Divide

by Deborah Baxtrom, a freelance writer living in Los Angeles, Calif.

 

Evangelist John Wayne "Punkin" Brown picked up the three‑foot yellow timber rattlesnake while delivering one of his raucous sermons in Alabama in 1998.

 

"They say it won't bite," Brown bellowed as the rattler twisted itself into the shape of a V. "If it won't bite, there ain't no sense in being scared." But he had been bitten 22 times during his 18‑year career as a "snake‑handling" pastor of Southern Pentecostal churches.

 

"The Lord told me it was all right," Brown continued. "The Lord said it would be all right." But he knew things didn't always turn out "all right." His wife, Melinda, had been fatally bitten by a rattlesnake at a revival three years earlier.

 

Then, as the preacher hopped across the stage, history repeated itself. The rattler struck, biting Brown on his left middle finger. The ‑preacher paid little attention to the bite, and it took a while for the congregation to grasp the sad situation unfolding before them.

 

"God's still God, no matter what comes," said Brown, his voice fading. A woman in the congregation screamed, and other members anxiously mopped the dying preacher's forehead. "No matter what else, God's still God." Ten minutes later Brown was dead, and his five young children had become orphans.

 

Brown had been given custody of his children after his wife's death. But custody had been granted under two conditions‑that he would agree not to keep poisonous snakes in his house, and that the children would not be allowed to attend snake‑handling services. He defied those orders, sincerely believing he was doing God's will, even though the children had been known to wake up screaming from terrifying nightmares about snakes.

 

While their father's death was a devastating tragedy, it offered an opportunity for the children to be freed from exposure to dangerous vipers. Instead they became pawns in a custody battle between their grandparents. While their maternal grandmother wanted to keep them as far away from snakes as possible, their paternal grandparents ran a snake‑handling church of their own.

 

This case presented unusual circumstances. Most people would probably agree that the Brown children would be best placed in the custody of a grandparent who would keep them away from poisonous serpents. Virtually every U.S. court makes the child's best interests, particularly personal safety, the top priority when deciding child custody cases. But what if a judge or jury had a bias against an unpopular or misunderstood religion? Might a court find that being raised in a particular faith was not in the child's "best interests," possibly even dangerous?

 

Personal and societal prejudices often come into play in custody battles. Court decisions in cases involving religion have varied widely, depending upon differing state laws and the personal opinions of judges and jurors.

 

A Florida case illustrates just how subjective these matters can be. Rita and Ignacio Mendez both considered themselves Catholics when they married. Neither actively participated in the Catholic religion, yet their marriage was severely disrupted when Rita later became a practicing Jehovah's Witness. When she refused to give up her religion, Ignacio sued for divorce and custody of the couple's daughter, Rebecca.

 

Ignacio argued that it was not in Rebecca's best interests to be raised as a Jehovah's Witness, because Witnesses were "totally different" and "against society." No one involved in the case disputed the fact that Rebecca was far more attached to Rita than to Ignacio, or that the child would be traumatized if she could not continue living with her mother. Expert witnesses even testified that Ignacio would not be a desirable custodial parent because his job required him to travel frequently, and he was planning to move in with his mother and sisters so they could take care of Rebecca if he were awarded custody.

 

There was little doubt that under "normal" circumstances, Rita would probably have been awarded custody of Rebecca, but in the end, the court's decision was to grant custody to Ignacio.

 

The testimony of two psychologists played a large role in determining this outcome. One witness, Dr. Richard Greenbaum, had this to say: "As a Jehovah's Witness, she [Rebecca] 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."

 

The second psychologist, Dr. Eli Levy, testified that he would not recommend Ignacio as a custodial parent. However, he also said that "living in this society, she [Rebecca] needs to adapt herself to the mainstream of culture. She is growing up, and it is not a country of Jehovah's Witnesses. If the majority of the country were 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 in living in this culture. I believe that being raised a Jehovah's Witness would not be in the best interest of the child, given the fact that the principles, the way I understand them, do not fit in the Western way of life in this society."

 

Rita later appealed the trial court's decision, but the appellate court stated that the trial court did indeed have the right to consider the conflicting religious beliefs of the parents in child custody cases. They considered the Mendez case "quite ordinary." Still, three of the nine judges involved in the case dissented. Judge Baskin's dissent stated that "what does emerge from the record is a demonstration of the experts' personal biases against the mother's religion. 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 .... To be forced to choose between one's religion and one's child is repugnant to a society based on constitutional principles. The soft voice of the minority should be audible to a responsible court sensitive to constitutional rights, which include the right to practice an unpopular religion:'

 

In a similar case in Nebraska, it was the father, Edward LeDoux, who coincidentally also became a Jehovah's Witness (although it should be noted that any minority religion could face similar obstacles). In this case, the trial court awarded custody of the couple's children to Diane LeDoux and Edward was ordered not to "expose or permit himself or any other person to expose the minor children of the parties to any religious practices or teachings that are inconsistent with the religious teachings espoused by the appellee [Diane], being the Catholic religion by which the children are being raised."

 

Upon appeal, the Nebraska Supreme Court agreed with this decision, stating that "the order of the trial court is narrowly tailored in that it imposes the least possible intrusion upon Edward LeDoux's right of free exercise of religion and the custodial mother's right to control the religious training of a child .... The appellant [Edward] is free to discuss beliefs of the Jehovah's Witnesses with his children so long as they are consistent with the Catholic religion."

 

A Pennsylvania case involving David and Pamela Zummo offered a somewhat different scenario. At the time of their marriage David was a Roman Catholic, although he seldom attended church. Pamela practiced the Jewish religion. Since Pamela was actively involved in her synagogue, both parents agreed that the children should be raised according to the Jewish faith. When they later divorced, Pamela was given custody of the couple's children, but two of the court's rulings regarding religion led to further proceedings.

 

The trial court ordered that David could not take his children to religious services outside the Jewish faith during his weekend visitations, but that he was required to bring them to synagogue each week that they were in his care. He appealed, claiming his First Amendment rights had been violated.

 

Most U.S. courts rule that the parent who has custody of the children has the right to determine the child's religion, but the Zummo case questioned whether this right was exclusive or had to be shared with the noncustodial parent.

 

The Superior Court of Pennsylvania agreed with David on the first point during the appellate proceedings, ruling that the restriction bar him from taking his children to non‑Jewish services was unconstitutional. On the second point, however, the appellate court held that the requirement ordering David to take his children to synagogue was valid.

 

This case indicated that in Pennsylvania the right of the custodial parent to decide the religion of their children is not exclusive. This is seemingly good news for parents who practice minority religions, at least in the state of Pennsylvania.

 

Clearly, different states have different standards when dealing with the religious rights of parents fighting for custody of their children. In a case in California, the religious beliefs of the parents were not allowed to be heard at all unless the opposing side could prove "actual impairment of physical, emotional, and mental well-being contrary to the best interests of the child." Another California court required a "clear affirmative showing that religious activities will be harmful to the child." Rulings in other states have fallen somewhere between the California rulings and the opposite viewpoint expressed by the Florida court in the Mendez case.

 

Unfortunately, .the United Sates Supreme Court has not agreed to hear any cases involving religious disputes in relation to child custody cases that could offer a fair standard (the High Court declined the Mendez case). But the Supreme Court of Maine in Osier v. Osier did offer what may be the fairest standard yet when dealing with such cases. In his article titled "Religious Freedom Issues in Domestic Relations Law," attorney Mitchell A. Tyner wrote:

 

"The Osier test requires the trial court to make a preliminary determination of the preferred custodial parent without considering either parent's religious practices. If the result is the selection of the parent whose religious practices are not in issue, the process ends. If the result is the selection of the other parent, the court may then take into account the effect on the child of the challenged religious practices, using a two‑part analysis:

 

"First, in order to assure itself that there exists a factual situation necessitating such infringement, the court must make a threshold factual determination that the child's temporal well-being is immediately and substantially endangered by the religious practice in question and, if that threshold determination is made, second, the court must engage in a deliberate and articulated balancing of the conflicting interests involved, to the end that its custody order makes the least possible infringement upon the parent's liberty interests consistent with the child's well‑being. In carrying out that two‑stage analysis, the trial court should make, on the basis of record evidence, specific findings of fact concerning its evaluation of all relevant considerations bearing upon its ultimate custody order."

 

If such a standard were universally applied, Punkin Brown's children might still have gone to live with their maternal grandmother if it had been shown that their physical and emotional well‑being were threatened in the home of their snake‑handling paternal grandparents. Appropriately, the child's best interests are still considered the highest importance under this standard.

 

However, if Rita Mendez had been residing in Maine and the case had been decided by the judge who decided the Osier case, and even allowing for additional "ifs," it's highly probable that Rita would have been granted custody of her daughter.

 

Unfortunately, until a standard is set that fairly considers the interests of all parties involved, it appears that a parent who practices a minority religion will have to rely on logistics and luck when facing a child custody battle.