Felton v. Felton

Decision Date31 March 1981
Citation383 Mass. 232,418 N.E.2d 606
Parties, 22 A.L.R.4th 961 Diane Carol Palmer FELTON v. Wayne Fraser FELTON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Alan M. Katz, Arlington, for defendant.

Guy R. Peznola, Springfield, for plaintiff.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

KAPLAN, Justice.

Here is the case in outline. After divorce, custody of the two children of the marriage was granted to the mother, with visitation rights to the father. The mother, a member of a Congregational church, later complained that the father, who had become a Jehovah's Witness, was indoctrinating the children in that faith, and that this confused and disoriented the children and in some degree alienated them from her. A judge of the Probate Court entered judgment modifying the visitation provisions of the divorce judgment in effect to forbid visitation unless the father refrained from instructing the children in his religion. The father appealed, and we transferred the case here on our own motion for direct review. Holding that the evidence brought forward was not sufficient to support the judge's disposition, we reverse the judgment and remand for further proceedings (if the mother should elect) at which the facts, including particularly those bearing on the physical and emotional consequences to the children, may be more fully developed.

1. The question whether or how to accommodate diverse religious practices of parents, living apart, in the upbringing of minor children, is a not unfamiliar one in State courts, but has not had much attention here. Typical is the approach taken in a recent case, In re Marriage of Murga, 103 Cal.App.3d 498, 504-505, 163 Cal.Rptr. 79 (1980): "(T)he courts have refused to restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child. (Citations omitted.) The refusal to intervene in the absence of a showing of harm to the child reflects the protected nature of religious activities and expressions of belief, as well as the proscription against preferring one religion over another. (Citations omitted.)"

To enlarge on this. The parents together have freedom of religious expression and practice which enters into their liberty to manage the familial relationships. See Custody of a Minor, 375 Mass. 733, 747-748, 379 N.E.2d 1053 (1978); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Developments in the Law The Constitution and the Family, 93 Harv.L.Rev. 1156, 1161-1168 (1980). But the "best interests" of the child are to be promoted, and when the parents are at odds, the attainment of that purpose may involve some limitation of the liberties of one or other of the parents. See Miller v. Hedrick, 158 Cal.App.2d 281, 285, 322 P.2d 231 (1958); Morris v. Morris, --- Pa.Super. ---, ---, 412 A.2d 139, 143 (1979). Cf. Vilakazi v. Maxie, 371 Mass. 406, 409, 357 N.Ed.2d 763 (1976); Prince v. Massachusetts, 321 U.S. 158, 166-167, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). However, harm to the child from conflicting religious instructions or practices, which would justify such a limitation, should not be simply assumed or surmised; it must be demonstrated in detail. See Lewis v. Lewis, 260 Ark. 691, 693, 543 S.W.2d 222 (1976); Compton v. Gilmore, 98 Idaho 190, 192, 560 P.2d 861 (1977); Pope v. Pope, 267 S.W.2d 340, 343 (Mo.App.1954); Goodman v. Goodman, 180 Neb. 83, 88-89, 141 N.W.2d 445 (1966); Munoz v. Munoz, 79 Wash.2d 810, 813, 489 P.2d 1133 (1971). But cf. Boerger v. Boerger, 26 N.J.Super. 90, 104, 97 A.2d 419 (1953).

If the dominating goal of the enterprise is to serve a child's best interests, as the cases asseverate (see Vilakazi v. Maxie, supra, 371 Mass. at 409, 357 N.E.2d 763; cf. G.L. c. 208, § 31 (as to awards of custody)), then it might be thought to follow that a policy of stability or repose should be adopted by which the child would be exposed to but one religion (presumably that of the custodial parent) at whatever cost to the "liberties" of the other parent. 1 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 (Murga, supra, 103 Cal.App.3d at 503, 163 Cal.Rptr. 79, quoting from Cal.Civ.Code § 4600 (West 1981)) and thus contact with the parents' separate religious preferences. 2 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). In all events, the question that comes to the courts is whether, in particular circumstances, such exposures are disturbing a child to its substantial injury, physical or emotional, and will have a like harmful tendency for the future. See Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp.Prob. 226, 251-252 (No. 3, 1975). The critical literature warns against perverting a quest for the child's best interests into one for the psychic comfort of the parents a warning against overvaluing the parents' constitutional liberties. See Henszey, Visitation by a Non-Custodial Parent: What Is the "Best Interest" Doctrine?, 15 J.Fam.L. 213 (1976-1977). Cf. Quiner v. Quiner, 59 Cal.Rptr. 503, 519-520 (Ct.App.1967) (Herndon, J., dissenting). A warning is equally in order against depriving a parent of all connection with the child, or connection on the religious plane, out of an exaggerated fear of injury to the child. See Note, The Religious Upbringing of Children After Divorce, 56 Notre Dame Law. 160, 171 (1980); Developments in the Law, supra, 93 Harv.L.Rev. at 1340. It is often said that if accommodation appears necessary, that form should be sought which intrudes least on the religious inclinations of either parent and is yet compatible with the health of the child. 3

2. The parents at bar, Diane and Wayne Felton, were married in September, 1967, at the respective ages of twenty and twenty-three. Deborah was born to them in March, 1971, and Jennifer in May, 1974. Wayne began to live apart from the family in April, 1976, on an informal arrangement that left custody with Diane and allowed liberal visitation to Wayne. The divorce judgment nisi of June 1, 1977, continued custody and visitation on a similar agreed basis. 4 The orientation of the family had been Protestant, and what religious experience or training the children received was at the Foster Memorial Church (Congregational) in Springfield.

Sometime in summer or fall, 1976, soon after the separation, Wayne became interested in the Jehovah's Witnesses, which on this record may be described as a Protestant sect of fundamentalist doctrine with strict attachment to the Biblical texts. 5 By the time the divorce judgment became absolute in December, 1977, Wayne was committed to these precepts, a commitment probably strengthened by his marriage to Gail, a Jehovah's Witness, in the same month. It was not until May, 1978, however, that he took the step of being baptized as a Witness.

According to Diane's later testimony, she knew of Wayne's new religious interest around the time of the separation. In the last months of 1977 she became apprehensive of the effect on the children of the religious instruction imparted to them by their father during the periods of visitation. She remonstrated with Wayne about this in October or November, 1977. There was an abortive effort, about mid-March, 1978, for the two to meet to discuss the matter. When, on April 8, 1978, Wayne and Gail, on a visitation day, took the children to a lengthy "family" convention of Jehovah's Witnesses, Diane decided to take a firm stand and refused to allow further visitation, permitting Wayne only weekly telephone conversations with the children. On April 28, 1978, Wayne commenced contempt proceedings against Diane, in response to which Diane sought a change of the visitation part of the divorce judgment. Following a pretrial conference, the probate judge on January 11, 1979, made an interim order suspending Wayne's visitation rights. An evidential hearing took place on January 30, 1979, resulting in dismissal of the contempt application and entry of judgment the same day: 6 "(S)aid defendant (Wayne Felton) shall hereafter have the right to visit and to take Deborah Jean Felton and Jennifer Lynn Felton, minor children of said parties, at reasonable times, provided that he refrains from giving his children any religious training or education which shall be in conflict or contrary with the religious training and beliefs of the custodial parent." This on its face would require subtle interpretation and raise infinite difficulties of enforcement, but the intent in substance was to forbid religious instruction of the children by Wayne or his involving them in religious practice. 7

The hearing had rambled through many pages of transcript. 8 When the mere chatter or banter is put aside, we find a relatively small bundle of relevant material. From Diane's testimony it appeared that she disliked what she took to be Jehovah's Witnesses' doctrine and style, and her negative feelings were probably communicated to the then seven-year old Deborah (Jennifer at age four hardly figured). What especially concerned Diane was that the Witnesses did not celebrate birthdays, Christmas included, and regarded Halloween and Santa Claus as atavisms to be shunned. So also the...

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