tower Bible and Tract Society of Pennsylvania, Reasoning from the Scriptures, (Watchtower Bible and Tract Society of New York, Inc. 1989), page 199.

68 Redman, et. al. v. Watch Tower Bible and Tract Society of Pennsylvania, et al., No. 91-WD-071, 1992 WL 193533 (Ohio App. 6th Dist. Aug. 14, 1992), cert granted, 604 N.E.2d 168 (Ohio Dec. 18,1992) (No. 92-2041).

69 Id. at 6.

70 Questions From Readers, The Watchtower, June 1, 1960 at 352.

71 Subjection to “Superior Authorities”—Why? The Watchtower, Nov. 15,1962 at 685: When Christians subject themselves to existing visible, earthly, human governments or “superior authorities,”... they are obeying God’s command.

72 In The World, but No Part of It, The Watchtower, Nov. 1, 1997 at 16.

73 In What Ways Can We Become Imitators of God?, The Watchtower, Mar. 1, 1974 at 152.

74 Paying Back Caesar’s Things to Caesar, The Watchtower, May 1, 1996 at 17.

75 Honor Men of All Sorts, The Watchtower, Feb. 1, 1991 at 21.

76 Freedom of Worship—When Should It Be Granted?, Awake!, Feb. 8,1977 at 9.

77 Julia M. Corbett, Religion IN America 152-153 (3d Ed. 1996).

78 Sam Rubin, But How Will You Raise the Children? 228-229 (1987); See also Jason S. Marks, The Solomonic Paradox Revisited: Should Custody Proceedings Determine a Child’s Religion?, 33 Santa Clara L. Rev. 313-339 (1993).

79 James T. Richardson, Definition of Cults: From Sociological-Technical to Popular-Negative, 34 Review OF Religious Research 348, 355 (June 1993).

80 (New World Translation) “The one holding back his rod is hating his son, but the one loving him is he that does look for him with discipline.”

81 Sacred Service With Your Power of Reason, The Watchtower, June 15, 1995, at 19-29.

82 Learn Obedience by Accepting Discipline, The Watchtower, Oct. 1, 1992, at 29.

83 A Book From God, The Watchtower, Apr. 1, 1998 at 18.

84 Stolarick v. Novak, 584 A.2d 1034 (Pa. Super. Ct. 1991).

85 Id. at 1036.

86 Id.

87 Id. at 1037.

88 527 So.2d 820 (Fla. Dist. Ct. App. 1987),(per curiam), cert denied, 485 U.S. 942, reh’g denied, 485 U.S. 1030 (1988).

89 Id. at 824.

90 See Record at 9, Mendez (No. 84-34049 FC).

91 See Record at 56, Mendez (No. 84-34049 FC).

92 J. Goldstein, et.al., beyond the best interests of the child 51-52(1979).

93 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 535, 45 S.Ct. 571, 573 (1925). The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

94 R. Collin Mangrum, Exclusive Reliance on Best Interests May Be Unconstitutional: Religion as a Factor in Child Custody Cases, 15 Creighton L. Rev. 25,72-73 (1981)

95 Clift v. Clift, 346 So.2d 429 (Ala. Civ. App. 1977).

96 Pater v. Pater, supra_note 15 at 797.

97 Id. at 799-800.

98 Id. at 799

99 Watchtower Bible and Tract Society of Pennsylvania, Jehovah’s Witnesses and Education, 24, 25 (1995).

100 Acting in Your Child’s Best Interests, Awake!, October 22, 1988, at 12.

101 Pater v. Pater, supra note 15, footnote 4 at 799.

102 Id. at 25.

103 Col. Dom. Mat. Code. § 14-10-124 (1997) (1.5) In determining the best interests of the child, the court shall consider all relevant factors, including: (f) The ability of the custodian to encourage the sharing of love, affection, and contact between the child and the noncustodial party.; Fla. Stat. Ann. § 61.13 (2)(b) It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.; Ill. Com. Stat. § 750 5/602 (a)(8) The court shall consider all relevant factors including: the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. See e.g. In re Marriage of Dobey, 629 N.E.2d 812, 815 (111. App. 4 Dist., 1994) [T]he custodial parent has the duty to strengthen and nurture in every way possible the relationship between the children and their non-custodial parent.; Schutz v. Schutz, 581 So.2d 1290 (Fla., 1990):
“[A] custodial parent has an affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent... This obligation may be met by encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visit and otherwise have frequent and continuing contact with the noncustodial parent and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction.”

104 Burnham v. Burnham, 208 Neb. 498,304 N.W.2d 58, (Neb. 1981).

105 Id.

106 New World Translation.

107 Young People Ask: Should I Confess My Sin?, Awake!, January 22, 1997, at 12.

108 Are You Resisting the Spirit of the World?, The Watchtower, April 4, 1994 at 16: [E]ach year about 40,000 individuals are disfellowshipped from Jehovah’s organization.

109 You Must Be Holy Because I Am Holy, The Watchtower, August 1, 1996 at 13: Even many who are disfellowshipped because of lack of repentance eventually come to their senses and are reestablished in the congregation.; Let Marriage Be Honorable Among All, The Watchtower, February 15, 1993 at 13: On the positive side, a large proportion of those disfellowshipped eventually recognize their errors, resume a clean way of life, and in time are reinstated in the congregation.

110 Let Marriage Be Honorable Among All, The Watchtower, February 15, 1993 at 13 Although only a small proportion of Christians are affected, it has to be recognized that the majority of cases of disfellowshipping from the ranks of Jehovah’s Witnesses for unrepentant conduct unbecoming a Christian are related to some form of sexual immorality

111 Discipline That Yields Peaceable Fruit, The Watchtower, April 15, 1988 at 28: Yet, since his [or her] being disfellowshipped does not end their blood ties or marriage relationship, normal family affections and dealings can continue.; Child Custody-A Balanced View, Awake!, December 8, 1997 at 11: The disfellowshipping process of the congregation only alters the spiritual relationship between the individual and the Christian congregation. In fact, it severs the spiritual bonds. But the parent-child relationship remains intact. The custodial parent must respect the disfellowshipped parent’s visitation rights.

112 If A Relative is Disfellowshipped..., The Watchtower, September 15, 1981, at 28. Acting in Your Child’s Best Interests, Awake!, October 22, 1988, at 11.

113 Child Custody-A Balanced View, Awake!, December 8, 1997, at 11,12.

114 Acting in Your Child’s Best Interests, Awake!, October 22, 1988, at 11.
Ephesians 4:4-6 (Jerusalem Bible) states: “There is one Body, one Spirit, just as you were all called into one and the same hope when you were called. There is one Lord, one Faith, one baptism, and one God who is Father of all, over all, through all and within all.”

115 Acting in Your Child’s Best Interests, Awake!, October 22, 1988, at 12.

116 Ephesians 4:4-6 (Jerusalem Bible) states: “There is one Body, one Spirit, just as you were all called into one and the same hope when you were called. There is one Lord, one Faith, one baptism, and one God who is Father of all, over all, through all and within all.”

117 No Part of the World”-What Does It Mean?, Awake!, September 8, 1997, at 13.

118 Lee F. Gruzen, Raising Your Jewish/christian Child: Wise Choices for Interfatth Parents 36-41, 143-149 (1987).

119 Steven c. Reuben, Raising Jewish Children in a Contemporary World 115 (1992).

120 Felton v. Felton, 418 N.E.2d 606, 607-08 (Mass. 1981) (citation and footnote omitted).

121 Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa. Super. Ct. 1985) (citation omitted).

122 Decision and Order dated April 11, 1994, for Smallhorne v. Smallhorne, No. V-0881-83-A (Family Court, Green County, New York).

123 Peterson v. Rogers, supra note 56; Pater v. Pater, supra note 54.

124 Bryan R. Wilson, The Social Dimensions of Sectarianism 19 (1990).

125 Rodney Stark and Laurence R. Iannaconne, Why the Jehovah’s Witnesses Grow so Rapidly: A Theoretical Application, Journal of Contemporary Religion, Vol. 12, No. 2, 1997.

Auteur

Associate General Counsel Legal Department Watch Tower Bible and Tract Society New York

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